RIVA v. MASSACHUSETTS PAROLE BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, James Riva, appeals from a Superior Court judgment dismissing his complaint challenging the Parole Board's (board) decision to deny his petition for parole. On appeal, the plaintiff contends the motion judge improperly allowed the board's motion for judgment on the pleadings because the board's decision relied on false evidence and he was improperly denied discovery. We affirm.

Motion for judgment on the pleadings. “We review de novo the judge's order allowing a motion for judgment on the pleadings under rule 12(c).” Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600 (2010). The plaintiff's amended complaint sought certiorari review of the board's decision under G. L. c. 249, § 4.³ As such, the plaintiff was required to show that the board's decision to deny his petition for parole was “arbitrary or capricious, unsupported by substantial evidence, or otherwise an error of law.” Crowell v. Massachusetts Parole Bd., 477 Mass. 106, 109 (2017). The plaintiff's principal complaint is that the board erred by basing its decision, in part, on false evidence that he posted threatening material on the Internet while incarcerated.⁴ Although the plaintiff admits to posting material on the Internet, he disputes that the material was threatening.

We discern no error. Contrary to the plaintiff's assertions, the board did not base its decision on the plaintiff posting threatening material on the Internet. Although the board's decision recites that the plaintiff's family members described the material as threatening, the board's own descriptions of the material were appropriately more reserved.⁴ The board explained that the Internet material “displayed continued hostility toward his mother and other family members” and was “of significant concern, especially in light of his insistence that he was the victim of horrific abuse at the hands of his mother.”⁵ This is a fair description of the Internet material, which the plaintiff has reproduced for this court. The board was permitted to consider the Internet material, even if it was not threatening in nature, in determining whether the plaintiff was suitable for parole. See Greenman v. Massachusetts Parole Bd., 405 Mass. 384, 387 (1989) (“[T]he board itself has the authority to evaluate the record before it, and its determination is granted considerable deference”). As the board explained, the hostile Internet material was particularly relevant when viewed in connection with the plaintiff's admission that he had previously threatened (prior to 2009) his mother while incarcerated.⁷

Discovery. The plaintiff also complains he was improperly denied discovery. Although initially denied, a second motion judge allowed the plaintiff's motion for reconsideration seeking discovery “to the extent that the administrative record shall reflect the evidence relied upon by the parole board to issue its decision.” The plaintiff subsequently filed a motion to compel seeking production of alleged threatening statements he made and a copy of the testimony and identities of those who testified against him. A third motion judge denied the motion on the grounds that the discovery sought was privileged and not the basis for the board's decision. The motion was properly denied. To the extent this motion sought letters submitted by his family members in opposition to his parole, the board was entitled to rely on and maintain those letters in confidence.⁸ See G. L. c. 127, § 130 (parole board record of decision “shall be available to the public except for such portion thereof which contains information upon which said decision was made which said information the board determines is actually necessary to keep confidential to ․ protect anyone from physical harm. ․”); 120 Code Mass. Regs. § 400.01 (2017) (“Statements submitted by a victim, whether oral, written, or electronically recorded ․ may be kept confidential if necessary to protect anyone from harm ․”). See also G. L. c. 258B, § 1 (victim includes family members of deceased person); 120 Code Mass. Regs. § 100.00 (2017) (definition of victim includes “[a] person defined as a victim by [G. L. c.] 258B, § 1 ․”). Even assuming, which we do not decide, the second motion judge had ordered production of the letters, the third motion judge had the authority to reconsider the ruling. Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 465-466 (2003) (“[T]he power to reconsider an issue remains in the court until final judgment”). To the extent that the motion sought the material the plaintiff posted on the Internet, it appears that it was already provided to him and he continues to have access to that material.⁹

Judgment affirmed.

FOOTNOTES

3.   The plaintiff's first complaint sought review under G. L. c. 30A. The complaint was amended to instead seek certiorari review and a declaratory judgment. The declaratory judgment count was dismissed and is not at issue on appeal.

4.   We also reject the plaintiff's argument that it was arbitrary or capricious to not credit a Department of Correction assessment that indicated the plaintiff had a low risk of recidivism and violence. The board's decision makes no reference to the particular assessment so we are unaware whether it was credited. The board's decision does, however, describe in detail the plaintiff's instructional history, including information favorable to the plaintiff. Although the board was entitled to consider the assessment, it did not compel a decision in favor of the plaintiff.

5.   We agree with the plaintiff that the motion judge erroneously attributed the source of the board's statement that testimony was provided about alleged threatening letters to the plaintiff's own testimony at the board hearing. As the board stated twice (and more clearly in the second instance), the board's view was that family members provided information alleging he posted threatening messages directed towards his mother on the Internet.

6.   The Internet material comprised only a portion of the basis for board's decision. The board's decision reflects a consideration of, and was supported by, several relevant factors including the plaintiff's criminal, institutional, and psychiatric history, as well as the facts of the offense for which he was convicted. See G. L. c. 127, § 130; 120 Code Mass. Regs. § 300.05 (2017).

7.   The plaintiff's brief addressed the issues relating to the allowance of the motion for judgment on the pleadings through the lens of judicial bias. Having reviewed the materials submitted, including the transcript of the hearing before the motion judge on the motion for judgment on the pleadings, we discern no basis to substantiate the plaintiff's claim of judicial bias. See Clark v. Clark, 47 Mass. App. Ct. 737, 739 (1999) (“The mere fact that a party suffers adverse rulings during litigation does not establish lack of judicial impartiality”).

8.   We reject the plaintiff's argument that consideration of these letters violated his constitutional rights. See Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 18 (2015) (“In general, there is no constitutionally protected liberty interest in a grant of parole”). The plaintiff's request that this court directly report those constitutional issues to the Supreme Judicial Court is without basis and is denied. See G. L. c. 211A, § 12. See also Mass. R. A. P. 11, as appearing in 481 Mass. 1623 (2019); Mass. R. A. P. 27.1, as appearing in 481 Mass. 1657 (2019).

9.   To the extent that we have not specifically addressed other points in the plaintiff's brief, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).