1 15-1932-pr Baez v. Pinker UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Se cond Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 8 th day of December, two thousand sixteen. PRESENT: GUIDO CALABRESI, REENA RAGGI, GERARD E. LYNCH, Circuit Judges.

---------------------------- ---------------------------- ------------------ CANDIDO BAEZ, Plaintiff-Appellant , v. No. 15-1932-pr LIEUTENANT PINKER, SI NG SING CORRECTIONAL FACILITY, SERGEANT MC NAMARA, CORRECTIONAL OFFICER MALDONADO, DEPUTY DAWSON BROWN, ACTING SUPERINTENDENT, WILLIAM A. LEE, DEPUTY OF SECURITY, DE PUTY WILLIAM KEYSER, DEPUTY OF SECURITY, CAPTAIN RONALD BRERENTON, NORMAN R. B EZIO, SPECIAL HOUSING UNIT, MICHAEL CAPRA, SUPERINTENDENT, RONALD W. MOSCICKI, SUPERINTENDENT, LAKEVIEW CORRECTIONAL FACILITY , CAPTAIN HIRSCH, SERGEANT HULTON, DEPUTY JUSTIN THOMAS, SUPERINTENDENT OF PR OGRAM, E. O’MEARA, DEPUTY OF ADMINISTRATION, JAMES FESTA, FOIL OFFICER, KEVIN O’BRIEN, DEPUTY OF PROGRAM, BRYAN CLARK, DEPUTY OF SECURITY, MARK DRUMSTA, LIEUTENANT, JOSEPH CHISOLM,2 GRIEVANCE SUPERVISOR , BETHEA, CORRECTION OFFICER, NICHOLAS DEAN GELIS, PROPERTY ROOM OFFICER, HAROLD GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONA L FACILITY, Defendants-Appellees , #1 JOHN DOE, CONFIDENTIAL INFORMANT, CORRECTIONAL OFFICER METHEA, #2 JOHN DOE, DEPUTY OF PROGRAM (LCF ), #3 JOHN DOE, DEPUTY OF SECURITY, LIEUTENANT JOHN DOE, #4, #5 JOHN DOE, GRIEVANCE SUPERVISOR, #6 JOHN DOE, PROPERTY ROOM OFFICE R, ELYSE J. ANGELICO, ASSISTANT ATTORN EY GENERAL, Defendants

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---------------------------- ---------------------------- ------------------ APPEARING FOR APPELLANT: DORA PAULA GEORGESCU (Douglas F. Broder, Erica R. Iverson, Elise M. Gabriel, on the brief ), K&L Gates LLP, New York, New York.

APPEARING FOR APPELLEES: SETH M. ROKOSKY, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy Solicitor General, on the brief ) for Eric T. Schneiderman, Attorney General of the State of New York, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on June 4, 2015, is AFFIRMED. Plaintiff Candido Baez appeal s the dismissal of his complaint, which alleged, pursuant to 42 U.S.C. § 1983, multiple constitutional violations during his incarceration, including, as relevant here, being forced to at tend his father’s funeral in state-issue release3 clothes. 1 We review de novo a judgment of dismissal, ac cepting as true all factual allegations in the complaint and drawing all re asonable inferences in the plaintiff’s favor. See Bishop v. Wells Fargo & Co. , 823 F.3d 35, 43 (2d Cir. 2016). Because we “may affirm on any ground sup ported by the record,” Figueroa v. Mazza , 825 F.3d 89, 99 (2d Cir. 2016) (internal quotation marks omitted), we need not consider the correctness of the ground relied upon by the district court. In conducting our re view, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to a ffirm. It is not entirely clear whether Baez’s f uneral-attendance claim asserts a deprivation of procedural or substantive due process. We need not pursue that point because, to maintain either claim, he must plausibly allege a protected liberty interest, see Washington v. Glucksberg , 521 U.S. 702, 721 (1997) (substantive due process); Board of Regents of

State Colls. v. Roth , 408 U.S. 564, 571–72 (1972) (pro cedural due process), which he fails

to do. A protected liberty interest can arise from state statutes or regulations that use mandatory language to “pla c[e] substantive limitations on official discretion,” Olim v.

Wakinekona , 461 U.S. 238, 249 (1983); accord Tellier v. Fields , 280 F.3d 69, 81 (2d Cir. 2000). 2 If the state decisionmaker “is not require d to base its decisions on objective and defined criteria, but instead can deny th e requested relief for any constitutionally

1 A motions panel of this court granted Baez leav e to proceed with his appeal as to his “due process claim related to attendance at his fathe r’s funeral,” but dismis sed his appeal as to all other claims. Mot. Orde r, Dec. 15, 2015, ECF No. 34.

2 Baez relies entirely on state regulations as the source of his claimed liberty interest, and makes no claim to a liberty intere st arising from any other source.4 permissible reason or for no reason at all, the State has not created a constitutionally protected liberty interest.” Olim v. Wakinekona , 461 U.S. at 249 (citations and internal quotation marks omitted). Here, Baez claims that regulations of the New York State Department of Corrections and Community Supe rvision (“DOCCS”) afforded him a liberty interest in wearing his own clothes to his father’s funeral. 3 The DOCCS regulations do not convey that right.

New York law states that the DOCCS co mmissioner “may permit” an inmate to

attend the funeral of an immediat e family member, “but the exer cise of such power shall be subject to such rules and regulations as th e commissioner shall pres cribe, respecting the granting of such permission, . . . transportati on and care of the inmate, and guarding against escape.” N.Y. Correction Law § 113. Baez nevertheless maintains that N.Y. Comp. Codes R. & Regs. tit. 7, § 52.2 0, issued by DOCCS, supports hi s asserted liberty interest insofar as it states that, “[w]he n granted permission to . . . a ttend a funeral of a member of his immediate family, th e inmate shall appear in civilian clothes.” 4 This language does not mean a state pr isoner has a constitutional right to wear his own clothing to the funeral. That is evident from operative DO CCS Directive 4901,

3 Although Baez’s brief could be read to suggest that he was claiming a liberty interest in not being handcuffed or shackled at the funeral, at oral argum ent counsel clarified that he was not making such an argument. Accordi ngly, we do not reach, and express no views concerning, any such contention.

4 Baez located further support for his clai m in a regulation promulgated by the state Commission of Correction, which states that “[ i]nmates shall be pe rmitted to wear their own personal clothing during fu neral or deathbed visits.” N.Y. Comp. Codes R. & Regs. tit. 9, § 7051.8(d). He now concedes, however, that this regulation a pplies only to persons confined in local correctional institutions, a nd “does not apply” to the state facility in which he was housed at the time of his fath er’s funeral. Appellant’s Reply Br. 7.5 which states that, when an inmate is transported to a funeral, “the inmate shall be given the option to wear either the State- issue green clothing or the St ate-issue release clothing.” Appellees’ Addendum 15. The latter category is specifically defined in DOCCS Directive 3081 to include a pair of khaki trousers and a white shirt. See id. at 5. In short, such “State-issue release clothing,” so defined, id. , satisfies the “civilian clothes” requirement of N.Y. Comp. Codes R. & Regs. tit. 7, § 52.20. Read together, the cited regulations and po licy directives operate to allow an inmate who has been permitted to attend a funeral to wear civilian clothes in the form of State-issue release clothing—which is precisel y what Baez wore. The state regulations do not establish a protected right for inma tes to wear their own clothing.

Tellier v. Fields , 280 F.3d 69, cited by Baez, warra nts no different conclusion. In that case, we concluded that a warden’s di scretion in placing a prisoner in the Special Housing Unit “is not boundless and continuing,” but, rather, subject to certain procedural requirements. Id. at 82. Here, we need not delinea te the scope of a state official’s

conceded discretion in allowi ng Baez to attend the funeral in the first place because the regulations simply do not provide for the right Baez asserts. In urging otherwise, Baez argues that “Dir ective 3081 creates a liberty interest in being presented in a dignified and respectful manner.” Appellant’s Reply Br. 8. Even assuming, for the sake of the argument, that la nguage in an internal policy directive of a state agency, as opposed to a state law or regul ation, can give rise to a protected liberty interest, the language to which Baez points to support that assertio n—that inmate clothing has been designed to “ensure proper dress, . . . enhance morale, and give each inmate a sense of responsibility and pride in a neat and clean appearance,” id. (quoting DOCCS6 Directive 3081, Appellees’ Addendum 1)—cannot be said to be a “specific directive[] to the decisionmaker that if the regulations’ subs tantive predicates are present, a particular outcome must follow,” Kentucky Dep’t of Corr. v. Thompson , 490 U.S. 454, 463 (1989), that is, that an inmate must be allowed to wear his own clothes. That language does not supersede the specific language of Directives 3081 and 4901, which state that an inmate permitted to attend a family funeral who wa nts to wear civilian clothes rather than state-issue green clothing can wear state-is sue release clothing. The Directive 3081 provisions cited by Baez dealing with proper fi t and wrinkling apply to inmates being sent to temporary release facilities or appearing in court, not to thos e attending a family funeral. Thus, Baez’s due process claim was corr ectly dismissed for failure to plead a cognizable liberty interest.

To the extent he claims a violation of s ubstantive due process, dismissal was further warranted by his failure to alle ge governmental conduct so “egregious” and “outrageous”

as “to shock the cont emporary conscience.” Velez v. Levy , 401 F.3d 75, 93 (2d Cir. 2005) (internal quotation marks omitted). Nor can Ba ez resurrect his clai m by reference to the Eighth Amendment’s prohibition on cruel and unusual punishment . “After incarceration, only the unnecessary and wa nton infliction of pain c onstitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Trammell v. Keane , 338 F.3d 155, 162 (2d Cir. 2003) (quoting Ingraham v. Wright , 430 U.S. 651, 670 (2003)). The facts alleged here do not rise to that level.7 We have considered all of Baez’s othe r arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of dismissal.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court