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[NOT FOR PUBLICATION]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.
____________
Leavitt
the

filed a pro se
___ __

District

Corrections,

Plaintiff-appellant

complaint in the

of

Maine

against

the

Maine

State

the
Prison,

Richard

District Court for

Maine
and

Department
twelve

of

prison

officials and guards.

15, 1993,
made an

The complaint alleged that on November

Leavitt, while watching a

unspecified remark to another

of the basketball players (in a later

that

the remark was, "Two

the bonus").

Defendant

prison basketball game,

inmate concerning one
filing, Leavitt stated

babies for that

foul, they're in

Woodbury, a prison guard, confronted

Leavitt about the remark, became angry and physically removed

Leavitt from

the area,

Woodbury filed

a disciplinary

provocation and
administrative

grabbing, pushing, and

report charging

disorderly behavior and took

segregation area,

where he

shoving him.
Leavitt with
Leavitt to the

was subsequently

housed for 24 days.

Leavitt then
under
pushed,

filed

a grievance

against

Woodbury

the prison grievance procedure, alleging that Woodbury

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

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of it

suspended except for a

credits.

loss of ten days

of good time

All of Leavitt's appeals were denied.

According to the complaint, prison officials failed

to

adequately

Woodbury.

investigate

Leavitt's

grievance

against

The grievance was apparently dismissed.

Later, on

January 10,

1994, defendant

prison guard, allegedly insulted

leave the

Leavitt and told Leavitt to

gymnasium area, without any

filed a grievance against Gallant.

grievance was

Gallant, a

provocation.

Leavitt

According to Leavitt, the

not fully investigated.

Ultimately, however,

Gallant was given a verbal reprimand.

In
defendants,
desist

his

complaint,

and an

injunction

from violating

U.S.C.

1983.

due process

Leavitt

sought

ordering them

his constitutional

damages

from

to cease

and

rights, under

Specifically, he alleged that he

and equal protection in

procedure; that his Eighth

his

First

disciplined
game; that
violated
grievance

Amendment

for his

Amendment rights were violated by

by the

rights were

unspecified

his due process

was denied

the prison disciplinary

the loss of good time credits as a result of that

that

42

remark

violated
at the

and Sixth Amendment

prison's failure

procedure regarding his

procedure;

to adequately

by

being

basketball
rights were
follow its

grievances; that

his due

process

rights

administrative

were

violated

segregation

by

without

being

brought

explanation, and

to

being

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kept

there

for

24

days

without

hearing

or

other

administrative procedure; that his constitutional rights were

violated

by

defendants

defamatory
Woodbury

Amendment

rights

and

Gallant;

were violated

defendants Woodbury
segregation

statements

despite

risk

and

when

and Gallant
a

made

about
that

he

and kept

of physical

him

his

by

Eighth

was assaulted

by

in administrative
harm

from

other

inmates.
A

magistrate
dismissed

judge
as

recommended

complaint

be

frivolous

1915(d).

The district court adopted

that

under

28

Leavitt's
U.S.C.

the magistrate judge's

report and dismissed the complaint.

We

agree

properly dismissed

that
under

underlying Leavitt's claims

most of

Leavitt's

1915(d) because

complaint

was

the legal theory

was indisputably meritless.

To

begin with, assuming

disciplinary

Leavitt had a

hearing,

his

own

liberty interest in

allegations

show

his

that due

process was accorded him.

Leavitt

was

entitled

to

"an

consistent with institutional safety and

to

call witnesses

defense."
He

was

and present

opportunity,

correctional goals,

documentary evidence

Superintendent v. Hill, 472 U.S. 445, 454

______________
____
entitled

to

contemporaneously
opportunity.

be

given

an

or subsequently,

for

when

in his
(1985).

explanation,

either

any denial

of this

Ponte v. Real, 471 U.S. 491, 497 (1985).

_____
____

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Leavitt
permitted

to

acknowledges

make

statements

that
to

his
the

witnesses

were

disciplinary

board

regarding the first disciplinary report (charging provocation

and disorderly behavior).
on to
lied

When the disciplinary board moved

the second disciplinary report

in

filing

his grievance

(charging that Leavitt

against

Woodbury),

Leavitt

alleges that his

was

request to present

denied "without

eyewitnesses to

explanation, other

acknowledge that

his witnesses

in connection

reason for declining to

adequate.

were not

not

In

other words,

the board, having

with the

first report,

hear them again.

arbitrary,

we

just heard

Since

gave a

this reason

find

it

constitutionally

there

is

nothing

See id.
______
By

complaint to
adequate

than they

in the gymnasium."

Leavitt does

clearly

witnesses

the actual act of writing the grievance, but

did witness the actions

was

three of his

the

same

token,

suggest that

allegations

violated his Eighth

Leavitt could, by

that

this

the

amendment, add

disciplinary

Amendment rights or

in

procedure

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

Davis,
_____

424 U.S. 693, 701-10

(1976).

As

1983.

Paul v.
____

long as procedural

due process is afforded the inmate in the prison disciplinary

hearing,

and

no

substantive

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constitutional

rights

are

implicated,
defamation

a prison inmate cannot bring a

against

charges resolved

prison

officials

against the inmate

1983 action for

on

the

ground

in prison

proceedings were false and defamatory.

that

disciplinary

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.
(9th

Cir.

1988).

Mann v. Adams, 855 F.2d

____
_____

Furthermore,

639, 640

prison regulations

which

establish a grievance procedure cannot give rise to a liberty

interest because they confer only procedural protections, not
substantive

rights,

upon

grievance procedures.
(N.D.Ill.

the

inmates

who

may

use

the

Azeez v. DeRobertis, 568 F.Supp. 8, 10

_____
__________

1982); see generally Shango

_____________________

1091

(7th

Cir. 1982).

Accordingly,

that

certain defendants failed

v. Jurich,
______

681 F.2d

Leavitt's allegations

to properly

investigate his

grievances cannot support a constitutional claim.

Leavitt's
defendant Woodbury

allegations
are limited

shoved, pushed, and grabbed

Leavitt's

allegations are

him.

of excessive

force against

to the charge

that Woodbury

Against defendant Gallant,

limited to

verbal abuse.

These

allegations

are therefore

basis for a

1983 claim.

it

may

chambers,

later seem
violates

de minimis
"Not every

and cannot

push or shove, even if

unnecessary in

the

constitutional

prisoner's

provide a

peace of

a judge's
rights."

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Hudson v. McMillian, 503

______
_________
v.

U.S. 1, 15 (1992)

(quoting Johnson
_______

1033 (2d Cir.),

cert. denied, 414

____________

Glick, 481 F.2d 1028,

_____

U.S. 1033 (1973)).

Leavitt's
were violated

allegation that

his due

by being brought to administrative segregation

without explanation is fatally defective.

interest

was

segregation,

implicated
all

that

due

by

time following an inmate's

476 n.8 (1982).

Even if

Leavitt's

process

informal administrative procedure

U.S. 460,

process rights

a liberty

placement

requires

is

that

in
an

"occur within a reasonable

transfer."

Hewitt v.
______

Helms, 459
_____

Leavitt was not entitled

to any

procedure before, or contemporaneous with, his transfer.

Finally,
Amendment

rights

statement

at

This

conduct.

were

allegation

violated

the basketball

statement,

disciplinary

Leavitt's

again,

game

has

inmate has

was

First
for

his

properly dismissed.
found

by

prison

provocative and disorderly

no First

judged

his

discipline

been

board to constitute

An

by

that

by

Amendment right

statements

reasonably

prison

constitute

attempts to provoke other inmates.

to make

authorities

to

See Ustrak v.
__________

Fairman, 781 F.2d 573, 580 (7th Cir.), cert. denied, 479 U.S.
_______
____________
824 (1986).
Leavitt

did make

two allegations,

were not

premised on indisputably

Although

Leavitt's

allegations may

however, which

meritless legal theories.

have

lacked sufficient

-8-

detail to
Rule

state constitutional claims which

12(b)(6)

conceivably be

motion to

dismiss,

cured by more

any

could survive a

such problem

specific factual

could

allegations.

See Street v. Fair, 918 F.2d 269, 272-73 (1st Cir. 1990).
__________
____
The first of these is
process rights were violated
segregation for 24 days
procedure regarding
violation

of the

in

interest

without "a hearing or administrative

procedures, rules

and of

Although the

itself, confer

in being

held

Hewitt v. Helms, 459

______
_____
regulations may

by being held in administrative

the movement to the

Maine State Prison."

not,

Leavitt's claim that his due

in the

segregation unit in

and regulations
due process clause

upon

a prisoner

general prison

does

a liberty
population,

U.S. 460, 467-68 (1983), state

create a

of the

laws or

protected liberty interest

if, by

setting forth "explicitly

mandatory language" and "specified

substantive

Kentucky Dep't of Corrections v.

_______________________________

predicates,"

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

opportunity to amend his complaint.

do

so

if

given

the

If he did have a liberty

interest in his placement in administrative segregation, then

his

allegation that

without any procedure

he

was maintained

there

for 24

days

would appear adequate to state a claim

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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.
Cir.

1991).

that

his

All

Purvis v. Ponte,
______
_____
that Leavitt has

"safety

was

929 F.2d 822, 825 (1st

alleged, to be

threatened"

during

his

sure, is
time

in

segregation, and that it was "an environment where his safety

was

in

danger

at

all

conclusory allegations

times."
are

not

Again,
based

on

however,
an

these

indisputably

deficient legal theory not conceivably curable by amendment.

Accordingly, we
court
Leavitt

remand this

for further proceedings.

is

now

on

constitutional claims
allegations, but
supporting the

notice
he

the district

As a result of this opinion,

that

cannot rest

rather must set

case to

in

order

on vague,

forth factual

material elements of

his claims.

to

state

conclusory
allegations
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.

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