Conway v. Gorczyk

Conway v. Gorczyk (99-553); 171 Vt. 374; 765 A.2d 463 

[Filed 29-Sep-2000]
[Motion for Reargument Denied 20-Nov-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 99-553


Charles Conway	                                 Supreme Court

                                                 On Appeal from
     v.	                                         Franklin Superior Court


John Gorczyk, Commissioner, 
Department of Corrections	                 May Term, 2000


Edward J. Cashman, J.

Charles Conway, Pro Se, Swanton, Plaintiff-Appellant.

William H. Sorrell, Attorney General, Montpelier, and David R. Groff, Assistant 
  Attorney General, Waterbury, for Defendant-Appellee.

PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Dimotsis, D.J., 
          Specially Assigned


       SKOGLUND, J.   Vermont inmates serving terms of imprisonment may earn
  reductions in  their minimum and maximum terms by participating in
  treatment, educational or vocational training  programs offered by the
  Department of Corrections (DOC).  See 28 V.S.A. § 811(b). (FN1)  
  Petitioner Charles Conway was terminated from participation in the DOC's
  Cognitive Self Change  program.  The questions presented in this case are
  whether an inmate has a liberty interest in  participating in 

 

  rehabilitative programs that may result in sentence reduction, and if so,
  what procedural due process  must be afforded before decisions can be made
  that implicate the inmate's interest.  We affirm the  Franklin Superior
  Court's decision holding that no liberty interest is implicated.

       In 1997, petitioner Charles Conway began serving a three-to-five-year
  sentence at Northwest  State Correctional Facility for a conviction of
  lewd-and-lascivious behavior with a child.  That year,  he began
  participating in the correctional facility's Cognitive Self Change program. 
  As a participant  in the program, petitioner had the opportunity to earn up
  to ten days of discretionary good-time credit  per month.  See 28 V.S.A. §
  811(b) (inmate who participates in program may earn up to ten days 
  good-time credit per month) (emphasis added).  This was in addition to the
  five days of good-time  credit per month mandated by § 811(a).  See id. §
  811(a) (inmate shall earn five days good-time  credit "for each month
  during which the inmate has faithfully observed all the rules and
  regulations  of the institution") (emphasis added).  In 1998, three inmates
  alleged that petitioner had engaged in  sexual behavior and made
  inappropriate sexual comments to them.  Petitioner was notified of the 
  charges against him and was given an opportunity to address the allegations
  before the program's  treatment team.  The team determined that petitioner
  should be removed from the program for a  minimum of thirty days and
  provided petitioner with an assignment to complete prior to readmission 
  into the program.  Petitioner filed a V.R.C.P. 75 (Review of Governmental
  Action) claim in Franklin  Superior Court, seeking reinstatement into the
  program.  Petitioner alleged that he had a liberty  interest in the program
  because it afforded him the opportunity to earn good-time credits, and thus
  he  was entitled to procedural due process prior to being removed from the
  program.  Petitioner 

 

  argued that the hearing afforded by the team did not satisfy procedural due
  process  requirements, (FN2) and therefore his removal from the program
  violated his constitutional  rights. (FN3)  The court denied petitioner's
  motion for summary judgment and granted the motion  for summary judgment
  filed on behalf of DOC Commissioner John Gorczyk.  Petitioner appeals  from
  that decision.  We affirm.

       Courts "examine procedural due process questions in two steps:  the
  first asks whether there  exists a liberty or property interest which has
  been interfered with by the State; the second examines  whether the
  procedures attendant upon that deprivation were constitutionally
  sufficient."  Kentucky  Dep't of Corrections v. Thompson, 490 U.S. 454, 460
  (1989) (citations omitted).  Petitioner asserts  that, under both the
  United States Constitution and the Vermont Constitution, he has a liberty
  interest  in participating in the program because it affords him the
  opportunity to earn good-time  credits. (FN4)  He further argues that the
  procedures the team employed were insufficient.  We first  examine whether,
  under the United States Constitution, petitioner has such a liberty
  interest.

       In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme
  Court ruled that  prisoners' liberty interests protected by the due process
  clause of the United States Constitution  would be limited to freedom from
  restraints imposing "atypical and significant hardship on the 

 

  inmate in relation to the ordinary incidents of prison life."  Id. at 484. 
  In Conner, an inmate was  sentenced to disciplinary segregation, or
  solitary confinement, after he was found guilty of  misconduct.  He filed
  an administrative appeal, and the misconduct charge was eventually
  dismissed.  Before the charge was dismissed, however, Conner sued in
  federal court, arguing that prison  officials violated his procedural due
  process rights because he had not been given the opportunity to  call
  witnesses at his disciplinary hearing.  The district court granted summary
  judgment on behalf of  the prison officials.  The Court of Appeals for the
  Ninth Circuit reversed, concluding that Conner  had a liberty interest in
  remaining free from solitary confinement, and there was a genuine issue of 
  material fact with regard to whether the prison officials had violated
  Conner's procedural due process  rights.

       The United States Supreme Court reversed, holding that no procedural
  process was due  because Conner had no liberty interest in remaining free
  from solitary confinement.  See id. at 486.   The Court reasoned that (1)
  subjecting Conner to solitary confinement for thirty days did not "work a 
  major disruption in his environment," id.; (2) placing Conner in solitary
  confinement would not  "inevitably affect the duration of his sentence,"
  since under state law the parole board's decision of  whether to grant or
  deny parole was discretionary, id. at 487; and (3) solitary confinement is
  "within  the range of confinement to be normally expected for one serving
  an indeterminate term of 30 years  to life," id.  Thus, according to the
  Court, subjecting Conner to solitary confinement for thirty days  did not
  impose an atypical-and-significant hardship upon him, and therefore, under
  the United States  Constitution, he had no state-created liberty interest
  in remaining free from solitary confinement.

       Our most recent opportunity to review a claim by inmates that a DOC
  policy violated their  due process rights under the Vermont Constitution
  was presented in Parker v. Gorczyk,        Vt.__, 

 

  744 A.2d 410 (1999).  In Parker, the plaintiffs sought to enjoin the DOC
  from implementing a policy  that would make prisoners convicted of violent
  felonies ineligible for furlough until the expiration of  their minimum
  sentences.  Prior to the promulgation of that policy, all prisoners,
  including those  convicted of violent felonies, were entitled to an
  individualized furlough assessment-a discretionary  decision-prior to the
  expiration of their minimum sentences.  Declining to rely on the Supreme 
  Court's use of legal catch-words - such as the "atypical and significant
  hardship" phrase relied on in  Conner - to assess when claimed interests
  required procedural due process protections, we explained  that, under the
  Vermont Constitution, the determination of whether due process protections
  are  required in a specific case entails "a fact-sensitive examination of
  the particular circumstances  involved, including consideration of the
  nature and significance of the interest at stake, the potential  impact of
  any decision resulting in a deprivation of that interest, and the role that
  procedural  protections might play in such a decision."  Id. at     , 744 A.2d  at 417. 

       We first concluded that the plaintiffs' interest in the possibility of
  obtaining furlough prior to  the expiration of their minimum sentences was
  "sharply limited," stating: 

    [P]laintiffs are concerned with obtaining eligibility for furlough
    rather  than maintaining an already realized conditional freedom.
    Conceding  that they are not necessarily entitled to furlough,
    plaintiffs ask only  for individual furlough assessments that may
    or may not result in their  obtaining furlough.  As Judge Henry
    Friendly cogently noted, "there  is a human difference between
    losing what one has and not getting  what one wants."  Without
    deciding whether revocation of furlough  implicates due process
    protections under the Vermont Constitution,  we conclude that
    plaintiffs' anticipation of furlough is a less  significant
    interest than if they were defending against revocation of 
    furlough.

  Id. at        , 744 A.2d  at 417 (quoting H. Friendly, Some Kind of Hearing,
  123 U. Pa. L. Rev. 1267,  1296 (1975)).  

 
        
       Second, in examining the potential impact of any decision resulting in
  the deprivation of the  alleged interest, we found the plaintiffs' argument
  that prisoners who attained furlough status had a  better chance for parole
  to be speculative and unsupported by the evidence presented below.  See id. 
  at     , 744 A.2d  at 418.  Finally, with regard to the role that procedural
  protections might play, we  noted that, while the policy would deny
  furlough to those violent offenders who could be  reintegrated
  successfully, it also assured  that those who were not ready for community
  reintegration  would not be mistakenly released.  As we stated: "'[T]here
  simply is no constitutional guarantee that  all executive decisionmaking
  must comply with standards that assure error-free determinations.'"  
  Id.(quoting Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979)). 
  Thus, we held that, under  the Vermont Constitution, because of the limited
  nature of the plaintiff's purported liberty interest,  the plaintiffs were
  not entitled to procedural due process protections.  See id. at      , 744 A.2d  at 419.

       In this case, we find no liberty interest implicated under either the
  United States Constitution  or the Vermont Constitution, and thus, no
  violation of petitioner's due process rights. 

       First, petitioner was sentenced to three to five years' imprisonment. 
  Depriving him of the  opportunity to earn additional good-time credits did
  not "work a major disruption in his  environment."  Conner, 515 U.S.  at
  486.  Second, as noted, under 28 V.S.A. § 811(b), the decision of  whether
  to grant good-time credits to an inmate who has successfully participated
  in a prison  program is discretionary.  Therefore, whether petitioner would
  actually earn good-time credits if he  successfully participated in the
  program is speculative.  Consequently, his removal from the program  did
  not "inevitably affect the duration of his sentence."  Id. at 487. 
  Finally, requiring petitioner to  serve the entire term, with no grant of
  discretionary good-time credit, is "within the range of  confinement to be
  normally expected" for one in his position.  Id.  Therefore, removing
  petitioner 

 

  from the program and denying him the opportunity to earn additional
  good-time credits did not  impose an atypical-and-significant hardship upon
  him.  Accordingly, under the United States  Constitution, petitioner had no
  liberty interest in the opportunity to earn good-time credits, and thus 
  was not entitled to procedural due process prior to being terminated from
  the program.  See Abed v.  Armstrong, 209 F.3d 63, 66-67 (2d Cir. 2000)
  ("Although inmates have a liberty interest in good  time credit they have
  already earned, no such interest has been recognized in the opportunity to
  earn  good time credit where, as here, prison officials have discretion to
  determine whether an inmate or  class of inmates is eligible to earn good
  time credit.") (citation omitted); Anderson v. Colorado Dep't  of
  Corrections, No. 98-1477, 1999 WL 387163, at *1 (10th Cir. June 14, 1999)
  ("[B]ecause neither  the loss of a prison job nor the loss of an
  opportunity to earn good time credits constitutes any  atypical or
  significant hardship upon the petitioner in relation to the ordinary
  incidence of prison life  sufficient to create a liberty interest, these
  allegations do not state a claim for a due process  violation"), cert.
  denied,  120 S. Ct. 1183 (2000); Thompson v. Thompson, No. 96-6352, 1998 WL 
  211775, at *1 (6th Cir. Apr. 23, 1998) ("Although [inmate] . . . argues
  that his disciplinary  conviction may impact his future ability to earn
  good time credits that lead to earlier parole, such  speculative,
  collateral consequences of a prison disciplinary conviction are
  insufficient to create a  liberty interest."); Scaife v. Wilson, 861 F. Supp. 1027, 1029 (D. Kan. 1994) ("Plaintiff lost no good  time credit
  already credited.  Instead, plaintiff's disciplinary conviction had an
  adverse impact on the  discretionary award of future good time credit.  The
  court finds no violation of plaintiff's  constitutional rights . . . .").

       The result is the same under the Vermont Constitution.  First, as
  noted, the decision of  whether to grant good-time credits to an inmate who
  has successfully participated in a prison 

 

  program is discretionary.  Therefore, whether petitioner would actually
  earn good-time credits if he  successfully participated in the program is
  speculative.  Further, petitioner was not deprived of any  good-time
  credits he previously earned.  Thus, as in Parker, petitioner is aggrieved
  not because he is  losing what he already has, but because he is not
  getting what he wants.  See Parker,         Vt. at          , 744 A.2d  at
  417.  Second, the potential impact of the decision to terminate petitioner
  from the  Cognitive Self Change program is obvious:  To deprive petitioner
  of the opportunity to earn good-time credits is to deprive him of the
  potential to shorten his sentence.  However, petitioner's  opportunity to
  earn a reduction in his incarcerative term is just that, an opportunity. 
  It is not a liberty  interest that was interfered with by the State. 

       As previously noted, a plaintiff is only entitled to procedural due
  process protections once he  has demonstrated that he has a liberty
  interest in the action being challenged.  Thus, because we  conclude that
  petitioner has no liberty interest in remaining in the program, we do not
  address  whether the processes employed were sufficient. 

       Affirmed.



                                       FOR THE COURT:


                                       ___________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  28 V.S.A. § 811(b) was amended effective July 1, 2000, and, as of that
  date, provides for  reductions only in inmates' maximum terms.  See 1999,
  No. 127 (Adj. Sess.), § 1.  The amendment  has no bearing on this case,
  however, as section 2 of the amended statute provides that the above-
  mentioned provision is applicable only to "persons who commit offenses on
  or after the effective  date of this act."  Id.

FN2.  Specifically, petitioner argued he was not provided advance written
  notice of the hearing;  he was not given an opportunity to confront and
  cross-examine his accusers; and the team should  have, but failed to,
  employ a preponderance-of-the-evidence standard in determining whether 
  petitioner had committed the alleged acts.  
  
FN3.  Petitioner's original complaint alleged that his rights under the
  Fifth and Fourteenth  Amendments to the United States Constitution had been
  violated.  However, in his reply to the  motion for summary judgment filed
  on behalf of the Commissioner, he alleged that his rights under  the
  Vermont Constitution had been violated, as well.  Before this Court, he
  alleges that his rights  under both the United States Constitution and the
  Vermont Constitution were violated.
  
FN4.  It is undisputed that petitioner has lost no previously accrued
  good-time credits as a result  of his removal from the program.