RASHAD RASHEED v. COMMISSIONER OF CORRECTION & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-1015
RASHAD RASHEED
vs.
COMMISSIONER OF CORRECTION & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On December 13, 2019, plaintiff Rashad Rasheed, an inmate
in the custody of the Department of Correction (department) and
housed at the Massachusetts Correctional Institution at Concord,
filed a complaint seeking declaratory, equitable, and monetary
relief, stemming from the consequences imposed on him pursuant
to the department's "Program Engagement Strategy" (PES). A
judge of the Superior Court allowed the defendants' motion to
dismiss and then denied the plaintiff's motion for
reconsideration. The plaintiff now appeals from the judgment
and the order denying the motion for reconsideration.2 We affirm
1 Former superintendent, former director of treatment, and
correctional program officer at the Massachusetts Correctional
Institution at Concord.
2 The plaintiff does not raise any separate arguments with
respect to the denial of his motion for reconsideration, and we
therefore do not address it.
the judgment in part, vacate it in part, and remand for further
proceedings.
Background. 1. PES program. "In accordance with its
mission to 'promote public safety by managing offenders,' the
department established 'appropriate programming in preparation
for [inmates'] successful reentry into the community,' such as
the Sex Offender Treatment Program (SOTP)." Butler v. Turco, 93
Mass. App. Ct. 80, 81 (2018). The department is unable to
mandate participation in such programs, and "a high percentage
of offenders declined to attend recommended programs." Id.Accordingly, in 2013, "the department announced it would
implement PES, an incentivization structure for program
participation. Under PES, privileges are awarded as incentives
for inmates who voluntarily participate in programs and are
withdrawn from inmates who refuse." Id. at 82.
2. Plaintiff's complaint.3 In 1975, the plaintiff was
sentenced to life imprisonment for rape, kidnapping, and armed
robbery. In 1987, while incarcerated, the plaintiff voluntarily
sought sex offender treatment and was ultimately found not to be
a "sexually dangerous person" (SDP). Between 1989 and 1993, the
plaintiff participated in various sex offender treatment
3 We briefly summarize the material facts, drawn from the
plaintiff's complaint and viewed in the light most favorable to
him, reserving additional facts for later discussion.
2
programs and a recovery training drug treatment program. In or
around 2016, the department recommended that the plaintiff
participate in an SOTP, which he refused to do. In addition,
the department recommended that he participate in Correctional
Recovery Academy (CRA), a substance use treatment program, which
he also declined. As a result of his refusal to participate, in
2019, the department informed the plaintiff that in accordance
with PES policy, he was at risk of losing his privileges. After
he failed to attend an SOTP, the department confiscated the
plaintiff's "television, table radio, hot pot, [and] fan, moved
[the plaintiff] to [new housing] and prohibited [the plaintiff]
from working and earning . . . goodtime credits and other
programs." The plaintiff filed informal and formal grievances,
which were denied, then filed a complaint in the Superior Court,
which was dismissed. The plaintiff's motion for reconsideration
of that decision was denied.
Discussion. We review the allowance of a motion to dismiss
de novo, reading "the complaint's allegations generously and in
the plaintiff's favor." Lalchandani v. Roddy, 86 Mass. App. Ct.
819, 822 (2015), quoting Vranos v. Skinner, 77 Mass. App. Ct.
280, 287 (2010). Under Mass. R. Civ. P. 12 (b) (6), 365 Mass.
754 (1974), the judge must allow a motion to dismiss if the
complaint fails to allege sufficient facts, stating a recognized
cause of action, to plausibly suggest that the plaintiff is
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entitled to relief. See Iannacchino v. Ford Motor Co., 451
Mass. 623, 636 (2008).
The plaintiff argues that PES transforms SOTPs into
mandatory programs, which is inconsistent with various statutes
allowing for the creation of voluntary programs, as well as
department regulations.4 This argument fails, as the plaintiff,
a convicted sex offender, has been recommended for participation
in the treatment program; he has not been compelled to
participate. Indeed, he has exercised his right not to
participate. See Lyman v. Commissioner of Correction, 46 Mass.
App. Ct. 202, 205 (1999) (impact that nonparticipation might
have on such things as future parole eligibility does not amount
to wrongful compulsion). The withholding of such privileges
does not constitute punishment. See Butler, 93 Mass. App. Ct.
at 86 (labeling PES as "remedial" policy, not punishment).
Next, the plaintiff argues that because a psychiatrist
determined in 1987 that he was not an SDP, it was improper for
the department to identify him as a sex offender or recommend
that he participate in an SOTP. In making this claim, the
plaintiff conflates the related, but separate, concepts of SDP
and sex offender. An SDP is defined in G. L. c. 123A, § 1, as a
4 Specifically, the plaintiff argues PES is inconsistent with
G. L. c. 127, § 49; St. 1990, c. 150, § 104; G. L. c. 124, § 1
(c)-(g), (q); and G. L. c. 30A, § 1A.
4
person "who suffers from a mental abnormality or personality
disorder which makes the person likely to engage in sexual
offenses if not confined to a secure facility." A sex offender,
on the other hand, is defined in the department's sex offender
management policy, 103 Department of Correction Regulations
(DOC) § 446 (2015), as "[a]n inmate . . . who has ever been
convicted of a sex offense defined by M.G.L. c. 6, § 178C,
regardless of whether the inmate will be required to register
with the Sex Offender Registry Board upon release from custody."
Simply put, the definition of sex offender is broader than the
definition of an SDP. Hence, one may be a sex offender, even if
they have not been adjudicated an SDP.5
As the plaintiff was convicted of rape, the department
properly classified the plaintiff as a sex offender for purposes
of recommending an SOTP. The fact that he participated in some
treatment years ago does not mean he completed an SOTP.
Similarly, it was proper for the department to recommend that
the plaintiff participate in the CRA, regardless of his past
participation in a program, because department policies require
5 We are also unpersuaded by the plaintiff's argument that PES
should not be applied retroactively to him, as the department is
permitted to update its policies and practices over time,
otherwise "each inmate would be subject to individualized
regulations according to his incarceration date." Butler, 93
Mass. App. Ct. at 86 n.12.
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follow-up to be conducted after an inmate has completed a
substance use treatment program. 103 DOC § 445.05 (2019).6
The plaintiff also contends that the DOC's sex offender
management policy, 103 DOC § 446, and PES are "regulations,"
which must be promulgated or amended pursuant to G. L. c. 30A.
He then argues that because the department did not adhere to the
statute in amending a previous version of the sex offender
management policy, or in announcing PES, those policies are
improperly promulgated regulations that are unenforceable.
General Laws c. 30A generally defines the term "regulation"
and then creates several exemptions. The general definition is:
"'Regulation' includes the whole or any part of every rule,
regulation, standard or other requirement of general
application and future effect, including the amendment or
repeal thereof, adopted by an agency to implement or
interpret the law enforced or administered by it, but does
not include [certain exempted items]." G. L. c. 30A,
§ 1 (5).
Here, there is no dispute that the sex offender management
policy and PES both fall within the definition of "regulation."
The dispute concerns whether they fall into the internal
management exemption, G. L. c. 30A, § 1 (5) (b), which exempts
from the general definition any "regulations concerning only the
6 To the extent that the plaintiff argues that PES violates his
due process rights, is an ex post facto law, violates his Fifth
Amendment right against self-incrimination, or violates his
Eighth Amendment right to be free from cruel and unusual
punishment, the motion judge did not err in dismissing his
complaint. Butler, 93 Mass. App. Ct. 83-89.
6
internal management or discipline of the adopting agency or any
other agency, and not substantially affecting the rights of or
the procedures available to the public or that portion of the
public affected by the agency's activities."
After the briefs in this case were submitted to the panel,
this court issued Haas v. Commissioner of Correction, 103 Mass.
App. Ct. 1 (2023). In Haas, supra at 2-3, we concluded that an
inmate complaint alleging that a standard operating procedure
(SOP) of the DOC was a regulation concerned more than the
internal management or discipline of DOC and stated a claim
sufficient to survive a motion to dismiss. The SOP at issue in
Haas, supra at 14-15, restricted disbursement of funds from
inmates' institutional accounts and "appear[ed] to substantially
affect[] the rights of all DOC inmates, who are certainly a
portion of the public affected by the agency's activities"
(quotations and citation omitted). We also noted that the SOP
"appear[ed] to substantially affect the procedures available to
inmates" (quotation and citation omitted). Id. at 15.
Here, as in Haas, the question is whether both the sex
offender management policy and PES may fall under the internal
management exemption. DOC inmates "are certainly a portion of
the public affected by the agency's activities" (quotation
omitted). Haas, 103 Mass. App. Ct. at 15, quoting G. L. c. 30A,
§ 1 (5) (b). In addition, the plaintiff, by claiming that he is
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subject to the loss of job, housing, and seniority privileges,
and that he has had possessions taken away, has alleged
sufficient facts to support an inference that the policies
substantially affect "the rights of or the procedures available"
to inmates. G. L. c. 30A, § 1 (5) (b). We therefore conclude
that portions of counts one, two, and five of the verified
complaint state a claim, sufficient to survive a motion to
dismiss, that the sex offender management policy and PES are
regulations, and not having been promulgated as such through
G. L. c. 30A procedures, are unenforceable.
Conclusion. So much of the judgment as dismissed the
portions of counts one, two, and five claiming that the sex
offender management policy and PES are invalid because they were
not promulgated as regulations under G. L. c. 30A is vacated,
and those aspects of counts one, two and five are remanded for
further proceedings. In all other respects, the judgment is
affirmed.
So ordered.
By the Court (Milkey,
Massing & Henry, JJ.7),
Clerk
Entered: August 31, 2023.
7 The panelists are listed in order of seniority.
8