
USCA1 Opinion

	




          April 8, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1566                                     FRED WOODARD,                                Plaintiff, Appellant,                                          v.                              ROBERT P. GITTENS, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Fred Woodard on brief pro se.            ____________            Nancy Ankers White,  Special Assistant Attorney General, and  Joel            __________________                                            ____        J. Berner on brief for appellees.        _________                                 ____________________                                 ____________________                      Per Curiam.   The judgment of the district court is                      __________            affirmed substantially for the reasons stated in the district            court's April 29, 1993 memorandum and order.                      In addition, we  must consider one  claim that  the            district court  did not specifically address  in its opinion.            Woodard alleged  that even  though  applicable Department  of            Correction regulations were not changed until 1987 to  delete            Alcoholics  Anonymous and  drug counseling  from the  list of            programs for  which prisoners could get  good-time credit, in            1981 the Department of Correction issued a policy  memorandum            eliminating good-time  credit for these programs.   From 1981            or 1982 to 1987, the Department followed this memorandum, not            the regulations.                        Woodard  further alleged,  and defendants  have not            disputed, that the  Massachusetts Superior Court  ruled in  a            1991 case (cited by  Woodard as Cleary v. Rakie,  no. 90-6387                                            ______    _____            (Middlesex Super. Ct. 1991) (unpublished)), that this 1981-87            practice had  been improper because it  contravened the then-            governing  regulations.   The  court allegedly  directed  the            Department  to  comply   with  the  regulatory   mandate  and            retroactively   award   prisoners   good-time    credit   for            satisfactory participation in these programs during the 1981-            87 period.  Neither party has supplied this court with a copy            of the Superior Court decision, which is not in the record.                        Woodard filed as  an attachment below  a March  18,            1992  memorandum from  defendant DuBois, the  Commissioner of            Correction,  advising  corrections personnel,  "Recently, the            Middlesex Superior Court issued a  decision declaring invalid            the  Department of Correction's  1981 policy memorandum which            made  certain  programs  ineligible  for  earned  good   time            credits."  The  memorandum directed corrections  personnel to            "begin on or before March  27, 1992" to recalculate good-time            credit  and   release  dates  for  each   inmate  to  reflect            appropriate credit for participation in these programs during            the 1982-87 period.  This March 27 deadline was less than two            weeks before  Woodard's release from prison on April 8, 1992.            Woodard alleges that his release date was never recalculated.                      On this  basis, Woodard  argues that the  denial of            good-time credit for participation  in these programs  during            1981-87, in apparent contravention of applicable regulations,            violated his constitutional rights.  We disagree.                      The Department's 1981  policy memorandum,  whatever            its status under state law, did not violate the ex post facto            clause of the Constitution, art. 1,   10, cl. 1, for the same            reasons  -- stated  by the  district court  -- that  the 1987            change in the  regulations did  not.  After  the 1981  policy            memorandum, Woodard  remained eligible  for exactly  the same            total amount of good-time credit, for participation in a wide            range of available programs, as he had been before.  All that            changed  was  that  he  had to  select  programs  other  than            Alcoholics Anonymous and drug counseling to earn such credit.            Consequently, the unavailability of these particular programs                                         -3-            did not establish a regime that was more onerous to him.  For            that  reason,  the  1981  policy memorandum,  like  the  1987            regulations,  did   not  "substantially  alter  .   .  .  the            consequences attached  to  a  crime  already  completed,  and            therefore  change . . . 'the quantum of punishment.'"  Weaver                                                                   ______            v.  Graham,  450  U.S.  24,  33  (1981)  (quoting Dobbert  v.                ______                                _______________            Florida, 432 U.S. 282, 293-94 (1977)).            _______                      Since     1983  requires  violation  of  a  federal                                                                  _______            constitutional  or statutory right,  mere failure properly to            follow state law or regulations cannot  provide the basis for                   _____            a    1983  claim.   See  Pennhurst State  School  & Hosp.  v.                                ____________________________________            Halderman, 465 U.S.  89, 106 (1984); Quintero  de Quintero v.            _________                            _____________________            Aponte-Roque,  974  F.2d  226,  230  (1st  Cir.  1992).   The            ____________            Constitution itself does not guarantee  a right to earn good-            time credits.  Wolff v. McDonnell, 418 U.S. 539, 557 (1974).                           _____    _________                      The only argument remaining for Woodard, therefore,            is that  the Department's failure to  award good-time credits            for participation in these programs during the 1981-87 period            violated  a constitutionally protected liberty interest based            in  state law.  "A State creates a protected liberty interest            by placing  substantive limitations on  official discretion."            Bowser  v. Vose, 968 F.2d  105, 107 (1st  Cir. 1992) (quoting            ______     ____            Olim  v. Wakinekona, 461 U.S.  238, 249 (1983)).   Even where            ____     __________            applicable    statutes    create    no   liberty    interest,            administrative  regulations  may   do  so  if   they  contain                                         -4-            "specific  directives  to  the  decisionmaker   that  if  the            regulations' substantive predicates are present, a particular            outcome  must  follow."   Kentucky  Dep't  of Corrections  v.                                      _______________________________            Thompson,  490 U.S. 454, 463 (1989).  See Rodi v. Ventetuolo,            ________                              ___ ____    __________            941 F.2d 22, 26 (1st Cir. 1991).                       The   Massachusetts  statute   governing  good-time            credits states: "For  the . .  . satisfactory performance  of            said inmates  in  any other  program  or activity  which  the            superintendent of the institution shall deem valuable to said            prisoner's rehabilitation, the commissioner may grant . . . a                                                        ___            further deduction of sentence  . . . ."    Mass. Gen. Laws c.            127,   129D (1993).  No liberty interest in earning good-time            credit derives  from this statute because  the statute places            the award  of good-time credit  within the discretion  of the            Commissioner.   Cf. Bowser, supra,  968 F.2d  at 109  (courts                            __________  _____            have  found use  of language  such as  "may"  insufficient to            create a liberty interest).                      The 1978  Department of Correction  regulations, in            effect during  the 1981-87 period, provided,  "A resident for            his   satisfactory   conduct,  satisfactory   completion,  or            satisfactory performance in a program or activity may receive                                                              ___            a deduction from sentence of not more than seven and one half            days a  month."  103  Code of Mass. Regs.    411.09(1) (1978)            (emphasis added).  The regulations granted the  determination            whether  or  not   to  award  a  sentence  reduction  to  the                                         -5-            Commissioner,  id.    411.10(10-12),  and did  not state  any                           __            criteria  -- beyond the  requirement of satisfactory conduct,            completion,  or performance  --  by which  the Commissioner's            determination was to be governed.                        Like  the  statute,  these   regulations  contained            neither  substantive  predicates  nor mandatory  language  to            limit  the Commissioner's  discretion  in  his  determination            whether  to award  good-time  credit for  participation in  a            particular program.  For  that reason, they did not  create a            liberty interest.                      The only relevant  mandatory language may  be found            in    411.08(1)(g),  which stated  that the  activities which            would carry  eligibility for good-time credit  "shall include                                                            _____            but not  be limited to  . .  . alcoholics anonymous,  or drug            counseling."  Id.   411.08(1)(g) (emphasis added).   The most                          ___            that  this language mandated, however,  was that if an inmate            participated  in one of  these programs, the  inmate would be            entitled to a discretionary determination by the Commissioner            whether  the participation  was  "satisfactory"  and  whether            good-time  credit would  be awarded.    In other  words, this            provision, at most, mandated only  that an inmate be accorded            a  particular  procedure,  not   that  an  inmate  receive  a            particular outcome if specified substantive criteriawere met.                      Such a  provision -- mandating a  procedure only --            does not create a liberty interest.  Ewell v. Murray, 11 F.3d                                                 _____    ______                                         -6-            482,  488 (4th Cir. 1993)  ("inmates do not  have a protected            liberty interest  in the  procedures themselves, only  in the                                      _____________________            subject  matter to  which  they are  directed") (emphasis  in            original).   Accordingly, the 1981 policy  memorandum did not            deprive  Woodard  of  a  constitutionally  protected  liberty            interest -- regardless of whether it may have  violated state            law -- when it removed these programs from the list of  those            carrying  eligibility  for   good-time  credit.     Nor   did            defendants  deprive Woodard  of a  constitutionally protected            liberty  interest  if, as  alleged,  they failed  in  1992 to            review his  record of participation in  these programs during            the 1981-87  period to determine whether  a retroactive award            of good-time credit was appropriate.                      The judgment of the district court is affirmed.                                                            ________                                         -7-
