
USCA1 Opinion

	




          February 3, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1641                                    RICHARD LEAVITT,                                Plaintiff, Appellant,                                          v.                            DONALD L. ALLEN, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Richard Leavitt on brief pro se.            _______________                                 ____________________                                 ____________________                           Per   Curiam.     Plaintiff-appellant  Richard                           ____________            Leavitt  filed a pro se  complaint in the  District Court for                             ___ __            the  District  of  Maine  against  the  Maine  Department  of            Corrections,  the  Maine  State  Prison,  and  twelve  prison            officials and guards.  The complaint alleged that on November            15, 1993,  Leavitt, while watching a  prison basketball game,            made an  unspecified remark to another  inmate concerning one            of the basketball players (in a later  filing, Leavitt stated            that  the remark was, "Two  babies for that  foul, they're in            the bonus").  Defendant  Woodbury, a prison guard, confronted            Leavitt about the remark, became angry and physically removed            Leavitt from  the area,  grabbing, pushing, and  shoving him.            Woodbury filed  a disciplinary  report charging  Leavitt with            provocation and  disorderly behavior and took  Leavitt to the            administrative  segregation area,  where he  was subsequently            housed for 24 days.                      Leavitt then  filed  a grievance  against  Woodbury            under  the prison grievance procedure, alleging that Woodbury            pushed,  grabbed,  and shoved  him.   Woodbury  then  filed a            second disciplinary report against Leavitt, charging him with            lying in the grievance filing.                      Following a hearing on the two disciplinary charges            against Leavitt, Leavitt was found guilty on all charges.  He            was punished with, apparently, a total of 40 days of punitive            segregation  and 40 days' loss of good time credits, with all                                         -3-            of it  suspended except for a  loss of ten days  of good time            credits.  All of Leavitt's appeals were denied.                      According to the complaint, prison officials failed            to   adequately   investigate  Leavitt's   grievance  against            Woodbury.  The grievance was apparently dismissed.                      Later, on  January 10,  1994, defendant  Gallant, a            prison guard, allegedly insulted  Leavitt and told Leavitt to            leave the  gymnasium area, without any  provocation.  Leavitt            filed a grievance against Gallant.  According to Leavitt, the            grievance was  not fully investigated.   Ultimately, however,            Gallant was given a verbal reprimand.                      In  his  complaint,  Leavitt  sought  damages  from            defendants,  and an  injunction  ordering them  to cease  and            desist  from violating  his constitutional  rights, under  42            U.S.C.   1983.   Specifically, he alleged that he  was denied            due process  and equal protection in  the prison disciplinary            procedure; that his Eighth  Amendment rights were violated by            the loss of good time credits as a result of that  procedure;            that  his  First  Amendment  rights were  violated  by  being            disciplined  for his  unspecified  remark  at the  basketball            game; that  his due process  and Sixth Amendment  rights were            violated  by the  prison's failure  to adequately  follow its            grievance  procedure regarding his  grievances; that  his due            process   rights   were   violated   by   being   brought  to            administrative  segregation  without  explanation, and  being                                         -4-            kept  there  for   24  days  without   a  hearing  or   other            administrative procedure; that his constitutional rights were            violated  by   defamatory  statements  made   about  him   by            defendants  Woodbury  and   Gallant;  and  that   his  Eighth            Amendment  rights  were violated  when  he  was assaulted  by            defendants Woodbury  and Gallant  and kept  in administrative            segregation  despite  a  risk  of physical  harm  from  other            inmates.                      A  magistrate  judge  recommended   that  Leavitt's            complaint  be  dismissed  as  frivolous  under  28  U.S.C.               1915(d).   The district court adopted  the magistrate judge's            report and dismissed the complaint.                        We  agree  that  most of  Leavitt's  complaint  was            properly dismissed  under   1915(d) because  the legal theory            underlying Leavitt's claims  was indisputably meritless.   To            begin with, assuming  Leavitt had a  liberty interest in  his            disciplinary  hearing,  his  own  allegations  show  that due            process was accorded him.                        Leavitt  was  entitled  to  "an  opportunity,  when            consistent with institutional safety and  correctional goals,            to  call witnesses  and present  documentary evidence  in his            defense."  Superintendent v. Hill, 472 U.S. 445, 454  (1985).                       ______________    ____            He  was   entitled  to   be  given  an   explanation,  either            contemporaneously  or subsequently,  for  any denial  of this            opportunity.  Ponte v. Real, 471 U.S. 491, 497 (1985).                            _____    ____                                         -5-                      Leavitt  acknowledges  that   his  witnesses   were            permitted  to  make  statements  to  the  disciplinary  board            regarding the first disciplinary report (charging provocation            and disorderly behavior).   When the disciplinary board moved            on to  the second disciplinary report  (charging that Leavitt            lied  in  filing  his grievance  against  Woodbury),  Leavitt            alleges that his  request to present  three of his  witnesses            was  denied "without  explanation, other  than they  were not            eyewitnesses to  the actual act of writing the grievance, but            did witness the actions  in the gymnasium."  In  other words,            Leavitt does  acknowledge that  the board, having  just heard            his witnesses  in connection  with the  first report,  gave a            reason for declining to  hear them again.  Since  this reason            was  clearly  not  arbitrary,  we  find  it  constitutionally            adequate.  See id.                         ______                      By  the  same  token,   there  is  nothing  in  the            complaint to  suggest that  Leavitt could, by  amendment, add            adequate   allegations   that  this   disciplinary  procedure            violated his Eighth  Amendment rights or  his right to  equal            protection of the laws.                      As for Leavitt's  charges of defamation, defamation            alone does not state a cause of action under   1983.  Paul v.                                                                  ____            Davis,  424 U.S. 693, 701-10  (1976).  As  long as procedural            _____            due process is afforded the inmate in the prison disciplinary            hearing,  and  no   substantive  constitutional  rights   are                                         -6-            implicated,  a prison inmate cannot bring a   1983 action for            defamation  against  prison  officials  on  the  ground  that            charges resolved  against the inmate  in prison  disciplinary            proceedings were false and defamatory.  See Franco v.  Kelly,                                                    __________     _____            854 F.2d 584, 587-88 (2nd Cir. 1988).                      The due process clause does not, in and  of itself,            confer upon an inmate a right to pursue grievance proceedings            against prison officials.   Mann v. Adams, 855 F.2d  639, 640                                        ____    _____            (9th  Cir.  1988).    Furthermore,  prison regulations  which            establish a grievance procedure cannot give rise to a liberty            interest because they confer only procedural protections, not            substantive  rights,  upon  the   inmates  who  may  use  the            grievance procedures.  Azeez v. DeRobertis, 568 F.Supp. 8, 10                                   _____    __________            (N.D.Ill.  1982); see  generally Shango  v. Jurich,  681 F.2d                              _____________________     ______            1091  (7th  Cir. 1982).   Accordingly,  Leavitt's allegations            that  certain defendants failed  to properly  investigate his            grievances cannot support a constitutional claim.                      Leavitt's  allegations  of excessive  force against            defendant Woodbury  are limited  to the charge  that Woodbury            shoved, pushed, and grabbed  him.  Against defendant Gallant,            Leavitt's  allegations are  limited to  verbal abuse.   These            allegations  are therefore  de minimis  and cannot  provide a            basis for a   1983 claim.  "Not every  push or shove, even if            it  may  later seem  unnecessary in  the  peace of  a judge's            chambers,  violates  a  prisoner's   constitutional  rights."                                         -7-            Hudson v. McMillian, 503  U.S. 1, 15 (1992)  (quoting Johnson            ______    _________                                   _______            v.  Glick, 481 F.2d 1028,  1033 (2d Cir.),  cert. denied, 414                _____                                   ____________            U.S. 1033 (1973)).                      Leavitt's  allegation that  his due  process rights            were violated  by being brought to administrative segregation            without explanation is fatally defective.  Even if  a liberty            interest   was   implicated   by   Leavitt's   placement   in            segregation,  all  that  due  process  requires  is  that  an            informal administrative procedure  "occur within a reasonable            time following an inmate's  transfer."  Hewitt v.  Helms, 459                                                    ______     _____            U.S. 460,  476 n.8 (1982).   Leavitt was not entitled  to any            procedure before, or contemporaneous with, his transfer.                      Finally,  Leavitt's  allegation   that  his   First            Amendment  rights   were  violated  by  discipline   for  his            statement  at  the basketball  game  was  properly dismissed.            This   statement,  again,   has  been   found  by   a  prison            disciplinary  board to constitute  provocative and disorderly            conduct.   An  inmate has  no First  Amendment right  to make            statements  reasonably  judged   by  prison  authorities   to            constitute  attempts to provoke other inmates.  See Ustrak v.                                                            __________            Fairman, 781 F.2d 573, 580 (7th Cir.), cert. denied, 479 U.S.            _______                                ____________            824 (1986).                      Leavitt  did make  two allegations,  however, which            were not  premised on indisputably  meritless legal theories.            Although  Leavitt's  allegations may  have  lacked sufficient                                         -8-            detail to  state constitutional claims which  could survive a            Rule  12(b)(6)  motion to  dismiss,  any  such problem  could            conceivably be  cured by more  specific factual  allegations.            See Street v. Fair, 918 F.2d 269, 272-73 (1st Cir. 1990).            __________    ____                      The first of these is  Leavitt's claim that his due            process rights were violated  by being held in administrative            segregation for 24 days  without "a hearing or administrative            procedure regarding  the movement to the  segregation unit in            violation  of the  procedures, rules  and regulations  of the            Maine State Prison."   Although the  due process clause  does            not,  in  and of  itself, confer  upon  a prisoner  a liberty            interest  in being  held  in the  general prison  population,            Hewitt v. Helms, 459  U.S. 460, 467-68 (1983), state  laws or            ______    _____            regulations may  create a  protected liberty interest  if, by            setting forth "explicitly  mandatory language" and "specified            substantive  predicates,"  Kentucky Dep't  of  Corrections v.                                       _______________________________            Thompson, 490 U.S. 454, 463 (1989), they "plac[e] substantive            ________            limitations  on official discretion," Olim v. Wakinekona, 461                                                  ____    __________            U.S. 238, 249 (1983).   Leavitt's complaint does  not specify            what prison regulations should be thought to confer a liberty            interest,  but  certainly  he  might   do  so  if  given  the            opportunity to amend his complaint.  If he did have a liberty            interest in his placement in administrative segregation, then            his  allegation that  he  was maintained  there  for 24  days            without any procedure  would appear adequate to state a claim                                         -9-            of  a due process violation.   See Hewitt, supra, 459 U.S. at                                           __________  _____            472, 476-77.                      Finally,  the Eighth  Amendment  is violated  where            prison officials act with deliberate indifference to a strong            and palpable risk  of physical harm to an inmate at the hands            of other prisoners.  Purvis v. Ponte,  929 F.2d 822, 825 (1st                                 ______    _____            Cir.  1991).  All  that Leavitt has  alleged, to be  sure, is            that  his   "safety  was  threatened"  during   his  time  in            segregation, and that it was "an environment where his safety            was  in  danger  at  all  times."     Again,  however,  these            conclusory allegations  are  not  based  on  an  indisputably            deficient legal theory not conceivably curable by amendment.                      Accordingly, we  remand this  case to  the district            court  for further proceedings.  As a result of this opinion,            Leavitt   is  now   on   notice  that   in  order   to  state            constitutional claims  he  cannot rest  on vague,  conclusory            allegations, but  rather must set  forth factual  allegations            supporting the  material elements of  his claims.   Gooley v.                                                                ______            Mobil Oil Corp., 851  F.2d 513, 514-15 (1st  Cir. 1988).   On            ______________            remand, therefore, Leavitt should amend his complaint.                      The judgment of the  district court is vacated, and                                                             _______            the case is remanded for further proceedings not inconsistent                        ________            with this opinion.                                         -10-
