Ladd v. Thibault , 402 F. App'x 618 ( 2010 )

09-4589-pr
Ladd v. Thibault
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Daniel Patrick Moynihan United
3 States Courthouse, 500 Pearl Street, in the City of New York, on
4 the 6th day of December, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 AMALYA L. KEARSE,
10 CHESTER J. STRAUB,
11 Circuit Judges.
12 __________________________________________
13
14 EUGENE F. LADD,
15
16 Plaintiff-Appellant,
17
18
19 v. 09-4589-pr
20
21 DEBORAH THIBAULT, District Manager,
22 Burlington Community Correctional
23 Service Center, PAUL HEATH, Assistant
24 District Manager, Burlington Community
25 Correctional Service Center, RICHARD
26 PLANK, CCO/CCFS, Burlington Community
27 Correctional Service Center, JAY
28 SIMONS, Superintendent, Chittenden
29 Regional Correctional Facility, SUSAN
30 BLAIR, Acting Superintendent,
1 Chittenden Regional Correctional
2 Facility, GREG HALE, CWS/Probation &
3 Parole Officer, Burlington Community
4 Correctional Service Center, KRISTIN
5 PRIOR, Victim Services Coordinator,
6 Vermont Department of Corrections,
7 JACQUELINE KOTKIN, Field Services
8 Executive, Vermont Department of
9 Corrections, Central Office, RAYMOND
10 FLUM, Director of Classification,
11 Vermont Department of Corrections,
12 Central Office, DOMINIC DAMATO,
13 Supervising Officer of Security,
14 Southern State Correctional Facility,
15 MICHAEL O’MALLEY, Acting
16 Superintendent, Southern State
17 Correctional Facility,
18
19 Defendants-Appellees.
20 __________________________________________
21
22 FOR APPELLANT: Eugene F. Ladd, pro se, Beattyville,
23 KY.
24
25 FOR APPELLEES: David McLean, Assistant Attorney
26 General, for William H. Sorrell,
27 Attorney General for the State of
28 Vermont, Waterbury, VT.
29
30 Appeal from a judgment of the United States District
31 Court for the District of Vermont (Murtha, J.).
32
33 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
34 AND DECREED that the judgment of the district court be
35 AFFIRMED.
36
37 Appellant Eugene F. Ladd, pro se and incarcerated,
38 appeals the district court’s judgment dismissing his 42
39 U.S.C. § 1983 complaint, which alleged that the Defendants
40 violated his due process rights under the Fourteenth
41 Amendment incident to the revocation of his furlough or
2
1 conditional re-entry (“CR”) status. 1 In relevant part, the
2 district court held that the Defendants were entitled to
3 qualified immunity as to Ladd’s claims for damages against
4 them in their individual capacities, because it was not
5 clearly established as of 2005--the date of the relevant
6 events in this case--that an inmate in Vermont had a
7 protected liberty interest in remaining on CR. We assume
8 the parties’ familiarity with the underlying facts, the
9 procedural history of the case, and the issues on appeal.
10
11 We review a district court’s resolution of a qualified
12 immunity issue on a motion to dismiss de novo, accepting as
13 true all the material allegations of the complaint and
14 drawing all reasonable inferences in the plaintiff’s favor.
15 See Pena v. DePrisco, 432 F.3d 98, 107 (2d Cir. 2005).
16 “Government actors have qualified immunity to § 1983 claims
17 ‘insofar as their conduct does not violate clearly
18 established statutory or constitutional rights of which a
19 reasonable person would have known.’” Bolmer v. Oliveira,
20 594 F.3d 134, 141 (2d Cir. 2010) (quoting Okin v. Vill. of
21 Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 432 (2d Cir.
22 2009)). Thus, “[a] qualified immunity defense is
23 established if (a) the defendant’s action did not violate
24 clearly established law, or (b) it was objectively
25 reasonable for the defendant to believe that his action did
26 not violate such law.” Salim v. Proulx, 93 F.3d 86, 89 (2d
27 Cir. 1996).
28
29 Where it is not obvious that the alleged Constitutional
30 right existed, we may exercise our discretion and “initially
31 evaluate whether the constitutional right asserted . . . was
32 clearly established during the relevant period,” and,
33 “[o]nly if the right was clearly established will we then
34 consider whether the facts . . . alleged make out a
35 violation of a constitutional right.” Dean v. Blumenthal,
36 577 F.3d 60, 68 (2d Cir. 2009); see Pearson v. Callahan, 129
37 S. Ct. 808, 818 (2009).
38
1
Our review of the record reveals that, because the
district court revoked Ladd’s in forma pauperis (“IFP”)
status when it granted the Defendants’ motion to dismiss, he
lacks this status on appeal. For this reason, we GRANT his
motion for IFP.
3
1 “To determine whether a right is clearly established,
2 we look to (1) whether the right was defined with reasonable
3 specificity; (2) whether Supreme Court or court of appeals
4 case law supports the existence of the right in question[;]
5 and (3) whether under preexisting law a reasonable defendant
6 would have understood that his or her acts were unlawful.”
7 Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). “The
8 contours of the right must be sufficiently clear that a
9 reasonable official would understand that what he is doing
10 violates that right.” Anderson v. Creighton, 483 U.S. 635,
11 640 (1987).
12
13 It appears that no court has ever concluded that
14 Vermont’s CR program vests an inmate with a constitutionally
15 protected liberty interest. The Vermont Supreme Court held
16 that an inmate’s “status under furlough more closely
17 resembles that of an inmate seeking a particular right or
18 status within an institution, rather than that of a
19 parolee,” and “no liberty interest in furlough status may be
20 asserted directly under the United States Constitution.”
21 Conway v. Cumming, 636 A.2d 735, 736-37 (Vt. 1993); see
22 State v. Greene, 782 A.2d 1163, 1166-67 (Vt. 2001) (citing
23 Conway for the rule that Vermont’s furlough program does not
24 create a constitutionally protected liberty interest);
25 Parker v. Gorczyk, 744 A.2d 410, 417 (Vt. 1999) (referencing
26 Conway’s discussion of the “qualitative difference between
27 prisoners’ interest in release from parole as opposed to
28 furlough”).
29
30 Nevertheless, we are “obligat[ed] to determine [a
31 plaintiff’s] due process rights under the federal
32 Constitution for ourselves.” Holcomb v. Lykens, 337 F.3d
33 217, 222 n.5. (2d Cir. 2003). We have not considered this
34 Vermont CR program and have considered a similar Vermont
35 program only in one prior decision, Holcomb, in which we
36 declined to consider whether in fact an inmate’s furlough
37 status gives rise to a protected liberty interest. See id.38 at 223. Holcomb therefore does not assist Ladd. The
39 Supreme Court’s decision in Young v. Harper, which concerned
40 Oklahoma’s conditional release program, engaged in a
41 detailed factual analysis of that program before concluding
42 that it created a constitutionally protected liberty
43 interest. The nature of the conditional release program in
44 Young and the Supreme Court’s analysis of it would not
4
1 compel a reasonable official in the Defendants’ position to
2 understand that his actions were unlawful. See 520 U.S.
3 143, 149-52 (1997). Therefore, Ladd’s asserted liberty
4 interest was not clearly established at the time of the
5 relevant events described in his complaint. The district
6 court correctly determined that the Defendants were entitled
7 to qualified immunity as to all of Ladd’s claims for
8 damages.
9
10 We have considered all of Ladd’s remaining claims of
11 error and found them to be without merit. Accordingly, for
12 the foregoing reasons, the judgment of the district court is
13 hereby AFFIRMED.
14
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
18
19
5