
USCA1 Opinion

	




          December 21, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -3-            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                                         -4-            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                          ________________                                         -5-                      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.                      _________                                         -6-
