June 30, 1992 ____________________
No. 91-1654
EDGAR J. BOWSER, III,
Plaintiff, Appellant,
v.
GEORGE A. VOSE, JR., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Edgar J. Bowser, III on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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Sondra M. Korman, Counsel, Department of Correction, on brief for
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appellees.
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Per Curiam. At issue here is whether a prison inmate's
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wish to continue participating in the Massachusetts furlough
program rises to the level of a Fourteenth Amendment liberty
interest. The district court (adopting the report of a
magistrate-judge) held that it does not, and that a decision
to suspend an inmate from that program thus need not be
accompanied by due process protections. We agree and
therefore affirm the dismissal of plaintiff's complaint under
Fed. R. Civ. P. 12(b)(6).
I.
The facts, drawn from plaintiff's pro se complaint and
construed in his favor, are straightforward. Since October
1976, Edgar Bowser has been serving a life sentence for the
second-degree murder of a Shrewsbury police officer (along
with a 3-5 year sentence for armed robbery). In May 1985, he
was transferred from a medium to a minimum security prison
(MCI-Shirley). There, in conformance with regulations of the
Department of Correction (DOC), to be discussed infra, he was
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approved for participation in the furlough program.1 Over
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1. The Massachusetts furlough program permits an inmate
"under prescribed conditions to be away from [a] correctional
facility ... for a specified period of time, not to exceed
fourteen days during any twelve month period nor more than
seven days at any one time." Mass. Gen. L. ch. 127, 90A.
The statute enumerates six general purposes for which a
furlough may be awarded: to attend a relative's funeral, to
visit a critically ill relative, to obtain medical or social
services, to contact prospective employers, to secure a
residence for use upon release, and "for any other reason
consistent with the reintegration of a committed offender
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the next three and one-half years, plaintiff completed 49
separate furloughs without incident. He also remained free
of disciplinary infractions during that period. On January
3, 1989, however, he was transferred back to a medium
security prison (MCI-Concord), without being offered an
explanation. Following a hearing on January 20, the
classification board voted to return plaintiff to the minimum
security facility. On February 1, however, at the
recommendation of the MCI-Concord Superintendent, the DOC
Associate Deputy Commissioner rejected this decision. Citing
"recent interest of P.D." (police department), he instead
ordered plaintiff's transfer to MCI-Norfolk, another medium
security prison. In a March 21 letter to plaintiff, the DOC
Deputy Commissioner explained this decision in more detail.
The Department, he indicated, had decided to suspend
plaintiff's participation in the furlough program because of
a "strong statement of community opposition by a Law
Enforcement Agency regarding your presence in the community."
And the decision had been made to place plaintiff in medium
security because of, inter alia, "our concern of your
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reaction to being suspended" from the program. These actions
were described as "not disciplinary in nature." Plaintiff
later learned that the "law enforcement agency" that had
objected tohis furloughs was theShrewsbury Police Department.
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into the community." Id.
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Bowser filed suit under 42 U.S.C. 1983 in October
1989. He claimed that defendants2 violated his civil rights
under federal and state law by suspending him from the
furlough program and subsequently transferring him to medium
security. In particular, he alleged a due process violation
in that community opposition was an impermissible basis for
denying furloughs. And he alleged an equal protection
violation in that no other inmate had been denied furloughs
on that ground. Plaintiff sought declaratory and injunctive
relief and damages; his prayer for injunctive relief asked
that he be returned to MCI-Shirley, be restored to "positive
furlough status" and be approved for furlough participation
equal to that which he had earlier enjoyed. The district
court, as mentioned, dismissed the complaint for failure to
state a claim, and plaintiff now appeals. The due process
argument is the sole issue raised.
II.
"Liberty interests protected by the Fourteenth Amendment
may arise from two sources--the Due Process Clause itself and
the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466
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(1983). Plaintiff argues that each of these sources provides
him with a liberty interest in continued participation in the
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2. Named as defendants were the Deputy Commissioner of
Correction, the Associate Commissioner of Correction, and the
Superintendent of MCI-Concord.
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Massachusetts furlough program. We disagree in both
respects.
It is clear that the denial of a furlough implicates no
inherent liberty interest. Various courts have so held, see,
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e.g., Baumann v. Arizona Dep't of Corrections, 754 F.2d 841,
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843-44 (9th Cir. 1985); Morris v. McCotter, 773 F. Supp. 969,
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971 (E.D. Tex. 1991); cf. Joihner v. McEvers, 898 F.2d 569,
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571 (7th Cir. 1990) (no such interest in receiving transfer
to work camp), and plaintiff does not seriously contend
otherwise. Indeed, the Supreme Court has found no inherent
liberty interest in the receipt of parole, Greenholtz v.
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Nebraska Penal Inmates, 442 U.S. 1, 9-11 (1979), or good-time
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credits, Wolff v. McDonnell, 418 U.S. 539, 557 (1974)--each
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of which involves a quantum of liberty greater than that at
issue here. Instead, plaintiff argues that his situation is
more analogous to cases involving the revocation of parole or
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probation--cases in which an independent liberty interest has
been found. See Gagnon v. Scarpelli, 411 U.S. 778 (1973);
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Morrissey v. Brewer, 408 U.S. 471 (1972). He points to the
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Greenholtz opinion, in which the Court distinguished between
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parole revocation and parole release by observing: "There is
a crucial distinction between being deprived of a liberty one
has, as in parole, and being denied a conditional liberty
that one desires." 442 U.S. at 9. In plaintiff's view,
because he had received (and successfully completed) 49
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separate furloughs, he "had" a liberty interest which could
not be revoked without due process.
This argument misses the mark. To be sure, once an
inmate has been permitted to leave the prison and experience
some of the freedoms enjoyed by parolees and probationers,
depriving him of further opportunities to do so effects a
considerable loss of liberty. Yet the Court has rejected
"the notion that any grievous loss visited upon a person by
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the State is sufficient to invoke the procedural protections
of the Due Process Clause." Meachum v. Fano, 427 U.S. 215,
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224 (1976). And the loss involved here is far different from
that involved in Morrissey and Gagnon: "unlike the parolee or
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the probationer ..., the furloughed prisoner is on a short
string. His freedom is not potentially unlimited in duration
even upon compliance with the official rules." Smith v.
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Saxbe, 562 F.2d 729, 734 n.18 (D.C. Cir. 1977). In addition,
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a denial of continued furloughs simply relegates a prisoner
to "the conditions or degree of confinement ... within the
sentence imposed ...." Montanye v. Haymes, 427 U.S. 236, 242
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(1976). For these reasons, courts have consistently held
that prisoners have no inherent liberty interest in
continuing to participate in furlough (or other temporary
release) programs.3 See, e.g., Smith, 562 F.2d at 734-35
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3. Contrary to plaintiff's corollary suggestion, he acquired
no entitlement to future furloughs merely because he had
received them in the past. Nothing in the then-applicable
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(furloughs); O'Bar v. Pinion, 953 F.2d 74, 83-84 (4th Cir.
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1991) (work-release); Codd v. Brown, 949 F.2d 879, 882 (6th
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Cir. 1991) (same); Whitehorn v. Harrelson, 758 F.2d 1416,
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1420-22 (11th Cir. 1985) (same); see also Lanier v. Fair, 876
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F.2d 243, 246 (1st Cir. 1989) (no inherent liberty interest
in remaining in halfway house); Brennan v. Cunningham, 813
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F.2d 1, 5-6 (1st Cir. 1987) (same); Garcia v. De Batista, 642
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F.2d 11, 14 (1st Cir. 1981) (same).
We therefore turn to state law. "[A] State creates a
protected liberty interest by placing substantive limitations
on official discretion." Olim v. Wakinekona, 461 U.S. 238,
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249 (1983). While this may be accomplished in a number of
ways, "the most common manner ... is by establishing
'substantive predicates' to govern official decision-making
... and, further, by mandating the outcome to be reached upon
a finding that the relevant criteria have been met."
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462
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(1989) (quoting Hewitt, 459 U.S. at 472). As the Thompson
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statute or regulations created any presumption in this
regard, let alone any such entitlement. While plaintiff was
"certified" for furloughs under the DOC regulations, this
procedure simply facilitated the processing of furlough
applications. See 103 CMR 463.10 (1986). Receiving such
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certification created no presumption that future furloughs
would be granted. Nor was any procedure prescribed therein
for "revoking" furlough status. Instead, as described below,
these enactments simply enumerated various criteria governing
the award of furloughs. And they indicated that each
furlough application was to be decided on a case-by-case
basis.
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Court indicated, a liberty interest is created only if "the
regulations contain 'explicitly mandatory language,' i.e.,
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specific directives to the decisionmaker that if the
regulations' substantive predicates are present, a particular
outcome must follow." 490 U.S. at 463 (quoting Hewitt, 459
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U.S. at 471-72). While words such as "shall," "will," or
"must" are typically cited as paradigms of explicitly
mandatory language, see, e.g., Rodi v. Ventetuolo, 941 F.2d
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22, 25 (1st Cir. 1991), no "particular formula" is required,
Brennan, 813 F.2d at 8.4 The basic question is whether "the
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regulations are ... worded in such a way that an inmate could
reasonably expect to enforce them against the prison
officials." Thompson, 490 U.S. at 465.
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No liberty interest derives from the furlough statute
itself, since that enactment is phrased in discretionary
terms.5 Plaintiff instead relies on the implementing
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4. In this regard, it is perhaps helpful to differentiate
between (1) state rules governing the imposition of sanctions
(such as administrative segregation in Hewitt) or the
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revocation of privileges (such as visitation rights in
Thompson), and (2) those governing the award of privileges
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(such as parole in Board of Pardons v. Allen, 482 U.S. 369
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(1987)). In the former category, the central inquiry is
whether the sanction can be imposed (or the privilege
revoked) only when one or more of the substantive criteria
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are met. In the latter category, the central inquiry is
whether the privilege must be granted when (or unless) one or
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more of the criteria are met.
5. The statute provides in relevant part: "The commissioner
may extend the limits of the place of confinement .... Such
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authorization may be granted for any of" the six purposes
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described in note 1 supra. Mass. Gen. L. ch. 127, 90A
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regulations, 103 CMR 463.01-463.17 (1989). The relevant
provisions are as follows:
463.07: General Eligibility Requirements
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(1) Purposes
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(a) A resident shall be authorized to
receive a furlough for the following purposes only:
[listing the six purposes described in note 1
supra].
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(2) Time
(a) A resident of any state correctional
facility shall be eligible for fourteen furlough
days during his furlough year, but for no more than
seven consecutive furlough days.
(b) A resident shall be eligible to be
considered for a furlough under the following
conditions:
1. ....
2. A resident serving life
sentences ... shall be required to serve three
years from the effective date of sentence ....
463.08: Specific Eligibility Requirements
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(1) Furloughs.
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(a) A resident who satisfies one of the
[six enumerated] purposes ... and for whom there is
reasonable cause to believe that the trust extended
to that resident while on furlough will be honored,
shall be eligible for a furlough. A decision to
approve a furlough shall be based upon the
resident's ability to conduct himself responsibly
while in the community. In considering
responsibility, the past and present conduct of the
resident shall be reviewed, including his prior
furlough history, if any, program and activity
participation, any record of escapes or attempted
escapes and an inquiry ... into whether the
resident can be trusted to return to the
correctional facility at a designated time and not
commit any criminal acts while on furlough.
These eligibility requirements do constitute substantive
predicates intended to guide the decision whether to grant a
furlough. And the fact that several of these criteria--i.e.,
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(emphasis added).
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trustworthiness; responsibility--are subjective and
predictive does not negate the possibility of a liberty
interest. See Board of Pardons v. Allen, 482 U.S. 369, 374-
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76 (1987).
Absent from the regulations, however, is any mandatory
language directing that a furlough must be granted to any
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inmate who satisfies the eligibility requirements. The fact
that the word "shall" appears at various points does not
avail plaintiff. "[T]he mandatory language requirement is
not an invitation to courts to search regulations for any
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imperative that might be found. The search is for relevant
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mandatory language ...." Thompson, 490 U.S. at 464 n.4. The
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regulations simply state that an inmate satisfying the listed
criteria shall be "eligible" for parole. And eligibility is
not the same as entitlement. See, e.g., Francis v. Fox, 838
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F.2d 1147, 1149 (11th Cir. 1988) (regulation "states not who
must receive work-release, but simply who is eligible for
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work-release; the Corrections Department still must exercise
discretion in choosing suitable prisoners"); Mahfouz v.
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Lockhart, 826 F.2d 791, 793 (8th Cir. 1987) (same).
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Similarly, the language in 463.08(1)(a)--stating that a
"decision to approve a furlough shall be based upon the
resident's ability to conduct himself responsibly"--imposes
no restrictions as to when a furlough can be denied.
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The regulations at no point state that an inmate "shall"
be released "when," or "if," or "subject to," or "unless"--
terminology that has been held to create a liberty interest
in this context. See, e.g., Allen, 482 U.S. at 378;
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Greenholtz, 442 U.S. at 11-12; Bermudez v. Duenas, 936 F.2d
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1064, 1067 (9th Cir. 1991). Rather, the language here is
akin to that which courts have found insufficient to create
such an interest. See, e.g., Inmates v. Ohio State Adult
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Parole Auth., 929 F.2d 233, 237 (6th Cir. 1991) ("may" be
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released "unless"); Dace v. Mickelson, 816 F.2d 1277, 1281-82
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(8th Cir. 1987) ("may" be released "when"; specified criteria
"shall" be considered); Canterino v. Wilson, 869 F.2d 948,
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951 n.2; 953-54 (6th Cir. 1989) ("no prisoner who" satisfies
criteria "shall be released").
Other provisions in the regulations reinforce the
discretionary nature of the decision to grant or deny a
furlough. The section entitled "Explanation" states that the
regulations "prescribe the conditions under which a resident
may have the limits of his place of confinement extended."
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103 CMR 463.05 (emphasis added). Designated officials are
authorized to defer or deny furlough applications "for
reasons including but not limited to incomplete or inaccurate
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information on an application or any other relevant material,
or for further verification of the details of the plan of the
resident in the community." Id. 463.09(3)(c), (4)(c)
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(emphasis added). And the regulations give officials total
discretion to revoke certification, id. 463.10(2)(c), and
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to cancel previously approved furloughs, id. 463.11(6)(b).
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For these reasons, we do not think that plaintiff could
"reasonably form an objective expectation that [additional
furloughs] would necessarily be allowed" so long as he
continued to meet the eligibility requirements. Thompson,
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490 U.S. at 465. The furlough regulations, therefore,
cannot be said to create a liberty interest protected under
the Fourteenth Amendment.
Affirmed.
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