
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                 ____________________        No. 92-1307                                     ISAAC AYCOX,                                Plaintiff, Appellant,                                          v.                             BROOKE HOUSE, INC., 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.                                        _____________                                 ____________________            Isaac Aycox on brief pro se.            ___________            Howard A. Brick, Cynthia  O. Hamilton, Donald K. Stern, Daniel  P.            _______________  ____________________  _______________  __________        Tighe, and  Hale and  Dorr, on  Memorandum  in Support  of Motion  for        _____       ______________        Summary Disposition, for appellees.                                 ____________________                                  August 26, 1992                                 ____________________                      Per Curiam.  Pro se inmate Isaac Aycox appeals from                      __________            a district  court judgment  dismissing his  42 U.S.C.    1983            complaint  against  Brooke  House,  a  Massachusetts  halfway            house, and its  director, Andy McDonald.   The district court            ruled that the  complaint failed to state a  claim upon which            relief  could   be  granted  and  simultaneously  denied  the            plaintiff's motion for summary judgment.  We affirm.                                          I.                                          _                      We recite only  those facts relevant to  the issues            on appeal.  In 1976, plaintiff was convicted of armed robbery            and sentenced to  ten to twenty years' imprisonment.   He was            transferred to  Brooke House  in September  1988.   Plaintiff            alleged  that he  was  deceived  into  signing  a  "Community            Release  Agreement" in  connection with  this  transfer.   On            October  2,  1988,  while "on  furlough"  from  Brooke House,            plaintiff  went  to   visit  his   fiancee  in   Springfield,            Massachusetts and found her with another man.  An altercation            ensued.   Plaintiff was arrested and arraigned in Springfield            district court  on the following day.   He was then  taken to            the Massachusetts  Correction  Institute  (M.C.I.)  at  Cedar            Junction, a maximum security prison.   On or about October 6,            1988,  plaintiff received  disciplinary  reports from  Brooke            House which charged him with violating "'prison institutional            and  disciplinary rules and regulations'"  as a result of his            conduct in  Springfield  on October  2-3, 1988.     Plaintiff                                         -3-            alleges  that these  reports  fraudulently identified  Brooke            House as  one of  the DOC's  "Contact Pre-release  Programs."            Plaintiff claimed that Brooke House had no authority to issue            disciplinary reports  against him and,  as a result  of these            reports, plaintiff's  "rights to  parole  release" have  been            adversely  affected.    Plaintiff   sought  compensatory  and            punitive  damages,  as  well as  declaratory  and  injunctive            relief.1                      On August 23, 1989, Brooke House and McDonald moved            to  dismiss the  complaint under  Fed.  R. Civ.  P. 12(b)(6).            They  argued  that the  complaint  failed  to state  a  claim            because  Massachusetts law  authorized Brooke House  to issue            disciplinary reports  and because the complaint wholly failed            to allege any facts with respect to McDonald.  Plaintiff  did            not  oppose  this motion.    On January  23,  1990, plaintiff            appeared  for  a scheduling  conference  before  a magistrate            judge (magistrate), who set  October 31, 1990 as a  discovery            deadline.    After  plaintiff  filed  interrogatories  and  a            request  for protection of documents, the defendants moved to            stay all discovery and requested an expedited ruling on their            motion to dismiss.  Plaintiff opposed this motion by filing a                                            ____________________            1.  The  complaint  also  named  three  "program  pre-release            officers"  as  defendants  (i.e.,   Bernard  Menendez,  Karen            Posnick,  and Douglas  Davis),  but it  failed to  allege any            facts  as to how  these defendants deprived  plaintiff of any            federal  rights.   The  district  court  allowed  motions  to            dismiss on  behalf of  these defendants  on August  11, 1989.            Plaintiff does not attack this ruling on appeal.                                         -4-            "Motion to Set Aside Motion  for Stay."  Without alleging any            facts,  this  motion  argued  that  McDonald  should  not  be            dismissed  for  the  same reason  that  the  other individual            defendants were dismissed.   On November 11,  1990, plaintiff            filed   a  motion  for  summary  judgment  and  a  supporting            affidavit.     The  latter  averred  that  "the  Commonwealth            subjected  me  to  lost  (sic)  of  liberty  and  freedom  in            violation  of  due process  of  law."    In contrast  to  the            allegations  in  his  complaint,  the  plaintiff's  affidavit            claimed that he was not "on furlough" on October 2, 1988, but            rather, that he  was free  on a  "24 hour  pass."   Plaintiff            complained that because Brooke House reported that he was "on            furlough" on October 2, 1988,  the DOC confiscated all of his            good time credits and plaintiff was prosecuted as  a habitual            offender for the events  of October 2-3, 1988.   As a result,            he is now serving a mandatory ten-year sentence.                      On  July 2, 1991,  the district court  referred the            motion to dismiss, the  motion for summary judgment,  and all            discovery-related  motions to the magistrate for a report and            recommendation.2  On  July 18, 1991, the  magistrate issued a            report  which  recommended  that the  defendants'  motion  to            dismiss be allowed  because the complaint failed  to indicate                                            ____________________            2.  Plaintiff  filed an  "Objection to  the  Wording" of  the            order referring the aforementioned motions  to the magistrate            which argued that the motion to dismiss should not be allowed            since the defendants  had not produced documents  nor opposed            plaintiff's motion for summary judgment.                                         -5-            that Brooke House  deprived plaintiff of liberty  without due            process  and further  failed to  allege  any facts  regarding            McDonald.     Plaintiff  filed   timely  objections   to  the            magistrate's report  which reiterated that  Brooke House  did            not  have legal authority  to issue disciplinary  reports and            that Brooke House  caused plaintiff to  forfeit all his  good            time  credits by  holding themselves  out  as a  correctional            facility.  Plaintiff further  objected on the ground that  he            never received a copy  of the defendants' motion  to dismiss.            The  district  court  adopted the  magistrate's  report.   On            October 29, 1991, the court allowed the defendants' motion to            dismiss and denied  plaintiff's motion for  summary judgment.            Plaintiff filed a timely notice of appeal.                                         II.                                         __                      On appeal, plaintiff argues that the district court            erred in denying his motion for summary  judgment because the            defendants  falsely   represented  that   Brooke  House   had            authority to issue disciplinary reports under M.G.L. c.127,              49.   Plaintiff also  argues that the  court should  not have            allowed  the defendants' motion  to dismiss because  he never            received a copy of it.  We reject both contentions.                      Plaintiffs' challenge  to Brooke  House's authority            to  issue disciplinary  reports  is specious.   In  Lanier v.                                                                ______            Fair, 876  F.2d  243,  244-45 (1st  Cir.  1989),  this  court            ____            recognized  this very facility as a "minimum security halfway                                         -6-            house   .  .  .   that  operate[s]  under   the  auspices  of            Massachusetts  Halfway  House,  Inc.  and the  Department  of            Correction (DOC)."   Plaintiff acknowledged that he  signed a            community release agreement  upon entering Brooke House.   We            take notice that when plaintiff entered Brooke House in 1988,            such agreements  typically provided  that "Community  Release            Programs are an extension of the confines of the institution"            and inmates like the  plaintiff agreed that "all [DOC]  rules            and regulations  will be  in effect  throughout my  community            release time."  See 103 C.M.R.   465.21, Exhibit C (effective                            ___            March  20, 1987).   Massachusetts  G.L. c.127,    49  further            provides  that  an inmate  who  participates in  educational,            training   and  employment   programs  outside   correctional            facilities "shall remain subject to the rules and regulations            of the  correctional  facility.  .  .  .  "    It  is  beyond            peradventure  that  plaintiff remained  subject to  the DOC's            rules while he resided at  Brooke House and that Brooke House            therefore  had  authority   to  issue  disciplinary   reports            charging him  with violations  of these  rules.   Plaintiff's            challenge   to   Brooke   House's   authority   to   initiate            disciplinary  proceedings against him fails to state a viable            claim for relief.3                                            ____________________            3.  On  appeal, plaintiff argues that his allegations against            Brooke House  should be  read to include  its director,  Andy            McDonald.  Even if we do so, the complaint still falls short.            As  the allegations against  Brooke House are  specious, they            remain specious even when read against McDonald.                                         -7-                      To be sure, we have recognized that inmates such as            Lanier have a  liberty interest in remaining  at Brooke House            ______            that  is  protected  under the  Fourteenth  Amendment.   Such            inmates  may not  be returned  to higher  custody absent  due            process.  See 876 F.2d at 246-250.  But the instant complaint                      ___            does  not allege sufficient  facts to suggest  that plaintiff            did not receive  due process.  Rather, from  all that appears            in  the complaint, plaintiff  received notice of  the charges            against  him when he  received the disciplinary  reports from            Brooke  House on  October 6,  1988.   Apart from  the general            allegation that plaintiff's parole was "adversely  affected,"            what followed is unpled and,  therefore, unknown.  "It is not            enough to allege a general  scenario which could be dominated            by unpleaded  facts. .  . .  "   Dewey v.  University of  New                                             _____     __________________            Hampshire, 694 F.2d  1, 3  (1st Cir.  1982).  Even  a pro  se            _________            prisoner's complaint must  set forth "minimal facts .  . . as            to who did what to whom and why."  Id.  The instant complaint                                               ___            raised  only a baseless technical challenge to Brooke House's            authority to issue  disciplinary reports.  It did  not allege            any  facts showing  that the  events  surrounding plaintiff's            return to higher custody and prosecution violated plaintiff's            constitutional rights.   Dismissal  of the  complaint against                                         -8-            both Brooke House  and McDonald for failure to  state a claim            was therefore proper.4                      We further  reject plaintiff's  unsworn claim  that            this dismissal was not fair  because he never received a copy            of  the defendants'  motion to  dismiss.   Plaintiff's  brief            indicates that he  learned that the motion had  been filed at            least as early as the January 23, 1990 scheduling conference.            During  the  twenty-two  months  that  elapsed  between  this            conference  and  the dismissal  of  the  complaint, plaintiff            filed several documents  with the court which  indicated that            he had knowledge of the  substance of the defendants' motion.            For example, plaintiff's opposition to the defendants' motion            to stay discovery effectively argued that McDonald should not            be dismissed  because the complaint  failed to set  forth any            facts against him.   If plaintiff did not have a  copy of the            motion   itself,  he  should  have  raised  this  before  the            magistrate  issued   her  recommendation.     Moreover,   the            magistrate's report afforded  plaintiff sufficient notice  of            the shortcomings  in  his complaint.    His failure  to  come                                            ____________________            4.  Similarly,  while inmates  may have  a  protected liberty            interest  in their reserve  parole dates  under Massachusetts            law, see  Lanier, 876  F.2d at  253, as well  as a  protected                 ___  ______            interest in good time credits,  see Nelson v. Commissioner of                                            ___ ______    _______________            Correction,  390  Mass.  379,   388-89  (1983),  neither  the            __________            complaint nor  plaintiff's summary judgment  filings describe            any conduct by  Brooke House or McDonald which  suggests that            these defendants violated plaintiff's right to due process by            instituting  disciplinary proceedings  that  resulted in  the            loss of these rights.                                         -9-            forward  with  additional  facts  supporting  his  claims  in            response  to  the  magistrate's  report   persuades  us  that            dismissal remained proper  even if plaintiff did  not receive            the  motion to dismiss.   See Purvis v.  Ponte, 929 F.2d 822,                                      ___ ______     _____            826-27  (1st Cir. 1991)  (affirming dismissal for  failure to            state a claim where magistrate's report notified plaintiff of            complaint's deficiencies).                      Judgment affirmed.                      _________________                                         -10-
