Ivey v. Commissioner of Correction

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14-P-1262 Appeals Court
EUGENE M. IVEY & another1 vs. COMMISSIONER OF CORRECTION &
others.2
No. 14-P-1262.
Suffolk. May 4, 2015. - August 13, 2015.
Present: Grainger, Hanlon, & Carhart, JJ.
Imprisonment, Department disciplinary unit, Enforcement of
discipline. Administrative Law, Regulations. Due Process
of Law, Prison disciplinary proceedings. Practice, Civil,
Declaratory proceeding.
Civil action commenced in the Superior Court Department on
January 9, 2012.
The case was heard by Bonnie H. MacLeod, J., on motions for
summary judgment.
Bonita Tenneriello for the plaintiffs.
C. Raye Poole for the defendants.
CARHART, J. Plaintiffs Eugene M. Ivey and Francis Lang
appeal from a summary judgment in favor of the defendants on the
1
Francis Lang.
2
The deputy commissioner of the Department of Correction
and the superintendent of the Massachusetts Correctional
Institution at Cedar Junction.
2
plaintiffs' complaint for declaratory and injunctive relief.
The defendants are officials of the Department of Correction
(hereinafter, collectively, the DOC). The plaintiffs, who are
prisoners at the Massachusetts Correctional Institution at Cedar
Junction (MCI-Cedar Junction), sought a declaration that an
informal DOC policy regarding segregation in the departmental
disciplinary unit (DDU) violates the DOC inmate discipline
regulations (103 Code Mass. Regs. §§ 430.00, hereinafter,
regulations), and an order enjoining the DOC from enforcing the
policy. Because we conclude that the informal policy was
canceled as a matter of law by amendments to the regulations, we
vacate the judgment.
Background. The summary judgment record reflects the
following undisputed facts. The DDU is located on the grounds
of MCI-Cedar Junction. All inmates entering the DDU are
provided a "DDU Inmate Orientation Manual" (DDU manual), which
is updated annually.3 Once inmates arrive in the DDU, they
become subject to a policy (the policy) in the DDU manual:
"The DDU Administrator/designee shall initially review the
status of each inmate placed in the DDU within 30 days of
placement. Thereafter, each inmate's status shall be
reviewed every 30 days. An inmate will lose credit for
time served in DDU and loss of all pending and previously
earned privileges (i.e., TV, radio, visits, and telephone)
if he is found guilty of:
3
Every DDU inmate is given a new DDU manual when it is
updated.
3
 one Category 1 disciplinary report
 one Category 2 disciplinary report
 one Category 3 AND one Category 4 disciplinary
report
 two Category 3 disciplinary reports or
 two Category 4 disciplinary reports
"The loss of credit will occur for the review period in
which the report was written."
The policy previously had been codified at 103 Code Mass.
Regs. § 430.25(3)(d) (1993) ("An inmate shall be credited for
time served [in the DDU] on a monthly basis except when an
inmate fails to attend his monthly review or is found guilty of
a disciplinary offense"), and appeared in the 2002 version of
the DDU manual. However, in 2006, the DOC amended its
regulations in accordance with the Administrative Procedures
Act, G. L. c. 30A, §§ 2-6, and removed the language of the
policy. The policy nevertheless appeared in the 2008, 2009,
2010, 2011, and 2012 versions of the DDU manual. The practical
effect of the policy is that "no sanction is recommended when a
DDU inmate is found guilty of a disciplinary report/s as set
forth in the DDU Manual; rather, the sanction in the DDU Manual
is applied."
Both plaintiffs were sentenced to fixed terms in the DDU.
Following separate hearings before a special hearing officer,
Ivey received DDU sentences of ten years, one year, and six
months. While serving the ten-year sentence, Ivey had sixteen
4
review periods in which he incurred guilty findings on
disciplinary reports.4 For each disciplinary report, Ivey was
given notice of the charges, a hearing, and the chance to appeal
the guilty finding. Pursuant to the policy, he was denied one
month's credit toward his DDU sentence for each review period in
which he was found guilty of a disciplinary violation. Ivey's
release date from the DDU thus was extended by sixteen months.
Ivey filed a grievance regarding the denial of credit, arguing
that he was entitled under the regulations to a special hearing
before losing credit toward his DDU sentence. Ivey's grievance
was denied by the superintendent of MCI-Cedar Junction, whose
written decision stated that "[i]t is a condition of receiving
credit toward an existing DDU sentence that an inmate refrains
from disciplinary violations."
Lang received a six-year DDU sentence after a hearing
before a special hearing officer. While serving this sentence,
Lang had fourteen review periods in which he was found or
pleaded guilty to category two, three, and four disciplinary
reports. Lang had notice of, and an opportunity to participate
in, the hearings on each of these disciplinary reports, and he
was able to appeal the findings of guilt. Lang was sanctioned
with restitution for two of his disciplinary violations; he
received no sanction for the others. Instead, Lang was denied
4
Two of these resulted in the additional DDU sentences.
5
fourteen months of credit toward his DDU sentence, pursuant to
the policy. Lang did not file a grievance or appeal the denial
of credit.
In 2012, the plaintiffs filed in Superior Court a complaint
for declaratory and injunctive relief, alleging that the policy
violates the regulations and the plaintiffs' due process rights,
and is invalid because it constitutes a regulation adopted
without notice and comment as required by the Administrative
Procedures Act, G. L. c. 30A, §§ 2-6. Both parties moved for
summary judgment. Relying on footnote three of an unpublished
decision issued pursuant to our rule 1:28, Gaskins v. Marshall,
84 Mass. App. Ct. 1134 (2014), a judge allowed the DOC's motion
for summary judgment.5 The plaintiffs appeal "only the dismissal
of their claim that the Policy violates the Inmate Discipline
regulations."
Discussion. 1. Statutory framework. "The department has
promulgated detailed regulations governing disciplinary actions
in State correctional institutions." Kenney v. Commissioner of
5
In footnote three of Gaskins, the panel noted that 103
Code Mass. Regs. § 430.25(3)(d) (1993) was amended in 2006,
"leaving the treatment of DDU time to the discretion of prison
officials." The issue in Gaskins was whether extension of a DDU
sentence pursuant to 103 Code Mass. Regs. § 430.25(3)(d) (2006)
violated the inmate's due process rights. Citing Sandin v.
Conner, 515 U.S. 472, 482 (1995), we declined to consider the
changes to § 430.25(3)(d) "[b]ecause the prison policy was in
the discretion of the prison officials, and . . . the
requirements of due process were also satisfied."
6
Correction, 393 Mass. 28, 31 (1984). These regulations identify
four categories of disciplinary offenses for which inmates may
be sanctioned; category one and category two offenses are
considered the most serious, while category three and category
four offenses are considered minor. 103 Code Mass. Regs.
§ 430.24 (2006).6 "Sanctions for each Category 1 offense"
include "[r]eferral to [the DDU] for a period not to exceed ten
years for all violations arising out of one incident or
substantially related incidents," while sanctions for each
category two offense include referral to the DDU for a period
not to exceed five years. 103 Code Mass. Regs. § 430.25(1)(f)
and (2)(f) (2006). Inmates convicted of a category three or
category four offense may not be sentenced to DDU. 103 Code
Mass. Regs. § 430.25(3) and (4) (2006).
The regulations contain a specific procedure for initial
referrals to DDU, see 103 Code Mass. Regs. § 430.08 (2006), and
provide that, except for initial referrals to DDU, "disciplinary
matters which may result in the inmate receiving a sentence to a
[DDU] shall comply with the provisions of 103 CMR 430.00."
Ibid. Under those provisions, an inmate who has incurred a
disciplinary report is entitled to a copy of the report, a
notice of hearing, and automatic discovery regarding the alleged
6
Section 430.24 of 103 Code Mass. Regs. was amended,
effective November 14, 2014, but in a manner not relevant here.
7
violation(s). 103 Code Mass. Regs. § 430.11(1) (2006). A
hearing must be scheduled "within a reasonable time" after the
inmate has received notice of the charges. Ibid. A hearing
officer conducts the hearing, and "shall make findings of fact,
determine guilt or innocence, and make sanction
recommendations." 103 Code Mass. Regs. § 430.13(1) and (6)
(2006). The hearing officer "may recommend one or more of the
sanctions listed in 103 CMR 430.25," 103 Code Mass. Regs.
§ 430.16(2) (2006), but "[n]o more than one sanction shall be
imposed per offense and no more than five sanctions (in addition
to restitution) may be imposed for all offenses arising out of
[any one] or substantially related incidents in which the
highest offense(s) alleged is from Category 1." 103 Code Mass.
Regs. § 430.25(1) (2006).7 "All inmates may appeal the finding
or sanction(s) of the Hearing Officer to the Superintendent"
within fifteen days of receipt of a written decision, and the
deputy superintendent must review the disposition "within ten
7
"[N]o more than four sanctions (in addition to
restitution) may be imposed for all offenses arising out of [any
one] or substantially related incidents in which the highest
offense(s) alleged is from Category 2"; "no more than three
sanctions (in addition to restitution) may be imposed for all
offenses arising out of [any one] or substantially related
incidents in which the highest offense(s) alleged is from
Category 3"; and "no more than two sanctions (in addition to
restitution) may be imposed for all offenses arising out of [any
one] or substantially related incidents in which the highest
offense(s) alleged is from Category 4." 103 Code Mass. Regs.
§ 430.25(2)-(4) (2006).
8
business days of the conclusion of the appeal process, to ensure
that all procedural guidelines established in accordance with
103 CMR 430.00, have been complied with." 103 Code Mass. Regs.
§§ 430.18(1), 430.19 (2006).
2. Standards of review. Because they allege that the
policy violates DOC regulations, the plaintiffs properly brought
this action under the declaratory judgment act. See G. L.
c. 231A, § 2; Mass.R.Civ.P. 57, 365 Mass. 826 (1974); Nelson v.
Commissioner of Correction, 390 Mass. 379, 387-388 (1983); Royce
v. Commissioner of Correction, 390 Mass. 425, 426 (1983). To be
entitled to summary judgment on their challenge to the DOC's
policy, the plaintiffs bore the burden of demonstrating the
absence of a triable issue regarding whether "the [policy] is
'illegal, arbitrary, or capricious.'" Ciampi v. Commissioner of
Correction, 452 Mass. 162, 166 (2008), quoting from Borden, Inc.
v. Commissioner of Pub. Health, 388 Mass. 707, 722, cert.
denied, 464 U.S. 936 (1983). The plaintiffs rely on the 1995
regulations, the amended 2006 regulations, their statement of
undisputed facts with the DOC's response thereto, and their
affidavits to support their argument that enforcement of the
policy is (1) arbitrary and capricious in light of its removal
from the regulations; (2) illegal with respect to Ivey because
it has caused him to be held beyond the ten-year maximum
allowable time under the regulations for a single offense, and
9
has resulted in new DDU sentences in the form of denial of
credit without a DDU hearing; and (3) illegal with respect to
Lang because it has resulted in Lang receiving new DDU sentences
in the form of denial of credit for offenses that are not
sanctionable by the DDU, and without the special DDU hearing
required by the regulations.
As the party who would not bear the burden of proof at
trial, the DOC was required to "demonstrate[], by reference to
material described in Mass.R.Civ.P. 56(c), unmet by
countervailing materials, that the [plaintiffs had] no
reasonable expectation of proving an essential element of
[their] case." Kourouvacilis v. General Motors Corp., 410 Mass.
706, 716 (1991). The DOC relied on the pleadings, its responses
to the plaintiffs' statement of undisputed facts, the DDU
manual, and an affidavit from a correctional officer assigned to
the DDU to show that prison administrators are not precluded by
the regulations from enforcing the policy.
The judge allowed the DOC's motion for summary judgment,
and we review her decision de novo. Miller v. Cotter, 448 Mass.
671, 676 (2007). We look to the summary judgment record to
determine "whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
10
matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991).
3. Analysis. The dispositive issue is whether the
regulations promulgated in 2006 canceled the policy as a matter
of law. "The interpretation of a regulation is a question of
law which we review de novo," Commonwealth v. Hourican, 85 Mass.
App. Ct. 408, 410 (2014), applying "the traditional rules of
statutory construction," Young v. Patukonis, 24 Mass. App. Ct.
907, 908 (1987). "This is so because a properly promulgated
regulation has the force of law . . . and must be accorded all
the deference due to a statute." Borden, Inc., 388 Mass. at
723.
As with statutes, regulations "must be interpreted as
promulgated." Morin v. Commissioner of Pub. Welfare, 16 Mass.
App. Ct. 20, 24 (1983). "Words are to be accorded their
ordinary meaning and approved usage," Boston Hous. Authy. v.
National Conference of Firemen & Oilers, Local 3, 458 Mass. 155,
162 (2010), when "the language used constitutes the principal
source of insight into regulatory purpose." Morin, supra.
While "[o]rdinarily the interpretation of an administrative body
gives to its own regulation is entitled to deference and may be
controlling," ibid., the "duty of statutory interpretation rests
ultimately with the courts," Town Fair Tire Centers, Inc. v.
Commissioner of Rev., 454 Mass. 601, 605 (2009).
11
The regulations establish a system "governing disciplinary
proceedings involving inmates of state correctional
institutions." 103 Code Mass. Regs. § 430.01 (2006). The
regulations apply "to inmates housed at all correctional
institutions within the [DOC]," including those housed in the
DDU. 103 Code Mass. Regs. § 430.04 (2006). Initial referrals
to the DDU are governed by the procedures set forth at 103 Code
Mass. Regs. § 430.08(1)-(6) (2006), and except for violations
that would result in an initial referral to the DDU,
"disciplinary matters which may result in the inmate receiving a
sentence to a [DDU] shall comply with the provisions of 103 CMR
430.00."8 103 Code Mass. Regs. § 430.08 (2006). Thus, under the
plain language of the regulations, all disciplinary matters not
involving initial referral to the DDU, including those involving
DDU inmates, must comply with the regulations.
Under the regulations, sanctions for each category of
offense "are as follows" (emphasis supplied). 103 Code Mass.
Regs. § 430.25 (2006). Denial of credit is not listed as a
8
The parties dispute whether denial of credit pursuant to
the policy constitutes a new DDU sentence. The plaintiffs argue
that it does, because "[a]n additional month in the DDU . . .
feels exactly the same to the prisoner, whether it is called a
'sanction,' an 'extension' or the 'denial of credit.'" The DOC
argues that it does not, because "[i]t is a condition of
receiving credit toward an existing DDU sentence that an inmate
refrains from disciplinary violations." Resolution of this
disputed fact is not required, as it is not material to the
question whether the policy was canceled when the DOC amended
its regulations.
12
sanction, yet it is undisputed that none of the sanctions set
forth in the regulations "is recommended when a DDU inmate is
found guilty of a disciplinary report/s as set forth in the DDU
Manual; rather, the sanction in the DDU Manual [of mandatory
denial of credit] is applied." Thus, DDU inmates like Lang who
have been convicted of category three and four offenses are not
sanctioned pursuant to 103 Code Mass. Regs. § 430.25(3) and (4)
(2006), as required by the regulations, but are denied credit
toward their DDU sentence pursuant to the policy and must stay
in the DDU for one extra month, notwithstanding the fact that
DDU is not a permissible sanction for category three and four
offenses.
Inmates like Ivey who have received the maximum DDU
sanction allowable under the regulations for a single category
one offense are not sanctioned under the regulations for
committing subsequent disciplinary violations; instead they are
denied credit toward their maximum sentence. This effects a
sanction longer than that permitted under the regulations
because "[p]enalties for violation of the terms of [confinement
in the DDU], including the penalty of additional [time in the
DDU for subsequent violations], are attributed to the original
[DDU sentence] rather than to the violation." Commonwealth v.
Cory, 454 Mass. 559, 564 (2009). Because these undisputed facts
demonstrate that the policy conflicts with the plain language of
13
the regulations, the policy was canceled as a matter of law by
the regulations. 103 Code Mass. Regs. § 430.03 (2006)
(regulations effective January 30, 2006, "cancel[] all previous
departmental or institutional policy statement [and] rules or
regulations . . . regarding the conduct of disciplinary
proceedings, to the extent they are inconsistent with 103 CMR
430.00").
The DOC argues that it is not precluded by the regulations
from enforcing the policy because the "provision regarding
losing credit/not being credited was in the DDU Manual and/or
the DDU Handbook for many years prior to promulgation of the
2006 version of the regulation." The DOC further points to the
policy's inclusion in the 2008 through 2012 versions of the DDU
manual as evidence that enforcement of the policy is not
precluded. The motion judge agreed that the DOC could continue
to enforce the policy because it "merely fills in certain
details concerning the handling of disciplinary matters that
occur in the DDU." See Massachusetts Gen. Hosp. v. Rate Setting
Commn., 371 Mass. 705, 707 (1977) (agencies may issue advisory
or informational guidelines intended "to fill in the details or
clear up an ambiguity of an established policy").
We recognize that "courts permit prison administrators
considerable discretion in the adoption and implementation of
prison policies." Royce, 390 Mass. at 427. "However, the
14
limits of such discretion are established by the rules and
regulations promulgated by the Department of Correction." Ibid.
DOC regulations carry the force of law and are binding, Dougan
v. Commissioner of Correction, 34 Mass. App. Ct. 147, 148
(1993), "and the defendants are required to comply with their
terms," Stokes v. Commissioner of Correction, 26 Mass. App. Ct.
585, 588 (1988). Agency guidelines are not entitled to
deference if they misapply the law, Metropolitan Prop. & Cas.
Ins. Co. v. Blue Cross & Blue Shield of Mass., Inc., 451 Mass.
389, 397 (2008), and the law in this case creates a detailed
system for handling disciplinary violations by inmates,
including DDU inmates, that does not include denying them credit
toward their DDU sentences. "Once an agency has seen fit to
promulgate regulations, it must comply with those regulations."
Royce, supra. The DOC "exercised its discretion and changed its
policy" to remove denial of credit as a permissible sanction for
disciplinary violations by DDU inmates, John Donnelly & Sons,
Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 213 (1975), and
it then was "bound by the mandate of its own regulations," Good
v. Commissioner of Correction, 417 Mass. 329, 332 (1994). The
DOC must comply with its regulations "not only to make the
process of imposing discipline on prison inmates more fair, but
to assure the inmates and the public of the integrity of the
process." Stokes, supra at 591. Only "[w]ith these procedural
15
safeguards in place [does] DDU's disciplinary process comport[]
with the requirements of the Fourteenth Amendment." Torres v.
Commissioner of Correction, 427 Mass. 611, 618, cert. denied,
525 U.S. 1017 (1998). The DOC's prior approval of the policy
"is of no consequence" in light of the amendments to the
regulations, John Donnelly & Sons, Inc., supra; the regulations
promulgated in 2006, "as the last expression of the [DOC],
control[]." Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215
(1997). "[I]ndividuals within the agency may not arbitrarily
disregard agency regulations to the prejudice of a party's
rights," Kenney, 393 Mass. at 33, and the DOC's continued
enforcement of the policy notwithstanding its removal from the
regulations "lead[s] to results which are both arbitrary and
inequitable." Kszepka's Case, 408 Mass. 843, 847 (1996).
Accordingly, the policy cannot stand.9
Conclusion. The declaratory judgment in favor of the DOC
is vacated. A new judgment shall enter stating that the policy
conflicts with the regulations and was canceled as a matter of
law in 2006. Furthermore, the judgment shall enjoin the DOC
from violating the regulations by denying a DDU inmate credit
toward his DDU sentence upon conviction of disciplinary
9
Gaskins does not require a different result, as the issue
presented in that case was not whether the policy is arbitrary
or illegal in light of the 2006 amendments to the regulations,
but whether 103 Code Mass. Regs. § 430.25(3)(d) (1995), effected
a deprivation of liberty without due process of law.
16
violations. The case is remanded for further proceedings
consistent with this opinion.
So ordered.