Woodard v. Gittens

Opinion

USCA1 Opinion

April 8, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1566 

                                    FRED WOODARD,

                                Plaintiff, Appellant,

                                          v.

                              ROBERT P. GITTENS, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ____________________

            Fred Woodard on brief pro se.
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            Nancy Ankers White,  Special Assistant Attorney General, and  Joel
            __________________                                            ____
        J. Berner on brief for appellees.
        _________

____________________

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Per Curiam.   The judgment of the district court is
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            affirmed substantially for the reasons stated in the district

            court's April 29, 1993 memorandum and order.

                      In addition, we  must consider one  claim that  the

            district court  did not specifically address  in its opinion.

            Woodard alleged  that even  though  applicable Department  of

            Correction regulations were not changed until 1987 to  delete

            Alcoholics  Anonymous and  drug counseling  from the  list of

            programs for  which prisoners could get  good-time credit, in

            1981 the Department of Correction issued a policy  memorandum

            eliminating good-time  credit for these programs.   From 1981

            or 1982 to 1987, the Department followed this memorandum, not

            the regulations.  

                      Woodard  further alleged,  and defendants  have not

            disputed, that the  Massachusetts Superior Court  ruled in  a

            1991 case (cited by  Woodard as Cleary v. Rakie,  no. 90-6387
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            (Middlesex Super. Ct. 1991) (unpublished)), that this 1981-87

            practice had  been improper because it  contravened the then-

            governing  regulations.   The  court allegedly  directed  the

            Department  to  comply   with  the  regulatory   mandate  and

            retroactively   award   prisoners   good-time    credit   for

            satisfactory participation in these programs during the 1981-

            87 period.  Neither party has supplied this court with a copy

            of the Superior Court decision, which is not in the record.  

Woodard filed as  an attachment below  a March  18,

            1992  memorandum from  defendant DuBois, the  Commissioner of

            Correction,  advising  corrections personnel,  "Recently, the

Middlesex Superior Court issued a  decision declaring invalid

            the  Department of Correction's  1981 policy memorandum which

            made  certain  programs  ineligible  for  earned  good   time

            credits."  The  memorandum directed corrections  personnel to

            "begin on or before March  27, 1992" to recalculate good-time

            credit  and   release  dates  for  each   inmate  to  reflect

            appropriate credit for participation in these programs during

            the 1982-87 period.  This March 27 deadline was less than two

            weeks before  Woodard's release from prison on April 8, 1992.

            Woodard alleges that his release date was never recalculated.

                      On this  basis, Woodard  argues that the  denial of

            good-time credit for participation  in these programs  during

            1981-87, in apparent contravention of applicable regulations,

            violated his constitutional rights.  We disagree.

                      The Department's 1981  policy memorandum,  whatever

            its status under state law, did not violate the ex post facto

            clause of the Constitution, art. 1,   10, cl. 1, for the same

            reasons  -- stated  by the  district court  -- that  the 1987

            change in the  regulations did  not.  After  the 1981  policy

            memorandum, Woodard  remained eligible  for exactly  the same

            total amount of good-time credit, for participation in a wide

            range of available programs, as he had been before.  All that

            changed  was  that  he  had to  select  programs  other  than

            Alcoholics Anonymous and drug counseling to earn such credit.

            Consequently, the unavailability of these particular programs

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did not establish a regime that was more onerous to him.  For

            that  reason,  the  1981  policy memorandum,  like  the  1987

            regulations,  did   not  "substantially  alter  .   .  .  the

            consequences attached  to  a  crime  already  completed,  and

            therefore  change . . . 'the quantum of punishment.'"  Weaver
                                                                   ______

            v.  Graham,  450  U.S.  24,  33  (1981)  (quoting Dobbert  v.
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            Florida, 432 U.S. 282, 293-94 (1977)).
            _______

                      Since     1983  requires  violation  of  a  federal
                                                                  _______

            constitutional  or statutory right,  mere failure properly to

            follow state law or regulations cannot  provide the basis for
                   _____

            a    1983  claim.   See  Pennhurst State  School  & Hosp.  v.
                                ____________________________________

            Halderman, 465 U.S.  89, 106 (1984); Quintero  de Quintero v.
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            Aponte-Roque,  974  F.2d  226,  230  (1st  Cir.  1992).   The
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            Constitution itself does not guarantee  a right to earn good-

            time credits.  Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
                           _____    _________

                      The only argument remaining for Woodard, therefore,

            is that  the Department's failure to  award good-time credits

            for participation in these programs during the 1981-87 period

            violated  a constitutionally protected liberty interest based

            in  state law.  "A State creates a protected liberty interest

            by placing  substantive limitations on  official discretion."

            Bowser  v. Vose, 968 F.2d  105, 107 (1st  Cir. 1992) (quoting
            ______     ____

            Olim  v. Wakinekona, 461 U.S.  238, 249 (1983)).   Even where
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            applicable    statutes    create    no   liberty    interest,

            administrative  regulations  may   do  so  if   they  contain

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"specific  directives  to  the  decisionmaker   that  if  the

            regulations' substantive predicates are present, a particular

            outcome  must  follow."   Kentucky  Dep't  of Corrections  v.
                                      _______________________________

            Thompson,  490 U.S. 454, 463 (1989).  See Rodi v. Ventetuolo,
            ________                              ___ ____    __________

            941 F.2d 22, 26 (1st Cir. 1991). 

                      The   Massachusetts  statute   governing  good-time

            credits states: "For  the . .  . satisfactory performance  of

            said inmates  in  any other  program  or activity  which  the

            superintendent of the institution shall deem valuable to said

            prisoner's rehabilitation, the commissioner may grant . . . a
                                                        ___

            further deduction of sentence  . . . ."    Mass. Gen. Laws c.

            127,   129D (1993).  No liberty interest in earning good-time

            credit derives  from this statute because  the statute places

            the award  of good-time credit  within the discretion  of the

            Commissioner.   Cf. Bowser, supra,  968 F.2d  at 109  (courts
                            __________  _____

            have  found use  of language  such as  "may"  insufficient to

            create a liberty interest).

                      The 1978  Department of Correction  regulations, in

            effect during  the 1981-87 period, provided,  "A resident for

            his   satisfactory   conduct,  satisfactory   completion,  or

            satisfactory performance in a program or activity may receive
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            a deduction from sentence of not more than seven and one half

            days a  month."  103  Code of Mass. Regs.    411.09(1) (1978)

            (emphasis added).  The regulations granted the  determination

            whether  or  not   to  award  a  sentence  reduction  to  the

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Commissioner,  id.    411.10(10-12),  and did  not state  any
                           __

            criteria  -- beyond the  requirement of satisfactory conduct,

            completion,  or performance  --  by which  the Commissioner's

            determination was to be governed.  

                      Like  the  statute,  these   regulations  contained

            neither  substantive  predicates  nor mandatory  language  to

            limit  the Commissioner's  discretion  in  his  determination

            whether  to award  good-time  credit for  participation in  a

            particular program.  For  that reason, they did not  create a

            liberty interest.

                      The only relevant  mandatory language may  be found

            in    411.08(1)(g),  which stated  that the  activities which

            would carry  eligibility for good-time credit  "shall include
                                                            _____

            but not  be limited to  . .  . alcoholics anonymous,  or drug

            counseling."  Id.   411.08(1)(g) (emphasis added).   The most
                          ___

            that  this language mandated, however,  was that if an inmate

            participated  in one of  these programs, the  inmate would be

            entitled to a discretionary determination by the Commissioner

            whether  the participation  was  "satisfactory"  and  whether

            good-time  credit would  be awarded.    In other  words, this

            provision, at most, mandated only  that an inmate be accorded

            a  particular  procedure,  not   that  an  inmate  receive  a

            particular outcome if specified substantive criteriawere met.

                      Such a  provision -- mandating a  procedure only --

            does not create a liberty interest.  Ewell v. Murray, 11 F.3d
                                                 _____    ______

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482,  488 (4th Cir. 1993)  ("inmates do not  have a protected

            liberty interest  in the  procedures themselves, only  in the
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            subject  matter to  which  they are  directed") (emphasis  in

            original).   Accordingly, the 1981 policy  memorandum did not

            deprive  Woodard  of  a  constitutionally  protected  liberty

            interest -- regardless of whether it may have  violated state

            law -- when it removed these programs from the list of  those

            carrying  eligibility  for   good-time  credit.     Nor   did

            defendants  deprive Woodard  of a  constitutionally protected

            liberty  interest  if, as  alleged,  they failed  in  1992 to

            review his  record of participation in  these programs during

            the 1981-87  period to determine whether  a retroactive award

            of good-time credit was appropriate.

                      The judgment of the district court is affirmed.
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