Colman v. Lahouse

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September 24, 1992 [NOT FOR PUBLICATION]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.
______________

__________________

__________________


Per Curiam. Appellant is an inmate at the
____________

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.
______ ___________________________



-5-















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.



-10-















For the reasons stated above, the decision of the

district court is affirmed.
________

















































-11-