Dickinson v. Chitwood

USCA1 Opinion [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1446 NORMAN E. DICKINSON, Plaintiff, Appellant, v. MICHAEL J. CHITWOOD, ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge] Before Selya, Stahl and Lynch, Circuit Judges. Norman E. Dickinson on brief pro se. Mark E. Dunlap and Norman, Hanson & DeTroy, LLC on brief for appellees Michael Chitwood and City of Portland. Edward R. Benjamin, Jr. and Thompson & Bowie on brief for appellees Michael Kelly and City of Lewiston. December 17, 1998 Per Curiam. Plaintiff-appellant Norman Dickinson appeals pro se from the grant of summary judgment in favor of defendants on his federal claims and the dismissal without prejudice of his state law claims. For the following reasons, we affirm. Dickinson is a Maine state prisoner who pled guilty to kidnapping, robbery, and two counts of criminal threatening with a dangerous weapon. The offenses involved a one-day crime spree in South Portland, Maine, on February 2, 1989. Dickinson is currently incarcerated following a revocation of probation. The underlying case stems from events that occurred in 1997 after Dickinson was released from prison and began serving a term of probation in Portland, Maine. On or about the time of Dickinson's release, Portland's chief of police warned the public about him and disclosed his address. Several months later, after Dickinson was scheduled to be placed in Lewiston, Maine, Lewiston's chief of police did much the same thing. Based on these actions, Dickinson filed a 42 U.S.C. 1983 suit against the City of Portland, the City of Lewiston, and their respective police chiefs alleging violations of his constitutional rights to equal protection and due process of law, his right to privacy, and his right to be free of cruel and unusual punishment. Although he did not articulate this theory in his complaint, Dickinson argued in his later filings that municipal liability attached because the two cities' respective police chiefs possessed final decisionmaking -2- authority with respect to the actions taken. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (concluding that a final decisionmaker's single decision may, in some circumstances, give rise to municipal liability under 1983). In addition to his federal claims, Dickinson alleged various claims under state law. It is undisputed that, approximately ten months before he began his probationary term, Dickinson wrote the sentencing judge a letter in which he described himself as a "time bomb." He suggested that the restrictions imposed by the judge, which essentially amounted to house arrest, would be the "spark that sets that bomb off." He asked a rhetorical question, "Will being confined in my house prevent me from committing a violent act,?" and answered, "No." It is also undisputed that, approximately four months before his release, Dickinson wrote a letter to a Portland television news reporter identifying himself as the person "who went on a crime spree in South Portland on February 2, 1989." He stated that he was writing to inform the reporter and "society" that he would be back on the streets of Portland on January 26, 1997. He further stated that he would be "meaner than ever" and that he "pit[ied] anyone who [got] in [his] way." The letter indicated that Dickinson was enclosing a police report of the February 1, 1989 incidents. We review the grant of summary judgment de novo. Hinchey v. NYNEX Corp., 144 F.3d 134, 140 (1st Cir. 1998). In doing so, we are not limited to the district court's reasoning but may affirm on any independently sufficient ground. Medina- Munoz v. R. J. Reynolds Tobacco Co., 896 F.2d 5, 7 (1st Cir. 1990). In the instant case, we affirm because we conclude that Dickinson has failed to establish a violation of his constitutional rights. In particular, we affirm the district court's disposition as to the Eighth Amendment claim on the ground that, even if we were to assume for the sake of argument that defendants' actions could constitute punishment, Dickinson has made no argument on appeal that these actions constitute "cruel and unusual" punishment. We reject as without merit Dickinson's suggestion in the district court that punishment is cruel and unusual if it is more burdensome than necessary. Cf.Taylor v. Rogers, 781 F.2d 1047, 1050 (4th Cir. 1986) (finding no cruel and unusual punishment where protective custody restrictions were "rationally related" to security and protection concerns). Dickinson's equal protection argument also fails. Classification that neither abridges a fundamental right nor operates against a suspect class receives rational basis review. Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 660 (1st Cir. 1997), cert. denied, 118 S. Ct. 2366 (1998). Dickinson makes no argument that defendants' actions are subject to heightened scrutiny. His only argument is that defendants acted "arbitrarily" in disclosing his address to members of the public but not the addresses of other released felons. However, given Dickinson's threats and warnings during the months before his release, defendants had a legitimate basis for treating him differently than other recently released felons. In short, Dickinson has made no showing that the police treated his case disparately from any comparable case. Finally, we think that on the facts of this case Dickinson's right to privacy and due process arguments fail. As an initial matter, Dickinson has made no persuasive argument that Maine's Sex Offender Registration and Notification Act, which does not apply to him, nonetheless creates a protectible liberty interest entitling him to due process protections. We need not decide, in the abstract, whether the confidentiality branch of the constitutional right to privacy prohibits the disclosure of information about a released felon, including such information as his name, address, and convictions. Cf.Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 183 (1st Cir. 1997) (indicating that the range has not extended beyond prohibiting profligate disclosure of medical, financial, and other intimately personal data). In the instant case, Dickinson himself "published" a compilation of information about himself, just a few months before his release date, in the form of the letter to the Portland television news reporter. Having himself initiated a warning to "society," Dickinson is not in a position to complain about an invasion of his right to privacy or the lack of a hearing before the dissemination of information. Cf. Doe v. City of New York, 15 F.3d 264, 269 (2d Cir. 1994) (recognizing that the right to privacy can be waived). We need go no further. Because the district court properly dismissed the federal claim, it did not err in dismissing the state law claims. See 28 U.S.C. 1367(c)(3). Affirmed.