

December 21, 1995
                    [NOT FOR PUBLICATION]
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 95-1315 

                       ANTHONY NORMAN,

                    Plaintiff, Appellant,

                              v.

                    ELAINE ELIAS, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. Morris E. Lasker, Senior U.S. District Judge]                                                                   

                                         

                            Before

                     Selya, Cyr and Stahl,
                       Circuit Judges.                                                 

                                         

Anthony Norman on brief pro se.                          
Scott  Harshbarger,  Attorney  General,  Robert Patten,  Assistant                                                                  
Attorney  General,  Nancy  Ankers  White, Special  Assistant  Attorney                                                
General, and Richard C.  McFarland, Supervising Counsel, Department of                                          
Correction, on brief for appellees.

                                         

                                         

          Per  Curiam.    Pro  se  appellant  Anthony  Norman                                 

appeals  from the district  court's Fed. R.  Civ. P. 12(b)(6)

dismissal  of his  civil  rights suit  against various  state

officials.  We affirm.

          1.  Violation of Due Process                                                  

          Norman alleged that defendants violated his federal

due process  rights by  suspending his  visitation privileges

for over six months, without a hearing.  Defendants suspended

his privileges when he  refused to provide a urine  sample to

be tested  for drug use  and was determined  to have used  or

possessed  marijuana at the Massachusetts Treatment Center in

Bridgewater, where he is confined.  Norman  may assert  a due

process  violation only  if  he  has  a liberty  interest  in

remaining free from the restrictions  imposed on him by state

officials.  

          In  its  decision,  the  district  court  correctly

explained why Norman had no liberty interest arising directly

under the 14th Amendment  due process clause or based  on the

federal  consent decree in King  v. Greenblatt.   There is no                                                          

need  to repeat its analysis here.1  Under law controlling at

the  time it  dismissed this  case, the  district court  also

correctly determined that Norman had no state-created liberty

                                                    

1.  On  appeal,  Norman argues  that  the  consent decree  in
Williams v. Lesiak granted him a liberty interest in visiting                              
privileges, but that  decree does not even  address itself to
the question of visiting privileges at the Treatment Center. 

interest.   We need not decide whether Norman has a protected

liberty interest  under state  law under the  new methodology

set forth  in Sandin v. Conner,  -- U.S. --, 115  S. Ct. 2293                                          

(1995),  because  we  affirm  the court's  decision  on  that

question on other grounds.  

          Norman  sought money  damages for  the alleged  due

process  violation, declaratory  relief,  and  an  injunction

ordering   defendants  not   to  enforce   state  regulations

permitting the suspension of visiting privileges against him.

But defendants are state  officials, and Norman may  not seek

money  damages against them in their official capacity.  Will                                                                         

v.  Michigan Department  of  State Police,  491  U.S. 58,  71                                                     

(1989).   Nor  may he  obtain money  damages against  them in

their  individual capacities  because they  are protected  by

qualified  immunity.    At  the   time  defendants  suspended

Norman's  visiting  privileges,  Norman  had  no due  process

liberty interest in being free from such  a restriction under

then controlling  law.  Thus, defendants had no obligation to

provide  him  with a  hearing.   Because  defendants  did not

violate  any clearly  established constitutional  right, they

have  qualified  immunity.   Febus-Rodriguez  v.  Betancourt-                                                                         

Lebron, 14 F.3d 87, 91 (1st Cir. 1994).                  

          Norman's request  for  injunctive relief  is  moot.

The  record  shows that  his  visiting  privileges have  been

restored, and he does  not assert that any new  suspension is

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imminent.   Because  Norman  cannot obtain  money damages  or

injunctive relief,  his  request for  declaratory  relief  is

moot, too.  See Browning Debenture Holders' Committee v. DASA                                                                         

Corp., 524  F.2d 811, 817 (2d Cir.  1975) ("When, as here, an                 

issue  is rendered moot by plaintiff's failure to specify . .

.  operative  relief,  and  the  remedy  sought  is   a  mere

declaration  of  law   without  implications  for   practical

enforcement   upon   the  parties,   the  case   is  properly

dismissed.").

          2.  Violation of Federal Consent Decrees                                                              

          Norman  claims  that  defendants  violated  consent

decrees entered in two federal district court cases, Williams                                                                         

v. Lesiak and King v.  Greenblatt.  We find his  arguments to                                             

be without merit.  

          DMH officials obviously acted in "concert" with DOC

in promulgating the substance surveillance abuse  policy with

which Norman failed to comply.  The policy itself shows that.

Although  DMH's reviewing authority apparently failed to sign

the  policy, the  policy  was nonetheless  effective.   Thus,

defendants did not  violate the provision cited by  Norman in

the  decree entered  in  Williams.   Furthermore, Norman  has                                             

waived,  by failing  to raise  it below,  his claim  that the

initial   suspension  of  his   visiting  privileges  by  the

Superintendent  of  the  Treatment  Center,  a  Department of

Corrections   employee,  violated  other  provisions  in  the

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Williams decree.  United States v. Ocasio-Rivera, 991 F.2d 1,                                                            

3  (1st Cir. 1993) (claims  not raised in  the district court

are  not   preserved  for  appeal).     In  any   event,  the

Administrator of the Treatment Center reviewed the suspension

and essentially affirmed it,  suggesting that the  suspension

of privileges took place in full compliance with the decree.

          Nor  do  we  think  that  defendants  violated  the

provision cited by Norman  in the decree entered in  the King                                                                         

case.  The letters communicating the Superintendent's initial

decision to  suspend Norman's privileges  evinced no punitive

intent, but only a  legitimate interest in enforcing security

at the Treatment Center.  

          3.  State Claim                                     

          Norman  argues  that  the Superintendent's  initial

suspension of visiting privileges violated a state regulation

authorizing the Administrator of the Treatment Center to deny

visiting  privileges.    But  the  regulation  also   defines

"Administrator"  to include  "his/her designee."   104  CMR  

8.02(6).   Since the  Administrator reviewed and  essentially

affirmed   the   Superintendent's   suspension  of   visiting

privileges, we  conclude that the  Superintendent effectively

acted  as  the  Administrator's  designee   for  purposes  of

initially determining whether  Norman's misconduct  warranted

that suspension.  

          4.  Remaining Claims                                          

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          Norman's reply brief  raises claims which were  not

raised below  or in his initial brief.  For that reason, they

are  deemed waived,  and we  do not  consider them.   Ocasio-                                                                         

Rivera,  supra; Playboy Enterprises v. Public Service Comm'n,                                                                        

906 F.2d 25, 40 (1st Cir.), cert. denied, 498 U.S. 959 (1990)                                                    

(claims not raised in an initial appellate brief are waived).

          Affirmed.                               

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