Wilder v. Forte ( 1996 )

USCA1 Opinion

        July 5, 1996            [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1960

        No. 95-2018



                             MARC E. WILDER, II, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                              DEPARTMENT OF CORRECTION,

                                    JOHN MARSHALL,



                                Defendants, Appellees.





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                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Marc E. Wilder, II and Russell J. Carey on brief pro se.
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            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
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        Margaret  Melville, Counsel,  Department of  Correction, on  brief for
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        appellees.





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                 Per  Curiam.     Prior  to   its  repeal   in  1994,   a
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            Massachusetts  statute providing for  the award  of good-time



            credits to state prisoners specifically withheld such credits



            from  inmates  who  had  been  convicted  of  enumerated  sex



            offenses.   See Mass.  Gen. L., ch.  127,   129.   Plaintiffs
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            here, a group of prisoners serving sentences for  sex crimes,



            have brought  an action  under 42  U.S.C.   1983  challenging



            this statutory exclusion on various  constitutional grounds.1
1



            The  lower court rejected each of their claims at the summary



            judgment stage.  On  the arguendo assumption that plaintiffs'
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            contentions are cognizable  in a civil-rights  action (rather



            than a habeas corpus proceeding), we summarily affirm for the



            reasons recited by the magistrate-judge in his June 23,  1995



            report.  We add only the following.



                 Underlying   several  of   plaintiffs'  claims   is  the



            assertion  that their inability  to obtain  good-time credits



            constitutes a separate "punishment" apart from that  incurred



            at sentencing.   This is  mistaken.  The  statutory exclusion



            was enacted in 1965,  see Amado v. Superintendent,  366 Mass.
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            45, 48 (1974) (reviewing  statutory history)--long before any



            of  the plaintiffs  had been  convicted.   Accordingly, their



            ineligibility  for such credits can only be viewed as part of






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               1   Of the  more than fifty  plaintiffs who  joined in the
1

            action  below, only  some fourteen  are participating  in the

            instant appeals.    We  assume  arguendo  that  each  of  the
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            appellants has properly invoked this court's jurisdiction.



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            the punishment  imposed by the sentencing  court after trial.



            Plaintiffs'  assertion that the  exclusion constitutes a bill



            of  attainder fails  for this  reason (among  others).   See,
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            e.g.,  United  States v.  Brown,  381 U.S.  437,  450 (1965).
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            Their  additional claim  that the  exclusion  violates double



            jeopardy (a claim which we assume arguendo is properly before
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            us) falters on  the same ground.  Even  if the exclusion were



            viewed  as  a cumulative  punishment  for  the same  offense,



            double  jeopardy would  not be  offended.  See,  e.g., United
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            States  v.  Centeno-Torres, 50  F.3d 84,  85 (1st  Cir.) (per
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            curiam), cert. denied, 116 S. Ct. 208 (1995).
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                 The allegation that the  exclusion violates due  process



            proves  equally unavailing.   Plaintiffs  possess no  liberty



            interest in  receiving good-time credits.   See, e.g., Sandin
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            v. Conner, 115 S. Ct. 2293, 2297 (1995); Riddle v. Mondragon,
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            83  F.3d 1197, 1206-07 (10th  Cir. 1996).   And the statutory



            scheme found violative of substantive due process in Young v.
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            Weston, 898 F. Supp. 744, 748-51 (W.D. Wash. 1995), a case on
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            which plaintiffs rely, bears no resemblance to the one before



            us.   Finally,  the  contention that  the exclusion  violates



            equal  protection  runs into  a  wall  of caselaw  indicating



            otherwise.   See, e.g., Riddle, 83 F.3d at 1207-08; Artway v.
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            Attorney General  of New  Jersey, 81  F.3d 1235,  1267-68 (3d
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            Cir. 1996);  Lustgarden v. Gunter,  966 F.2d  552, 555  (10th
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            Cir.), cert. denied, 506  U.S. 1008 (1992); Amado,  366 Mass.
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            at 46-51.



                 Affirmed.  See Loc. R. 27.1.
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