      10-0514-cv
      Bock v. Gold
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
 FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT
 FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRO NIC
 DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE
 A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1             At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3    the 3rd day of February, two thousand eleven.
 4
 5    PRESENT:        ROBERT D. SACK,
 6                    DEBRA ANN LIVINGSTON,
 7                    RAYMOND J. LOHIER, JR.
 8                                    Circuit Judges.
 9
10
11    GORDON BOCK,
12             Plaintiff-Appellant,
13
14             -v.-                                        No. 10-0514-cv
15
16    STEVEN GOLD, Commissioner, Department of Corrections, JANICE RYAN, Deputy
17    Commissioner, Department of Corrections, RAYMOND FLUM, Director of Offender Classification,
18    JOANNE PEREIRA, Department of Corrections Superintendent, THOMAS DUNN, Department
19    of Corrections, Co-Superintendent, MICHAEL CARLISLE, Department of Corrections Casework
20    Supervisor, CORT JOHNSON, Department of Corrections, Correctional Service Specialist,
21    CYNTHIA NICHOLS, Department of Corrections, Cognitive Self-Change Facilitator, KIT
22    ANDREWS, Department of Corrections, Victim Service Specialist, JASON PATRISSI, Department
23    of Corrections, Correctional Service Specialist, DAVID LEE, Department of Corrections,
24    Correctional Officer, Northeast Regional Correctional facility, JAMES BEDARD, Department of
25    Corrections, Correctional Service Specialist, SHAWN SMITH, Department of Corrections,
26    Correctional Service Specialist, JOHN MURPHY, Department of Corrections, director of
27    hearings/deputy compact administrator,
28                   Defendants-Appellees,
29
30    ALEX ANLYAN, Department of Corrections, Cognitive Self-Change Facilitator,
31         Defendant.
32
33
 1                                   KEVIN F. BERRY, Duane Morris LLP, Philadelphia, PA, for
 2                                   Plaintiff-Appellant.
 3
 4                                   KURT A. KUEHL, Assistant Attorney General, for William H.
 5                                   Sorrell, Attorney General for the State of Vermont, Waterbury, VT,
 6                                   for Defendants-Appellees.
 7
 8
 9             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

10   DECREED that the judgment of the district court is AFFIRMED.

11             Plaintiff-Appellant Gordon Bock appeals from the judgment of the United States District

12   Court for the District of Vermont (Murtha, J.), entered January 27, 2010, granting the Defendants-

13   Appellees’ motion for summary judgment on the basis of qualified immunity on the plaintiff’s 42

14   U.S.C. § 1983 claim, which alleged that the defendants violated his due process rights under the

15   Fourteenth Amendment in revoking his furlough or conditional re-entry status. We assume the

16   parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

17   appeal.

18             We review de novo a district court’s grant of summary judgment on the basis of qualified

19   immunity, construing the evidence in the light most favorable to the nonmoving party and drawing

20   all reasonable inferences in that party’s favor. Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010).

21   With respect to qualified immunity, the “doctrine . . . protects government officials ‘from liability

22   for civil damages insofar as their conduct does not violate clearly established statutory or

23   constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 129

24   S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Our analysis of

25   whether a right is clearly established is “tied to the specific facts and context of the case,” Gilles v.

26   Repicky, 511 F.3d 239, 244 (2d Cir. 2007), with “[o]nly Supreme Court and Second Circuit


                                                        2
 1   precedent existing at the time of the alleged violation . . . relevant in deciding whether a right is

 2   clearly established.” Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004). In order to be clearly

 3   established, “[t]he contours of the right must be sufficiently clear that a reasonable official would

 4   understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

 5   (1987).

 6             While at one time we were required to decide first whether a constitutional violation had

 7   occurred before proceeding to the qualified immunity analysis, we may now exercise our discretion

 8   to proceed directly to the latter inquiry if warranted in a particular case. See Dean v. Blumenthal,

 9   577 F.3d 60, 67-68 (2d Cir. 2009). This exercise of discretion is particularly appropriate where it

10   is not readily apparent that a constitutional right exists but it is nevertheless evident that any right

11   that did exist was not clearly established. See id. at 68. As a result, we address the qualified

12   immunity issue here first.

13             The plaintiff appeals from the district court’s conclusion that it was not clearly established

14   whether the plaintiff had a liberty interest in his status under Vermont’s conditional release system.1

15   He contends that this asserted liberty interest was in fact clearly established, such that he suffered

16   a violation of clearly established constitutional rights when he was allegedly deprived of this interest

17   without due process.

18             At the same time, the plaintiff identifies no case in which a court has found that Vermont’s

19   conditional release program creates a constitutionally protected liberty interest on the prisoner’s part




               1
              While the plaintiff asserts in his reply brief that he is continuing to maintain equal
     protection and substantive due process claims on appeal, he makes no argument with respect to
     those claims in any of his submissions to this Court. Consequently, any appeal on these claims is
     waived. See Design Strategy, Inc. v. Davis, 469 F.3d 284, 300 (2d Cir. 2006).

                                                         3
 1   in his or her conditional reentry status, nor have we been able to find one. As the defendants note,

 2   the Vermont Supreme Court has held explicitly that under an earlier version of the state’s

 3   conditional release program, “no liberty interest in furlough status may be asserted directly under the

 4   United States Constitution,” reasoning that an inmate participating in such a program has a status

 5   closer to that of an inmate “seeking a particular right or status within an institution” than that of a

 6   person released on parole. Conway v. Cumming, 161 Vt. 113, 117 (1993); see also State v. Greene,

 7   172 Vt. 610, 613 (2001) (citing Conway for the proposition that Vermont’s statutory scheme

 8   governing furlough creates no constitutionally protected liberty interest).

 9          However, as we stated in Holcomb v. Lykens, 337 F.3d 217 (2d Cir. 2003), the Conway

10   decision dealt with a particular “non-extended” furlough that is distinct from the status possessed

11   by the plaintiff here. Id. at 222 n.5. Moreover, the state court decisions do not in any case “relieve

12   us of our obligation to determine [the plaintiff’s] due process rights under the federal Constitution

13   for ourselves.” Id. In Holcomb, also construing an earlier version of Vermont’s furlough statute,

14   we specifically declined to decide whether the plaintiff had a clearly established liberty interest

15   created by his status under the extended furlough program, id. at 223, concluding instead that even

16   assuming the program created a federally protected entitlement, there was no such entitlement to the

17   specific procedures outlined in a state-issued directive, id. at 224-25. Here, relying on the Supreme

18   Court decisions in Young v. Harper, 520 U.S. 143 (1997), and Morrissey v. Brewer, 408 U.S. 471

19   (1972), the plaintiff asks us to conclude that Vermont’s current conditional release program does in

20   fact create a clearly established liberty interest protected by the federal Constitution. As Young

21   makes clear, however, whether a certain program of conditional release creates a constitutionally

22   protected interest is a fact-bound inquiry. See 520 U.S. at 148-52. We must resolve the question


                                                       4
 1   whether such an interest exists by “comparing the specific conditional release in the case before [us]

 2   with the liberty interest in parole as characterized by Morrissey,” Holcomb, 337 F.3d at 221, taking

 3   into account the “considerable light” shed by Young’s analysis of an Oklahoma pre-parole program

 4   that the Court found sufficiently similar to parole as to create a liberty interest, see Kim v. Hurston,

 5   182 F.3d 113, 118 (2d. Cir. 1999). Considering the factually distinct nature of Vermont’s

 6   conditional release program and the restraints it imposed on the plaintiff Bock — particularly as they

 7   relate to his ability, highlighted in Morrissey, to “be with family and friends and to form the other

 8   enduring attachments of normal life,” 408 U.S. at 482 — we cannot conclude that either the nature

 9   of the programs at issue in Young and Morrissey or the Supreme Court’s reasoning in finding a

10   protected liberty interest made it sufficiently clear to a reasonable official that the specific

11   conditional release scheme at issue here also created a protected interest. As a result, the government

12   officials in this case are entitled to qualified immunity.

13           In addition, the plaintiff here highlights evidence that he alleges establishes subjective

14   awareness on the part of the defendants of what he claims are constitutionally protected rights vested

15   in his conditional re-entry status. As we have said, however, “[t]he qualified immunity test is an

16   objective one.” Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007). The critical inquiry

17   whether a particular right is “clearly established,” such that a reasonable official would have known

18   of it, is “determined by reference to the case law extant at the time of the violation” and not by

19   reference to the subjective beliefs of the defendants involved. In re County of Erie, 546 F.3d 222,

20   229 (2d Cir. 2008). Therefore, the plaintiff’s evidence, assuming it does in fact support a subjective

21   understanding on the defendants’ part that a certain constitutional right existed, simply does not




                                                        5
 1   render that right clearly established for the purposes of qualified immunity.2 Because the asserted

 2   liberty interest in Bock’s status under Vermont’s conditional release program was not clearly

 3   established under the extant case law, the district court correctly concluded that the defendants were

 4   entitled to summary judgment.

 5          We have considered all of the plaintiffs’ remaining arguments and find them to be without

 6   merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

 7


 8
 9                                                          FOR THE COURT:
10                                                          Catherine O’Hagan Wolfe, Clerk
11
12




            2
              While the plaintiff also notes certain directives issued by the Vermont Department of
     Corrections setting forth procedural requirements for furlough revocation hearings, requirements
     he claims were not followed in this case, the relevant question remains whether it was clearly
     established that the state conditional release program created a federally protected liberty interest,
     not whether that program created certain procedural protections allegedly not followed in the
     current case. See Holcomb, 337 F.3d at 224 (“[S]tate statutes do not create federally protected
     due process entitlements to specific state-mandated procedures.”). Because that liberty interest
     was not clearly established here, the defendants are entitled to qualified immunity regardless of
     whether they followed the procedures outlined by the directives Bock cites in revoking his
     conditional reentry status.

                                                       6
