McGuinness v. Dubois ( 1996 )

USCA1 Opinion

          June 5, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-1801





                                 BRENDAN MCGUINNESS,



                                Plaintiff, Appellant,



                                          v.



                             LARRY DUBOIS, ETC., ET AL.,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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            Brendan M. McGuinness on brief pro se.
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            Nancy Ankers  White, Special  Assistant Attorney General,  William
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        D. Saltzman and Rosemary Ford on brief for appellees.
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                 Per Curiam.  Brendan McGuinness has filed an appeal from
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            two separate actions,  filed pursuant  to 42  U.S.C.    1983,



            which  were consolidated in the district court.  The district



            court  rulings can be found  at McGuinness v.  Dubois, 891 F.
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            Supp. 25 (D.  Mass. 1995)  and McGuinness v.  Dubois, 893  F.
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            Supp. 2 (D. Mass. 1995).  Upon careful review of the parties'



            briefs and the record on appeal, we affirm.



            1.   McGuinness has appealed the grant of summary judgment in



            favor of the defendant prison officials on his two-part claim



            that his  six-month confinement  (imposed for his  attempt to



            flush his sweatshirt down his cell  toilet) to the Department



            Disciplinary Unit (the DDU) at the Massachusetts Correctional



            Institute at Cedar Junction violated Mass. Gen. L. ch. 127,



            401  [hereinafter  "the   isolation  statute"]  because   (i)
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            conditions  in   the  DDU  amount  to   isolation  and  their



            application  in  excess of  15  days  violates the  isolation



            statute  and (ii) confinement to  the DDU is for disciplinary



            purposes and, thus pursuant  to that statute, confinement may



            not exceed 15  days for any one offense.   The district court




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               1Mass. Gen. L. ch. 127,   40 states:
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                           For  the enforcement  of discipline,

                      an inmate in any correctional institution

                      of   the   commonwealth   may,   at   the

                      discretion  of   its  superintendent,  be

                      confined,  for  a  period  not  to exceed

                      fifteen days for  any one offence,  to an

                      isolation unit.

                           Such  isolation  units must  provide

                      light, ventilation  and adequate sanitary

                      facilities,  may  contain  a  minimum  of

                      furniture, and shall provide at least one

                      full meal daily.



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            concluded  that  isolation and  confinement  in  the DDU  are



            distinct  forms of incarceration  authorized by  statute and,



            thus,  McGuinness'  six-month  term  of  confinement  did not



            impermissibly   conflict   with   the    isolation   statute.



            McGuinness v. Dubois, 891 F. Supp. at 27-29.
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                 We  affirm, but on a different  ground.  Medina-Munoz v.
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            R.J. Reynolds Tobacco Co., 896 F.2d 5, 7 (1st Cir. 1990)  (in
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            reviewing a  summary  judgment, a  court  of appeals  is  not



            limited to  the district court's reasoning, but may affirm on



            any independently sufficient  ground).  McGuinness'  argument



            on  appeal  is  a  straightforward claim,  unadorned  by  any



            reference  to constitutional  underpinnings, that  the prison



            regulation  authorizing a sentence to the DDU in excess of 15



            days, see 103 CMR 430.25(3)(d), violates state law.  However,
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            "[m]erely  erroneous  applications of  state statutes  do not



            present a  question  of federal  constitutional magnitude  as



            long  as there is an adequate state remedy."  Colon-Rivera v.
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            Puerto Rico Dep't of Soc. Serv., 736 F.2d 804, 806 (1st  Cir.
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            1984)  (per  curiam), cert.  denied,  469  U.S. 1112  (1985).
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            There  is no evidence, indeed no contention, of an inadequate



            state remedy  in  this  case.   See  also Coyne  v.  City  of
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            Somerville, 972 F.2d 440, 444 (1st Cir. 1992) ("It is bedrock
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            law  in this circuit, however, that violations of state law -



            even where arbitrary, capricious,  or undertaken in bad faith











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            -  do not, without more,  give rise to  denial of substantive



            due process under the U.S. Constitution.").



            2.   McGuinness has also appealed the district court's ruling



            that the defendants are entitled to qualified immunity on his



            claim that the  denial of  his request for  witnesses at  his



            April 7, 1993 prison disciplinary hearing (for his assault of



            a  prison guard) violated due  process -- a  ruling that also



            permitted the defendants to rehear  that disciplinary matter.



            McGuinness  v. Dubois, 891 F. Supp. at 31-36.  The defendants
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            have  not  appealed the  grant of  a declaratory  judgment in



            McGuinness' favor that  held that they had violated  a prison



            regulation, which  the district  court construed as  a state-



            created liberty interest protected  by the Due Process Clause



            and which the court  interpreted to require an individualized



            assessment  regarding  whether  calling a  particular  inmate



            witness would be unduly  hazardous to institutional safety or



            correctional goals.  We have  no cause, therefore, to  review



            that declaratory  judgment.  But see McGuinness v. Dubois, 75
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            F.3d 794, 798-800 (1st Cir. 1996) (per curiam) (reserving the



            question  whether  reliance  on  an  across-the-board  prison



            policy  denying  requests  for live  testimony  from  general



            population  inmates  at  disciplinary  hearings   held  in  a



            segregated  wing violates  federal  due process  and, on  the



            facts of the  case, reversing  the court's finding  of a  due











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            process  violation).2   But,  as  our own  recitation  of the
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            state  of the  law reveals  a  less than  clearly established



            constitutional right of which a reasonable officer would have



            known,  see id. at 799-800,  we conclude that,  in any event,
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            the  district court's  conclusion  that  the  defendants  are



            entitled to qualified immunity is correct.  And,  we perceive



            neither  error  nor abuse  of  discretion  in permitting  the



            defendants to rehear the disciplinary matter.



            3.   Finally, McGuinness appeals  the district court's ruling



            that the defendants are entitled to qualified immunity on his



            claim  that the  deprivation  of "yard-time,"  which, due  to



            McGuinness' repetitive  recalcitrant behavior, resulted  in a



            cumulative sanction  of approximately one year,  violated the



            Eighth  Amendment.   We affirm,  essentially for  the reasons



            stated  in  the  district  court's opinion.    McGuinness  v.
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            Dubois, 893 F. Supp. at 3-4.
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                 Affirmed.
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               2Our opinion  in McGuinness v.  Dubois, 75  F.3d 794  (1st
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            Cir.  1996) (per  curiam) issued  after the  district court's

            rulings underlying the current appeal.



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