Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 21-1746

RICHARD LEE PAIVA,

Plaintiff, Appellant,

v.

PATRICIA ANNE COYNE-FAGUE, individually and in her Official Capacity as Director of the Rhode Island Department of Corrections; RHODE ISLAND DEPARTMENT OF CORRECTIONS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary S. McElroy, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Kayatta, Circuit Judges.

Sonja L. Deyoe, with whom Law Offices of Sonja L. Deyoe was on brief, for appellant. Ian P. Anderson, Senior Legal Counsel, Rhode Island Department of Corrections, for appellees.

July 25, 2022 BARRON, Chief Judge. Richard Lee Paiva, who is serving

a life sentence in a Rhode Island state prison, challenges the

dismissal of the claims that he brought in the United States

District Court for the District of Rhode Island pursuant to

against the Rhode Island Department of Corrections

("Department") and its Director. Paiva alleges in these claims

that Department officials made deductions from his inmate account

as a charge for copies of documents that he requested and that, in

consequence, the defendants violated his federal constitutional

rights. We affirm.

I.

Paiva alleges that a Rhode Island statute permits

inmates to have money added to their "inmate accounts to purchase

items" such as "video conference calls, commissary items, stamps,

and the like." See R.I. Gen. Laws § 35-4-24(b). A different

Rhode Island statute required that inmates "reimburse the state

for the cost or the reasonable portion of the cost incurred by the

state relating to [their] commitment," including "physical

services and commodities such as food, medical, clothing and

specialized housing, as well as social services." R.I. Gen. Laws

§ 42-56-38(a) (2020) (amended 2021). That same statute also

required that before "assess[ing]" these fees, which must track an

inmate's "ability to pay," the Department provide "a public hearing

of proposed fee schedules." Id.

- 2 - On June 4, 2020, Paiva sued the Department and its

Director, Patricia Anne Coyne-Fague, in the federal District Court

for the District of Rhode Island, pursuant to

, in

connection with deductions that Department officials had made from

his inmate account. Specifically, his operative, amended

complaint ("complaint") alleges that "from time to time [he]

arrange[s] to have documents copied" by the Department and that he

is "required [by the Department] to pay" five cents per single-

sided page copied, and ten cents per double-sided page copied.

It further alleges that the Department deducted funds from his

inmate account to cover the costs of the copies that he requested.

The complaint then sets forth one claim in which Paiva

alleges that the deductions for the copying resulted in the

defendants depriving him of his property without due process, in

violation of the Due Process Clause of the Fourteenth Amendment;

and another in which he alleges that the deductions for the copying

resulted in the defendants taking his property without just

compensation, in violation of the Takings Clause of the Fifth

Amendment as incorporated by the Fourteenth Amendment. Finally,

he also alleges in his complaint that the defendants deprived him

of his right "to voice objections during the rule-making process"

for setting the fees charged for the copies, in violation of the

First Amendment as incorporated against Rhode Island by the

Fourteenth Amendment.

- 3 - Paiva seeks declaratory relief as well as an injunction

to prohibit the "removal of funds from inmate accounts for copy

cost[s]" until the promulgation of compliant regulations for the

issuance of those charges. He also seeks an award of monetary

relief, including reimbursement for "sums removed" from his inmate

account.

The defendants moved to dismiss the complaint pursuant

to Federal Rule of Civil Procedure 12(b)(6).1 The District Court

granted the motion and dismissed Paiva's claims. See Paiva v.

Coyne-Fague, C.A. No. 20-250,

, at *2 (D.R.I. Aug.

19, 2021).2 Paiva then timely filed this appeal. Our review of

the District Court's dismissal of Paiva's complaint is de novo.

See Flores v. OneWest Bank, F.S.B.,

(1st Cir.

2018).

1The defendants also moved at that time to dismiss Coyne-Fague as an "improper defendant" on the ground that Paiva's complaint failed to link the allegedly unconstitutional conduct to her, but they do not renew that contention on appeal.

2Paiva brought his claims pursuant to Federal Rule of Civil Procedure 23, on behalf of a putative class of inmates who allegedly also had funds deducted from their inmate accounts to cover the costs of copies of documents that they had requested the Department to make for them. The District Court dismissed Paiva's claims as applied to him without certifying the class, and the claims as applied to a class are not before us in this appeal.

- 4 - II.

Paiva first challenges the District Court's dismissal of

his claim that the defendants deprived him of his right to

procedural due process through the deductions that were made from

his inmate account to cover the costs of the copies of documents

that he requested. The District Court dismissed this claim on the

ground that Paiva "acknowledged in his complaint that he challenged

these deductions through the grievance process set up by the

prison" and that "[t]he existence of the state remedy defeats any

claim he has that he was deprived of property without due process."

Paiva,

, at *1 (citing Hudson v. Palmer,

(1984)). Paiva contends to us, however, that this ruling

was in error, because his complaint alleges that the inmate

grievance that he filed was ignored and that the state otherwise

barred him from filing a civil lawsuit in state court to challenge

the deductions.

But, this dispute over what sort of process Paiva

received aside, he does not dispute that he received the copies

for which he was charged or that he was apprised beforehand that

he would be charged for them in the amounts that were deducted

from his inmate account. And yet, even though the defendants

suggested in their motion to dismiss that the deductions for the

copying charges are "not deprivations" of his property for purposes

of the Due Process Clause precisely because they merely cover the

- 5 - costs of making the copies that he asked to be made, Paiva merely

asserts in conclusory fashion on appeal that the deductions

deprived him of his property. Thus, while Paiva is right that "an

inmate has a property interest in the balances held in his

accounts," Young v. Wall,

(1st Cir. 2011), we

cannot divine an actionable deprivation from his allegation that

he was charged for a service of whose costs he does not allege he

was not apprised beforehand, cf. Lee v. Life Ins. Co. of N. Am.,

, 20-21 & n.11 (1st Cir. 1994) ("Appellants purchased a

'product'-'service' from [state university] with full knowledge

from the outset that health care fees . . . were a required

component of the cost. We perceive no procedural infirmity.").

We "may affirm [an] order of dismissal on any basis that is

apparent from the record," Hochendoner v. Genzyme Corp.,

(1st Cir. 2016), and here Paiva has failed to develop any

argument to us as to how he was deprived of his property rather

than merely charged for the purchases that he made, see United

States v. Zannino,

(1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").3

Paiva does assert in his reply brief to us in connection 3

with this claim that the defendants deducted the copying charge "pursuant to a policy it unlawfully enacted and which was set forth in direct contravention of State law that required a hearing before its policy was enacted." But, at oral argument before this Court,

- 6 - Paiva's challenge to the District Court's dismissal of

his takings claim also fails. "[A] reasonable user fee is not a

taking if it is imposed for the reimbursement of the cost of

government services." United States v. Sperry Corp.,

(1989). Yet, Paiva develops no argument to us as to why he was

not merely subjected to such a reasonable user fee, given that his

complaint does not allege that the deductions were made for copies

of documents that he never requested or received or at a price of

which he was not made aware in advance.4

Paiva's counsel represented that the state-law hearing requirement, though it is a predicate for the takings and First Amendment claims that we next discuss, is not a predicate for his due process claim. To the extent that Paiva means to suggest on appeal that this alleged violation of a state-law hearing requirement somehow bolsters his federal constitutional procedural due process claim, he does so for the first time in his reply brief, see United States v. Vanvliet,

, 265 n.3 (1st Cir. 2008) ("Arguments raised for the first time in a reply brief are waived." (citing United States v. Martí-Lón,

, 299 n.2 (1st Cir. 2008))), and without developing any argument as to how, see Zannino,

. And while Paiva appears to argue in his opening brief to us that the charges for making copies are "inextricably related to" his "ability to challenge his conviction and the conditions of his confinement," he does not develop an argument as to how that contention bears on his procedural due process claim. Moreover, the District Court explained that "[t]here is no direct claim here that Mr. Paiva's right to meaningful access to the courts is impaired. He has, in any event, not demonstrated the relationship between the seemingly nominal copying charge and denial of such access." Paiva,

, at *2 n.2. 4 Paiva does argue to us that he was entitled to discovery

into whether the copying charge was set at an unreasonable or disproportionate rate. See Sperry Corp.,

. But, he does not allege in his complaint that the fee charged was unreasonable or disproportionate. See Vance v. Barrett, 345 F.3d

- 7 - Finally, we see no merit in Paiva's challenge to the

District Court's dismissal of his First Amendment claim, in which

he alleges that he was "deprive[d]" of his "right[]" to "voice

objections during the rule-making process" through which the

Department set the copying charges. For, although he argues that

the District Court erred in dismissing the claim because the

Department's decision to set the copying charges without first

holding a hearing on them constituted a "one-sided denial" of his

"ability to participate in a public hearing," there is no

"constitutional right to participate directly in government

policymaking." Minn. State Bd. for Cmty. Colls. v. Knight,

(1984).

Paiva also appears to contend that Rhode Island's

legislature, by enacting Rhode Island General Laws Section 42-56-

38, created a "public forum," and that having done so, it could

not "restrict" his speech by excluding him from it without

"compelling reason" to do so. See Cornelius v. NAACP Legal Def.

& Educ. Fund, Inc.,

(1985). We do not see how

the Department's decision not to hold any hearing at all could

have excluded Paiva from a relevant forum for First Amendment

1083, 1088, 1090 (9th Cir. 2003) ("Because Vance does not allege that the charges [the prison sought to deduct from the earnings in his inmate trust account] are unreasonable or unrelated to the administration of his account, his takings claim must fail.").

- 8 - purposes. Nor does Paiva explain how the state statute to which

he refers could itself have established any forum from which he

claims to have been excluded, where the state never interpreted

the statute to require that it establish one.5

III.

We affirm.

To the extent that Paiva's complaint can be understood 5

to advance an independent claim that the defendants violated state law, either by violating the "public hearing" provision of Rhode Island General Laws Section 42-56-38 or by violating Rhode Island's Administrative Procedures Act, see R.I. Gen. Laws §§ 42- 35-1 et seq., his counsel confirmed at oral argument that "there is no state law claim" before us.

- 9 -