Robert J. Daigle v. Frank A. Hall, 564 F.2d 884, 1st Cir. (1977)

564 F.
2d 884
Robert J. DAIGLE et al., Plaintiffs, Appellants,

v.
Frank A. HALL et al., Defendants, Appellees.
No. 77-1281.
United States Court of Appeals,

First Circuit.
Argued Sept. 14, 1977.
Decided Nov. 9, 1977.
Dennis P. Flanagan, Boston, Mass., for appellants.

Michael C. Donahue, Asst. Atty. Gen., Chief, Violent Crime Unit, Boston,
Mass., with whom Francis X. Bellotti, Atty. Gen., and John P. Corbett,
Asst. Atty. Gen., Boston, Mass., were on brief, for appellees.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and
WOLLENBERG, District Judge.*
COFFIN, Chief Judge.
Appellants, inmates in the Massachusetts Correctional Institution at Walpole,

brought this suit alleging that their transfers from the general population to the
Departmental Segregation Unit (DSU) deprived them of due process of law. We
must first decide what process , if any, was due.
In Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976),
the Supreme Court held that "(a)s long as the conditions or degree of
confinement to which the prisoner is subjected are within the sentence imposed
upon him and are not otherwise violative of the Constitution, the Due Process
Clause does not in itself subject an inmate's treatment by prison authorities to
judicial oversight." Id. at 242, 96 S.Ct. at 2547. It is clear to us that both of
these conditions exist in this case. First, the DSU is part of the Massachusetts
prison system to which these prison inmates were sentenced. We are pointed to
nothing in the order of the sentencing judge that puts the DSU beyond the
bounds of their sentences. No liberty interest springs up to protect inmates from
transfer to DSU simply because they are originally placed in the less unpleasant
surroundings of the general population. See Meachum v. Fano, 427 U.S. 215,
225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Second, we have already held that
conditions of confinement in the DSU at Walpole do not of themselves violate
the Eighth Amendment. O'Brien v. Moriarty, 489 F.2d 941 (1st Cir. 1974).
Appellants have not demonstrated that conditions have so deteriorated as to
require a contrary conclusion in this case.
3
Thus freedom from transfer between the general population and DSU is not a
"liberty interest" protected by the Fourteenth Amendment in itself. This
conclusion was, of course, implicit in our decision in Four Certain Unnamed
Inmates v. Hall, 550 F.2d 1291 (1977), in which we denied any due process
relief to inmates who, like the inmates in this case, were transferred from the
general population to the DSU at Walpole. As we recognized there, appellants,
in order to trigger federal guarantees of procedural due process, must show
"some right or justifiable expectation rooted in state law that (they) will not be
transferred except for misbehavior or upon the occurrence of other specified
events." Id. at 1292, quoting Montayne v. Haymes, supra, 427 U.S. at 242, 96
S.Ct. 2543.
Because Four Certain Unnamed Inmates was decided under the same statute
and regulations that governed the transfer in this case, we ought not to have to
address the issue again. We do so only because in that case we did not
expressly distinguish the statutes and regulations dealt with in Meachum v.
Fano, supra, and Lombardo v. Meachum, 548 F.2d 13 (1st Cir. 1977),
governing transfer between institutions, from those relevant to tranfers within
an institution.1
Mass.Gen.Laws Ann., ch. 127, 39 (1974), authorizes transfer to the DSU of

inmates "whose continued retention in the general institution population is
detrimental to the program of the institution." Retention in the general
population may become "detrimental" for any number of reasons. The statute
does not "confer upon individual inmates a right not to be transferred absent a
showing that specified events have occurred." Lombardo, supra, 548 F.2d at 15.
Nor does D.O. 4450.1 confer such a right. Paragraph 1, the statement of the
DSU is necessary to house inmates who behave disruptively, creating "serious
management problems and/or security hazards." It does not attempt to set out a
precise standard against which one might measure an inmate and conclude that
he was outside the purpose of the DSU. It does not say who does not belong in
the DSU. Moreover, to the extent it does comment on the type of inmate who
will be placed in the DSU, it merely explains the statutory standard, defining
"detrimental to the program of the institution" to mean "creating serious

management problems and/or security hazards for staff and/or." The
definitional paragraph, P 3.2, merely sets out a list of examples of types of
inmates who may be confined in the DSU. It does not define any groups who
may not be confined in the DSU.
7
Appellants claim that in general, and in their particular cases, specific acts of
major misconduct trigger transfers to the DSU. Meachum v. Fano, supra, 427
U.S. at 228, 96 S.Ct. at 2540, however, renders that fact immaterial, so long as
the prison official's discretion is not limited to acts of serious misconduct,
because "no legal interest or right . . . would have been violated by their
transfer whether or not their misconduct had been proved in accordance with
procedures that might be required by the Due Process Clause in other
circumstances." As we have found, the same is true in this context.2
In addition to the Fourteenth and Eighth Amendment claims, appellants argue

that the district court abused its discretion in refusing to accept supplemental
pleadings and in refusing to certify certain questions for decision by a state
court. Neither claim merits extended discussion. The supplemental proceedings
would have greatly broadened the cause of action. The court decided that the
original cause of action should be dismissed on its substance. The claims
included in the supplemental pleadings are not barred should appellants choose
to bring a new suit. The requested absentation concerned an issue of state law
that was not particularly difficult the meaning of the statute and regulations
discussed above. We hold that the court did not abuse its discretion in either
instace.
Appellants now assert that even if they lose on all their federal claims, we
should at least remand the case for determination of whether appellees violated
state law by failing to observe their own regulations.3 This claim, however, was
never raised below. Appellants relied exclusively on federal causes of action.
There is no pendent state law claim for us to consider.
10
Affirmed.
Of the Northern District of California, sitting by designation
Even so, the regulations governing reclassification, which we held do not

impose substantive standards on the transfer decision, Lombardo, supra; Four
Certain Unnamed Inmates, supra, apply equally to either context
Given this finding, we can see no significance to the fact that the prison
officials chose to give hearings before some transfers to the DSU, but not
before those precipitated by an act that was being referred to a district attornery
for investigation
See Lombardo v. Meachum, 548 F.2d 13, 16 (1st Cir. 1977)

Robert J. Daigle v. Frank A. Hall, 564 F.2d 884, 1st Cir. (1977)

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Robert J. Daigle v. Frank A. Hall, 564 F.2d 884, 1st Cir. (1977)

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564 F.

Robert J. DAIGLE et al., Plaintiffs, Appellants,

United States Court of Appeals,

Dennis P. Flanagan, Boston, Mass., for appellants.

Appellants, inmates in the Massachusetts Correctional Institution at Walpole,

Mass.Gen.Laws Ann., ch. 127, 39 (1974), authorizes transfer to the DSU of

"detrimental to the program of the institution" to mean "creating serious

In addition to the Fourteenth and Eighth Amendment claims, appellants argue

Of the Northern District of California, sitting by designation

Even so, the regulations governing reclassification, which we held do not

See Lombardo v. Meachum, 548 F.2d 13, 16 (1st Cir. 1977)

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