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USCA1 Opinion

April 8, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1566
FRED WOODARD,
Plaintiff, Appellant,
v.
ROBERT P. GITTENS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
____________________
Fred Woodard on brief pro se.

____________
Nancy Ankers White, Special Assistant Attorney General, and
__________________
J. Berner on brief for appellees.
_________
____________________
____________________

Per Curiam.
__________

The judgment of the district court is

affirmed substantially for the reasons stated in the district


court's April 29, 1993 memorandum and order.
In addition, we
district court

must consider one

did not specifically address

Woodard alleged

that even

though

claim that

in its opinion.

applicable Department

Correction regulations were not changed until 1987 to


Alcoholics
programs for

Anonymous and

drug counseling

which prisoners could get

from the

of

delete
list of

good-time credit, in

1981 the Department of Correction issued a policy


eliminating good-time

the

credit for these programs.

memorandum
From 1981

or 1982 to 1987, the Department followed this memorandum, not


the regulations.

J
_

Woodard

further alleged,

and defendants

disputed, that the

Massachusetts Superior Court

1991 case (cited by

Woodard as Cleary v. Rakie,


______
_____

have not

ruled in

no. 90-6387

(Middlesex Super. Ct. 1991) (unpublished)), that this 1981-87


practice had
governing

been improper because it

regulations.

Department

to

retroactively

comply
award

The
with

contravened the then-

court allegedly
the

prisoners

directed

the

regulatory

mandate

and

good-time

credit

for

satisfactory participation in these programs during the 198187 period.

Neither party has supplied this court with a copy

of the Superior Court decision, which is not in the record.

Woodard filed as
1992

memorandum from

Correction,

advising

an attachment below

made

Commissioner of

corrections personnel,

"Recently, the

Department of Correction's
certain

programs

18,

defendant DuBois, the

Middlesex Superior Court issued a


the

a March

decision declaring invalid


1981 policy memorandum which

ineligible

for

earned

good

time

credits."

The

memorandum directed corrections

"begin on or before March


credit

and

release

personnel to

27, 1992" to recalculate good-time

dates

for

each

inmate

to

reflect

appropriate credit for participation in these programs during


the 1982-87 period.
weeks before

This March 27 deadline was less than two

Woodard's release from prison on April 8, 1992.

Woodard alleges that his release date was never recalculated.


On this

basis, Woodard

argues that the

good-time credit for participation

denial of

in these programs

during

1981-87, in apparent contravention of applicable regulations,


violated his constitutional rights.
The Department's 1981

We disagree.

policy memorandum,

whatever

its status under state law, did not violate the ex post facto
clause of the Constitution, art. 1,
reasons

-- stated

change in the

by the

district court

regulations did

memorandum, Woodard

10, cl. 1, for the same

not.

remained eligible

After

-- that

the 1987

the 1981

for exactly

policy
the same

total amount of good-time credit, for participation in a wide


range of available programs, as he had been before.
changed

was

that

he

had to

select

programs

All that

other

than

Alcoholics Anonymous and drug counseling to earn such credit.


Consequently, the unavailability of these particular programs

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did not establish a regime that was more onerous to him.


that

reason,

the

regulations,

1981

did

not

consequences attached
therefore
v.

policy memorandum,
"substantially

to

crime

like

alter

already

the

450

U.S.

24,

33

(1981)

1987
.

the

completed,

and

change . . . 'the quantum of punishment.'"

Graham,
______

For

Weaver
______

(quoting Dobbert
_______________

v.

Florida, 432 U.S. 282, 293-94 (1977)).


_______
Since
constitutional

1983

requires

or statutory right,

violation

1983

claim.

Halderman, 465 U.S.


_________
Aponte-Roque,
____________

974

federal
_______

provide the basis for

See Pennhurst State School & Hosp.


____________________________________

v.

89, 106 (1984); Quintero de Quintero v.


_____________________
F.2d

226,

230

(1st

Constitution itself does not guarantee


time credits.

mere failure properly to

follow state law or regulations cannot


_____
a

of

Cir.

1992).

The

a right to earn good-

Wolff v. McDonnell, 418 U.S. 539, 557 (1974).


_____
_________

The only argument remaining for Woodard, therefore,


is that

the Department's failure to

award good-time credits

for participation in these programs during the 1981-87 period


violated

a constitutionally protected liberty interest based

in

state law.

by placing
Bowser
______
Olim
____

"A State creates a protected liberty interest

substantive limitations on

v. Vose, 968 F.2d


____

105, 107 (1st

v. Wakinekona, 461 U.S.


__________

applicable

statutes

administrative

official discretion."

238, 249 (1983)).

create

regulations

Cir. 1992) (quoting

may

no
do

Even where

liberty
so

interest,

if

they

contain

decisionmaker

that

if

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"specific

directives

to

the

the

regulations' substantive predicates are present, a particular


outcome
Thompson,
________

must

follow."

Kentucky Dep't of Corrections


_______________________________

490 U.S. 454, 463 (1989).

v.

See Rodi v. Ventetuolo,


___ ____
__________

941 F.2d 22, 26 (1st Cir. 1991).


The

Massachusetts

credits states: "For


said inmates

in

the . .

any other

statute

governing

good-time

. satisfactory performance
program

or activity

which

of
the

superintendent of the institution shall deem valuable to said


prisoner's rehabilitation, the commissioner may grant . . . a

___
further deduction of sentence
127,

129D (1993).

credit derives
the award

Mass. Gen. Laws c.

No liberty interest in earning good-time

from this statute because

of good-time credit

Commissioner.
have

. . . ."

within the discretion

Cf. Bowser, supra,


__________ _____

found use

of language

the statute places

968 F.2d

such as

at 109

of the
(courts

"may"

insufficient to

Department of Correction

regulations, in

the 1981-87 period, provided,

"A resident for

create a liberty interest).


The 1978
effect during
his

satisfactory

conduct,

satisfactory

completion,

or

satisfactory performance in a program or activity may receive


___
a deduction from sentence of not more than seven and one half
days a

month."

103

Code of Mass. Regs.

411.09(1) (1978)

(emphasis added).

The regulations granted the

whether

to

or

not

award

sentence

determination

reduction

to

the

not state

any

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Commissioner,

id.
__

411.10(10-12),

and did

criteria

-- beyond the

completion,

requirement of satisfactory conduct,

or performance

--

by which

the Commissioner's

determination was to be governed.


Like
neither
limit

the

statute,

substantive

predicates

the Commissioner's

whether

to award

these

nor mandatory

discretion

good-time

particular program.

regulations

For

in

credit for

contained

language

his

to

determination

participation in

that reason, they did not

create a

liberty interest.
The only relevant
in

411.08(1)(g),

would carry
but not

which stated

that the

be limited to
Id.
___

. .

"shall include
_____

. alcoholics anonymous,

411.08(1)(g) (emphasis added).

this language mandated, however,

participated

be found

activities which

eligibility for good-time credit

counseling."
that

mandatory language may

in one of

or drug
The most

was that if an inmate

these programs, the

inmate would be

entitled to a discretionary determination by the Commissioner


whether
good-time

the participation
credit would

was

"satisfactory"

be awarded.

provision, at most, mandated only


a

particular

procedure,

not

In other

and

whether

words, this

that an inmate be accorded


that

an

inmate

receive

particular outcome if specified substantive criteriawere met.


Such a

provision -- mandating a

does not create a liberty interest.

procedure only --

Ewell v. Murray, 11 F.3d


_____
______

-6-

482,

488 (4th Cir. 1993)

liberty interest
subject

deprive

in the

matter to

original).

("inmates do not

procedures themselves, only


_____________________

which

they are

of

in the

directed") (emphasis

Accordingly, the 1981 policy

Woodard

have a protected

constitutionally

memorandum did not


protected

interest -- regardless of whether it may have

liberty

violated state

law -- when it removed these programs from the list of


carrying

eligibility

defendants
liberty

for

deprive Woodard

interest

review his

if, as

good-time
of a

credit.

those

Nor

did

constitutionally protected

alleged,

they failed

record of participation in

the 1981-87

in

period to determine whether

in

1992 to

these programs during


a retroactive award

of good-time credit was appropriate.


The judgment of the district court is affirmed.
________

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