Lynch v. Hubbard ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1614
KEVIN LYNCH; KEVIN BABINEAU,
Plaintiffs, Appellants,
v.
SHEILA HUBBARD,
Defendant, Appellee.
____________________
No. 99-1936
GARY R. DONAGHY,
Plaintiff, Appellant,
v.
SHEILA HUBBARD,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Boudin, Stahl and Lynch,
Circuit Judges.
Kevin Lynch and Kevin Babineau on brief pro se.
G.R. Donaghy on brief pro se.
Thomas F. Reilly, Attorney General, William J. Meade,
Assistant Attorney General, and Joseph T. Thai, Assistant
Attorney General, on briefs for appellee.
Per Curiam. Having reviewed these two cases in
tandem due to the overlap in issues, we affirm both
judgments substantially for the reasons set forth in Judge
O'Toole's opinion in No. 99-1614. See 47 F. Supp. 2d 125
(D. Mass. 1999). We add only the following comments.
In No. 99-1614, we need not decide whether the
methodology prescribed by Sandin v. Conner, 515 U.S. 472
(1995), is applicable in the parole context. As Judge
O'Toole explained, whether one scrutinizes the parole
statute for "mandatory language" and "substantive
predicates," see, e.g., Board of Pardons v. Allen, 482 U.S.
369 (1987), or whether one asks whether an "atypical and
significant hardship" has been imposed for purposes of
Sandin, plaintiffs' attempt to establish a liberty interest
fails. The extent to which our decision in Hamm v. Latessa,
72 F.3d 947, 954 (1st Cir. 1995), resolved the issue of
Sandin's applicability need not here be determined.
In No. 99-1936, one of plaintiff's complaints is
that the "full membership" of the Parole Board did not
properly participate in his hearing. To the extent this
claim relies on equal protection, the dismissal thereof is
summarily affirmed, inasmuch as plaintiff has not alleged
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any differential treatment of a protected class to which he
belongs. To the extent this claim rests on state law, the
dismissal is without prejudice to the pursuit of any
available relief in state court.
In both cases, we find no need to address
defendant's contention that, under Heck v. Humphrey, 512
U.S. 477 (1994), and related cases, plaintiffs' challenges
to the Massachusetts parole procedures should have been
pursued in a habeas action rather than in a suit under 28
U.S.C. § 1983. However the Heck issue might be resolved, it
does not pose any concern as to our jurisdiction under
Article III. Parella v. Retirement Bd. of the Rhode Island
Employees' Retirement System, 173 F.3d 46, 54 (1st Cir. 2000)
Affirmed.
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