Norman v. Elias ( 1995 )

December 21, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1315
ANTHONY NORMAN,
Plaintiff, Appellant,
v.
ELAINE ELIAS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge]
Before
Selya, Cyr and Stahl,
Circuit Judges.
Anthony Norman on brief pro se.
Scott Harshbarger, Attorney General, Robert Patten, Assistant
Attorney General, Nancy Ankers White, Special Assistant Attorney
General, and Richard C. McFarland, Supervising Counsel, Department of
Correction, on brief for appellees.
Per Curiam. Pro se appellant Anthony Norman
appeals from the district court's Fed. R. Civ. P. 12(b)(6)
dismissal of his civil rights suit against various state
officials. We affirm.
1. Violation of Due Process
Norman alleged that defendants violated his federal
due process rights by suspending his visitation privileges
for over six months, without a hearing. Defendants suspended
his privileges when he refused to provide a urine sample to
be tested for drug use and was determined to have used or
possessed marijuana at the Massachusetts Treatment Center in
Bridgewater, where he is confined. Norman may assert a due
process violation only if he has a liberty interest in
remaining free from the restrictions imposed on him by state
officials.
In its decision, the district court correctly
explained why Norman had no liberty interest arising directly
under the 14th Amendment due process clause or based on the
federal consent decree in King v. Greenblatt. There is no
need to repeat its analysis here.1 Under law controlling at
the time it dismissed this case, the district court also
correctly determined that Norman had no state-created liberty
1. On appeal, Norman argues that the consent decree in
Williams v. Lesiak granted him a liberty interest in visiting
privileges, but that decree does not even address itself to
the question of visiting privileges at the Treatment Center.
interest. We need not decide whether Norman has a protected
liberty interest under state law under the new methodology
set forth in Sandin v. Conner, -- U.S. --, 115 S. Ct. 2293(1995), because we affirm the court's decision on that
question on other grounds.
Norman sought money damages for the alleged due
process violation, declaratory relief, and an injunction
ordering defendants not to enforce state regulations
permitting the suspension of visiting privileges against him.
But defendants are state officials, and Norman may not seek
money damages against them in their official capacity. Will
v. Michigan Department of State Police, 491 U.S. 58, 71
(1989). Nor may he obtain money damages against them in
their individual capacities because they are protected by
qualified immunity. At the time defendants suspended
Norman's visiting privileges, Norman had no due process
liberty interest in being free from such a restriction under
then controlling law. Thus, defendants had no obligation to
provide him with a hearing. Because defendants did not
violate any clearly established constitutional right, they
have qualified immunity. Febus-Rodriguez v. Betancourt-
Lebron, 14 F.3d 87, 91 (1st Cir. 1994).
Norman's request for injunctive relief is moot.
The record shows that his visiting privileges have been
restored, and he does not assert that any new suspension is
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imminent. Because Norman cannot obtain money damages or
injunctive relief, his request for declaratory relief is
moot, too. See Browning Debenture Holders' Committee v. DASA
Corp., 524 F.2d 811, 817 (2d Cir. 1975) ("When, as here, an
issue is rendered moot by plaintiff's failure to specify . .
. operative relief, and the remedy sought is a mere
declaration of law without implications for practical
enforcement upon the parties, the case is properly
dismissed.").
2. Violation of Federal Consent Decrees
Norman claims that defendants violated consent
decrees entered in two federal district court cases, Williams
v. Lesiak and King v. Greenblatt. We find his arguments to
be without merit.
DMH officials obviously acted in "concert" with DOC
in promulgating the substance surveillance abuse policy with
which Norman failed to comply. The policy itself shows that.
Although DMH's reviewing authority apparently failed to sign
the policy, the policy was nonetheless effective. Thus,
defendants did not violate the provision cited by Norman in
the decree entered in Williams. Furthermore, Norman has
waived, by failing to raise it below, his claim that the
initial suspension of his visiting privileges by the
Superintendent of the Treatment Center, a Department of
Corrections employee, violated other provisions in the
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Williams decree. United States v. Ocasio-Rivera, 991 F.2d 1,
3 (1st Cir. 1993) (claims not raised in the district court
are not preserved for appeal). In any event, the
Administrator of the Treatment Center reviewed the suspension
and essentially affirmed it, suggesting that the suspension
of privileges took place in full compliance with the decree.
Nor do we think that defendants violated the
provision cited by Norman in the decree entered in the King
case. The letters communicating the Superintendent's initial
decision to suspend Norman's privileges evinced no punitive
intent, but only a legitimate interest in enforcing security
at the Treatment Center.
3. State Claim
Norman argues that the Superintendent's initial
suspension of visiting privileges violated a state regulation
authorizing the Administrator of the Treatment Center to deny
visiting privileges. But the regulation also defines
"Administrator" to include "his/her designee." 104 CMR
8.02(6). Since the Administrator reviewed and essentially
affirmed the Superintendent's suspension of visiting
privileges, we conclude that the Superintendent effectively
acted as the Administrator's designee for purposes of
initially determining whether Norman's misconduct warranted
that suspension.
4. Remaining Claims
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Norman's reply brief raises claims which were not
raised below or in his initial brief. For that reason, they
are deemed waived, and we do not consider them. Ocasio-
Rivera, supra; Playboy Enterprises v. Public Service Comm'n,
906 F.2d 25, 40 (1st Cir.), cert. denied, 498 U.S. 959 (1990)
(claims not raised in an initial appellate brief are waived).
Affirmed.
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