Shea v. Department of Correction

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22-P-227 Appeals Court
SHAWN SHEA vs. DEPARTMENT OF CORRECTION & others.1
No. 22-P-227.
Suffolk. February 14, 2023. - September 18, 2023.
Present: Henry, Shin, & Hodgens, JJ.
Imprisonment, Enforcement of discipline. Mail. Intent.
Evidence, Intent. Administrative Law, Prison disciplinary
proceeding, Substantial evidence. Practice, Civil, Action
in the nature of certiorari.
Civil action commenced in the Superior Court Department on
October 14, 2021.
The case was heard by Rosemary Connolly, J., on motions for
judgment on the pleadings.
Matthew J. Koes for the plaintiff.
Connor C. Tarr for the defendants.
Joel Thompson, for Harvard Prison Legal Assistance Project,
amicus curiae, submitted a brief.
HENRY, J. This case raises the question whether an
inmate's acceptance of what appeared to be legal mail can
1 Commissioner of Correction and the superintendent of the
Massachusetts Correctional Institution, Norfolk.
2
constitute sufficient evidence that the inmate intended to
introduce contraband contained therein into the facility. The
plaintiff, Shawn Shea, an inmate at the Massachusetts
Correctional Institution, Norfolk (MCI-Norfolk), brought this
suit against officials of the Department of Correction
(department) seeking injunctive relief and certiorari review of
a department disciplinary decision. He now appeals from a
Superior Court judgment dismissing the complaint on the parties'
cross motions for judgment on the pleadings. We reverse.2
Background. We summarize the pertinent facts, which are
not in dispute. On June 19, 2021, MCI-Norfolk received
correspondence addressed to the plaintiff. The mailing address
included typographical and capitalization errors.3 The return
address, to the "Law office of Robert Berk," contained similar
errors and listed a telephone number. In accordance with 103
Code Mass. Regs. § 481.11 (2022), Inner Perimeter Security (IPS)
Officer Joshua Malonson allowed the plaintiff to view the
envelope before signing for it; this meant that the plaintiff
was given the opportunity to review the exterior of the
2 We acknowledge the amicus curiae brief submitted by the
Harvard Prison Legal Assistance Project.
3 Specifically, the street name, the city name, and the
abbreviation for Massachusetts were not capitalized, and there
were no spaces between the street number and name and between
the city and the abbreviation for Massachusetts.
3
correspondence, including the mailing and return addresses.
After the plaintiff reviewed the exterior of the correspondence,
he acknowledged receipt of it by signing a legal mail
confirmation form.4
Malonson then opened the envelope. Its contents included a
golden-colored envelope containing a letter purporting to be
from the "Anthony F Clune &Robert Berk Law Office," which
referenced a court case against a different individual, and a
printout of a decision of this court in that matter. Malonson
reported that "[t]he paper[s] appeared to have been previously
wet and dried." The correspondence was secured and brought to
the IPS office for further inspection and was tested using a
"NARK II field test," which returned a positive result for
synthetic cannabinoids, a controlled substance. The department
investigated the correspondence to determine who sent it. The
department contacted Clune, who stated that he did not represent
the plaintiff and had never worked with an attorney named Robert
4 The legal mail confirmation form consisted of fields
calling for an inmate's printed name and signature, the date
when the inmate was notified of the arrival of the mail, the
date when the inmate picked up the mail, and the inmate's
commitment number.
4
Berk.5 The department's search for Robert Berk revealed a
retired attorney, Robert Berks,6 who resides out of State.
The plaintiff was moved to the restrictive housing unit,
where he was placed on "awaiting action status" until the
issuance of the disciplinary report. On June 29, 2021, the
plaintiff signed a waiver relinquishing his opportunity to have
a confirmation test performed on the initial results of the NARK
II field test. By waiving this opportunity, the plaintiff
acknowledged that he understood that the initial test could be
used as evidence against him in a disciplinary proceeding.
A disciplinary hearing took place on July 15, 2021, before
a hearing officer. The plaintiff represented himself and did
not request any witness testimony. His defense was that there
was nothing connecting him to the lawyers referred to in the
legal mail or the area in Massachusetts from which the mail was
sent. He explained at the hearing that he had previously
received letters from unknown attorneys and he does not know who
5 The Board of Bar Overseers' (BBO) website lists only one
attorney with the name Anthony Clune.
6 It is unclear whether the different spellings are the
result of a typographical error or whether the attorney who the
department discovered was a different person from the one listed
on the return address. The BBO website lists Robert J. Berks as
a retired attorney and has no listing for a Robert Berk.
5
the lawyers are until he receives the first letter from them.7
In a written decision, the hearing officer found, by a
preponderance of the evidence, that the plaintiff was guilty of
both the attempt to introduce and the introduction of a
controlled substance into the facility, with all other charges
being dismissed as either duplicative or unsupported by the
record.8 The hearing officer considered Malonson's "written
report . . . in conjunction with the legal mail confirmation
7 This is consistent with the policy of the Committee for
Public Counsel Services. See, e.g., Committee for Public
Counsel Services, Assigned Counsel Manual Policies and
Procedures, Performance Standards Governing Representation of
Indigents in Criminal Cases, § 4.B.1.c.iii ("the attorney must:
(1) write to the client within three business days of receiving
the assignment and advise the client that s/he has been assigned
to the representation"); Performance Standards Governing
Representation of Clients on Criminal Appeals Post-Conviction
Matters, § 4.F.2 ("Immediately upon receipt of the assignment
. . . [the appellate defender must] communicate with the client
to inform the client of the assignment") (June 12, 2023),
https://www.publiccounsel.net/wp-content/uploads/2023/06
/Assigned-Counsel-Manual-4.pdf [https://perma.cc/B7TG-RDBU].
8 The plaintiff was charged with: "Introduction,
distribution or transfer of any narcotic, controlled substance,
illegal drug, unauthorized drug or drug paraphernalia";
"Attempting to commit any of the above offenses"; "Unauthorized
use or possession of drugs . . . unauthorized drugs or drug
paraphernalia"; "Conduct which interferes with the security or
orderly running of the institution"; "Attempting to commit any
of the above offenses"; "Receipt or possession of any contraband
of items not authorized for retention by inmates"; "Conduct
which disrupts the normal operation of the facility or unit";
"Attempting to commit any of the above offenses"; "Receipt or
possession of contraband"; "Use of mail or telephone in
violation of established regulations"; "Violating any
departmental rule or regulation . . . of an institution"; and
"Attempting to commit any of the above offenses."
6
form, available photos, field test, photocopies, emails and the
[plaintiff]'s statement."9 The hearing officer found:
"The legal mail confirmation form and disciplinary report
confirm the [plaintiff]'s admission that he did sign for
the mail. The photos, field test and photocopies confirm
the items . . . did contain synthetic cannabinoids as
indicated by the field test. The email shows that the
attorney confirms he did not represent [the plaintiff] and
that the attorney has no connection to the attorney listed
on the return address. The [plaintiff] does not dispute
signing for the legal mail . . . [and] acknowledges that he
did have an opportunity to view the legal mail prior to
signing for the item."
As a result of the guilty finding, the plaintiff was ordered to
undergo and pay for two years of mandatory substance abuse
monitoring at a cost of $288 and suffered a loss of canteen
privileges for 120 days.
The plaintiff appealed the decision to the superintendent
of MCI-Norfolk pursuant to 103 Code Mass. Regs. § 430.18(1)
(2019). After the superintendent denied the appeal, the
plaintiff filed a complaint in the Superior Court, pursuant to
G. L. c. 249, § 4, seeking injunctive relief and certiorari
review. On cross motions for judgment on the pleadings, the
motion judge issued a judgment denying the plaintiff's motion,
allowing the motion filed by the department and affirming the
disciplinary decision of the department. This appeal followed.
9 The reporting officer was present for the hearing but did
not testify.
7
Discussion. Prisoners may challenge the adverse findings
of a disciplinary board through an action in the nature of
certiorari pursuant to G. L. c. 249, § 4. "Our review of a
disciplinary proceeding is based on whether the record contains
substantial evidence to support the hearing officer's decision."
Puleio v. Commissioner of Correction, 52 Mass. App. Ct. 302, 305
(2001). Substantial evidence is evidence that "a reasonable
mind might accept as adequate to support a conclusion, . . .
taking into account whatever in the record fairly detracts from
the weight of the evidence" (citation and quotation omitted).
Cepulonis v. Commissioner of Correction, 15 Mass. App. Ct. 292,
296 (1983).
The court may not displace the hearing officer's "exclusive
function to weigh the credibility of the witnesses and to
resolve factual disputes" in the testimony. Cepulonis, 15 Mass.
App. Ct. at 295. However, we need not defer to the hearing
officer's decision "[w]here the evidence is so limited and
problematic" that it cannot support such a decision. Jordan v.
Superintendent, Mass. Correctional Inst., Cedar Junction, 53
Mass. App. Ct. 584, 589-590 (2002).
The department argues that the hearing officer's decision
was supported by substantial evidence. The department points to
the plaintiff's acceptance of the mail after observing the
errors in the return and mailing addresses, arguing that they
8
were "obvious red flags as to the legal mail's authenticity,"
and the fact that the plaintiff admits he had no connection to
the attorney named on the return address. The department also
argues that the plaintiff had the opportunity to decline the
legal mail if he did not know the sender. The department
contends that the "best-case scenario is that [the plaintiff] is
agreeing to take possession and control of an unknown package
with the hope that it contains contraband."
The plaintiff challenges the sufficiency of the evidence,
arguing that mere acceptance of the mail was insufficient to
constitute substantial evidence to support the hearing officer's
conclusion that the plaintiff intended to introduce contraband
into the facility. As the plaintiff contends, while the
plaintiff was able to view the outside of the envelope before he
accepted it, the department presented no evidence that the
plaintiff was able to inspect its contents before signing for
it. We thus agree that this circumstance is insufficient to
show that he intended to introduce contraband into the facility.
It is true that an inmate's knowledge and intent to
exercise dominion and control over an item of contraband can be
inferred from possession. See Puleio, 52 Mass. App. Ct. at 306
(concluding that hearing officer's decision was supported by
substantial evidence where contraband was discovered in inmate's
jacket pocket); Cepulonis, 15 Mass. App. Ct. at 294 (knowledge
9
and control over contraband could be inferred from discovery of
contraband in inmate's cell, which he had occupied for two and
one-half months). However, mere acceptance of privileged mail
does not constitute sufficient evidence that an inmate knowingly
attempted to introduce contraband into the facility.10 See
Jordan, 53 Mass. App. Ct. at 588-589 (finding insufficient
evidence of plaintiff's knowledge of or control over piece of
metal concealed in newspaper that was deposited in plaintiff's
cell by another inmate). Compare Puleio, 52 Mass. App. Ct. at
305-306 (substantial evidence found where inmate "admi[tted]
that he probably brought the [contraband] with him from his
confinement" at another facility); Cepulonis, 15 Mass. App. Ct.
at 294 (substantial evidence found where inmate "admi[tted] to
possession of . . . other contraband discovered"). The hearing
officer essentially concluded that, because the plaintiff did
not reject the mail, he arranged for it to be sent to him or
hoped it contained contraband. Knowledge cannot be imputed to
the inmate without some evidence, such as an admission to such
10The department's current standard operating procedure,
amended in July 2022, acknowledges as much, by providing that
"[a]n inmate's decision to decline to sign for, or decision to
accept, privileged mail, standing alone, shall not constitute
sufficient evidence that the inmate attempted to introduce
contraband" (emphasis added). Department of Correction Standard
Operating Procedure (SOP) for Privileged Mail § VI(c) (July
2022), https://www.mass.gov/doc/481-sop-privileged-mail
/download [https://perma.cc/LFD4-G6S2].
10
an arrangement or some other circumstantial evidence. Disbelief
of the plaintiff's statement is not affirmative evidence to the
contrary. See New Boston Garden Corp. v. Assessors of Boston,
383 Mass. 456, 472 (1981). Requiring inmates to reject mail
from an attorney who is unknown to them or because the envelope
has typographical errors, lest they risk discipline for
accepting the contents, raises serious concerns with an inmate's
constitutional right to counsel.11
The judgment in favor of the department is vacated. Within
thirty days of the issuance of the rescript, the department will
inform the judge of the Superior Court whether it proposes to
reinstate a hearing before the disciplinary board to offer
additional proof. See Jordan, 53 Mass. App. Ct. at 590;
Wightman v. Superintendent, Mass. Correctional Inst., Walpole,
19 Mass. App. Ct. 442, 447 (1985). If not, the plaintiff may
11While there were typographical errors on the outside of
the envelope, no evidence was produced to indicate that the
plaintiff should have known it was not sent from an attorney or
that the contents contained drugs. Regardless, the hearing
officer did not make a finding about the typographical errors or
rely on them in her decision. Nor did the underlying
disciplinary report mention the typographical errors. We review
an agency decision based on the reasons given in that decision,
not reasons supplanted by counsel on judicial review. See John
Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender
Registry Bd., 98 Mass. App. Ct. 307, 313 (2020), quoting
Department of Homeland Sec. v. Regents of the Univ. of Cal., 140
S. Ct. 1894, 1909 (2020) ("The basic rule . . . is clear: An
agency must defend its actions based on the reasons it gave when
it acted").
11
move for relief, including expungement of the disciplinary
report, the hearing officer's decision, and all references
thereto.12
So ordered.
12The plaintiff also argues that the hearing officer's
findings were not supported by substantial evidence because the
department could not prove the reliability of the NARK II field
test or that Malonson was qualified to administer the NARK II
test. In a 2021 Superior Court decision, Green vs.
Massachusetts Dep't of Correction, Mass. Super. Ct., No.
2184CV02283-C (Suffolk County Nov. 30, 2021), a judge found that
"the NARK II Test, by itself, is a highly unreliable means of
determining whether a particular mail item actually contains any
illicit synthetic cannabinoids." Our decision does not turn on
the reliability of the NARK II test, and we take no position
with respect to the merits of that matter. We do note that the
department's current SOP, as amended in July 2022, states that
no inmate may be disciplined "for introduction of contraband
until a test from an outside laboratory is conducted and returns
a positive result regarding the privileged mail, and sufficient
evidence exists that the inmate attempted to introduce
contraband." Department of Correction SOP for Privileged Mail,
§ VI(b).