Opinion
10-P-2056
01-17-2012
RICHARD FELT v. COMMISSIONER OF CORRECTION & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Richard Felt, an inmate at the Old Colony Correctional Center, was found guilty of disciplinary infractions regarding his possession of prescription medication on May 28, 2007. On July 10, 2007, Felt was sanctioned with thirty days loss of yard exercise privileges. After an unsuccessful administrative appeal, on October 27, 2007, Felt filed suit, requesting certiorari review of the sanction under G. L. c. 249, § 4, and seeking damages under 42 U.S.C. § 1983. In an unpublished memorandum and order pursuant to our rule 1:28, we dismissed Felt's certiorari claim as untimely, but the § 1983 claim remained in play. See Felt v. Commissioner of Correction, 74 Mass. App. Ct. 1117 (2009). On remand, the trial judge granted the defendants' motion to dismiss Felt's § 1983 claim for failure to state a claim upon which relief can be granted. Felt appealed that decision and we affirm.
The defendants point out in their comprehensive brief that Felt was required to serve only fourteen days of this sanction.
42 U.S.C. § 1983 provides a cause of action for damages against any person who, 'under color of state law' engages in conduct that causes a 'deprivation of [a] federal right.' Soto v. Flores, 103 F.3d 1056, 1061-1062 (1st Cir. 1997).
Discussion. 1. Standard of review. Our review of the order of dismissal is de novo. We accept as true all of the allegations in the complaint and draw every reasonable inference in favor of Felt. Curtis v. Herb Chambers I-95, Inc., 75 Mass. App. Ct. 662, 666 (2009). In order to survive a motion to dismiss, Felt's complaint must make ''allegations plausibly suggesting (not merely consistent with)' an entitlement to relief.' Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
2. 42 U.S.C. § 1983. Felt argues that he was deprived of his rights under the United States Constitution to due process, to be free from cruel and unusual punishment, to freedom of speech, and to equal protection.
a. Due process. The procedural protections of the due process clause only attach where the government threatens to deprive individuals of constitutionally protected ''liberty' or 'property' interests.' Mathews v. Eldridge, 424 U.S. 319, 332 (1976). For a sanction to infringe on a prisoner's constitutionally protected liberty interest, it must 'impose[] atypical and significant hardship on the inmate in relation to ordinary incidents of prison life.' Torres v. Commissioner of Correction, 427 Mass. 611, 617 (1998), quoting from Sandin v. Conner, 515 U.S. 472, 484 (1995). This court has previously held that thirty days loss of yard time in addition to fifteen days isolation was not an atypical and significant hardship. See Allen v. Department of Correction, 69 Mass. App. Ct. 682, 684-685 (2007). Felt's due process claim thus fails because he has not established that he was deprived of a constitutionally protected liberty interest.
Felt alleges that his case is different because he 'was denied all exercise.' However, Felt admits that he was able to exercise in his cell, and does not contend that he was otherwise confined to his cell.
Felt's additional argument regarding his alleged suffering of Meniere's Disease relies on facts not pleaded in his complaint or the exhibits attached to his complaint.
b. Cruel and unusual punishment. Felt also argues that the sanction he suffered violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Exercise is an 'identifiable human need,' the deprivation of which can raise Eighth Amendment issues. Wilson v. Seiter, 501 U.S. 294, 304 (1991). See Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). However, Federal courts have frequently held that the loss of yard privileges for similar or greater periods did not violate the Eighth Amendment. See Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (four weeks); Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001) (ninety days); Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003) (thirty-seven days); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (twenty-one days). See also Libby v. Commissioner of Correction, 385 Mass. 421, 431 (1982). Felt's Eighth Amendment claim thus fails.
As with Felt's due process claim, see note 4, supra, the lack of access to an indoor gym is without relevance to his Eighth Amendment claim.
c. First Amendment. Felt argues that the sanction imposed was in retaliation for his earlier agreement to testify in defense of an inmate accused of assaulting a correction officer and thus violated his rights under the First Amendment to the United States Constitution. The first time that Felt fully states that his sanction was 'payback' for his earlier agreement to testify was after the remand by this court on the § 1983 claim, in an administrative grievance that he included as a 'supplemental exhibit' to his 'motion to supplement,' which we view as an amendment to his original complaint. While we may properly consider the contents of that exhibit, see Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007), Felt's conclusory statement does not state any facts establishing a nonspeculative link between his agreement to testify and his prison sanction. As a result, Felt has not stated a First Amendment claim with sufficient specificity to satisfy the standard set forth in Iannacchino, 451 Mass. at 636.
d. Equal protection. Felt argues for the first time on appeal that his sanction of loss of yard time deprived him of the right to equal protection under the Fourteenth Amendment to the United States Constitution. Notably, this claim appears nowhere in Felt's complaint or amended complaint. We need not address this claim, as '[a]n issue not raised or argued below may not be argued for the first time on appeal.' Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).
Judgment affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),