15-1932-pr
Baez v. Pinker


                          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.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 8th day of December, two thousand sixteen.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 GERARD E. LYNCH,
                         Circuit Judges.
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CANDIDO BAEZ,
                         Plaintiff-Appellant,

                 v.                                                          No. 15-1932-pr

LIEUTENANT PINKER, SING SING CORRECTIONAL
FACILITY, SERGEANT MCNAMARA, CORRECTIONAL
OFFICER MALDONADO, DEPUTY DAWSON BROWN,
ACTING SUPERINTENDENT, WILLIAM A. LEE,
DEPUTY OF SECURITY, DEPUTY WILLIAM KEYSER,
DEPUTY     OF    SECURITY, CAPTAIN   RONALD
BRERENTON, NORMAN R. BEZIO, SPECIAL HOUSING
UNIT, MICHAEL CAPRA, SUPERINTENDENT, RONALD
W. MOSCICKI, SUPERINTENDENT, LAKEVIEW
CORRECTIONAL FACILITY, CAPTAIN HIRSCH,
SERGEANT HULTON, DEPUTY JUSTIN THOMAS,
SUPERINTENDENT OF PROGRAM, E. O’MEARA,
DEPUTY OF ADMINISTRATION, JAMES FESTA, FOIL
OFFICER, KEVIN O’BRIEN, DEPUTY OF PROGRAM,
BRYAN CLARK, DEPUTY OF SECURITY, MARK
DRUMSTA,      LIEUTENANT,  JOSEPH  CHISOLM,
                                                     1
GRIEVANCE SUPERVISOR, BETHEA, CORRECTION
OFFICER, NICHOLAS DEANGELIS, PROPERTY ROOM
OFFICER, HAROLD GRAHAM, SUPERINTENDENT,
AUBURN CORRECTIONAL FACILITY,
               Defendants-Appellees,

#1 JOHN DOE, CONFIDENTIAL INFORMANT,
CORRECTIONAL OFFICER METHEA, #2 JOHN DOE,
DEPUTY OF PROGRAM (LCF), #3 JOHN DOE, DEPUTY
OF SECURITY, LIEUTENANT JOHN DOE, #4, #5 JOHN
DOE, GRIEVANCE SUPERVISOR, #6 JOHN DOE,
PROPERTY ROOM OFFICER, ELYSE J. ANGELICO,
ASSISTANT ATTORNEY GENERAL,
                         Defendants.
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APPEARING FOR APPELLANT:                          DORA PAULA GEORGESCU (Douglas F.
                                                  Broder, Erica R. Iverson, Elise M. Gabriel, on
                                                  the brief), K&L Gates LLP, New York,
                                                  New York.

APPEARING FOR APPELLEES:                    SETH M. ROKOSKY, Assistant Solicitor
                                            General (Barbara D. Underwood, Solicitor
                                            General; Anisha S. Dasgupta, Deputy Solicitor
                                            General, on the brief) for Eric T. Schneiderman,
                                            Attorney General of the State of New York, New
                                            York, New York.

       Appeal from a judgment of the United States District Court for the Southern District

of New York (Katherine B. Forrest, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 4, 2015, is AFFIRMED.

       Plaintiff Candido Baez appeals the dismissal of his complaint, which alleged,

pursuant to 42 U.S.C. § 1983, multiple constitutional violations during his incarceration,

including, as relevant here, being forced to attend his father’s funeral in state-issue release




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clothes. 1 We review de novo a judgment of dismissal, accepting as true all factual

allegations in the complaint and drawing all reasonable inferences in the plaintiff’s favor.

See Bishop v. Wells Fargo & Co., 823 F.3d 35, 43 (2d Cir. 2016). Because we “may

affirm on any ground supported by the record,” Figueroa v. Mazza, 825 F.3d 89, 99 (2d

Cir. 2016) (internal quotation marks omitted), we need not consider the correctness of the

ground relied upon by the district court. In conducting our review, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

         It is not entirely clear whether Baez’s funeral-attendance claim asserts a deprivation

of procedural or substantive due process. We need not pursue that point because, to

maintain either claim, he must plausibly allege a protected liberty interest, see Washington

v. Glucksberg, 521 U.S. 702, 721 (1997) (substantive due process); Board of Regents of

State Colls. v. Roth, 408 U.S. 564, 571–72 (1972) (procedural due process), which he fails

to do.

         A protected liberty interest can arise from state statutes or regulations that use

mandatory language to “plac[e] substantive limitations on official discretion,” Olim v.

Wakinekona, 461 U.S. 238, 249 (1983); accord Tellier v. Fields, 280 F.3d 69, 81 (2d Cir.

2000).2 If the state decisionmaker “is not required to base its decisions on objective and

defined criteria, but instead can deny the requested relief for any constitutionally


1
  A motions panel of this court granted Baez leave to proceed with his appeal as to his “due
process claim related to attendance at his father’s funeral,” but dismissed his appeal as to
all other claims. Mot. Order, Dec. 15, 2015, ECF No. 34.
2
 Baez relies entirely on state regulations as the source of his claimed liberty interest, and
makes no claim to a liberty interest arising from any other source.

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permissible reason or for no reason at all, the State has not created a constitutionally

protected liberty interest.” Olim v. Wakinekona, 461 U.S. at 249 (citations and internal

quotation marks omitted).

       Here, Baez claims that regulations of the New York State Department of

Corrections and Community Supervision (“DOCCS”) afforded him a liberty interest in

wearing his own clothes to his father’s funeral.3 The DOCCS regulations do not convey

that right.

       New York law states that the DOCCS commissioner “may permit” an inmate to

attend the funeral of an immediate family member, “but the exercise of such power shall be

subject to such rules and regulations as the commissioner shall prescribe, respecting the

granting of such permission, . . . transportation and care of the inmate, and guarding against

escape.” N.Y. Correction Law § 113. Baez nevertheless maintains that N.Y. Comp.

Codes R. & Regs. tit. 7, § 52.20, issued by DOCCS, supports his asserted liberty interest

insofar as it states that, “[w]hen granted permission to . . . attend a funeral of a member of

his immediate family, the inmate shall appear in civilian clothes.”4

       This language does not mean a state prisoner has a constitutional right to wear his

own clothing to the funeral. That is evident from operative DOCCS Directive 4901,
3
 Although Baez’s brief could be read to suggest that he was claiming a liberty interest in
not being handcuffed or shackled at the funeral, at oral argument counsel clarified that he
was not making such an argument. Accordingly, we do not reach, and express no views
concerning, any such contention.
4
   Baez located further support for his claim in a regulation promulgated by the state
Commission of Correction, which states that “[i]nmates shall be permitted to wear their
own personal clothing during funeral or deathbed visits.” N.Y. Comp. Codes R. & Regs.
tit. 9, § 7051.8(d). He now concedes, however, that this regulation applies only to persons
confined in local correctional institutions, and “does not apply” to the state facility in
which he was housed at the time of his father’s funeral. Appellant’s Reply Br. 7.

                                              4
which states that, when an inmate is transported to a funeral, “the inmate shall be given the

option to wear either the State-issue green clothing or the State-issue release clothing.”

Appellees’ Addendum 15. The latter category is specifically defined in DOCCS Directive

3081 to include a pair of khaki trousers and a white shirt. See id. at 5. In short, such

“State-issue release clothing,” so defined, id., satisfies the “civilian clothes” requirement of

N.Y. Comp. Codes R. & Regs. tit. 7, § 52.20.

       Read together, the cited regulations and policy directives operate to allow an inmate

who has been permitted to attend a funeral to wear civilian clothes in the form of

State-issue release clothing—which is precisely what Baez wore. The state regulations do

not establish a protected right for inmates to wear their own clothing.

       Tellier v. Fields, 280 F.3d 69, cited by Baez, warrants no different conclusion. In

that case, we concluded that a warden’s discretion in placing a prisoner in the Special

Housing Unit “is not boundless and continuing,” but, rather, subject to certain procedural

requirements. Id. at 82. Here, we need not delineate the scope of a state official’s

conceded discretion in allowing Baez to attend the funeral in the first place because the

regulations simply do not provide for the right Baez asserts.

       In urging otherwise, Baez argues that “Directive 3081 creates a liberty interest in

being presented in a dignified and respectful manner.” Appellant’s Reply Br. 8. Even

assuming, for the sake of the argument, that language in an internal policy directive of a

state agency, as opposed to a state law or regulation, can give rise to a protected liberty

interest, the language to which Baez points to support that assertion—that inmate clothing

has been designed to “ensure proper dress, . . . enhance morale, and give each inmate a

sense of responsibility and pride in a neat and clean appearance,” id. (quoting DOCCS

                                               5
Directive 3081, Appellees’ Addendum 1)—cannot be said to be a “specific directive[] to

the decisionmaker that if the regulations’ substantive predicates are present, a particular

outcome must follow,” Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989),

that is, that an inmate must be allowed to wear his own clothes. That language does not

supersede the specific language of Directives 3081 and 4901, which state that an inmate

permitted to attend a family funeral who wants to wear civilian clothes rather than

state-issue green clothing can wear state-issue release clothing. The Directive 3081

provisions cited by Baez dealing with proper fit and wrinkling apply to inmates being sent

to temporary release facilities or appearing in court, not to those attending a family funeral.

       Thus, Baez’s due process claim was correctly dismissed for failure to plead a

cognizable liberty interest.

       To the extent he claims a violation of substantive due process, dismissal was further

warranted by his failure to allege governmental conduct so “egregious” and “outrageous”

as “to shock the contemporary conscience.” Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005)

(internal quotation marks omitted). Nor can Baez resurrect his claim by reference to the

Eighth Amendment’s prohibition on cruel and unusual punishment. “After incarceration,

only the unnecessary and wanton infliction of pain constitutes cruel and unusual

punishment forbidden by the Eighth Amendment.” Trammell v. Keane, 338 F.3d 155,

162 (2d Cir. 2003) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (2003)). The facts

alleged here do not rise to that level.




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      We have considered all of Baez’s other arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of dismissal.

                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk of Court




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