Colman v. Lahouse

• Court: Court of Appeals for the First Circuit
• Decided: September 24, 1992
• Docket: 92-1306
• Status: Published

Opinion

USCA1 Opinion

          September 24, 1992    [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1306

PAUL F. COLMAN,
                                Plaintiff, Appellant,

                                          v.

                                JEAN LAHOUSE, ET. AL.,
                                Defendants, Appellees.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before
                                 Breyer, Chief Judge
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ___________________

               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
                                                                       __

            forma pauperis complaint, filed pro se, sought injunctive and
            _____ ________

            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
                                                                      ___

            sponte  under  28 U.S.C.    1915(d).    For the  reasons that
            ______

            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

____________________

            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. 

                                         -3-

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
                             __ _____  ________

            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.
                                                              _______

            Williams,  490 U.S. 319, 327 (1989).  While suggestive of the
            ________

____________________

            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.      

                                         -4-

standard for dismissal under  Fed. R. Civ. P.  12(b)(6), "the

            standard is more  rigorous."  Johnson v. Rodriguez,  943 F.2d
                                          _______    _________

            104 (1st Cir.  1991), cert.  denied, 112 S.  Ct. 948  (1992);
                                  _____________

            Street v. Fair, 918 F.2d 269, 273 (1st Cir. 1990).
            ______    ____

                   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
            _______                                 _______
            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).
                          _______     ____

            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
                                                     _______

            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
                                       _______                       ____

            Certain Unnamed  Inmates v. Hall,  550 F.2d  1291, 1292  (1st
            ________________________    ____

            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
                                                ______    _______________

            Correction,  409  Mass. 472,  477,  567  N.E.2d  906   (1991)
            __________

            (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).
                        ___ ____    __________

            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.
                                      ___ ______    ____

            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
                         ___ _____

-6-

hold that  it had an  "arguable basis in law."   Neitzke, 490
                                                             _______

            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.
                    ___ ___  ______________________

            1992); see also   Taylor v. Best, 746  F.2d 220, 222-24  (4th
                   ________   ______    ____

            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)
                           _________    ______

            (holding that statements could be used against probationer in

            subsequent prosecution because government had  not threatened
                                                           ___

            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
                               ______

            system); cf. Taylor v.  Best, 746 F.2d 220, 222-24  (4th Cir.
                     __  ______     ____

-7-

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);
                                    ____________

            United States v.  Harrington, 923 F.2d 1371  (9th Cir. 1991);
            _____________     __________

            Pens  v. Bail, 902 F.2d 1464 (9th Cir. 1990) (where prisoners
            ____     ____

            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
                                                                      ___

            Hawkins  v. Commissioner  of Correction,  406 Mass.  898, 551
            _______     ___________________________

            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

____________________

            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

                                         -8-

"liberty" interest in prison transfers  sufficient to require

            a  hearing  before a  transfer,  Meachum,  427  U.S. at  216;
                                             _______

            Montayne v.  Haymes, 427  U.S. 236,  242 (1976),  "nothing in
            ________     ______

            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
                                _______    ______

            Cir. 1979),  cert.  denied, 444  U.S. 1035  (1980); see  also
                         _____________

            McDonald v. Hall, 610  F.2d 16 (1st Cir. 1979)  (holding that
            ________    ____

            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
                  _______                 ___ _______    ______

            560 (10th  Cir. 1990) (surveying circuit  court decisions); 3

            Joseph  G. Cook & John L. Sobieski, Jr., Civil Rights Actions
                                                     ____________________

              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

____________________

            in law," Neitzke, 490 U.S. at 328.
                     _______

                                         -9-

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
                                           ___ _______    ________

            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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