         09-4589-pr
         Ladd v. Thibault



                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.      CITATION TO A SUMMARY
     ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
     OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.        WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
     FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
     PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
     COUNSEL.

 1            At a stated term of the United States Court of Appeals for
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 6th day of December, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                AMALYA L. KEARSE,
10                CHESTER J. STRAUB,
11                     Circuit Judges.
12       __________________________________________
13
14       EUGENE F. LADD,
15
16                          Plaintiff-Appellant,
17
18
19                          v.                                   09-4589-pr
20
21       DEBORAH THIBAULT, District Manager,
22       Burlington Community Correctional
23       Service Center, PAUL HEATH, Assistant
24       District Manager, Burlington Community
25       Correctional Service Center, RICHARD
26       PLANK, CCO/CCFS, Burlington Community
27       Correctional Service Center, JAY
28       SIMONS, Superintendent, Chittenden
29       Regional Correctional Facility, SUSAN
30       BLAIR, Acting Superintendent,
 1   Chittenden Regional Correctional
 2   Facility, GREG HALE, CWS/Probation &
 3   Parole Officer, Burlington Community
 4   Correctional Service Center, KRISTIN
 5   PRIOR, Victim Services Coordinator,
 6   Vermont Department of Corrections,
 7   JACQUELINE KOTKIN, Field Services
 8   Executive, Vermont Department of
 9   Corrections, Central Office, RAYMOND
10   FLUM, Director of Classification,
11   Vermont Department of Corrections,
12   Central Office, DOMINIC DAMATO,
13   Supervising Officer of Security,
14   Southern State Correctional Facility,
15   MICHAEL O’MALLEY, Acting
16   Superintendent, Southern State
17   Correctional Facility,
18
19            Defendants-Appellees.
20   __________________________________________
21
22   FOR APPELLANT:         Eugene F. Ladd, pro se, Beattyville,
23                          KY.
24
25   FOR APPELLEES:         David McLean, Assistant Attorney
26                          General, for William H. Sorrell,
27                          Attorney General for the State of
28                          Vermont, Waterbury, VT.
29

30        Appeal from a judgment of the United States District
31   Court for the District of Vermont (Murtha, J.).
32
33        UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
34   AND DECREED that the judgment of the district court be
35   AFFIRMED.
36
37        Appellant Eugene F. Ladd, pro se and incarcerated,
38   appeals the district court’s judgment dismissing his 42
39   U.S.C. § 1983 complaint, which alleged that the Defendants
40   violated his due process rights under the Fourteenth
41   Amendment incident to the revocation of his furlough or



                                  2
 1   conditional re-entry (“CR”) status. 1 In relevant part, the
 2   district court held that the Defendants were entitled to
 3   qualified immunity as to Ladd’s claims for damages against
 4   them in their individual capacities, because it was not
 5   clearly established as of 2005--the date of the relevant
 6   events in this case--that an inmate in Vermont had a
 7   protected liberty interest in remaining on CR. We assume
 8   the parties’ familiarity with the underlying facts, the
 9   procedural history of the case, and the issues on appeal.
10
11        We review a district court’s resolution of a qualified
12   immunity issue on a motion to dismiss de novo, accepting as
13   true all the material allegations of the complaint and
14   drawing all reasonable inferences in the plaintiff’s favor.
15   See Pena v. DePrisco, 432 F.3d 98, 107 (2d Cir. 2005).
16   “Government actors have qualified immunity to § 1983 claims
17   ‘insofar as their conduct does not violate clearly
18   established statutory or constitutional rights of which a
19   reasonable person would have known.’” Bolmer v. Oliveira,
20   594 F.3d 134, 141 (2d Cir. 2010) (quoting Okin v. Vill. of
21   Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 432 (2d Cir.
22   2009)). Thus, “[a] qualified immunity defense is
23   established if (a) the defendant’s action did not violate
24   clearly established law, or (b) it was objectively
25   reasonable for the defendant to believe that his action did
26   not violate such law.” Salim v. Proulx, 93 F.3d 86, 89 (2d
27   Cir. 1996).
28
29        Where it is not obvious that the alleged Constitutional
30   right existed, we may exercise our discretion and “initially
31   evaluate whether the constitutional right asserted . . . was
32   clearly established during the relevant period,” and,
33   “[o]nly if the right was clearly established will we then
34   consider whether the facts . . . alleged make out a
35   violation of a constitutional right.” Dean v. Blumenthal,
36   577 F.3d 60, 68 (2d Cir. 2009); see Pearson v. Callahan, 129
37   S. Ct. 808, 818 (2009).
38


         1
           Our review of the record reveals   that, because the
     district court revoked Ladd’s in forma   pauperis (“IFP”)
     status when it granted the Defendants’   motion to dismiss, he
     lacks this status on appeal. For this    reason, we GRANT his
     motion for IFP.
                                   3
 1        “To determine whether a right is clearly established,
 2   we look to (1) whether the right was defined with reasonable
 3   specificity; (2) whether Supreme Court or court of appeals
 4   case law supports the existence of the right in question[;]
 5   and (3) whether under preexisting law a reasonable defendant
 6   would have understood that his or her acts were unlawful.”
 7   Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). “The
 8   contours of the right must be sufficiently clear that a
 9   reasonable official would understand that what he is doing
10   violates that right.” Anderson v. Creighton, 483 U.S. 635,
11   640 (1987).
12
13          It appears that no court has ever concluded that
14   Vermont’s CR program vests an inmate with a constitutionally
15   protected liberty interest. The Vermont Supreme Court held
16   that an inmate’s “status under furlough more closely
17   resembles that of an inmate seeking a particular right or
18   status within an institution, rather than that of a
19   parolee,” and “no liberty interest in furlough status may be
20   asserted directly under the United States Constitution.”
21   Conway v. Cumming, 636 A.2d 735, 736-37 (Vt. 1993); see
22   State v. Greene, 782 A.2d 1163, 1166-67 (Vt. 2001) (citing
23   Conway for the rule that Vermont’s furlough program does not
24   create a constitutionally protected liberty interest);
25   Parker v. Gorczyk, 744 A.2d 410, 417 (Vt. 1999) (referencing
26   Conway’s discussion of the “qualitative difference between
27   prisoners’ interest in release from parole as opposed to
28   furlough”).
29
30        Nevertheless, we are “obligat[ed] to determine [a
31   plaintiff’s] due process rights under the federal
32   Constitution for ourselves.” Holcomb v. Lykens, 337 F.3d
33   217, 222 n.5. (2d Cir. 2003). We have not considered this
34   Vermont CR program and have considered a similar Vermont
35   program only in one prior decision, Holcomb, in which we
36   declined to consider whether in fact an inmate’s furlough
37   status gives rise to a protected liberty interest. See id.
38   at 223. Holcomb therefore does not assist Ladd. The
39   Supreme Court’s decision in Young v. Harper, which concerned
40   Oklahoma’s conditional release program, engaged in a
41   detailed factual analysis of that program before concluding
42   that it created a constitutionally protected liberty
43   interest. The nature of the conditional release program in
44   Young and the Supreme Court’s analysis of it would not

                                  4
 1   compel a reasonable official in the Defendants’ position to
 2   understand that his actions were unlawful. See 520 U.S.
 3   143, 149-52 (1997). Therefore, Ladd’s asserted liberty
 4   interest was not clearly established at the time of the
 5   relevant events described in his complaint. The district
 6   court correctly determined that the Defendants were entitled
 7   to qualified immunity as to all of Ladd’s claims for
 8   damages.
 9
10        We have considered all of Ladd’s remaining claims of
11   error and found them to be without merit. Accordingly, for
12   the foregoing reasons, the judgment of the district court is
13   hereby AFFIRMED.
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17
18
19




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