WRIGHT v. DEMOURA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Edward G. Wright, brought this action for declaratory, equitable, and injunctive relief, as well as money damages, alleging emotional distress and violation of his State and Federal constitutional due process rights ⁴ arising out of his placement in the special management unit (SMU) at the Massachusetts Correctional Institution at Concord (MCI-Concord). A Superior Court judge allowed the defendants' motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). We vacate the judgment.

Discussion. The defendants argued that the plaintiff's complaint failed to state a claim upon which relief may be granted. The judge dismissed the claims for declaratory, equitable, and injunctive relief on the basis that they were moot, since the plaintiff had been transferred out of MCI-Concord. The judge dismissed the claims for money damages on the basis that the defendants were protected by qualified immunity.

1. Declaratory, equitable, and injunctive claims. Although the plaintiff is no longer subject to the conditions of confinement within the SMU at MCI-Concord, he remains incarcerated. He may, therefore, be subject to retransfer. See Cantell v. Commissioner of Correction, 475 Mass. 745, 754 n.17 (2016) (prisoners' complaints regarding conditions in SMU not mooted by transfer out of SMU where they remained incarcerated and therefore risked return to SMU conditions). In moving to dismiss the complaint, the defendants failed to establish, or even allege, that the plaintiff would not be returned to the SMU at some point during his incarceration. See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 299 (1975) (in establishing mootness of claim, “defendant bears a heavy burden of showing that there is no reasonable expectation that the wrong will be repeated”). These claims should not have been dismissed as moot.

2. Claims for money damages. The judge dismissed the defendants' claims for money damages because the complaint alleged conduct by the defendants in their official capacity and because “[t]here is no evidence to suggest that a reasonable official would have recognized their conduct as unlawful.” As a result, the judge ruled that the defendants were protected by qualified immunity. Although it is unclear what “conduct” the judge was referencing, the plaintiff's complaint, if viewed in the light most favorable to him, see Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011), alleges conduct constituting violations of clearly established rights. See LaChance v. Commissioner of Correction, 463 Mass. 767, 777 (2012) (government officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”).

The plaintiff alleged that he was placed in the SMU in “awaiting action status” on April 29, 2016, and that he remained there on that status through January 9, 2017, a period of more than eight months. He also alleged that his conditions of confinement in the SMU were similar to conditions in the departmental segregation unit (DSU) including solitary confinement within a cell, with release into an outdoor cage for one hour per day on weekdays. According to the plaintiff's complaint, he refused placement in general population at MCI-Concord because he feared for his safety, so much so that he refused to provide any details about that fear to the defendants. Although he received informal reviews in which he was informed that he would remain in the SMU until he agreed to enter general population, he never received a hearing at which he could contest the determination. He also was not afforded the procedural protections under 103 Code Mass. Regs. §§ 421.00 (1994), applicable to DSU confinement.

In 2012, the Supreme Judicial Court held that a prisoner in awaiting action status within an SMU was entitled to, among other things, “a hearing at which he may contest the asserted rationale for his confinement.” Id. at 776-777. Additionally, as early as 2002, the Supreme Judicial Court held that “as a matter of due process, ‘the procedural protections contained in 103 CMR 421 must be afforded to all prisoners before they are housed in DSU-like conditions.” Cantell, 475 Mass. at 750, quoting Haverty v. Commissioner of Correction, 437 Mass. 737, 760 (2002).⁵ Thus, the plaintiff's complaint sufficiently alleged a violation of his State and Federal constitutional rights which had been clearly established by the time of his confinement in the SMU in 2016.

The defendants contend that it was not clearly established that such due process rights applied under the particular circumstances of this case, i.e., the plaintiff's refusal to enter general population.⁶ Yet, the cases set forth no such exception. See Haverty, 437 Mass. at 763 (DSU regulations “must be afforded to all prisoners before they are housed in DSU-like conditions ․ subject only to the exception ․ [where] there is no expectation that they will remain at that facility”). See also LaChance, 463 Mass. at 776-777 (“an inmate confined to administrative segregation on awaiting action status, whether such confinement occurs in any area designated as an SMU, a DSU, or otherwise, is entitled, as a matter of due process, to notice of the basis on which he is so detained; a hearing at which he may contest the asserted rationale for his confinement; and a posthearing written notice explaining the reviewing authority's classification decision”). Although the defendants may well be able to establish a qualified immunity defense following discovery, at this stage the allegations in the complaint are sufficient to withstand a motion to dismiss for failure to state a claim. See Golchin, 460 Mass. at 223. These claims should not have been dismissed on the ground of qualified immunity at this stage.

Judgment vacated.

FOOTNOTES

4.   The plaintiff initially alleged cruel and unusual punishment as well but withdrew this claim.

5.   The defendants contend that this holding is applicable only to a State due process claim and that the plaintiff waived this claim by narrowing his arguments on appeal. We reject the waiver argument. The plaintiff's complaint plainly alleged State as well as Federal due process violations, as the judge acknowledged. In challenging the judge's ruling on appeal, the plaintiff was not required to reassert each of the claims in his complaint. There was no waiver. The defendants additionally claim that Cantell cannot be relied upon because the litigation is ongoing. In Cantell, the Supreme Judicial Court remanded the case to allow the plaintiffs to pursue their claim that, as prisoners confined to the SMU, they were entitled to the protections of the DSU regulations. 475 Mass. at 756. The case was remanded, not because it was an open question whether prisoners kept in DSU-like conditions were entitled to DSU regulation protection. That question was answered by Haverty in the affirmative. 437 Mass. at 763. Rather, the case was remanded because the question whether the plaintiffs had, in fact, been subjected to DSU-like conditions had not been established as a matter of fact. See Cantell, supra at 756 n.21 (no findings of fact had been made).

6.   Although the defendants characterize the plaintiff's housing in the SMU as “self-imposed,” we do not view the plaintiff's complaint as suggesting that he sought to be housed in the SMU.