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[NOT FOR PUBLICATION]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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