
USCA1 Opinion

	




          September 24, 1992    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1306                                               PAUL F. COLMAN,                                Plaintiff, Appellant,                                          v.                                JEAN LAHOUSE, 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.                                        _____________                                 ___________________               Paul F. Colman, on brief pro se.               ______________                                  __________________                                 __________________                    Per   Curiam.     Appellant  is   an  inmate   at  the                   ____________            Massachusetts  Correctional Institution  at Norfolk.   His in                                                                       __            forma pauperis complaint, filed pro se, sought injunctive and            _____ ________            monetary  relief   under  42  U.S.C.      1983,  for  alleged            violations  of  his rights  under  the  Fifth and  Fourteenth            Amendments.1   Named as  defendants are the  Commissioner and            other   officials  of   the   Commonwealth's  Department   of            Corrections.  The district  court dismissed the complaint sua                                                                      ___            sponte  under  28 U.S.C.    1915(d).    For the  reasons that            ______            follow, we affirm the district court's decision.                    Appellant  alleges  that  defendants  have  improperly            denied him a transfer to a lower security facility because he            has refused to  admit committing  the crime for  which he  is            incarcerated.  He argues that by conditioning his transfer on            an  admission of  guilt, the  defendants are  threatening the            viability of his attempts to overturn his conviction.                     According to appellant's complaint, in July, 1977, he            was wrongly  convicted after a  trial of  rape of a  child by            force.   He alleges that  he has never  admitted the offense,            instead  pursuing "post-conviction  ... relief  and appeals."            He  says he hopes or expects to soon win a new trial based on            new  evidence.    Documents   appended  as  exhibits  to  the            complaint   show  that   despite   an   otherwise   favorable            disciplinary record and recommendation of the Superintendent,            the Unit  Classification Committee  Board at  MCI-Norfolk has            periodically  declined  to  recommend   appellant's  transfer                                            ____________________            1.   The  complaint  also alleges  violations of  plaintiff's            First  and  Sixth Amendment  rights.    However, neither  the            complaint nor  plaintiff's brief here explains  the basis for            these  claims.     Accordingly  we  take  them  to   be  mere            surplusage.                                          -3-            because of the "nature  of the offense and his  reluctance to            accept responsibility  for his crime."   The Board's decision            was  affirmed  by the  Commissioner  on  each occasion.    On            September  20, 1990  appellant  appealed to  the Director  of            Programs  and  Classifications,  arguing  that   the  Board's            decision  violated  appellant's  Fifth   Amendment  privilege            against  self-incrimination.2    The  Director  affirmed  the            transfer denial on October 19, 1990, but based his affirmance            solely on the "serious nature of the offense."                  28 U.S.C.   1915(d) provides that the court may dismiss a            complaint  filed in forma  pauperis if it  is "satisfied that                             __ _____  ________            the action is either frivolous or malicious."  A complaint is            deemed frivolous only if  it "lacks an arguable basis  in law            or  in  fact,"  contains  an  "indisputably  meritless  legal            theory"  or  "fanciful"  factual  allegations.    Neitzke  v.                                                              _______            Williams,  490 U.S. 319, 327 (1989).  While suggestive of the            ________                                            ____________________            2.   According to a copy of a letter  appended to appellant's            complaint, appellant undertook  this "classification  appeal"            on  the advice of one Deputy Nelson and the superintendent at            MCI-Norfolk.  The regulations to which  we have been referred            expressly allow an inmate to appeal the Board's decision only            to the Superintendent.   20 CMR    420.08(6)(h),  420.09 (1).            The Superintendent is  then required to respond in writing to            the  inmate within ten working days."  20 CMR   420.08(6)(h).            The   Superintendent's  decision  "shall   be  submitted  for            approval to the Commissioner or his designee," who makes  the            final  decision. 20  CMR    420.08(6)(i).  Since  neither the            regulations nor  statutes before us expressly  provide for an            inmate    appeal   to   the    Director   of   Programs   and            Classifications,  we   assume  that  the  Director   was  the            Commissioner's  "designee"  at  the  time  and  that  further            internal procedures allowed this direct inmate appeal.                                               -4-            standard for dismissal under  Fed. R. Civ. P.  12(b)(6), "the            standard is more  rigorous."  Johnson v. Rodriguez,  943 F.2d                                          _______    _________            104 (1st Cir.  1991), cert.  denied, 112 S.  Ct. 948  (1992);                                  _____________            Street v. Fair, 918 F.2d 269, 273 (1st Cir. 1990).            ______    ____                   In making  this assessment,  the district  court                   must give the  plaintiff the benefit of all  the                   suggested facts and must indulge  all reasonable                   inferences in his  favor.  If the complaint,  so                   read,   reveals  'arguably   meritorious   legal                   theories whose ultimate failure is  not apparent                   at  the outset'... then  the court should permit                   the action to proceed.               Johnson, 943 F.2d at  106 (quoting from Neitzke, 490  U.S. at            _______                                 _______            328).                                                                   As  the district  court held, appellant's  due process            claim has  no legal  merit.   Due process  clause protections            attach only when  there is a  deprivation of an  identifiable            interest in life,  liberty or property.   These interests may            be created  either by the  Fourteenth Amendment itself  or by            state  law.   Meachum  v. Fano,  427  U.S. 215,  222  (1976).                          _______     ____            However,  the  Supreme Court  has  held  that the  Fourteenth            Amendment   does  not  create  for  prisoners  a  protectable            "liberty" interest in prison transfers.  Meachum, 427 U.S. at                                                     _______            223-26.   And  it  has also  been  repeatedly held  that  the            Massachusetts' law in question, Mass. Gen. L. ch. 127,    20,            97, does not create  any "liberty" interest to which  the due            process clause may apply.  Meachum, 427 U.S. at 227 n.7; Four                                       _______                       ____            Certain Unnamed  Inmates v. Hall,  550 F.2d  1291, 1292  (1st            ________________________    ____            Cir. 1977);  Nelson v. Commissioner of  Correction, 390 Mass.                         ______    ___________________________                                         -5-            379,  397, 456 N.E. 2d 1100 (1983); Harris v. Commissioner of                                                ______    _______________            Correction,  409  Mass. 472,  477,  567  N.E.2d  906   (1991)            __________            (extending  same  interpretation to    section  of state  law            authorizing transfer to out-of-state prisons).                    There  have been no  changes in the text  of the state            law  since these decisions were  rendered.  On  its face, the            law vests broad and unfettered discretion in the Commissioner            over  prison  transfers,   with  none   of  the   substantive            limitations  which  might  signal  creation  of  a  "liberty"            interest.   See Olim v. Wakinekona, 461 U.S. 238, 249 (1983).                        ___ ____    __________            And  the regulations to which appellant points do not contain            the types  of specific directives to  the decisionmaker which            might arguably produce in  an inmate a reasonable expectation            of a particular  result.  See Bowser v. Vose,  1992 U.S. App.                                      ___ ______    ____            LEXIS 15187,  at *9-13 (1st  Cir. June 30,  1992) (describing            language which might produce such an expectation).                       Appellant  seemingly  concedes  on  appeal   that  the            district  court's  decision  on  his due  process  claim  was            correct.    He argues,  however,  that  the Board's  decision            violated   his  Fifth   Amendment  privilege   against  self-            incrimination  by   forcing  him  to  chose   between  making            incriminating statements that may be used against him in  the            new trial he hopes to obtain, and a lower security transfer.                    Were  appellant's  Fifth   Amendment  claim  factually            supportable, see infra  pp. 8-9, we  would be constrained  to                         ___ _____                                         -6-            hold that  it had an  "arguable basis in law."   Neitzke, 490                                                             _______            U.S. at  328.    Though  not  unqualified,  it  is  generally            recognized that even after  conviction, a defendant who shows            a "real and appreciable risk" of subsequent incrimination may            be   entitled   to   assert  the   privilege   against  self-            incrimination  with regard  to  the crime.    1 John  William            Strong, et. al., McCormick  on Evidence    121, 122  (4th Ed.                    ___ ___  ______________________            1992); see also   Taylor v. Best, 746  F.2d 220, 222-24  (4th                   ________   ______    ____            Cir.   1984)  (one  appealing   his  conviction  retains  his            privilege  against  self-incrimination).    And  requiring  a            prisoner to  chose between his Fifth  Amendment privilege and            favorable  post-conviction treatment  may  create a  "classic            penalty situation"  in which the prisoner's  answers would be            deemed   compelled   and   inadmissible   in   the   criminal            prosecution.   Minnesota v. Murphy, 465  U.S. 420, 434 (1984)                           _________    ______            (holding that statements could be used against probationer in            subsequent prosecution because government had  not threatened                                                           ___            him with revocation of his probation).                  It has also  been held  that while a  state may  validly            insist  on answers to incriminating questions to enable it to            sensibly administer its prison  system, it may do so  only if            "it recognizes that the required answers may not be used in a            criminal  proceeding  and  thus  eliminates  the   threat  of            incrimination."    Murphy, 465  U.S.  at  435 n.7  (probation                               ______            system); cf. Taylor v.  Best, 746 F.2d 220, 222-24  (4th Cir.                     __  ______     ____                                         -7-            1984)  (prison officials  who  promised  confidentiality  may            compel  answers for penological  classification purposes, but            evaluation  would  be  suppressed  if  offered  in subsequent            criminal  proceeding),  cert. denied,  474  U.S. 982  (1985);                                    ____________            United States v.  Harrington, 923 F.2d 1371  (9th Cir. 1991);            _____________     __________            Pens  v. Bail, 902 F.2d 1464 (9th Cir. 1990) (where prisoners            ____     ____            assured  confidentiality  in  psychiatric evaluations,  their            self-incriminating statements could  not be  used to  enhance            their  sentence).  In  the scant record before  us we find no            indication  that Massachusetts  has  erected a  privilege  of            confidentiality for prisoner statements which would eliminate            the  threat of  incrimination  appellant alleges  here.   See                                                                      ___            Hawkins  v. Commissioner  of Correction,  406 Mass.  898, 551            _______     ___________________________            N.E.2d   495   (1990)   (holding   that   Massachusetts  Fair            Information  Practices  Act does  not  protect  prisoner from            disclosure  of  his classification  and  disciplinary reports            offered  against him  by  corrections officials  in   federal            court  action challenging  a transfer  decision based  on the            reports).                   In  terms  of legal  theory,  then,  appellant's Fifth            Amendment  claim might  be  said to  have  an arguable  legal            basis.3  Although the Fourteenth Amendment does not create  a                                            ____________________            3.    We emphasize that we  do not reach  the legal merit  of            appellant's claim here, nor  do we express any opinion  as to            whether  such a claim might withstand a motion to dismiss for            failure to state a  claim.  Under   1915(d)  the court's only            task is to determine whether it lacks "even an arguable basis                                         -8-            "liberty" interest in prison transfers  sufficient to require            a  hearing  before a  transfer,  Meachum,  427  U.S. at  216;                                             _______            Montayne v.  Haymes, 427  U.S. 236,  242 (1976),  "nothing in            ________     ______            these  decisions  expressly  rule[s]  out a  challenge  to  a            transfer  [decision]  on  the   ground  that  it   violate[s]            constitutional rights other than  the right to procedural due            process  of law."   Furtado v. Bishop,  604 F.2d 80,  87 (1st                                _______    ______            Cir. 1979),  cert.  denied, 444  U.S. 1035  (1980); see  also                         _____________            McDonald v. Hall, 610  F.2d 16 (1st Cir. 1979)  (holding that            ________    ____            complaint alleging  that prison transfer  was in  retaliation            for prisoner's  exercise of a fundamental  right states cause            of  action).   Most courts  which have  considered the  issue            since Meachum are in accord.  See Frazier v. Dubois, 922 F.2d                  _______                 ___ _______    ______            560 (10th  Cir. 1990) (surveying circuit  court decisions); 3            Joseph  G. Cook & John L. Sobieski, Jr., Civil Rights Actions                                                     ____________________              11.15 n.8 (1992), and cases cited therein.                    But while in legal theory petitioner's Fifth Amendment            claim  may  have  some  basis,  it  collapses  on  the  facts            petitioner pleads.   The  exhibits appended to  the complaint            show that  appellant's "failure  to take  responsibility" was            twice cited  by the  Unit Classification Committee  Board for            denying the transfer  in its periodic  reviews.  The  Board's            decisions,  however, are  not  the last  word.   It  was  the            Commissioner alone,  or his  delegate, who had  the statutory                                            ____________________            in law," Neitzke, 490 U.S. at 328.                     _______                                         -9-            authority  to make transfer decisions.  Mass. Gen. L. ch. 124               1,  2; M.G.L. c. 127    20, 97.  The Commissioner retained            final  authority   over  all  periodic   reviews  under   the            regulations.  20 CMR   420.08(6)(i). The  last  decision from            the  Commissioner's  office,  attached   as  an  exhibit   to            appellant's  complaint, was  expressly based  solely on  "the            serious  nature" of the offense.  This decision was in direct            response to the very Fifth Amendment argument appellant makes            here.   Since  the  final,  and  only  effective,  denial  of            appellant's transfer was based on a reason that is unarguably            lawful,   appellant  suffered  no  injury  from  the  Board's            decisions, even assuming  for the sake of  argument that they            offended the Fifth Amendment.  Cf. Gardner v. Martinez,  1988                                           ___ _______    ________            WL  111954, at  *2 (E.D.  Pa. Oct.  20, 1988)  (  1983  claim            properly dismissed where plaintiff could  state no actionable            injury from  parole  authorities' alleged  violation  of  his            privilege against self-incrimination, since charges allegedly            based  on improperly  obtained information had  been dropped,            and  plaintiff spent no additional time in prison as a result            of the alleged violation of his privilege).                    Thus  we  conclude  that  appellant's Fifth  Amendment            claim was also properly dismissed under   1915(d) for lack of            an arguable foundation in  fact.  This part of  our decision,            of course,  extends no further  than the date  of appellant's            complaint and the transfer decisions challenged therein.                                             -10-                 For  the  reasons  stated  above, the  decision  of  the            district court is affirmed.                              ________                                         -11-
