Carver v. Commissioner of Correction ( 2023 )

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SJC-13247
JAMES CARVER vs. COMMISSIONER OF CORRECTION & another.1
Essex. September 9, 2022. - April 3, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Parole. Imprisonment, Parole. Commissioner of Correction.
Practice, Civil, Action in nature of certiorari.
Civil actions commenced in the Superior Court Department on
January 29 and March 11, 2021.
After consolidation, the cases were heard by Jeffrey T.
Karp, J., on motions for judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Sharon L. Sullivan-Puccini for the plaintiff.
Scott McLean for the defendants.
Mara Voukydis, Committee for Public Counsel Services, Tatum
A. Pritchard, Jacob Addelson, David Milton, Lauren Petit, & Ada
Lin, for Prisoners' Legal Services of Massachusetts & others,
amici curiae, submitted a brief.
1 Superintendent, Old Colony Correctional Center.
2
CYPHER, J. James Carver, the plaintiff, currently is
serving fifteen life sentences for murder in the second degree.
Commonwealth v. Carver, 33 Mass. App. Ct. 378, 379, 389 (1992).
In 2020, the plaintiff submitted a petition requesting medical
parole pursuant to G. L. c. 127, § 119A (§ 119A or statute).
The Commissioner of Correction (commissioner) denied the
petition, after receiving a recommendation in support of denial
from the superintendent of the Old Colony Correctional Center
(superintendent). The commissioner subsequently denied two
additional requests for release.
In this opinion, we consider whether the commissioner's
decision to deny the plaintiff medical parole was arbitrary or
capricious. In McCauley v. Superintendent, Mass. Correctional
Inst., Norfolk, 491 Mass. , (2023), we determined that
501 Code Mass. Regs. § 17.02 (2019) does not impermissibly
narrow the scope of the statute. With that in mind, and after
consideration of the facts of the present case, we conclude that
the commissioner's determination that the plaintiff would pose a
public safety risk on release is supported by the record.2
Background. 1. Petition for medical parole. On September
30, 2020, the plaintiff filed a petition for medical parole,
2 We acknowledge the amicus brief submitted by Prisoners'
Legal Services of Massachusetts, the Disability Law Center, and
the Committee for Public Counsel Services.
3
pursuant to § 119A. The plaintiff indicated that the reasons
for the request were that he has many comorbidities, he is
confined to a wheelchair, and he has family willing to care for
him. His petition included a medical parole plan.
On October 21, 2020, the superintendent recommended against
medical parole for the plaintiff. He recognized the plaintiff's
proposed plan for medical parole, and the completed medical
assessment of the plaintiff. The superintendent submitted a
risk assessment and a classification report, as required by the
statute, but did not include a medical parole plan aside from
discussing the plaintiff's plan. The superintendent opined that
the plaintiff did not meet the criteria for medical parole,
citing his ability to transfer independently to and from his
wheelchair, his relatively young age, his mobility, a
physician's opinion that the plaintiff was not permanently
incapacitated or terminally ill, improvement in his prostate
cancer diagnosis, the seriousness of his offenses, his minimal
recent programming, and a 2019 disciplinary report as indicators
that he "would pose a major risk to public safety if released."
The plaintiff's risk assessment, conducted in 2009,
indicated that he had been arrested or charged three or more
times with a new crime while on pretrial release. It noted that
he has received serious or administrative disciplinary
infractions for fighting or threatening other inmates or staff.
4
The plaintiff's drug screen resulted in a score of zero,
indicating a low risk of substance use disorder. The assessment
categorized his needs as low for criminal involvement and
noncompliance history, and high for violence history and current
violence. Despite finding the plaintiff's needs high for
violence-related concerns, the assessment characterized his
violence and recidivism risks as low.
The plaintiff received a score of two on his classification
report, suggesting that he should be placed in minimum custody
or below. He received a score of six for the severity of his
current offense; scores of zero for severity of convictions
within the last four years, history of escape or attempts to
escape, prior institutional violence within the last three
years, and number of disciplinary reports within the last year;
and scores of negative two for his age, which was fifty-six at
the time, and his program participation or work assignment,
indicating that he satisfied all of his program requirements.
Due to his conviction of a crime resulting in loss of life,
Department of Correction (department) policy did not permit
minimum security, and because of the need for alternate
placement "following conflicts" at the Massachusetts
Correctional Institution at Shirley (MCI-Shirley), medium
custody level was recommended in July 2020.
5
On November 3, 2020, the district attorney's office wrote a
letter to the commissioner opposing the plaintiff's petition.
The district attorney's office pointed to the medical assessment
stating that he was at "high risk" to become "permanent[ly]
incapacitat[ed]," but that he currently was not permanently
incapacitated such that he does not pose a public safety risk.
On December 4, 2020, the commissioner denied the
plaintiff's petition for medical parole. The commissioner
recognized his numerous medical conditions but stated that the
medical assessment did not opine that the plaintiff currently
was "terminally ill" or "permanently incapacitated" within the
meaning of the statute, and she concluded that his medical
condition was not "so debilitating that [he did] not pose a
public safety risk."
Shortly after the commissioner released her decision, the
plaintiff's attorney requested preservation of video footage
(video) from an incident (use of force incident) relied on in
the commissioner's decision, which was not part of the
administrative record. The attorney sent a letter requesting
reconsideration of the petition for medical parole, along with
another letter requesting that the commissioner watch the video
of the incident.3 On January 29, 2021, before receiving a
3 The plaintiff's attorney dated the letters January 15,
2020. It appears, however, that the accurate date would have
6
response from the commissioner, the plaintiff filed a complaint
in the nature of certiorari in the Superior Court challenging
the commissioner's denial.
Awaiting a response from the commissioner, the plaintiff's
attorney sent her another letter on February 2, 2021,
reiterating the attorney's request that the video be preserved.
On February 9, the plaintiff sent the commissioner additional
medical and mental health records. In response, counsel for the
commissioner told the plaintiff's attorney "that the
administrative record on reconsideration is limited to those
materials that [the commissioner] deems relevant to her decision
making." The district attorney's office sent an updated
opposition, and an updated medical parole assessment was
provided to the commissioner.
On March 1, 2021, the commissioner denied the plaintiff's
request for reconsideration. She indicated that she considered
the updated medical information, the incident reports relating
to the use of force incident, supplemental letters, and a
renewed opposition from the district attorney's office, but made
no mention of the video. She noted that there was no
"significant and material change" to the plaintiff's medical
been January 15, 2021, as she refers in the letters to an
incident occurring in June 2020 and the commissioner's December
2020 decision.
7
condition and that she did not believe that he would live and
remain at liberty without violating the law.4 She opined that
his release would be incompatible with the welfare of society.
The commissioner claimed that, although the updated medical
assessment stated that the plaintiff has "multiple risk factors
for mortality and morbidity" and "debilitating medical
conditions with permanent mobility and other functional
incapacitation," it did not assert that he was either
"terminally ill" or "permanently incapacitated" within the
meaning of the statute.
The plaintiff then filed another complaint in the nature of
certiorari in the Superior Court seeking review of this
subsequent denial, and the cases were consolidated. Both
parties filed a motion for judgment on the pleadings, and the
plaintiff filed a motion to strike the administrative record
submitted by the department and replace it with a record to
include the video of the use of force incident. After a
hearing, a Superior Court judge ordered the commissioner to
4 In Harmon v. Commissioner of Correction, 487 Mass. 470,
477 (2021), we held that the mandatory language of G. L. c. 127,
§ 119A (c) (1), prohibited the department from requiring "a
significant and material decline in medical condition" for a
petitioner to submit a new petition. Consequently, we do not
consider this reason in the commissioner's decision when
analyzing whether she abused her discretion.
8
review the video and issue a "revised decision" on the
plaintiff's medical parole petition.
On August 17, 2021, the commissioner issued a new decision
denying the plaintiff's petition for medical parole. She
explicitly reviewed the video, as well an updated medical
assessment, and a written statement from the district attorney's
office. After describing the district attorney's position on
the video in detail, the commissioner indicated that she agreed
with it and opined that the plaintiff did not meet the criteria
for medical parole. She found that he did not meet the criteria
for "permanent incapacitation, as he [did] not have a physical
or cognitive incapacitation that [was] so debilitating that he
[did] not pose a public safety risk." The commissioner stated
that his medical conditions were all stable, and that he
required a wheelchair for mobility, "but only due to an unsteady
gait and tremors, as opposed to physical weakness." She noted
that independently he was able to "perform a number of
activities of daily living," cited the severity of his offense,
and observed that "[i]n his current physical condition, [he was]
certainly still capable of committing a similar crime." She
further stated that nothing in the video demonstrated that the
plaintiff was either terminally ill or permanently
incapacitated.
9
On December 17, 2021, after submission of new filings
incorporating the commissioner's latest decision, a Superior
Court judge held a hearing on the motions for judgment on the
pleadings. At the hearing, the judge asked the plaintiff
whether the statute required the commissioner to consider the
medical parole plan in determining whether a petitioner was
permanently incapacitated. Initially, the plaintiff's counsel
responded, "I don't think so. . . . [S]he has to find those
three things, and then he should be released in the process, and
then they could look at the plan." Subsequently, counsel said
that the commissioner would consider the medical parole plan in
determining whether the plaintiff was a safety risk. In a
written decision, the judge denied the plaintiff's motion for
judgment on the pleadings, and a judgment was entered affirming
the commissioner's decision. The plaintiff filed a timely
notice of appeal, and we granted his application for direct
appellate review.
2. Criminal case. A jury convicted the plaintiff of
fifteen counts of murder in the second degree and one count of
burning a dwelling house stemming from an early morning fire set
on July 4, 1984, at a rooming house in Beverly. Carver, 33
Mass. App. Ct. at 379. On December 1, 1989, he was sentenced to
10
several consecutive life sentences in prison with the
possibility of parole.5
An investigator determined that the fire started in an
alcove adjacent to the front entrance to the building and was
set with a stack of newspapers found next to the door and
hydrocarbon accelerant. Carver, 33 Mass. App. Ct. at 379-380.
During the night before the fire, the plaintiff confronted a man
who lived in the rooming house and was dating the plaintiff's
former girlfriend. Id. at 380. The plaintiff warned the man
that if he continued to date her, the plaintiff would kill him
and burn down his house. Id. On the morning of the fire at
around 1:15 A.M., the plaintiff told a friend that he was upset
because of his breakup and that he wanted his girlfriend back.
Id. Between 3 A.M. and 4 A.M., a taxicab driver observed the
plaintiff standing in front of the rooming house, and a
newspaper delivery woman saw a man standing in the entryway to
the rooming house leaning over a stack of newspapers.6 Id. The
fire started at 4:18 A.M. Id. Although the plaintiff's parents
testified that he was home and asleep at that time, the
5Including the above charges, the plaintiff has had twenty-
four adult arraignments. These resulted in seventeen
convictions, including sixteen convictions of offenses against
the "person" and one of a "property" offense.
6Another man in the area at the time saw a man smoking a
cigarette in the doorway of the rooming house and stated that it
was not the defendant. Carver, 33 Mass. App. Ct. at 380.
11
plaintiff made numerous incriminating statements, and admitted
to two friends that he had started the fire. Id. Fifteen
people died. Most of the victims died from smoke inhalation
combined with severe burns, but one victim died jumping from an
upper window trying to escape the burning building.
Based on the "official version" of the offenses retained by
the department, a week after the fire the plaintiff began to
make "harassing" telephone calls to his former girlfriend and
appeared at her work in an emotional state. As he was leaving,
he yelled out the window, "[T]his is the next place I will
burn." Later, he emotionally confessed to his friend that he
had lit the fire, but that he had not meant to kill people. The
plaintiff disagrees with this version of events.
The plaintiff has filed numerous motions for a new trial,
and he has appealed from the denial of his motions. He became
parole eligible in 2018, but he chose to postpone his parole
hearing.
3. Plaintiff's medical condition. On October 9, 2020,
Dr. John Straus and Despina Kiely, a nurse practitioner, of the
department's medical provider, performed a medical parole
assessment of the plaintiff. He has been diagnosed with right-
sided acoustic neuroma or vestibular schwannoma,7 causing chronic
7 "Neuroma" is a "[g]eneral term for any neoplasm derived
from cells of the nervous system." Stedman's Medical Dictionary
12
dizziness and vertigo. He has moderate to severe hearing loss
in his left ear. He was diagnosed with prostate cancer in 2015,
and he declined an offer for a radical prostatectomy. He has a
history of stable angina,8 coronary artery disease,9 atrial
fibrillation10 with stable rate control, hypertension,
dyslipidemia, gastroesophageal reflux disease, skin cancer,
neurogenic bladder,11 and epilepsy. He suffers from essential
tremors. He is dependent on a wheelchair (and has been provided
one since 2006), but he is able to transfer independently.
Straus and Kiely opined that the plaintiff has "multiple risk
factors for mortality and morbidity" and has "debilitating
conditions with high risk for permanent incapacitation."
1311 (28th ed. 2006). "Schwannoma" is a "benign, encapsulated
neoplasm in which the fundamental component is structurally
identical to the syncytium of Schwann cells." Stedman's Medical
Dictionary 1730.
8 "A severe, often constricting pain or sensation of
pressure, usually referring to a. pectoris." Stedman's Medical
Dictionary 85.
9 "[N]arrowing of the lumen of one or more of the coronary
arteries, usually due to atherosclerosis." Stedman's Medical
Dictionary 554.
10Atrial fibrillation is a condition "in which the normal
rhythmic contractions of the cardiac atria are replaced by rapid
irregular twitchings of the muscular wall." Stedman's Medical
Dictionary 722-723.
11"Neurogenic" is defined as "[o]riginating in, starting
from, or caused by, the nervous system or nerve impulses."
Stedman's Medical Dictionary 1310.
13
On January 25, 2021, Straus completed an updated medical
parole assessment for the plaintiff, which provided additional
information with respect to his medical conditions. The
plaintiff had an occipital craniotomy in November 2005 to
address his vestibular schwannoma. He suffers from tinnitus12
and leg neuropathy and is incontinent for urine and stool. He
requires catheterization for his coronary artery disease. He
has experienced hypertension since he was the age of eight, and
epilepsy since the age of sixteen. He has had numerous
surgeries, ranging from upper back surgery to surgery to address
skin cancer. He is overweight and experiences microcytic
anemia.13 The plaintiff, at the time of the report, was being
evaluated for congestive heart failure. Straus opined that the
plaintiff has "debilitating medical conditions with permanent
mobility and other functional incapacitation." He stated that
the plaintiff was expected to survive the next eighteen months,
"but at significant risk."
On July 29, 2021, Straus and Michelle Mulvey-Sylvia, a
nurse practitioner, performed another medical parole assessment
on the plaintiff. This assessment conveyed much of the same
12"Perception of a sound in the absence of an environmental
acoustic stimulus." Stedman's Medical Dictionary 1992.
13"[I]n which the average size of circulating erythrocytes
is smaller than normal." Stedman's Medical Dictionary 79.
14
information as the first two assessments. It further indicated
that he suffers from presbyopia14 and seborrhea.15 The assessment
confirmed that the plaintiff must use a wheelchair "for
movement" and that he has "multiple chronic medical
condition[s]." Although the plaintiff has to use a wheelchair,
he "is able to utilize the bathroom independently . . . , feed
himself independently, shower independently, dress himself
independently, and voice his needs without issue." Although
Straus and Mulvey-Sylvia opined that his conditions "may
contribute to a shortened lifespan," the plaintiff's chronic
conditions were "stable" and he was expected to live for longer
than eighteen months.
The July 2021 assessment specified various reasons that the
plaintiff is provided his accommodations: he uses a wheelchair
for "unsteady gait and tremors"; since 2013 he has been provided
a bottom bunk for "seizures"; he is housed in a twenty-four hour
health staff facility because it is "handicap accessible"; he is
prescribed briefs and condom catheters for his "urinary
incontinence"; and he is provided compression stockings for his
"neuropathy." When he leaves the prison, he is transported by a
14"The physiologic loss of accommodation in the eyes in
advancing age, said to begin when the near point has receded
beyond 22 cm (9 inches)." Stedman's Medical Dictionary 1556.
15"Overactivity of the sebaceous glands, resulting in an
excessive amount of sebum." Stedman's Medical Dictionary 1738.
15
wheelchair van, and he has a peer assistant who pushes his
wheelchair. The plaintiff is able to stand only with support.
He has been provided with extra pillows since 2006 and hearing
aids since 2011. He is able to administer the catheter supplies
himself. He is prescribed an extensive list of medications.
On at least one occasion in December 2020, the plaintiff
was evaluated after he reported that he fell while transferring
from his wheelchair to his bed, resulting in an injury to his
ribs. Despite blood being found in the plaintiff's urine in
January 2021, he refused to see a urologist. He stated to
Kiely, who was performing his evaluation, that he would "not go
no[] matter how hard [Kiely] tr[ied] to convince [him], [he
felt] fine, [he had] no major issues, just the swelling."
During that same evaluation, Kiely noted that, with his
wheelchair, he was able to "self-propel[] up and down the ramp."
The plaintiff reported that he felt "pretty good, no breathing
issues, no heart issues," but he reported difficulty getting his
medical supplies and swelling in his ankles and feet.
The plaintiff also has a documented mental health history,
dating back to before he was incarcerated. Since his teenage
years, the plaintiff has suffered from depression. In the
1980s, when he found out that he was being charged with the
murders and arson, he attempted suicide, for which he was
hospitalized for psychiatric treatment. At that same time, he
16
was diagnosed with major depressive disorder with melancholic
symptoms. In 1989, he was sent to Bridgewater State Hospital
(hospital) due to threats to "hang himself if he was convicted
of the crimes [with which] he was charged."
He was diagnosed with adjustment disorder in 2020, and
depressive disorder due to another medical condition, with
depressive features. He has had several suicide attempts in the
recent past. On May 20, 2020, the defendant was injured due to
such an attempt and again was sent to the hospital. He had
similar attempts in June and July 2020, when he attempted to use
a bed sheet and a towel, respectively, for hanging. Also in
2020, the plaintiff experienced two hospitalizations for further
psychiatric care due to "ongoing delusional thought patterns,"
as "[h]e believed that his family was in danger and he was being
targeted by gang members because of the crimes [for which] he
was convicted." The plaintiff believed that the only way to
protect his family was to end his life, and he was "unable or
unwilling to engage in reality testing." As of an evaluation
completed on September 9, 2020, there are no further documented
attempts to take his own life.
During an evaluation in January 2021, the plaintiff
indicated that he was afraid to be admitted to a hospital, and
that his primary methods of coping with his stressors were
"becoming difficult due to lack of tablet and differing
17
recreation times." Although he reported that he was feeling
hopeless, he denied any intent to harm himself or others.
4. Plaintiff's disciplinary history. The plaintiff has
accumulated an extensive disciplinary record, but also has held
jobs and completed programming. While he was incarcerated at
the Massachusetts Correctional Institution at Norfolk (MCI-
Norfolk), during his early years of incarceration he received
four disciplinary reports for fighting, threatening staff, not
standing for a count, and lying. During his ten years at MCI-
Norfolk, he held several jobs as a janitor and attended stress
management classes, health awareness, and church services.
On June 25, 2001, the plaintiff was transferred to the
Souza-Baranowski Correctional Center (SBCC) because he lied to
staff about another inmate. While he was there, he received
three disciplinary reports for fighting with another inmate and
possession of contraband (both in November 2006) and threatening
another inmate (March 2007). At SBCC, he worked as a "runner"
and a property worker.
On May 29, 2007, the plaintiff was transferred to MCI-
Shirley, where he remained for thirteen years. During his time
there, he received three disciplinary reports for removing a
blade from a razor (June 2007), missing a scheduled appointment
(November 2011), and, most recently, being out of place and
refusing a direct order (April 2019). He completed a computer
18
skills program and intermittently worked as a housing unit
runner.
In May 2020, he was transferred for psychiatric treatment
to the hospital units at Old Colony Correctional Center
following his suicide attempt at MCI-Shirley. On June 18, he
returned to MCI-Shirley; after twelve days, he again was
committed to the hospital due to "paranoid beliefs and suicidal
ideation." He is not permitted to return to MCI-Shirley because
of a "newly identified conflict" with another inmate.16
On the morning of June 21, 2020, during his brief return to
MCI-Shirley, the plaintiff attempted "to use his bed sheet as a
ligature," which led to a use of force by correction officers.17
Several correction officers wrote reports regarding this
incident. The lieutenant who used force against the plaintiff
stated that he was taking property from the plaintiff's cell
because of the plaintiff's being placed on a fifteen-minute
mental health watch. According to the lieutenant, the plaintiff
threw his watch toward the lieutenant, "narrowly missing," and
"followed that with an awkward open hand punch to the chest."
At that point, the lieutenant grabbed the plaintiff in his upper
16The plaintiff's classification report indicates that he
has an "active" enemy due to false allegations made by the
plaintiff.
17As part of our review, we watched the prison footage
depicting this incident, which is discussed infra.
19
body area "to subdue him," during which the plaintiff wrapped
his legs around a leg of the lieutenant and tried to twist the
lieutenant's left wrist. The lieutenant gave the plaintiff
several orders to release the lieutenant's leg and hand; when
the plaintiff did not respond, the lieutenant struck him with a
closed fist in the back, causing him to release the lieutenant's
hand. The lieutenant twisted the plaintiff's arm behind his
back to get him to release the lieutenant's leg, and he was put
in restraints by two other correction officers. The officers
removed the plaintiff's boxer shorts, and a security smock was
given to him. When a sergeant attempted to remove the leg
restraints from the plaintiff, the plaintiff tried to kick him.
At that point, staff left the cell and returned approximately
one minute later to move the plaintiff onto his back.
The accounts of the other officers present during the
incident support the lieutenant's account. Another lieutenant
indicated that while holding the plaintiff on his side, he
"continu[ed] his verbal beratement of staff and would not cease
this behavior." An officer stated that they were removing the
plaintiff's belongings because he was on mental health watch for
his safety. As they were doing so, the plaintiff "refused [to
surrender his clothing and belongings], became combative, and
assaulted" the lieutenant. Another officer indicated that she
assisted the plaintiff onto his side to prevent positional
20
asphyxia while waiting for medical help to arrive, but the
plaintiff refused medical assistance and became combative, so
she was directed to leave the cell. A third officer reported
that he saw the plaintiff assault the lieutenant and that, prior
to the lieutenant's use of force, he noticed and reported to his
supervisor that the plaintiff was fashioning a noose with his
bed sheet by "tying the sheet into the vent on two separate
occasions." A sergeant wrote that the plaintiff tried to kick
him during the incident, which was supported by another officer.
A responding nurse noted swelling to the plaintiff's left elbow.
A captain, in a letter to the interim superintendent, stated
that her review of this incident determined that it was in
compliance with the use of force policies set out in 103 Code
Mass. Regs. § 505. She wrote that the plaintiff became
noncompliant by refusing to have property removed from his cell,
and that he escalated the situation by becoming aggressive and
assaultive toward security staff.
Discussion. 1. Standard of review. As discussed in
McCauley, 491 Mass. at , where the decision of the
commissioner to grant or deny medical parole is one of
administrative discretion, we apply "the 'arbitrary or
capricious' standard." Mederi, Inc. v. Salem, 488 Mass. 60, 67
(2021), quoting Revere v. Massachusetts Gaming Comm'n, 476 Mass.
591, 605 (2017). "A decision is not arbitrary and capricious
21
unless there is no ground which 'reasonable [persons] might deem
proper' to support it." Garrity v. Conservation Comm'n of
Hingham, 462 Mass. 779, 792 (2012), quoting T.D.J. Dev. Corp. v.
Conservation Comm'n of N. Andover, 36 Mass. App. Ct. 124, 128
(1994). Keeping in mind our determination in McCauley that 501
Code Mass. Regs. § 17.02 does not impermissibly narrow the
statute, we analyze the commissioner's decision in the present
case.
2. Medical parole plan. The plaintiff argues that the
statute places a burden on the superintendent to prepare a
comprehensive medical parole plan for the prisoner. He asserts
that the medical parole plan is a factor for the commissioner to
consider in making the determination whether a prisoner
qualifies for medical parole, and the fact that the
superintendent failed to propose a plan in his case, along with
the absence of an application for interstate transfer of parole,
created a substantial error of law affecting his rights. The
defendants argue that, because the plaintiff proposed a detailed
medical plan, there was no need for the superintendent to
develop one and that, even assuming there was such a
requirement, the provision of a department-authored medical
parole plan would not have influenced the commissioner's
decision here where she determined that he was not permanently
incapacitated.
22
General Laws c. 127, § 119A (a), defines "[m]edical parole
plan" as
"a comprehensive written medical and psychosocial care plan
specific to a prisoner and including, but not limited to:
(i) the proposed course of treatment; (ii) the proposed
site for treatment and post-treatment care; (iii)
documentation that medical providers qualified to provide
the medical services identified in the medical parole plan
are prepared to provide such services; and (iv) the
financial program in place to cover the cost of the plan
for the duration of the medical parole, which shall include
eligibility for enrollment in commercial insurance,
Medicare or Medicaid or access to other adequate financial
resources for the duration of the medical parole."
The statute indicates that "[t]he superintendent shall transmit
with the recommendation: . . . a medical parole plan," in
addition to a written diagnosis by a physician and the risk for
violence assessment. G. L. c. 127, § 119A (c) (1).18
Originally, before the regulations were amended, 501 Code
Mass. Regs. § 17.03(3)-(4) (2019) required a petitioner to
develop a medical parole plan that detailed the information
mentioned in the statute.19 In Buckman v. Commissioner of
18The statute has equivalent requirements for a sheriff.
G. L. c. 127, § 119A (d) (1). Throughout this opinion, we
discuss the statute and the regulations as applied to a
superintendent, but our discussion is applicable equally to a
sheriff.
19The medical parole plan was required to discuss the
proposed course of treatment; level of care required and the
site for treatment; availability of medical care and
documentation indicating that qualified medical providers were
prepared to provide treatment; and the financial program in
place to cover the cost of the plan. 501 Code Mass. Regs.
§ 17.03(4) (2019).
23
Correction, 484 Mass. 14, 29-30 (2020), we voided the above
regulations in addition to several other regulations "to the
extent that they declare[d] that the medical parole plan or
written diagnosis by a licensed physician must be provided by
the petitioner." The court reasoned that "the Legislature did
not intend to place this burden on those so poorly able to bear
it" and held that "the superintendent bears the burden" of
preparing a medical parole plan and a written diagnosis. Id. at
29. This determination was made based on the Legislature's
intent "to trigger a collaborative process whereby the health
care provider for the institution, reentry staff, and the
prisoner . . . work together" to prepare the required documents.
Id.
The current version of 501 Code Mass. Regs. § 17.03(4), as
amended in 2022, indicates that "[a] proposed medical parole
plan may be submitted along with the petition, but, where not
submitted by the petitioner, said proposed plan shall be
developed by the superintendent prior to transmitting the
petition to the [c]ommissioner." Similarly, the current version
of 501 Code Mass. Regs. § 17.04(4) states that the
superintendent shall transmit a recommendation to the
commissioner, along with several other documents, including "a
proposed medical parole plan" and "an updated clinical review of
the prisoner by a licensed physician."
24
In Malloy v. Department of Correction, 487 Mass. 482, 494
(2021), this court discussed the obligation of the department in
identifying appropriate placements in a medical parole plan
"[a]t least for inmates without family home-care options."
"[W]ithin twenty-one days of a petition for medical parole, a
prison superintendent must submit a recommendation to the
commissioner accompanied by a medical parole plan." Id. at 493.
Recognizing the "contingencies at the conclusion of this process
when medical parole is granted," the court stated that the
department's proposed medical parole plan must be comprehensive.
Id. at 495.
Neither Buckman nor Malloy discussed whether a
superintendent must submit an additional medical parole plan
where a prisoner has drafted his or her own. Here, the
plaintiff included a medical parole plan in his petition, which
indicated that he would live with his daughter, her husband,
their children, and the plaintiff's father if he were to be
released. The plan described the floor plan of the home, which
is wheelchair accessible and has a chair lift; indicated where
the plaintiff would receive medical care and who his primary
care doctor would be; and specified that his care would be
funded by public health insurance. The superintendent's
recommendation incorporated and detailed the medical parole plan
submitted by the petitioner.
25
The inclusion of the plaintiff's medical parole plan, where
the superintendent did not indicate that he found the plan
inadequate, was sufficient to satisfy the requirement that
"[t]he superintendent shall transmit with the recommendation:
. . . a medical parole plan." G. L. c. 127, § 119A (c) (1).
The plaintiff's medical parole plan satisfied most of the
statutory requirements. Although it did not detail explicitly
the proposed course of treatment or provide documentation
regarding his proposed physician, it specified the location of
the medical facility where he would receive "medical care
services," including for "emergencies," and identified his
expected primary care doctor. See G. L. c. 127, § 119A (a) (i)-
(iii). It further indicated where and with whom he would live,
stated that his family would help him to ensure his services
were obtained, and described the home he would live in,
indicating that it is wheelchair accessible. Taking into
consideration the many "contingencies" in the medical parole
process, "including changes in the medical condition of the
prisoners, availability of beds in care facilities, and
conditions imposed by the parole board," along with COVID-19, it
would be difficult, if not impossible, for a proposed medical
parole plan to be precise regarding the particular course of
treatment that the petitioner will undergo on release from
prison, especially where many prisoners, including the
26
plaintiff, suffer from numerous ailments requiring various forms
of treatment. Malloy, 487 Mass. at 495. Additionally, the
plaintiff's medical parole plan, referred to by the
superintendent, provided that his treatment would be funded by
public health insurance. See G. L. c. 127, § 119A (a) (iv). It
would make little sense to require the superintendent to create
an additional medical parole plan where the plaintiff has
provided a comprehensive plan, and where the superintendent does
not voice his or her disagreement with the plan. Because the
superintendent included this plan in his recommendation, he
fulfilled his requirement to submit a medical parole plan to the
commissioner.
The Superior Court judge found that this reference did not
fulfill the superintendent's obligation because the information
in the petition failed to satisfy fully the statutory
requirements. The judge cited Malloy in support, where this
court referenced a superintendent's medical parole plan that
only included information provided by the petitioner, and stated
"this paragraph appears to be the entirety of the medical parole
plan submitted to the commissioner." Malloy, 487 Mass. at 488.
Malloy is not determinative in this case. First, the plan in
Malloy was significantly less detailed than the plaintiff's
27
medical parole plan.20 It failed to mention the proposed course
of treatment, the proposed site for treatment and posttreatment
care, and documentation that medical providers were willing to
provide him medical services. Indeed, his plan only satisfied
the statute in that it indicated the financial program in place
to cover the costs of his health care. G. L. c. 127,
§ 119A (a) (iv). Second, Malloy did not discuss whether the
superintendent's submission describing the petitioner's plan was
inadequate, as the petitioner already had been released on
medical parole, so his appeal was moot. Malloy, supra at 500.
We do not condone the statutory insufficiency of the
medical parole plan submitted to the commissioner by the
superintendent here, and of course, we do not fault the
plaintiff for that insufficiency. Where a petitioner submits
his or her own medical parole plan, and there are gaps in the
information required by the statute, the superintendent should
work with the petitioner in a "highly collaborative process" to
20 The medical parole plan in Malloy stated in its entirety:
"[The petitioner's attorney] states that if released on
medical parole, [Malloy] would be willing to live any place
that is agreeable to the Department of Correction[].
[Malloy] has been accepted to handicapped accessible
section 8 housing in Worcester and has documentation for
it. His financial source of payment would be through
Mass[H]ealth Medicare."
Malloy, 487 Mass. at 488.
28
ensure it is complete. Malloy, 487 Mass. at 500. But where, as
here, the petitioner submits a comprehensive, yet statutorily
insufficient plan, detailing where and with whom he will live,
describes the home and its accessibility for his wheelchair,
indicates who his caregivers will be, who will "work to ensure
all medical and mental health services are obtained," discusses
the insurance that would fund his medical care, indicates where
he will receive medical services, for both everyday care and
emergencies, and indicates who his primary care doctor will be,
it would be senseless for a superintendent to start from scratch
to create an alternative medical parole plan. Because the
superintendent fully detailed this thorough plan in his
submission to the commissioner, he complied with the statute
with the exception of the provision of documentation regarding
the proposed physician and a description of the proposed course
of treatment. As discussed infra, we do not think these minute
deficiencies had an impact on the commissioner's decision.
Our decision in McCauley, 491 Mass. at , remanding the
petition to the commissioner for the completion and
consideration of a standardized risk assessment, does not compel
a different result. First, in McCauley, there was no attempt to
provide a standardized risk assessment required by the
regulation. Id. at . Here, the plaintiff submitted a
comprehensive medical parole plan largely complying with
29
statutory requirements, which the superintendent then forwarded
to the commissioner. Second, in McCauley, the standardized risk
for violence assessment would have been important for the
commissioner to consider in the first instance with respect to
whether the prisoner would pose a risk to the safety of the
public on release; it could not have been changed or
supplemented were the commissioner to determine that the
prisoner should be released. In contrast, the medical parole
plan here, as the plaintiff admits, "accounted for his medical
and mental health needs and supervision." The plan addressed
where he would stay, who would supervise him, and who would
ensure that his medical needs were addressed. Indeed, the
commissioner described the medical parole plan in her decision
without indicating that she considered it to be inadequate. Any
of its inadequacies could have been accounted for through the
imposition of conditions by the parole board were the
commissioner to decide that the plaintiff was permanently
incapacitated or terminally ill as defined by the statute. See
G. L. c. 127, § 119A (e) ("parole board shall impose terms and
conditions for medical parole that shall apply through the date
upon which the prisoner's sentence would have expired"); Malloy,
487 Mass. at 494-495 (stressing importance of plan setting out
proposed site for placement, but acknowledging parole board may
change proposed plan, including potential addition of
30
"electronic monitoring, supervision for drugs and alcohol,
visitation by parole officers, and no-contact orders" among
other conditions to protect public safety).
3. Denial of petition for medical parole. The plaintiff
argues that his medical conditions are so debilitating that he
does not pose a public safety risk, as his current medical
conditions demonstrate irreversible permanent incapacitation.
He asserts that the medical assessment from January 2021 opined
that he was permanently incapacitated, and that the statute does
not require complete absence of independent functioning. He
points to the 2009 risk assessment, which he asserts
demonstrated that he is of low risk for violence and substance
use disorder, and argues that the majority of his disciplinary
reports are dated and precede his incapacity, highlighting that
he has participated in programs. He also argues that the
commissioner's review of the video of the use of force incident
is inaccurate. Finally, he argues that maintaining his
innocence should not be considered as a factor in denying him
medical parole.21
The defendants argue that the commissioner's decision was
supported properly by the plaintiff's ability to perform
21In his reply brief only, the plaintiff "joins [Martin
McCauley's] argument that the regulation is void." As discussed
in McCauley, 491 Mass. at , we have concluded that it is not.
31
activities of daily living independently, as discussed by 501
Code Mass. Regs. § 17.02, the seriousness of the crimes that
resulted in his incarceration and his ability to carry out a
similar act, and his involvement in the recent use of force
incident, as both depicted in the video and discussed in the
reports.
We cannot say that the commissioner's decisions denying the
plaintiff medical parole are arbitrary and capricious such that
there is "no ground which 'reasonable [persons] might deem
proper' to support [them]." Garrity, 462 Mass. at 792, quoting
T.D.J. Dev. Corp., 36 Mass. App. Ct. at 128. The commissioner
relied on appropriate factors in making her determination that
the plaintiff does not qualify for medical parole.
"Permanent incapacitation" is defined as "a physical or
cognitive incapacitation that appears irreversible, as
determined by a licensed physician, and that is so debilitating
that the prisoner does not pose a public safety risk." G. L.
c. 127, § 119A (a).22 The commissioner shall order release on
medical parole where she determines that a prisoner is
"permanently incapacitated such that if the prisoner is released
the prisoner will live and remain at liberty without violating
22We discuss permanent incapacitation, as the plaintiff
does not allege that he is terminally ill within the meaning of
the statute.
32
the law and that the release will not be incompatible with the
welfare of society." G. L. c. 127, § 119A (e). As discussed in
McCauley, 491 Mass. at , the definition of "debilitating
condition" in the regulation does not impermissibly narrow the
class of persons who qualify for medical parole. Title 501 Code
Mass. Regs. § 17.02, as in effect at the time of the plaintiff's
petition, stated:
"A physical or cognitive condition that appears
irreversible, resulting from illness, trauma, and/or age,
which causes a prisoner significant and serious impairment
of strength or ability to perform daily life functions such
as eating, breathing, toileting, walking or bathing so as
to minimize the prisoner's ability to commit a crime if
released on medical parole, and requires the prisoner's
placement in a facility or a home with access to
specialized medical care."
In the initial medical parole assessment submitted to the
commissioner, Straus and Kiely opined that the plaintiff had
debilitating conditions and was at "high risk for permanent
incapacitation," but currently was not physically incapacitated.
In the January 2021 updated assessment by Straus, he opined that
the plaintiff had "debilitating medical conditions with
permanent mobility and other functional incapacitation."
Therefore, at that point, Straus had determined that the
plaintiff suffered from "a physical . . . incapacitation that
appears irreversible." G. L. c. 127, § 119A (a). The
commissioner appeared to conflate the two prongs of § 119A (a):
(1) a finding by the physician indicating "irreversible"
33
incapacitation and (2) evidence that the condition is so
debilitating that the prisoner does not pose a public safety
risk.23 Nonetheless, it is clear, in light of the factors that
she considered, that the commissioner ultimately determined that
his medical conditions did not so debilitate him such that he no
longer posed a public safety risk. The commissioner's
determination that the plaintiff's release would pose a public
safety risk was within her discretion based on the factors that
she properly considered.
The commissioner properly considered the plaintiff's
ability to perform independently a significant number of
activities of daily living as a factor in her determination that
he does not qualify for medical parole in each of her decisions.
As Straus opined, and as indicated supra, the plaintiff has
numerous debilitating conditions that cause permanent mobility
concerns and result in other forms of functional incapacitation.
The plaintiff is dependent on a wheelchair.24 Despite his
23 For example, in the March 2021 decision, the commissioner
wrote: "Dr. Straus does not opine that [the plaintiff] is
currently 'terminally ill' or 'permanently incapacitated' within
the meaning of the medical parole statute . . . . Accordingly,
I do not find that [the plaintiff's] current medical condition
is 'so debilitating that [he does] not pose a public safety
risk.'"
24The plaintiff takes issue with the commissioner's finding
that his requirement for a wheelchair was only due to "unsteady
gait and tremors" as opposed to "physical weakness." The July
2021 medical parole assessment opined that the plaintiff uses a
34
dependence, however, he is able to transfer independently. He
requires catheterization, but he is able catheterize himself.
He is able to "utilize the bathroom independently . . . , feed
himself independently, shower independently, dress himself
independently, and voice his needs without issue." The
superintendent's recommendation indicated that the plaintiff has
a peer assistant to push his wheelchair, but his medical records
indicate that in January 2021 during an evaluation he was able
to "self-propel[] up and down the ramp." The plaintiff is
correct that complete absence of independent functioning is not
required by either the statute or the regulation. As discussed
in McCauley, 491 Mass. at , although it is just one factor to
be considered in the comprehensive evaluation of a petitioner,
consideration of ability to perform independently the vast
majority of activities of daily living is a relevant factor, as
set out by 501 Code Mass. Regs. § 17.02, that is pertinent to
the definition of permanent incapacitation in the statute.
The commissioner's decision properly discussed additional
factors in determining that the plaintiff, if released, would
wheelchair for "unsteady gait and tremors"; thus, the
commissioner's finding that the plaintiff's gait and tremors
require him to use a wheelchair is grounded in the record. It
is difficult to understand how that in itself does not
constitute "physical weakness." Nonetheless, this distinction
did not have an impact on the commissioner's decision where she
recognized that "[h]e requires a wheelchair."
35
not "live and remain at liberty without violating the law" and
that his release "would be incompatible with public safety and
the welfare of society." Another factor that she considered was
the plaintiff's 2009 risk assessment.25 See 501 Code Mass. Regs.
§ 17.04 (2022). The risk assessment noted that the plaintiff
had been arrested or charged three or more times with a new
crime while on pretrial release. It noted that the plaintiff
has received serious or administrative disciplinary infractions
for fighting or threatening other inmates or staff. In the
section entitled "Criminogenic Need Scales," the assessment
indicated that both his violence history and current violence
were "high." Despite this indication, the assessment concluded,
without explanation, that his violence and recidivism risk were
"low."
Further, the plaintiff's crimes for which he was
incarcerated were a proper factor to consider, and the
commissioner did not give them undue weight. The facts of the
plaintiff's crimes were highly violent and resulted in fifteen
convictions of murder in the second degree for his setting fire
to a rooming house in the early hours of the morning and killing
25The plaintiff protests that the commissioner "states
nothing" about the risk assessment in her latest decision.
Nonetheless, her first decision mentions the assessment,
including its conclusion that he is a "low risk for violence and
recidivism." Thus, the commissioner was aware of its contents
and considered it in making a decision.
36
fifteen people. Carver, 33 Mass. App. Ct. at 379-380. The
facts of the plaintiff's convictions were indicated in the
superintendent's recommendation to the commissioner, which is
contemplated by both the statute and the regulation. See G. L.
c. 127, § 119A (c) (1); 501 Code Mass. Regs. § 17.04 (2022). As
discussed in McCauley, 491 Mass. at , the statute does not
require that the commissioner limit consideration to whether a
petitioner is capable of committing the same or a similar
offense to that resulting in his or her incarceration; the
inquiry is more general and centers around concern for public
safety as set out in the statute. Nonetheless, that the
plaintiff physically is capable of setting fire to a building is
relevant to the danger he may pose to the public on release.26
The plaintiff's disciplinary reports also were an
appropriate factor to consider in determining whether he
qualified for medical parole, as mentioned in his classification
report and the superintendent's recommendation.27 See G. L.
c. 127, § 119A (c) (1); 501 Code Mass. Regs. § 17.04 (2022).
26As discussed in McCauley, 491 Mass. at , the
plaintiff's refusal to admit guilt should not have been counted
against him. In the context of all the other factors the
commissioner considered in making a determination here, her
reference to his assertion of innocence does not invalidate the
commissioner's decision.
27The commissioner also recognized the plaintiff's
"moderate programming history," noting that most of it "occurred
two decades ago."
37
The commissioner recognized that "most of [the plaintiff's]
disciplinary reports of a serious nature are remote in time,"
but their age does not render them wholly irrelevant to the
safety of the public on his release where he has a history of
fighting, threatening staff and other inmates, lying, possessing
contraband, and removing a blade from a razor. The plaintiff is
not permitted to return to MCI-Shirley because of a "newly
identified conflict" with another inmate.
The commissioner most heavily relied on the use of force
incident in her discussion of the plaintiff's disciplinary
history. The plaintiff disputes the commissioner's
characterization of the incident. The reports and the video
were appropriate for the commissioner to consider in determining
whether the plaintiff qualified for medical parole as they bear
on the plaintiff's physical ability to engage in a struggle.
See G. L. c. 127, § 119A (a) (defining permanent incapacitation
as physical or cognitive condition that is "so debilitating that
the prisoner does not pose a public safety risk" [emphasis
added]). Further, in the plaintiff's counsel's affidavit to the
Superior Court judge, she indicated that the incident was
referenced by the superintendent in his materials sent to the
commissioner as a part of his recommendation.
At the outset, given that the commissioner deemed the
reports surrounding the use of force incident relevant, review
38
of the video, which readily was available, was appropriate. We
agree with the Superior Court judge who heard the plaintiff's
motion to strike the administrative record that "where the
[c]ommissioner has . . . deemed reports describing the . . .
incident relevant, it is difficult to understand how video
evidence of the incident would not also be relevant." The video
was within the control of the department, as it was sent to the
plaintiff's counsel and received in January 2021. It should not
have taken an order from a judge for the commissioner to review
video of an incident that was accessible and heavily relied on
in the decision to deny the plaintiff medical parole.
Our review of the video reveals that it corroborates, or at
the very least, does not refute, the statements in the reports.
The video of this incident depicted the plaintiff's attempt to
hang a sheet on the wall of his cell, until he was interrupted
by correction officers. The officers began to remove everything
from the plaintiff's cell, and the plaintiff lunged on his bed
to try to grab his wheelchair before they removed it. There is
no audio to the video, but it appears that the plaintiff argued
with the officers as they removed things from his cell. As
officers attempted to pull the sheets off the bed, the plaintiff
pulled them back in a struggle with the officers. He took off
his watch and threw it; the watch landed on the ground beside
39
one of the officers, and another officer picked it up.28 Next,
the plaintiff made a motion toward an officer, and the officers
pinned him to the bed.29 As the lieutenant held down the
plaintiff on the bed, the plaintiff wrapped his legs around the
lieutenant's leg. The lieutenant punched the plaintiff during
the struggle. Eventually, six officers responded to this
incident, and four tried to secure the plaintiff's hands and
feet. The officers removed the plaintiff's clothes and held him
down on his side. After a few minutes, it appeared that an
officer tried to take off the plaintiff's foot restraints. In
response, the plaintiff kicked his feet and struggled with the
officers again. The officers then left the plaintiff
restrained, placed him flat on his stomach, and closed the door
to his cell. A little over a minute later, officers went back
into the plaintiff's cell, turned him over, and put over him
what appeared to be a blanket. The plaintiff's face suggested
that he was in pain. Throughout this video, the plaintiff did
not rise from his bed, and continued to speak with officers.30
28The report states that the plaintiff threw his watch
toward the officers and missed.
29Because of the angle of the video and where the officers
were standing, it is not possible to see what the plaintiff did
to the officer. The report claims that the plaintiff threw "an
awkward open hand punch to the [lieutenant's] chest."
30The reports indicate that the plaintiff berated staff and
was aggressive throughout the incident.
40
The commissioner's discussion of the use of force incident
is not contradicted by anything that appeared in the video. The
commissioner failed to note that the plaintiff never stood up
throughout the incident. Nonetheless, the plaintiff's legs were
seen wrapping around the lieutenant's leg, and it took four
officers to secure the plaintiff. When an officer attempted to
remove his foot restraints, the plaintiff kicked at the officer.
This incident was recent, as it happened in June 2020. This
lends support to the commissioner's determination that the
plaintiff is not so debilitated that he does not pose a risk to
public safety.
This incident happened as a result of the plaintiff's
attempts to harm himself during a mental health crisis. This
was not the first time that the plaintiff tried to take his own
life. Leading up to this incident, in May, the plaintiff
attempted suicide and was sent to the hospital, and soon after,
in July, he made a similar attempt. The plaintiff argues, in
one paragraph and without citing case law for support, that "the
[c]ommissioner could not have discriminated based on [his]
mental state in denying medical parole without violating the
Americans with Disabilities Act." The plaintiff does not
explain how the commissioner discriminated against him based on
his mental state, nor does he assert conclusively that she did.
As a result, his briefing on this issue does not rise to the
41
level of appellate argument. See Commonwealth v. Beverly, 485
Mass. 1, 16 (2020); Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019).
Nonetheless, the commissioner referenced the plaintiff's
mental health history in her original decision without
indicating that it had an impact on her determination, and in
her March 2021 decision, she stated that the plaintiff's
attorney "indicate[d] that [the plaintiff's] mental health is
stable, and I have not received any information to the
contrary." Therefore, it does not appear that she treated his
mental health history as a factor suggesting that he would pose
a danger on release. Contrast Crowell v. Massachusetts Parole
Bd., 477 Mass. 106, 112-113 (2017) (where board "indicated its
awareness both of the plaintiff's disability and of how symptoms
stemming from that disability could affect his behavior . . . on
parole," board should have considered risk reduction programs).
Although the commissioner did not reference that the use of
force incident was in response to a mental health crisis, she
considered the incident for its depiction of the plaintiff's
physical ability to be combative and violent, not for the
motivations behind the plaintiff's physical actions. This was
not discriminatory.
We do not think that the absence of two statutory
requirements in an otherwise comprehensive medical parole plan
42
influenced the commissioner's decision, given her extensive
discussion of other factors and her brief reference, only in the
first decision, to the plaintiff's medical parole plan, in
addition to the reasons discussed supra.31 This further is
evidenced by the commissioner's decision in Malloy, 487 Mass. at
489, where she granted the appellant's petition and allowed
release "conditional on a suitable home care plan." This
suggests that the commissioner is willing to grant release, even
where she believes that the initial home care plan is
inadequate, and that the department will work with a prisoner to
ensure an appropriate plan is established prior to release.32
The plaintiff set fire to a building and killed fifteen
people. Carver, 33 Mass. App. Ct. at 379. Although he suffers
from numerous serious medical conditions, and Straus's second
medical evaluation opined that he has "permanent mobility and
other functional incapacitation," he is able to perform
activities of daily living including feeding, showering,
dressing, and voicing his needs independently, and he is able to
31For the same reason, we do not think that the failure of
the department to prepare an Interstate Compact for Adult
Offender Supervision application was fatal in this case.
32In addition, in response to questioning at oral argument
in McCauley, 491 Mass. at , counsel for the commissioner
provided several decisions where the commissioner determined
that a petitioner was permanently incapacitated, despite an
inadequate proposed plan.
43
administer his catheter supplies himself. He is able to
maneuver his wheelchair on his own, as indicated in a medical
evaluation. See McCauley, 491 Mass. at (consideration of
ability to perform majority of activities of daily living
appropriate). His chronic medical conditions are "stable." He
has received disciplinary reports for fighting, threatening
people, lying, removing a razor from a blade, and possession of
contraband. During a mental health crisis, as correction
officers tried to remove items from his cell to protect him, he
struggled with the officers, wrapping his legs around a
lieutenant's leg, requiring four officers to secure him.
Considering the above factors, and additional factors discussed
supra, the commissioner's determination that the plaintiff is
not so debilitated that he does not pose a public safety risk
was not arbitrary or capricious.
Conclusion. Because we see no reason to disturb the
decisions of the commissioner, we affirm the judgment of the
Superior Court denying the plaintiff's request for relief.
So ordered.