USCA1 Opinion
June 26, 1992 [NOT FOR PUBLICATION]
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No. 92-1092
MARK R. CUGINI,
Plaintiff-Appellant,
v.
DONALD R. VENTETUOLO, ET AL.,
Defendants-Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Mark R. Cugini on brief pro se.
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Michael B. Grant on brief for appellees.
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Per Curiam. Appellant Mark R. Cugini appeals from
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the dismissal of his complaint in which he sought to hold
various officials of the Rhode Island Department of
Corrections (DOC) in contempt of the consent decree entered
in Morris v. Travisono, 310 F. Supp. 857 (D.R.I. 1970)
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(referred to as the Morris Rules). Cugini amended his
complaint to state a cause of action for deprivation of his
civil rights and requested damages and an injunction. Cugini
claims that his rights to due process and equal protection,
and his right to be free from cruel and unusual punishment
were violated when he was denied a change in classification
status. As a result of this, Cugini states, he was denied
parole.
Because Cugini appears pro se, we construe his
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complaint liberally. See Haines v. Kerner, 404 U.S. 519
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(1972) (per curiam); Ferranti v. Moran, 618 F.2d 888, 890
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(1st Cir. 1980). We also take as true all of Cugini's
factual allegations and draw from them all reasonable
inferences. Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir.
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1991).
I. FACTS
Cugini's pleadings reveal the following series of
events. In February 1985, Cugini began serving concurrent
sentences of three and twelve years (Cugini does not specify
the crime or crimes for which he was convicted). He was
classified as a medium security risk. As such, he was not
entitled to participate in work-release programs. Cugini
first appeared before the Parole Board on May 25, 1989. At
this time, parole was denied on the ground that Cugini had
not yet moved "through the prison system." This apparently
refers to the fact that Cugini had not attained minimum
security status and the accompanying eligibility for work-
release programs.
On June 27, 1989, Cugini appeared before the
Classification Board. At this time, the Board denied a
change to minimum status. Accordingly, Cugini was ineligible
for work release. The Board based its decision on the nature
of the crime and a minor institutional infraction. However,
in November 1989, the Classification Board recommended such a
change. Nonetheless, the Director of the DOC rejected the
Board's recommendation on the basis of the nature of the
crime. When Cugini appeared before the Parole Board for the
second time on November 20, 1989, parole again was denied
because Cugini had not moved through the system.
In February and August 1990, the Classification
Board again recommended that Cugini be reclassified to
minimum status. On both occasions, the Director rejected the
Board's recommendation and denied a change in classification.
On November 21, 1990, the Parole Board denied parole for the
same reason as before. Despite the Parole Board's
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requirement that Cugini begin work release before it would
consider him parole-eligible, the Classification Board, in
December 1990, refused to change Cugini's classification
status based solely on the nature of his crime.
Cugini asserts that the denial of minimum status
and work-release status was not in compliance with the Morris
Rules, that other similarly situated inmates were granted
such status, and that the lack of sufficient rehabilitation
programs for medium status prisoners relegated Cugini to a
vegetative state which amounted to cruel and unusual
punishment. Cugini first argues that the classification
portion of the Morris Rules creates a liberty interest which
the United States Constitution protects. Thus, he concludes,
by considering a criterion -- the nature of the offense --
that is not among the factors the Classification Board is
permitted to examine by regulation, the Board violated his
due process rights. Also, Cugini argues that he has a
liberty interest in being able to pursue parole and that by
denying him a change in classification, the Classification
Board deprived him of this right. Finally, Cugini states
that due to the mandatory language of the parole statute and
the classification regulations, he has "a right protectible
under the constitution . . . to a classification which will
enhance his rehabilitation that being . . . to be classified
to a lesser security [and] minimum/work release."
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II. DISCUSSION
A. Due Process
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It is important to note that this is not the usual
case concerning due process. Cugini does not complain that
procedures such as notice and hearing were lacking. Rather,
he is arguing that otherwise adequate procedures were applied
in an impermissible way. His case reduces to a claim that
the Classification Board and the Director erred in resting
the decision not to reclassify Cugini on the basis of the
nature of his crime.
For this proposition, Cugini refers to a DOC
Administrative Policy Statement, No. 1.19.01, Part VI, which
provides, in relevant part, as follows:
C. If an inmate is being
considered for transfer from
Medium to Minimum Security, the
following criteria will be
utilized:
1. If he has a sentence
not in excess of ten
(10) years, he must
have served three (3)
months in Medium and
have served at least
one-tenth (1/10) of
his total sentence.
2. If he has over a ten
(10) year sentence
(not lifers with more
than a thirty (30)
year sentence), he
must have served six
(6) months in Medium
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Security and be
within four (4)
years or less of
parole eligibility.
. . . .
4. If his program needs
can be met in Minimum
Security.
5. He must have
exhibited positive
attitudes towards
institution rules and
regulations and has
shown no serious
behavioral adjustment
problems during his
time in Medium.
Cugini argues that the use of the word "will" requires prison
officials to consider only the listed factors. The reliance
on the nature of the crime for which he was convicted, Cugini
maintains, violates his liberty interest in attaining parole.
We need not address whether, and to what extent,
Cugini's due process rights were violated to resolve his
claim. Attached to Policy No. 1.19.01 is a document entitled
"Classification/Re-Classification Criteria: Revised
Explanation of Classification Criteria." This statement
"further defines various criteria and terminology used in
this policy statement." Item IV refers to pertinent
sentencing data and list as a relevant inquiry "what is his
crime(s)?" Thus, contrary to Cugini's assertion, the
Classification Board and the Director did not go beyond the
limits set forth in this policy statement.
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Indeed, even if the Classification Board had erred
in applying the classification standards, we have held that
"it will be the unusual case, involving marked departure by
state officials therefrom, which might give rise to a
supportable claim of constitutional deprivation." Palmigiano
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v. Mullen, 491 F.2d 978, 980 (1st Cir. 1974). To make such a
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case, an inmate would need to show "with convincing
particularity some likelihood either that the defendants
disregarded Morris procedures" or else that his
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classification decision was made "for reasons utterly beyond
the scope of any legitimate authority." Id. Cugini's claim
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under this standard necessarily fails.
B. Equal Protection
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Cugini's assertion that inmates with worse records
than his and inmates with similar records were given minimum
security classification is conclusory in nature. Aside from
this bare allegation, there is nothing in the record to
support this claim. See Slotnick v. Staviskey, 560 F.2d 31,
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33 (1st Cir. 1977) (pro se complaint cannot survive a motion
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to dismiss unless it refers to material facts to back up
allegations), cert. denied, 434 U.S. 1077 (1978). We have
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made clear that despite the liberal reading of pro se
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pleadings required by Haines, even pro se plaintiffs must
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plead specific facts concerning claims of civil rights
violations. See Glaros v. Perse, 628 F.2d 679, 684 (1st Cir.
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1980). If supportive facts are missing, it is not the place
of the courts to supply them. Hurney v. Carver, 602 F.2d
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993, 995 (1st Cir. 1979).
C. Eighth Amendment
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This claim does not meet the standard set forth in
Wilson v. Seiter, 111 S. Ct. 2321 (1991). The Supreme Court
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held in Seiter that to make out an Eighth Amendment claim an
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inmate must establish that prison officials acted with
deliberate indifference. Id. at 2326-27. "Deliberate
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indifference is conduct that offends evolving standards of
decency in a civilized country." DesRosiers v. Moran, 949
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F.2d 15, 18 (1st Cir. 1991). Cugini's assertion that after
taking advantage of all the rehabilitation and education
services available to medium security inmates he was left to
exist in a "vegetative state" falls far short of this
standard. See Rodi, 942 F.2d at 29 n.8 (actionable claim
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under Eighth Amendment not stated by bare claim that
prisoner's return to maximum security after disciplinary
segregation caused him harm).
CONCLUSION
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Treating Cugini's complaint as a motion for
contempt, it is plain that the complaint fails to state a
claim upon which relief may be granted -- simply, prison
officials did not disregard the Morris Rules or
Administrative Policy Statement No. 1.19.01. Even treating
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Cugini's complaint as a 42 U.S.C. 1983 action, he fails to
state a claim for the reasons stated above.
Accordingly, the judgment of the district court is
affirmed.
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