
USCA1 Opinion

	




          June 5, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1801                                 BRENDAN MCGUINNESS,                                Plaintiff, Appellant,                                          v.                             LARRY DUBOIS, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Brendan M. McGuinness on brief pro se.            _____________________            Nancy Ankers  White, Special  Assistant Attorney General,  William            ___________________                                        _______        D. Saltzman and Rosemary Ford on brief for appellees.        ___________     _____________                                 ____________________                                 ____________________                 Per Curiam.  Brendan McGuinness has filed an appeal from                 __________            two separate actions,  filed pursuant  to 42  U.S.C.    1983,            which  were consolidated in the district court.  The district            court  rulings can be found  at McGuinness v.  Dubois, 891 F.                                            __________     ______            Supp. 25 (D.  Mass. 1995)  and McGuinness v.  Dubois, 893  F.                                           __________     ______            Supp. 2 (D. Mass. 1995).  Upon careful review of the parties'            briefs and the record on appeal, we affirm.            1.   McGuinness has appealed the grant of summary judgment in            favor of the defendant prison officials on his two-part claim            that his  six-month confinement  (imposed for his  attempt to            flush his sweatshirt down his cell  toilet) to the Department            Disciplinary Unit (the DDU) at the Massachusetts Correctional            Institute at Cedar Junction violated Mass. Gen. L. ch. 127,              401  [hereinafter  "the   isolation  statute"]  because   (i)              1            conditions  in   the  DDU  amount  to   isolation  and  their            application  in  excess of  15  days  violates the  isolation            statute  and (ii) confinement to  the DDU is for disciplinary            purposes and, thus pursuant  to that statute, confinement may            not exceed 15  days for any one offense.   The district court                                            ____________________               1Mass. Gen. L. ch. 127,   40 states:               1                           For  the enforcement  of discipline,                      an inmate in any correctional institution                      of   the   commonwealth   may,   at   the                      discretion  of   its  superintendent,  be                      confined,  for  a  period  not  to exceed                      fifteen days for  any one offence,  to an                      isolation unit.                           Such  isolation  units must  provide                      light, ventilation  and adequate sanitary                      facilities,  may  contain  a  minimum  of                      furniture, and shall provide at least one                      full meal daily.                                         -3-            concluded  that  isolation and  confinement  in  the DDU  are            distinct  forms of incarceration  authorized by  statute and,            thus,  McGuinness'  six-month  term  of  confinement  did not            impermissibly   conflict   with   the    isolation   statute.            McGuinness v. Dubois, 891 F. Supp. at 27-29.            __________    ______                 We  affirm, but on a different  ground.  Medina-Munoz v.                                                          ____________            R.J. Reynolds Tobacco Co., 896 F.2d 5, 7 (1st Cir. 1990)  (in            _________________________            reviewing a  summary  judgment, a  court  of appeals  is  not            limited to  the district court's reasoning, but may affirm on            any independently sufficient  ground).  McGuinness'  argument            on  appeal  is  a  straightforward claim,  unadorned  by  any            reference  to constitutional  underpinnings, that  the prison            regulation  authorizing a sentence to the DDU in excess of 15            days, see 103 CMR 430.25(3)(d), violates state law.  However,                  ___            "[m]erely  erroneous  applications of  state statutes  do not            present a  question  of federal  constitutional magnitude  as            long  as there is an adequate state remedy."  Colon-Rivera v.                                                          ____________            Puerto Rico Dep't of Soc. Serv., 736 F.2d 804, 806 (1st  Cir.            _______________________________            1984)  (per  curiam), cert.  denied,  469  U.S. 1112  (1985).                                  _____________            There  is no evidence, indeed no contention, of an inadequate            state remedy  in  this  case.   See  also Coyne  v.  City  of                                            _________ _____      ________            Somerville, 972 F.2d 440, 444 (1st Cir. 1992) ("It is bedrock            __________            law  in this circuit, however, that violations of state law -            even where arbitrary, capricious,  or undertaken in bad faith                                         -4-            -  do not, without more,  give rise to  denial of substantive            due process under the U.S. Constitution.").            2.   McGuinness has also appealed the district court's ruling            that the defendants are entitled to qualified immunity on his            claim that the  denial of  his request for  witnesses at  his            April 7, 1993 prison disciplinary hearing (for his assault of            a  prison guard) violated due  process -- a  ruling that also            permitted the defendants to rehear  that disciplinary matter.            McGuinness  v. Dubois, 891 F. Supp. at 31-36.  The defendants            __________     ______            have  not  appealed the  grant of  a declaratory  judgment in            McGuinness' favor that  held that they had violated  a prison            regulation, which  the district  court construed as  a state-            created liberty interest protected  by the Due Process Clause            and which the court  interpreted to require an individualized            assessment  regarding  whether  calling a  particular  inmate            witness would be unduly  hazardous to institutional safety or            correctional goals.  We have  no cause, therefore, to  review            that declaratory  judgment.  But see McGuinness v. Dubois, 75                                         _______ __________    ______            F.3d 794, 798-800 (1st Cir. 1996) (per curiam) (reserving the            question  whether  reliance  on  an  across-the-board  prison            policy  denying  requests  for live  testimony  from  general            population  inmates  at  disciplinary  hearings   held  in  a            segregated  wing violates  federal  due process  and, on  the            facts of the  case, reversing  the court's finding  of a  due                                         -5-            process  violation).2   But,  as  our own  recitation  of the                                2            state  of the  law reveals  a  less than  clearly established            constitutional right of which a reasonable officer would have            known,  see id. at 799-800,  we conclude that,  in any event,                    ___ ___            the  district court's  conclusion  that  the  defendants  are            entitled to qualified immunity is correct.  And,  we perceive            neither  error  nor abuse  of  discretion  in permitting  the            defendants to rehear the disciplinary matter.            3.   Finally, McGuinness appeals  the district court's ruling            that the defendants are entitled to qualified immunity on his            claim  that the  deprivation  of "yard-time,"  which, due  to            McGuinness' repetitive  recalcitrant behavior, resulted  in a            cumulative sanction  of approximately one year,  violated the            Eighth  Amendment.   We affirm,  essentially for  the reasons            stated  in  the  district  court's opinion.    McGuinness  v.                                                           __________            Dubois, 893 F. Supp. at 3-4.            ______                 Affirmed.                 _________                                            ____________________               2Our opinion  in McGuinness v.  Dubois, 75  F.3d 794  (1st               2                __________     ______            Cir.  1996) (per  curiam) issued  after the  district court's            rulings underlying the current appeal.                                         -6-
