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USCA1 Opinion
September 24, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1306
PAUL F. COLMAN,
Plaintiff, Appellant,
v.
JEAN LAHOUSE, ET. AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Breyer, Chief Judge
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Paul F. Colman, on brief pro se.
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Per Curiam. Appellant is an inmate at the
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Massachusetts Correctional Institution at Norfolk. His in
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forma pauperis complaint, filed pro se, sought injunctive and
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monetary relief under 42 U.S.C. 1983, for alleged
violations of his rights under the Fifth and Fourteenth
Amendments.1 Named as defendants are the Commissioner and
other officials of the Commonwealth's Department of
Corrections. The district court dismissed the complaint sua
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sponte under 28 U.S.C. 1915(d). For the reasons that
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follow, we affirm the district court's decision.
Appellant alleges that defendants have improperly
denied him a transfer to a lower security facility because he
has refused to admit committing the crime for which he is
incarcerated. He argues that by conditioning his transfer on
an admission of guilt, the defendants are threatening the
viability of his attempts to overturn his conviction.
According to appellant's complaint, in July, 1977, he
was wrongly convicted after a trial of rape of a child by
force. He alleges that he has never admitted the offense,
instead pursuing "post-conviction ... relief and appeals."
He says he hopes or expects to soon win a new trial based on
new evidence. Documents appended as exhibits to the
complaint show that despite an otherwise favorable
disciplinary record and recommendation of the Superintendent,
the Unit Classification Committee Board at MCI-Norfolk has
periodically declined to recommend appellant's transfer
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1. The complaint also alleges violations of plaintiff's
First and Sixth Amendment rights. However, neither the
complaint nor plaintiff's brief here explains the basis for
these claims. Accordingly we take them to be mere
surplusage.
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because of the "nature of the offense and his reluctance to
accept responsibility for his crime." The Board's decision
was affirmed by the Commissioner on each occasion. On
September 20, 1990 appellant appealed to the Director of
Programs and Classifications, arguing that the Board's
decision violated appellant's Fifth Amendment privilege
against self-incrimination.2 The Director affirmed the
transfer denial on October 19, 1990, but based his affirmance
solely on the "serious nature of the offense."
28 U.S.C. 1915(d) provides that the court may dismiss a
complaint filed in forma pauperis if it is "satisfied that
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the action is either frivolous or malicious." A complaint is
deemed frivolous only if it "lacks an arguable basis in law
or in fact," contains an "indisputably meritless legal
theory" or "fanciful" factual allegations. Neitzke v.
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Williams, 490 U.S. 319, 327 (1989). While suggestive of the
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2. According to a copy of a letter appended to appellant's
complaint, appellant undertook this "classification appeal"
on the advice of one Deputy Nelson and the superintendent at
MCI-Norfolk. The regulations to which we have been referred
expressly allow an inmate to appeal the Board's decision only
to the Superintendent. 20 CMR 420.08(6)(h), 420.09 (1).
The Superintendent is then required to respond in writing to
the inmate within ten working days." 20 CMR 420.08(6)(h).
The Superintendent's decision "shall be submitted for
approval to the Commissioner or his designee," who makes the
final decision. 20 CMR 420.08(6)(i). Since neither the
regulations nor statutes before us expressly provide for an
inmate appeal to the Director of Programs and
Classifications, we assume that the Director was the
Commissioner's "designee" at the time and that further
internal procedures allowed this direct inmate appeal.
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standard for dismissal under Fed. R. Civ. P. 12(b)(6), "the
standard is more rigorous." Johnson v. Rodriguez, 943 F.2d
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104 (1st Cir. 1991), cert. denied, 112 S. Ct. 948 (1992);
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Street v. Fair, 918 F.2d 269, 273 (1st Cir. 1990).
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In making this assessment, the district court
must give the plaintiff the benefit of all the
suggested facts and must indulge all reasonable
inferences in his favor. If the complaint, so
read, reveals 'arguably meritorious legal
theories whose ultimate failure is not apparent
at the outset'... then the court should permit
the action to proceed.
Johnson, 943 F.2d at 106 (quoting from Neitzke, 490 U.S. at
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328).
As the district court held, appellant's due process
claim has no legal merit. Due process clause protections
attach only when there is a deprivation of an identifiable
interest in life, liberty or property. These interests may
be created either by the Fourteenth Amendment itself or by
state law. Meachum v. Fano, 427 U.S. 215, 222 (1976).
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However, the Supreme Court has held that the Fourteenth
Amendment does not create for prisoners a protectable
"liberty" interest in prison transfers. Meachum, 427 U.S. at
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223-26. And it has also been repeatedly held that the
Massachusetts' law in question, Mass. Gen. L. ch. 127, 20,
97, does not create any "liberty" interest to which the due
process clause may apply. Meachum, 427 U.S. at 227 n.7; Four
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Certain Unnamed Inmates v. Hall, 550 F.2d 1291, 1292 (1st
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Cir. 1977); Nelson v. Commissioner of Correction, 390 Mass.
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379, 397, 456 N.E. 2d 1100 (1983); Harris v. Commissioner of
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Correction, 409 Mass. 472, 477, 567 N.E.2d 906 (1991)
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(extending same interpretation to section of state law
authorizing transfer to out-of-state prisons).
There have been no changes in the text of the state
law since these decisions were rendered. On its face, the
law vests broad and unfettered discretion in the Commissioner
over prison transfers, with none of the substantive
limitations which might signal creation of a "liberty"
interest. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983).
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And the regulations to which appellant points do not contain
the types of specific directives to the decisionmaker which
might arguably produce in an inmate a reasonable expectation
of a particular result. See Bowser v. Vose, 1992 U.S. App.
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LEXIS 15187, at *9-13 (1st Cir. June 30, 1992) (describing
language which might produce such an expectation).
Appellant seemingly concedes on appeal that the
district court's decision on his due process claim was
correct. He argues, however, that the Board's decision
violated his Fifth Amendment privilege against self-
incrimination by forcing him to chose between making
incriminating statements that may be used against him in the
new trial he hopes to obtain, and a lower security transfer.
Were appellant's Fifth Amendment claim factually
supportable, see infra pp. 8-9, we would be constrained to
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hold that it had an "arguable basis in law." Neitzke, 490
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U.S. at 328. Though not unqualified, it is generally
recognized that even after conviction, a defendant who shows
a "real and appreciable risk" of subsequent incrimination may
be entitled to assert the privilege against self-
incrimination with regard to the crime. 1 John William
Strong, et. al., McCormick on Evidence 121, 122 (4th Ed.
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1992); see also Taylor v. Best, 746 F.2d 220, 222-24 (4th
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Cir. 1984) (one appealing his conviction retains his
privilege against self-incrimination). And requiring a
prisoner to chose between his Fifth Amendment privilege and
favorable post-conviction treatment may create a "classic
penalty situation" in which the prisoner's answers would be
deemed compelled and inadmissible in the criminal
prosecution. Minnesota v. Murphy, 465 U.S. 420, 434 (1984)
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(holding that statements could be used against probationer in
subsequent prosecution because government had not threatened
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him with revocation of his probation).
It has also been held that while a state may validly
insist on answers to incriminating questions to enable it to
sensibly administer its prison system, it may do so only if
"it recognizes that the required answers may not be used in a
criminal proceeding and thus eliminates the threat of
incrimination." Murphy, 465 U.S. at 435 n.7 (probation
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system); cf. Taylor v. Best, 746 F.2d 220, 222-24 (4th Cir.
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1984) (prison officials who promised confidentiality may
compel answers for penological classification purposes, but
evaluation would be suppressed if offered in subsequent
criminal proceeding), cert. denied, 474 U.S. 982 (1985);
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United States v. Harrington, 923 F.2d 1371 (9th Cir. 1991);
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Pens v. Bail, 902 F.2d 1464 (9th Cir. 1990) (where prisoners
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assured confidentiality in psychiatric evaluations, their
self-incriminating statements could not be used to enhance
their sentence). In the scant record before us we find no
indication that Massachusetts has erected a privilege of
confidentiality for prisoner statements which would eliminate
the threat of incrimination appellant alleges here. See
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Hawkins v. Commissioner of Correction, 406 Mass. 898, 551
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N.E.2d 495 (1990) (holding that Massachusetts Fair
Information Practices Act does not protect prisoner from
disclosure of his classification and disciplinary reports
offered against him by corrections officials in federal
court action challenging a transfer decision based on the
reports).
In terms of legal theory, then, appellant's Fifth
Amendment claim might be said to have an arguable legal
basis.3 Although the Fourteenth Amendment does not create a
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3. We emphasize that we do not reach the legal merit of
appellant's claim here, nor do we express any opinion as to
whether such a claim might withstand a motion to dismiss for
failure to state a claim. Under 1915(d) the court's only
task is to determine whether it lacks "even an arguable basis
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"liberty" interest in prison transfers sufficient to require
a hearing before a transfer, Meachum, 427 U.S. at 216;
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Montayne v. Haymes, 427 U.S. 236, 242 (1976), "nothing in
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these decisions expressly rule[s] out a challenge to a
transfer [decision] on the ground that it violate[s]
constitutional rights other than the right to procedural due
process of law." Furtado v. Bishop, 604 F.2d 80, 87 (1st
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Cir. 1979), cert. denied, 444 U.S. 1035 (1980); see also
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McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979) (holding that
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complaint alleging that prison transfer was in retaliation
for prisoner's exercise of a fundamental right states cause
of action). Most courts which have considered the issue
since Meachum are in accord. See Frazier v. Dubois, 922 F.2d
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560 (10th Cir. 1990) (surveying circuit court decisions); 3
Joseph G. Cook & John L. Sobieski, Jr., Civil Rights Actions
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11.15 n.8 (1992), and cases cited therein.
But while in legal theory petitioner's Fifth Amendment
claim may have some basis, it collapses on the facts
petitioner pleads. The exhibits appended to the complaint
show that appellant's "failure to take responsibility" was
twice cited by the Unit Classification Committee Board for
denying the transfer in its periodic reviews. The Board's
decisions, however, are not the last word. It was the
Commissioner alone, or his delegate, who had the statutory
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in law," Neitzke, 490 U.S. at 328.
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authority to make transfer decisions. Mass. Gen. L. ch. 124
1, 2; M.G.L. c. 127 20, 97. The Commissioner retained
final authority over all periodic reviews under the
regulations. 20 CMR 420.08(6)(i). The last decision from
the Commissioner's office, attached as an exhibit to
appellant's complaint, was expressly based solely on "the
serious nature" of the offense. This decision was in direct
response to the very Fifth Amendment argument appellant makes
here. Since the final, and only effective, denial of
appellant's transfer was based on a reason that is unarguably
lawful, appellant suffered no injury from the Board's
decisions, even assuming for the sake of argument that they
offended the Fifth Amendment. Cf. Gardner v. Martinez, 1988
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WL 111954, at *2 (E.D. Pa. Oct. 20, 1988) ( 1983 claim
properly dismissed where plaintiff could state no actionable
injury from parole authorities' alleged violation of his
privilege against self-incrimination, since charges allegedly
based on improperly obtained information had been dropped,
and plaintiff spent no additional time in prison as a result
of the alleged violation of his privilege).
Thus we conclude that appellant's Fifth Amendment
claim was also properly dismissed under 1915(d) for lack of
an arguable foundation in fact. This part of our decision,
of course, extends no further than the date of appellant's
complaint and the transfer decisions challenged therein.
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For the reasons stated above, the decision of the
district court is affirmed.
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Document Info
Docket Number： 92-1306
Filed Date： 9/24/1992
Precedential Status： Precedential
Modified Date： 3/3/2016