Paiva v. Coyne-Fague

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 21-1746
RICHARD LEE PAIVA,
Plaintiff, Appellant,
v.
PATRICIA ANNE COYNE-FAGUE, individually and in her Official
Capacity as Director of the Rhode Island Department of
Corrections; RHODE ISLAND DEPARTMENT OF CORRECTIONS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary S. McElroy, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Kayatta, Circuit Judges.
Sonja L. Deyoe, with whom Law Offices of Sonja L. Deyoe
was on brief, for appellant.
Ian P. Anderson, Senior Legal Counsel, Rhode Island
Department of Corrections, for appellees.
July 25, 2022
BARRON, Chief Judge. Richard Lee Paiva, who is serving
a life sentence in a Rhode Island state prison, challenges the
dismissal of the claims that he brought in the United States
District Court for the District of Rhode Island pursuant to 42
U.S.C. § 1983 against the Rhode Island Department of Corrections
("Department") and its Director. Paiva alleges in these claims
that Department officials made deductions from his inmate account
as a charge for copies of documents that he requested and that, in
consequence, the defendants violated his federal constitutional
rights. We affirm.
I.
Paiva alleges that a Rhode Island statute permits
inmates to have money added to their "inmate accounts to purchase
items" such as "video conference calls, commissary items, stamps,
and the like." See R.I. Gen. Laws § 35-4-24(b). A different
Rhode Island statute required that inmates "reimburse the state
for the cost or the reasonable portion of the cost incurred by the
state relating to [their] commitment," including "physical
services and commodities such as food, medical, clothing and
specialized housing, as well as social services." R.I. Gen. Laws
§ 42-56-38(a) (2020) (amended 2021). That same statute also
required that before "assess[ing]" these fees, which must track an
inmate's "ability to pay," the Department provide "a public hearing
of proposed fee schedules." Id.
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On June 4, 2020, Paiva sued the Department and its
Director, Patricia Anne Coyne-Fague, in the federal District Court
for the District of Rhode Island, pursuant to 42 U.S.C. § 1983, in
connection with deductions that Department officials had made from
his inmate account. Specifically, his operative, amended
complaint ("complaint") alleges that "from time to time [he]
arrange[s] to have documents copied" by the Department and that he
is "required [by the Department] to pay" five cents per single-
sided page copied, and ten cents per double-sided page copied.
It further alleges that the Department deducted funds from his
inmate account to cover the costs of the copies that he requested.
The complaint then sets forth one claim in which Paiva
alleges that the deductions for the copying resulted in the
defendants depriving him of his property without due process, in
violation of the Due Process Clause of the Fourteenth Amendment;
and another in which he alleges that the deductions for the copying
resulted in the defendants taking his property without just
compensation, in violation of the Takings Clause of the Fifth
Amendment as incorporated by the Fourteenth Amendment. Finally,
he also alleges in his complaint that the defendants deprived him
of his right "to voice objections during the rule-making process"
for setting the fees charged for the copies, in violation of the
First Amendment as incorporated against Rhode Island by the
Fourteenth Amendment.
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Paiva seeks declaratory relief as well as an injunction
to prohibit the "removal of funds from inmate accounts for copy
cost[s]" until the promulgation of compliant regulations for the
issuance of those charges. He also seeks an award of monetary
relief, including reimbursement for "sums removed" from his inmate
account.
The defendants moved to dismiss the complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6).1 The District Court
granted the motion and dismissed Paiva's claims. See Paiva v.
Coyne-Fague, C.A. No. 20-250, 2021 WL 3676901, at *2 (D.R.I. Aug.
19, 2021).2 Paiva then timely filed this appeal. Our review of
the District Court's dismissal of Paiva's complaint is de novo.
See Flores v. OneWest Bank, F.S.B., 886 F.3d 160, 162 (1st Cir.
2018).
1The defendants also moved at that time to dismiss
Coyne-Fague as an "improper defendant" on the ground that Paiva's
complaint failed to link the allegedly unconstitutional conduct to
her, but they do not renew that contention on appeal.
2Paiva brought his claims pursuant to Federal Rule of
Civil Procedure 23, on behalf of a putative class of inmates who
allegedly also had funds deducted from their inmate accounts to
cover the costs of copies of documents that they had requested the
Department to make for them. The District Court dismissed Paiva's
claims as applied to him without certifying the class, and the
claims as applied to a class are not before us in this appeal.
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II.
Paiva first challenges the District Court's dismissal of
his claim that the defendants deprived him of his right to
procedural due process through the deductions that were made from
his inmate account to cover the costs of the copies of documents
that he requested. The District Court dismissed this claim on the
ground that Paiva "acknowledged in his complaint that he challenged
these deductions through the grievance process set up by the
prison" and that "[t]he existence of the state remedy defeats any
claim he has that he was deprived of property without due process."
Paiva, 2021 WL 3676901, at *1 (citing Hudson v. Palmer, 468 U.S.
517, 533 (1984)). Paiva contends to us, however, that this ruling
was in error, because his complaint alleges that the inmate
grievance that he filed was ignored and that the state otherwise
barred him from filing a civil lawsuit in state court to challenge
the deductions.
But, this dispute over what sort of process Paiva
received aside, he does not dispute that he received the copies
for which he was charged or that he was apprised beforehand that
he would be charged for them in the amounts that were deducted
from his inmate account. And yet, even though the defendants
suggested in their motion to dismiss that the deductions for the
copying charges are "not deprivations" of his property for purposes
of the Due Process Clause precisely because they merely cover the
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costs of making the copies that he asked to be made, Paiva merely
asserts in conclusory fashion on appeal that the deductions
deprived him of his property. Thus, while Paiva is right that "an
inmate has a property interest in the balances held in his
accounts," Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011), we
cannot divine an actionable deprivation from his allegation that
he was charged for a service of whose costs he does not allege he
was not apprised beforehand, cf. Lee v. Life Ins. Co. of N. Am.,
23 F.3d 14, 20-21 & n.11 (1st Cir. 1994) ("Appellants purchased a
'product'-'service' from [state university] with full knowledge
from the outset that health care fees . . . were a required
component of the cost. We perceive no procedural infirmity.").
We "may affirm [an] order of dismissal on any basis that is
apparent from the record," Hochendoner v. Genzyme Corp., 823 F.3d
724, 730 (1st Cir. 2016), and here Paiva has failed to develop any
argument to us as to how he was deprived of his property rather
than merely charged for the purchases that he made, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").3
Paiva does assert in his reply brief to us in connection
3
with this claim that the defendants deducted the copying charge
"pursuant to a policy it unlawfully enacted and which was set forth
in direct contravention of State law that required a hearing before
its policy was enacted." But, at oral argument before this Court,
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Paiva's challenge to the District Court's dismissal of
his takings claim also fails. "[A] reasonable user fee is not a
taking if it is imposed for the reimbursement of the cost of
government services." United States v. Sperry Corp., 493 U.S. 52,
63 (1989). Yet, Paiva develops no argument to us as to why he was
not merely subjected to such a reasonable user fee, given that his
complaint does not allege that the deductions were made for copies
of documents that he never requested or received or at a price of
which he was not made aware in advance.4
Paiva's counsel represented that the state-law hearing
requirement, though it is a predicate for the takings and First
Amendment claims that we next discuss, is not a predicate for his
due process claim. To the extent that Paiva means to suggest on
appeal that this alleged violation of a state-law hearing
requirement somehow bolsters his federal constitutional procedural
due process claim, he does so for the first time in his reply
brief, see United States v. Vanvliet, 542 F.3d 259, 265 n.3 (1st
Cir. 2008) ("Arguments raised for the first time in a reply brief
are waived." (citing United States v. Martí-Lón, 524 F.3d 295, 299
n.2 (1st Cir. 2008))), and without developing any argument as to
how, see Zannino, 895 F.2d at 17.
And while Paiva appears to argue in his opening brief to
us that the charges for making copies are "inextricably related
to" his "ability to challenge his conviction and the conditions of
his confinement," he does not develop an argument as to how that
contention bears on his procedural due process claim. Moreover,
the District Court explained that "[t]here is no direct claim here
that Mr. Paiva's right to meaningful access to the courts is
impaired. He has, in any event, not demonstrated the relationship
between the seemingly nominal copying charge and denial of such
access." Paiva, 2021 WL 3676901, at *2 n.2.
4 Paiva does argue to us that he was entitled to discovery
into whether the copying charge was set at an unreasonable or
disproportionate rate. See Sperry Corp., 493 U.S. at 60-63. But,
he does not allege in his complaint that the fee charged was
unreasonable or disproportionate. See Vance v. Barrett, 345 F.3d
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Finally, we see no merit in Paiva's challenge to the
District Court's dismissal of his First Amendment claim, in which
he alleges that he was "deprive[d]" of his "right[]" to "voice
objections during the rule-making process" through which the
Department set the copying charges. For, although he argues that
the District Court erred in dismissing the claim because the
Department's decision to set the copying charges without first
holding a hearing on them constituted a "one-sided denial" of his
"ability to participate in a public hearing," there is no
"constitutional right to participate directly in government
policymaking." Minn. State Bd. for Cmty. Colls. v. Knight, 465
U.S. 272, 284 (1984).
Paiva also appears to contend that Rhode Island's
legislature, by enacting Rhode Island General Laws Section 42-56-
38, created a "public forum," and that having done so, it could
not "restrict" his speech by excluding him from it without
"compelling reason" to do so. See Cornelius v. NAACP Legal Def.
& Educ. Fund, Inc., 473 U.S. 788, 800 (1985). We do not see how
the Department's decision not to hold any hearing at all could
have excluded Paiva from a relevant forum for First Amendment
1083, 1088, 1090 (9th Cir. 2003) ("Because Vance does not allege
that the charges [the prison sought to deduct from the earnings in
his inmate trust account] are unreasonable or unrelated to the
administration of his account, his takings claim must fail.").
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purposes. Nor does Paiva explain how the state statute to which
he refers could itself have established any forum from which he
claims to have been excluded, where the state never interpreted
the statute to require that it establish one.5
III.
We affirm.
To the extent that Paiva's complaint can be understood
5
to advance an independent claim that the defendants violated state
law, either by violating the "public hearing" provision of Rhode
Island General Laws Section 42-56-38 or by violating Rhode
Island's Administrative Procedures Act, see R.I. Gen. Laws §§ 42-
35-1 et seq., his counsel confirmed at oral argument that "there
is no state law claim" before us.
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