Rosado v. Commissioner of Correction ( 2017 )


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    16-P-680                                                Appeals Court
    CHRISTIAN ROSADO   vs.    COMMISSIONER OF CORRECTION & another.1
    No. 16-P-680.
    Middlesex.         February 7, 2017. - May 22, 2017.
    Present:   Green, Meade, & Agnes, JJ.
    Imprisonment, Safe environment. Constitutional Law,
    Imprisonment. Administrative Law, Judicial review.
    Practice, Civil, Relief in the nature of certiorari, Motion
    to dismiss. Due Process of Law, Prison regulation. Libel
    and Slander.
    Civil action commenced in the Superior Court Department on
    May 11, 2015.
    A motion to dismiss was considered by Kenneth J. Fishman,
    J.
    Christian Rosado, pro se.
    Katherine W. Briggs for the defendants.
    GREEN, J.    The pro se plaintiff, an inmate in the custody
    of the Department of Correction, appeals from a judgment of the
    1
    Chief of the Office of Investigative Services. Both
    officials are sued individually and in their official
    capacities.
    2
    Superior Court, dismissing his complaint against the defendants,
    the Commissioner of Correction and the chief of the office of
    investigative services (investigative services chief).    In his
    complaint, the plaintiff asserted various claims stemming from
    the defendants' designation of him as a member of the "Latin
    Kings," a "security threat group" (STG).   The plaintiff denies
    that he is a member of the Latin Kings, and that his false
    designation as such subjects him to various harms entitling him
    to relief.   We agree with the judge that the plaintiff's claim
    for certiorari relief, pursuant to G. L. c. 249, § 4, does not
    lie because the designation was a discretionary administrative
    decision rather than an adjudicatory or quasi adjudicatory one,
    and that his due process claim fails because his designation as
    a member of an STG does not infringe upon a protected liberty
    interest.2   We accordingly affirm the judgment of dismissal.
    Background.   "We review the allowance of a motion to
    dismiss de novo, accepting as true all factual allegations in
    the complaint and favorable inferences drawn therefrom.      Curtis
    v. Herb Chambers I-95, Inc., 
    458 Mass. 674
    , 676 (2011), and
    cases cited.   We may also consider exhibits attached to the
    2
    We also conclude that the plaintiff's claim for defamation
    was properly dismissed, if for no reason other than that his
    complaint does not allege that the defendants published his
    designation as an STG member to "any considerable and
    respectable segment of the community." Stone v. Essex County
    Newspapers, Inc., 
    367 Mass. 849
    , 853 (1975).
    3
    complaint and items appearing in the record.    Melia v. Zenhire,
    Inc., 
    462 Mass. 164
    , 165-166 (2012), citing Schaer v. Brandeis
    Univ., 
    432 Mass. 474
    , 477 (2000)."    Lipsitt v. Plaud, 
    466 Mass. 240
    , 241 (2013).
    As we observed in the introduction, the plaintiff is an
    inmate in the custody of the Department of Correction.3    In
    November, 2014, a search of his cell uncovered pictures of a
    number of other prisoners the plaintiff had befriended, all of
    whom were members of a known STG.    One week later, the
    facility's inner perimeter security team informed the plaintiff
    that it intended to classify him as a gang member, due to the
    discovery of pictures of gang members in his cell.
    In February, 2015, the defendant investigative services
    chief met with the plaintiff to allow him to dispute his
    identification as a member of the Latin Kings gang.   Following
    the meeting (in which the plaintiff denied his membership in the
    Latin Kings), the investigative services chief notified the
    plaintiff by letter dated February 12, 2015, that his
    identification as a member of an STG had been "validated," and
    advising him that he could appeal that decision to the
    Commissioner within five days of the notice.   By letter dated
    3
    In his complaint, the plaintiff alleged that he was held
    at Massachusetts Correctional Institution, Concord. According
    to our docket and the plaintiff's brief, the plaintiff currently
    resides at the Souza-Baranowski Correctional Center in Shirley.
    4
    February 24, 2015, the plaintiff appealed to the Commissioner,
    who rejected his appeal.4   By two subsequent letters, one from
    the plaintiff on March 16, 2015, and another from an attorney on
    his behalf on March 23, 2015, the plaintiff expressed his
    displeasure and disagreement with his designation as an STG
    member.
    As a result of his designation as an STG member, the
    plaintiff is restricted in his employment opportunities within
    the correctional facility where he is housed.   In addition, the
    plaintiff alleges that his false designation as an STG member
    subjects him to danger from other inmates who are enemies of
    that group.
    In his complaint, the plaintiff asserted that his
    designation violated the Fourteenth Amendment to the United
    States Constitution, art. 12 of the Massachusetts Declaration of
    Rights, G. L. c. 231A, G. L. c. 30A, §§ 1-8, and 
    42 U.S.C. § 1983
    , and also asserted a claim for defamation.
    Discussion.   "A [Mass.R.Civ.P. 12(b)(6), 
    365 Mass. 754
    (1974),] motion may be allowed only when the complaint's factual
    4
    The plaintiff's verified complaint did not describe the
    grounds for denial, and did not include a copy of the letter of
    denial as an exhibit. We consequently are without any basis to
    ascertain the reasons for the denial. We note, however, that
    the plaintiff's letter to the Commissioner appealing his
    designation as an STG member is dated February 24, 2015, beyond
    the appeal period described in the February 12, 2015, letter
    advising him of his designation.
    5
    allegations (and reasonable inferences therefrom), accepted as
    true, do not plausibly suggest an entitlement to relief.    See
    Iannacchino v. Ford Motor Co., 
    451 Mass. 623
    , 635-636 (2008);
    Curtis v. Herb Chambers I-95, Inc., 
    [supra].
       'Factual
    allegations must be enough to raise a right to relief above the
    speculative level . . . [based] on the assumption that all the
    allegations in the complaint are true (even if doubtful in
    fact).'   Iannacchino v. Ford Motor Co., 
    supra at 636
    , quoting
    from Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007).
    Assertions set out in a motion to dismiss are not part of the
    rule 12(b)(6) review equation.   Eigerman v. Putnam Invs., Inc.,
    
    450 Mass. 281
    , 285 n.6 (2007).   Romano v. Sacknoff, 
    4 Mass. App. Ct. 862
    , 863 (1976)."   Fraelick v. PerkettPR, Inc., 
    83 Mass. App. Ct. 698
    , 699-700 (2013).
    In his complaint and in his arguments in the Superior Court
    and on appeal, the plaintiff relied principally on the
    certiorari statute, G. L. c. 249, § 4, for jurisdiction.5    "In
    5
    Though the plaintiff's complaint alleged violations of
    G. L. c. 231A and G. L. c. 30A, §§ 1-8, he has directed no
    argument to either statute, and neither supports a cause of
    action for any violation thereof. Any claim that either statute
    furnishes a cause of action under the plaintiff's complaint
    accordingly is waived. In any event, to the extent c. 231A
    supports an action for a declaratory judgment on the plaintiff's
    claim of a due process violation, it is subsumed in our
    discussion of that issue, infra. We also note that the sections
    of the Administrative Procedure Act applicable to the Department
    of Correction, G. L. c. 30A, §§ 1-8, see G. L. c. 30A, § 1A, do
    not include those sections of the Act that govern procedures
    6
    general, a plaintiff is only entitled to certiorari review of an
    administrative decision if [he] can demonstrate the presence of
    three elements:   '(1) a judicial or quasi judicial proceeding,
    (2) from which there is no other reasonably available remedy,
    and (3) a substantial injury or injustice arising from the
    proceeding under review.'"     Revere v. Massachusetts Gaming
    Commn., 
    476 Mass. 591
    , 600 (2017), quoting from Indeck v.
    Clients' Sec. Bd., 
    450 Mass. 379
    , 385 (2008).     Inmates may bring
    an action in the nature of certiorari to challenge the validity
    of an adjudication by a disciplinary board.    See Hill v.
    Superintendent, Massachusetts Correctional Inst., Walpole, 
    392 Mass. 198
    , 199 n.2 (1984).    The present case, however, does not
    pertain to disciplinary board action.    While "an action in the
    nature of certiorari may be brought to 'correct errors in
    proceedings . . . not otherwise reviewable by motion or by
    appeal,' that review offers no protection against discretionary
    administrative actions."     Emerson College v. Boston, 
    391 Mass. 415
    , 422 n.l4 (1984), quoting from G. L. 249, § 4, as appearing
    in St. 1973, c. 1114, § 289.
    "When distinguishing a quasi judicial agency proceeding
    from a legislative or purely administrative one, we have looked
    generally to the form of the proceeding and examined the extent
    applicable to adjudicatory administrative proceedings or provide
    a right to judicial review of administrative decisions resulting
    therefrom. See G. L. c. 30A, §§ 10-14.
    7
    to which it resembles judicial action."     Revere v. Massachusetts
    Gaming Commn., supra.   The line of demarcation between a
    discretionary administrative decision and one resulting from a
    quasi judicial proceeding is often less than clear.     We consider
    several factors in deciding the question:    "(1) whether the
    proceeding is preceded by specific charges, see School Comm. of
    Hudson v. Board of Educ., 
    448 Mass. 565
    , 576 (2007); (2) whether
    the proceeding involves sworn testimony by witnesses subject to
    cross-examination, see 
    id.,
     or a party attesting to certain
    facts, see Frawley v. Police Commr. of Cambridge, 
    473 Mass. 716
    ,
    727 (2016), as opposed to unsworn statements by interested
    persons advocating for or against a proposed new policy, see
    School Comm. of Hudson, 448 Mass. at 576; (3) whether the agency
    conducts an investigation into the veracity of attested-to
    facts, see Frawley, supra; (4) whether the proceeding culminates
    in an individualized determination of a party's entitlement to
    some benefit, see id., or an individualized course of
    discipline, see Hoffer [v. Board of Registration in Med., 
    461 Mass. 451
    , 457 (2012)], as opposed to culminating in the
    adoption of a rule of general applicability, see Pronghorn, Inc.
    v. Licensing Bd. of Peabody, 
    13 Mass. App. Ct. 70
    , 72 (1982);
    and (5) whether the proceeding is followed by the adoption of
    formal findings of fact, see School Comm. of Hudson, supra."
    Id. at 600-601.
    8
    Applying those factors to the circumstances of the present
    case, we observe that the "proceeding" in the present case was
    not a proceeding at all, in the usual sense of the term; instead
    the prison inner perimeter security team advised the plaintiff
    that, based on information of which it had become aware, it had
    determined that he was a member of an STG.   Nor was the
    subsequent one-on-one meeting with the investigative services
    chief a quasi adjudicatory hearing.   There were no "charges"
    brought prior to his designation as a member of an STG, no
    discovery of information, and no witnesses presented or
    testimony taken at the meeting; there was also no formal written
    decision with specific findings of fact.   Nor is there any
    statute or regulation requiring such an inquiry or procedure.
    We conclude that the decision to designate the plaintiff a
    member of an STG was a discretionary action taken pursuant to
    G. L. c. 124, § 1, to preserve the safety and security of staff
    and other inmates.6   The extraordinary difficulties inherent in
    6
    General Laws c. 124, § 1, as amended by St. 1972, c. 777,
    § 5, provides in pertinent part that the Commissioner shall:
    "(a) designate, establish, maintain, and administer such
    state correctional facilities as he deems necessary . . .
    "(b) maintain security, safety, and order at all state
    correctional facilities, . . . take all necessary
    precautions to prevent the occurrence or spread of any
    disorder, riot or insurrection at any such facility, . . .
    ". . .
    9
    the operation of a correctional institution warrant broad
    discretion by prison officials in the adoption of policies and
    the administration of prison affairs.    See, e.g., Nelson v.
    Commissioner of Correction, 
    390 Mass. 379
    , 397 (1983) (transfer
    decisions, either disciplinary or administrative, are within
    Commissioner's discretion); Real v. Superintendent, Mass.
    Correctional Inst., Walpole, 
    390 Mass. 399
    , 406 (1983) (broad
    discretion necessarily given to prison officials in light of
    their extraordinarily difficult task).   Accordingly, while the
    defendants' designation of the plaintiff as a member of an STG
    culminated in an individualized determination of the plaintiff's
    entitlement to certain benefits within the prison setting, they
    did so within the broad discretionary purview afforded them in
    the management of safety and security of the inmate population
    generally, and not as the result of an adjudicatory or quasi
    adjudicatory proceeding.   We conclude that certiorari is not an
    appropriate vehicle to seek to overturn discretionary
    administrative action designed to promote legitimate penological
    goals.   See Revere v. Massachusetts Gaming Commn., supra.
    "(q) make and promulgate necessary rules and regulations
    incident to the exercise of his powers and the performance
    of his duties including but not limited to rules and
    regulations regarding . . . safety, discipline, . . .
    classification, . . . care, and custody for all persons
    committed to correctional facilities."
    10
    There likewise is no merit to the plaintiff's claim under
    
    42 U.S.C. § 1983
    .    As it is undisputed that the defendants acted
    under color of law, our inquiry is whether the defendants
    deprived the plaintiff of "rights, privileges, or immunities
    secured by the Constitution or laws of the United States."        Miga
    v. Holyoke, 
    398 Mass. 343
    , 349 (1986).
    The gravamen of the plaintiff's § 1983 claim is that by
    designating him a member of an STG without a full and proper
    hearing, the defendants violated his right to due process.       It
    is settled that prisoners may not be deprived of life, liberty,
    or property without due process of law.     Wolff v. McDonnell, 
    418 U.S. 539
    , 556 (1974).     A liberty interest may arise from the
    Constitution itself or from State-conferred privileges.
    Wilkinson v. Austin, 
    545 U.S. 209
    , 221-222 (2005).     The decision
    to designate the plaintiff as a member of an STG does not,
    however, implicate a liberty interest arising from the due
    process clause.     In Meachum v. Fano, 
    427 U.S. 215
    , 224 (1976),
    the United States Supreme Court held that transferring prisoners
    from a more favorable facility to a less favorable one did not
    infringe or implicate a liberty interest within the meaning of
    the due process clause:    "We reject at the outset the notion
    that any grievous loss visited upon a person by the State is
    sufficient to invoke the procedural protections of the Due
    Process Clause . . . .     Similarly, we cannot agree that any
    11
    change in the conditions of confinement having a substantial
    adverse impact on the prisoner involved is sufficient to invoke
    the protections of the Due Process Clause."   The decision to
    identify the plaintiff as a member of an STG likewise does not
    implicate a liberty interest created by State law.    State-
    created liberty interests generally are "limited to freedom from
    restraint which, while not exceeding the sentence in such an
    unexpected manner as to give rise to protection by the Due
    Process Clause of its own force . . . nonetheless imposes
    atypical and significant hardship on the inmate in relation to
    the ordinary incidents of prison life."    Sandin v. Conner, 
    515 U.S. 472
    , 484 (1995).   See 
    id. at 486
     (disciplining prisoner for
    thirty days "in segregated confinement did not present the type
    of atypical, significant deprivation in which a State might
    conceivably create a liberty interest").
    The Supreme Judicial Court has held that Sandin forecloses
    an inmate's Federal due process claim based upon an
    administrative order transferring certain categories of inmates,
    without a hearing, from prerelease to higher security facilities
    because such an order does not impose "atypical and significant
    hardship."   Hastings v. Commissioner of Correction, 
    424 Mass. 46
    , 51-52 (1997).7   The mere identification of the plaintiff as a
    7
    The inmates in Hastings claimed that their State-created
    liberty interests arose from various statutes and regulations,
    12
    member of an STG, and the concomitant loss of the right to be
    considered for certain employment opportunities within the
    correctional facility, similarly does not impose atypical and
    significant hardship on the plaintiff in relation to the
    ordinary incidents of prison life.   Under the standards
    announced in Sandin, the plaintiff's loss of the chance to
    participate in certain prison employment opportunities does not
    affect any State-created liberty interest and thus does not
    violate the due process clause.   See Harbin-Bey v. Rutter, 
    420 F.3d 571
    , 577 (6th Cir. 2005) (designation as STG member "does
    not constitute an atypical and significant hardship in relation
    to the ordinary incidents of prison life").   See also Dupont v.
    Saunders, 
    800 F.2d 8
    , 10 (1st Cir. 1986) ("prisoners have no
    vested property or liberty" interest in ability to obtain or
    maintain prison employment).
    The plaintiff has not alleged that the defendants
    communicated his designation as an STG member to any other
    inmates (or that such inmates otherwise have acquired knowledge
    including G. L. c. 124, § 1 (powers of Commissioner); 103 Code
    Mass. Regs. § 420 (1995) (classification regulations); and 103
    Code Mass. Regs. § 464 (1993) (work-release regulations). The
    plaintiff in the present case makes a similar argument, claiming
    that the defendants violated State-created liberty interests
    arising from G. L. c. 127, § 39 (segregated units); 103 Code
    Mass. Regs. § 420 (2007) (classification regulations); 103 Code
    Mass. Regs. § 421 (1994) (departmental segregation regulations);
    and 103 Code Mass. Regs. § 430 (2006) (disciplinary
    proceedings).
    13
    of his designation), yet inherent in the plaintiff's assertion
    that the designation subjects him to danger from other inmates
    is the fact that such other inmates must be aware of the
    designation.   Simply put, the plaintiff has alleged no facts to
    support his conclusory allegation that his designation as an STG
    member has put him in danger.   Accordingly, the allegation does
    not implicate a protected liberty interest.    See Iannacchino v.
    Ford Motor Co., 451 Mass. at 636 ("[f]actual allegations must be
    enough to raise a right to relief above the speculative level"
    [quotation omitted]).
    Finally, the judge properly dismissed the plaintiff's claim
    for defamation, if for no reason other than that, as we have
    observed, see note 2, supra, the plaintiff has not alleged that
    the defendants published his designation as an STG member to
    "any considerable and respectable segment in the community."
    Stone v. Essex County Newspapers, Inc., 
    367 Mass. 849
    , 853
    (1975).    See Phelan v. May Dept. Stores Co., 
    443 Mass. 52
    , 56
    (2004).8
    Judgment affirmed.
    8
    We need not consider the defendants' alternative
    contentions that, by reason of the crime for which the plaintiff
    is incarcerated, he is libel-proof, see Jackson v. Longcope, 
    394 Mass. 577
    , 578-582 (1985), or that the defendants are entitled
    to qualified immunity. See Ford v. Bender, 
    768 F.3d 15
    , 23 (1st
    Cir. 2014).