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USCA1 Opinion
April 8, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1566
FRED WOODARD,
Plaintiff, Appellant,
v.
ROBERT P. GITTENS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Fred Woodard on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and Joel
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J. Berner on brief for appellees.
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Per Curiam. The judgment of the district court is
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affirmed substantially for the reasons stated in the district
court's April 29, 1993 memorandum and order.
In addition, we must consider one claim that the
district court did not specifically address in its opinion.
Woodard alleged that even though applicable Department of
Correction regulations were not changed until 1987 to delete
Alcoholics Anonymous and drug counseling from the list of
programs for which prisoners could get good-time credit, in
1981 the Department of Correction issued a policy memorandum
eliminating good-time credit for these programs. From 1981
or 1982 to 1987, the Department followed this memorandum, not
the regulations.
Woodard further alleged, and defendants have not
disputed, that the Massachusetts Superior Court ruled in a
1991 case (cited by Woodard as Cleary v. Rakie, no. 90-6387
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(Middlesex Super. Ct. 1991) (unpublished)), that this 1981-87
practice had been improper because it contravened the then-
governing regulations. The court allegedly directed the
Department to comply with the regulatory mandate and
retroactively award prisoners good-time credit for
satisfactory participation in these programs during the 1981-
87 period. Neither party has supplied this court with a copy
of the Superior Court decision, which is not in the record.
Woodard filed as an attachment below a March 18,
1992 memorandum from defendant DuBois, the Commissioner of
Correction, advising corrections personnel, "Recently, the
Middlesex Superior Court issued a decision declaring invalid
the Department of Correction's 1981 policy memorandum which
made certain programs ineligible for earned good time
credits." The memorandum directed corrections personnel to
"begin on or before March 27, 1992" to recalculate good-time
credit and release dates for each inmate to reflect
appropriate credit for participation in these programs during
the 1982-87 period. This March 27 deadline was less than two
weeks before Woodard's release from prison on April 8, 1992.
Woodard alleges that his release date was never recalculated.
On this basis, Woodard argues that the denial of
good-time credit for participation in these programs during
1981-87, in apparent contravention of applicable regulations,
violated his constitutional rights. We disagree.
The Department's 1981 policy memorandum, whatever
its status under state law, did not violate the ex post facto
clause of the Constitution, art. 1, 10, cl. 1, for the same
reasons -- stated by the district court -- that the 1987
change in the regulations did not. After the 1981 policy
memorandum, Woodard remained eligible for exactly the same
total amount of good-time credit, for participation in a wide
range of available programs, as he had been before. All that
changed was that he had to select programs other than
Alcoholics Anonymous and drug counseling to earn such credit.
Consequently, the unavailability of these particular programs
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did not establish a regime that was more onerous to him. For
that reason, the 1981 policy memorandum, like the 1987
regulations, did not "substantially alter . . . the
consequences attached to a crime already completed, and
therefore change . . . 'the quantum of punishment.'" Weaver
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v. Graham, 450 U.S. 24, 33 (1981) (quoting Dobbert v.
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Florida, 432 U.S. 282, 293-94 (1977)).
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Since 1983 requires violation of a federal
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constitutional or statutory right, mere failure properly to
follow state law or regulations cannot provide the basis for
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a 1983 claim. See Pennhurst State School & Hosp. v.
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Halderman, 465 U.S. 89, 106 (1984); Quintero de Quintero v.
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Aponte-Roque, 974 F.2d 226, 230 (1st Cir. 1992). The
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Constitution itself does not guarantee a right to earn good-
time credits. Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
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The only argument remaining for Woodard, therefore,
is that the Department's failure to award good-time credits
for participation in these programs during the 1981-87 period
violated a constitutionally protected liberty interest based
in state law. "A State creates a protected liberty interest
by placing substantive limitations on official discretion."
Bowser v. Vose, 968 F.2d 105, 107 (1st Cir. 1992) (quoting
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Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). Even where
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applicable statutes create no liberty interest,
administrative regulations may do so if they contain
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"specific directives to the decisionmaker that if the
regulations' substantive predicates are present, a particular
outcome must follow." Kentucky Dep't of Corrections v.
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Thompson, 490 U.S. 454, 463 (1989). See Rodi v. Ventetuolo,
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941 F.2d 22, 26 (1st Cir. 1991).
The Massachusetts statute governing good-time
credits states: "For the . . . satisfactory performance of
said inmates in any other program or activity which the
superintendent of the institution shall deem valuable to said
prisoner's rehabilitation, the commissioner may grant . . . a
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further deduction of sentence . . . ." Mass. Gen. Laws c.
127, 129D (1993). No liberty interest in earning good-time
credit derives from this statute because the statute places
the award of good-time credit within the discretion of the
Commissioner. Cf. Bowser, supra, 968 F.2d at 109 (courts
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have found use of language such as "may" insufficient to
create a liberty interest).
The 1978 Department of Correction regulations, in
effect during the 1981-87 period, provided, "A resident for
his satisfactory conduct, satisfactory completion, or
satisfactory performance in a program or activity may receive
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a deduction from sentence of not more than seven and one half
days a month." 103 Code of Mass. Regs. 411.09(1) (1978)
(emphasis added). The regulations granted the determination
whether or not to award a sentence reduction to the
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Commissioner, id. 411.10(10-12), and did not state any
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criteria -- beyond the requirement of satisfactory conduct,
completion, or performance -- by which the Commissioner's
determination was to be governed.
Like the statute, these regulations contained
neither substantive predicates nor mandatory language to
limit the Commissioner's discretion in his determination
whether to award good-time credit for participation in a
particular program. For that reason, they did not create a
liberty interest.
The only relevant mandatory language may be found
in 411.08(1)(g), which stated that the activities which
would carry eligibility for good-time credit "shall include
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but not be limited to . . . alcoholics anonymous, or drug
counseling." Id. 411.08(1)(g) (emphasis added). The most
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that this language mandated, however, was that if an inmate
participated in one of these programs, the inmate would be
entitled to a discretionary determination by the Commissioner
whether the participation was "satisfactory" and whether
good-time credit would be awarded. In other words, this
provision, at most, mandated only that an inmate be accorded
a particular procedure, not that an inmate receive a
particular outcome if specified substantive criteriawere met.
Such a provision -- mandating a procedure only --
does not create a liberty interest. Ewell v. Murray, 11 F.3d
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482, 488 (4th Cir. 1993) ("inmates do not have a protected
liberty interest in the procedures themselves, only in the
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subject matter to which they are directed") (emphasis in
original). Accordingly, the 1981 policy memorandum did not
deprive Woodard of a constitutionally protected liberty
interest -- regardless of whether it may have violated state
law -- when it removed these programs from the list of those
carrying eligibility for good-time credit. Nor did
defendants deprive Woodard of a constitutionally protected
liberty interest if, as alleged, they failed in 1992 to
review his record of participation in these programs during
the 1981-87 period to determine whether a retroactive award
of good-time credit was appropriate.
The judgment of the district court is affirmed.
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Document Info
Docket Number： 93-1566
Filed Date： 4/11/1994
Precedential Status： Precedential
Modified Date： 9/21/2015