Leavitt v. Allen

Opinion

USCA1 Opinion

February 3, 1995
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 94-1641 

                                   RICHARD LEAVITT,

                                Plaintiff, Appellant,

                                          v.

                            DONALD L. ALLEN, ETC., ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Richard Leavitt on brief pro se.
            _______________

____________________

____________________



Per   Curiam.     Plaintiff-appellant  Richard
                           ____________

            Leavitt  filed a pro se  complaint in the  District Court for
                             ___ __

            the  District  of  Maine  against  the  Maine  Department  of

            Corrections,  the  Maine  State  Prison,  and  twelve  prison

            officials and guards.  The complaint alleged that on November

            15, 1993,  Leavitt, while watching a  prison basketball game,

            made an  unspecified remark to another  inmate concerning one

            of the basketball players (in a later  filing, Leavitt stated

            that  the remark was, "Two  babies for that  foul, they're in

            the bonus").  Defendant  Woodbury, a prison guard, confronted

            Leavitt about the remark, became angry and physically removed

            Leavitt from  the area,  grabbing, pushing, and  shoving him.

            Woodbury filed  a disciplinary  report charging  Leavitt with

            provocation and  disorderly behavior and took  Leavitt to the

            administrative  segregation area,  where he  was subsequently

            housed for 24 days.

                      Leavitt then  filed  a grievance  against  Woodbury

            under  the prison grievance procedure, alleging that Woodbury

            pushed,  grabbed,  and shoved  him.   Woodbury  then  filed a

            second disciplinary report against Leavitt, charging him with

            lying in the grievance filing.

                      Following a hearing on the two disciplinary charges

            against Leavitt, Leavitt was found guilty on all charges.  He

            was punished with, apparently, a total of 40 days of punitive

            segregation  and 40 days' loss of good time credits, with all

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of it  suspended except for a  loss of ten days  of good time

            credits.  All of Leavitt's appeals were denied.

                      According to the complaint, prison officials failed

            to   adequately   investigate  Leavitt's   grievance  against

            Woodbury.  The grievance was apparently dismissed.

                      Later, on  January 10,  1994, defendant  Gallant, a

            prison guard, allegedly insulted  Leavitt and told Leavitt to

            leave the  gymnasium area, without any  provocation.  Leavitt

            filed a grievance against Gallant.  According to Leavitt, the

            grievance was  not fully investigated.   Ultimately, however,

            Gallant was given a verbal reprimand.

                      In  his  complaint,  Leavitt  sought  damages  from

            defendants,  and an  injunction  ordering them  to cease  and

            desist  from violating  his constitutional  rights, under  42

            U.S.C.   1983.   Specifically, he alleged that he  was denied

            due process  and equal protection in  the prison disciplinary

            procedure; that his Eighth  Amendment rights were violated by

            the loss of good time credits as a result of that  procedure;

            that  his  First  Amendment  rights were  violated  by  being

            disciplined  for his  unspecified  remark  at the  basketball

            game; that  his due process  and Sixth Amendment  rights were

            violated  by the  prison's failure  to adequately  follow its

            grievance  procedure regarding his  grievances; that  his due

            process   rights   were   violated   by   being   brought  to

            administrative  segregation  without  explanation, and  being

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kept  there  for   24  days  without   a  hearing  or   other

            administrative procedure; that his constitutional rights were

            violated  by   defamatory  statements  made   about  him   by

            defendants  Woodbury  and   Gallant;  and  that   his  Eighth

            Amendment  rights  were violated  when  he  was assaulted  by

            defendants Woodbury  and Gallant  and kept  in administrative

            segregation  despite  a  risk  of physical  harm  from  other

            inmates.

                      A  magistrate  judge  recommended   that  Leavitt's

            complaint  be  dismissed  as  frivolous  under  28  U.S.C.   

            1915(d).   The district court adopted  the magistrate judge's

            report and dismissed the complaint.  

                      We  agree  that  most of  Leavitt's  complaint  was

            properly dismissed  under   1915(d) because  the legal theory

            underlying Leavitt's claims  was indisputably meritless.   To

            begin with, assuming  Leavitt had a  liberty interest in  his

            disciplinary  hearing,  his  own  allegations  show  that due

            process was accorded him.  

                      Leavitt  was  entitled  to  "an  opportunity,  when

            consistent with institutional safety and  correctional goals,

            to  call witnesses  and present  documentary evidence  in his

            defense."  Superintendent v. Hill, 472 U.S. 445, 454  (1985).
                       ______________    ____

            He  was   entitled  to   be  given  an   explanation,  either

            contemporaneously  or subsequently,  for  any denial  of this

            opportunity.  Ponte v. Real, 471 U.S. 491, 497 (1985).  
                          _____    ____

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Leavitt  acknowledges  that   his  witnesses   were

            permitted  to  make  statements  to  the  disciplinary  board

            regarding the first disciplinary report (charging provocation

            and disorderly behavior).   When the disciplinary board moved

            on to  the second disciplinary report  (charging that Leavitt

            lied  in  filing  his grievance  against  Woodbury),  Leavitt

            alleges that his  request to present  three of his  witnesses

            was  denied "without  explanation, other  than they  were not

            eyewitnesses to  the actual act of writing the grievance, but

            did witness the actions  in the gymnasium."  In  other words,

            Leavitt does  acknowledge that  the board, having  just heard

            his witnesses  in connection  with the  first report,  gave a

            reason for declining to  hear them again.  Since  this reason

            was  clearly  not  arbitrary,  we  find  it  constitutionally

            adequate.  See id.  
                       ______

                      By  the  same  token,   there  is  nothing  in  the

            complaint to  suggest that  Leavitt could, by  amendment, add

            adequate   allegations   that  this   disciplinary  procedure

            violated his Eighth  Amendment rights or  his right to  equal

            protection of the laws.

                      As for Leavitt's  charges of defamation, defamation

            alone does not state a cause of action under   1983.  Paul v.
                                                                  ____

            Davis,  424 U.S. 693, 701-10  (1976).  As  long as procedural
            _____

            due process is afforded the inmate in the prison disciplinary

            hearing,  and  no   substantive  constitutional  rights   are

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implicated,  a prison inmate cannot bring a   1983 action for

            defamation  against  prison  officials  on  the  ground  that

            charges resolved  against the inmate  in prison  disciplinary

            proceedings were false and defamatory.  See Franco v.  Kelly,
                                                    __________     _____

            854 F.2d 584, 587-88 (2nd Cir. 1988).

                      The due process clause does not, in and  of itself,

            confer upon an inmate a right to pursue grievance proceedings

            against prison officials.   Mann v. Adams, 855 F.2d  639, 640
                                        ____    _____

            (9th  Cir.  1988).    Furthermore,  prison regulations  which

            establish a grievance procedure cannot give rise to a liberty

            interest because they confer only procedural protections, not

            substantive  rights,  upon  the   inmates  who  may  use  the

            grievance procedures.  Azeez v. DeRobertis, 568 F.Supp. 8, 10
                                   _____    __________

            (N.D.Ill.  1982); see  generally Shango  v. Jurich,  681 F.2d
                              _____________________     ______

            1091  (7th  Cir. 1982).   Accordingly,  Leavitt's allegations

            that  certain defendants failed  to properly  investigate his

            grievances cannot support a constitutional claim.

                      Leavitt's  allegations  of excessive  force against

            defendant Woodbury  are limited  to the charge  that Woodbury

            shoved, pushed, and grabbed  him.  Against defendant Gallant,

            Leavitt's  allegations are  limited to  verbal abuse.   These

            allegations  are therefore  de minimis  and cannot  provide a

            basis for a   1983 claim.  "Not every  push or shove, even if

            it  may  later seem  unnecessary in  the  peace of  a judge's

            chambers,  violates  a  prisoner's   constitutional  rights."

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Hudson v. McMillian, 503  U.S. 1, 15 (1992)  (quoting Johnson
            ______    _________                                   _______

            v.  Glick, 481 F.2d 1028,  1033 (2d Cir.),  cert. denied, 414
                _____                                   ____________

            U.S. 1033 (1973)).

                      Leavitt's  allegation that  his due  process rights

            were violated  by being brought to administrative segregation

            without explanation is fatally defective.  Even if  a liberty

            interest   was   implicated   by   Leavitt's   placement   in

            segregation,  all  that  due  process  requires  is  that  an

            informal administrative procedure  "occur within a reasonable

            time following an inmate's  transfer."  Hewitt v.  Helms, 459
                                                    ______     _____

            U.S. 460,  476 n.8 (1982).   Leavitt was not entitled  to any

            procedure before, or contemporaneous with, his transfer.

                      Finally,  Leavitt's  allegation   that  his   First

            Amendment  rights   were  violated  by  discipline   for  his

            statement  at  the basketball  game  was  properly dismissed.

            This   statement,  again,   has  been   found  by   a  prison

            disciplinary  board to constitute  provocative and disorderly

            conduct.   An  inmate has  no First  Amendment right  to make

            statements  reasonably  judged   by  prison  authorities   to

            constitute  attempts to provoke other inmates.  See Ustrak v.
                                                            __________

            Fairman, 781 F.2d 573, 580 (7th Cir.), cert. denied, 479 U.S.
            _______                                ____________

            824 (1986).

                      Leavitt  did make  two allegations,  however, which

            were not  premised on indisputably  meritless legal theories.

            Although  Leavitt's  allegations may  have  lacked sufficient

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detail to  state constitutional claims which  could survive a

            Rule  12(b)(6)  motion to  dismiss,  any  such problem  could

            conceivably be  cured by more  specific factual  allegations.

            See Street v. Fair, 918 F.2d 269, 272-73 (1st Cir. 1990).
            __________    ____

                      The first of these is  Leavitt's claim that his due

            process rights were violated  by being held in administrative

            segregation for 24 days  without "a hearing or administrative

            procedure regarding  the movement to the  segregation unit in

            violation  of the  procedures, rules  and regulations  of the

            Maine State Prison."   Although the  due process clause  does

            not,  in  and of  itself, confer  upon  a prisoner  a liberty

            interest  in being  held  in the  general prison  population,

            Hewitt v. Helms, 459  U.S. 460, 467-68 (1983), state  laws or
            ______    _____

            regulations may  create a  protected liberty interest  if, by

            setting forth "explicitly  mandatory language" and "specified

            substantive  predicates,"  Kentucky Dep't  of  Corrections v.
                                       _______________________________

            Thompson, 490 U.S. 454, 463 (1989), they "plac[e] substantive
            ________

            limitations  on official discretion," Olim v. Wakinekona, 461
                                                  ____    __________

            U.S. 238, 249 (1983).   Leavitt's complaint does  not specify

            what prison regulations should be thought to confer a liberty

            interest,  but  certainly  he  might   do  so  if  given  the

            opportunity to amend his complaint.  If he did have a liberty

            interest in his placement in administrative segregation, then

            his  allegation that  he  was maintained  there  for 24  days

            without any procedure  would appear adequate to state a claim

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of  a due process violation.   See Hewitt, supra, 459 U.S. at
                                           __________  _____

            472, 476-77.

                      Finally,  the Eighth  Amendment  is violated  where

            prison officials act with deliberate indifference to a strong

            and palpable risk  of physical harm to an inmate at the hands

            of other prisoners.  Purvis v. Ponte,  929 F.2d 822, 825 (1st
                                 ______    _____

            Cir.  1991).  All  that Leavitt has  alleged, to be  sure, is

            that  his   "safety  was  threatened"  during   his  time  in

            segregation, and that it was "an environment where his safety

            was  in  danger  at  all  times."     Again,  however,  these

            conclusory allegations  are  not  based  on  an  indisputably

            deficient legal theory not conceivably curable by amendment.

                      Accordingly, we  remand this  case to  the district

            court  for further proceedings.  As a result of this opinion,

            Leavitt   is  now   on   notice  that   in  order   to  state

            constitutional claims  he  cannot rest  on vague,  conclusory

            allegations, but  rather must set  forth factual  allegations

            supporting the  material elements of  his claims.   Gooley v.
                                                                ______

            Mobil Oil Corp., 851  F.2d 513, 514-15 (1st  Cir. 1988).   On
            ______________

            remand, therefore, Leavitt should amend his complaint.

                      The judgment of the  district court is vacated, and
                                                             _______

            the case is remanded for further proceedings not inconsistent
                        ________

            with this opinion.

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