SHEDLOCK v. DEPARTMENT OF CORRECTION (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Paul F. Shedlock appeals from a judgment of the Superior Court dismissing his complaint, and declaring that a provision of the Massachusetts Treatment Center's (MTC's) property policy, 103 MTC § 403.07(A) (MTC policy), is not invalid for failing to comply with the notice and hearing provisions of the Administrative Procedure Act (APA). See G. L. c. 30A, §§ 2, 3. Shedlock, who was confined to the MTC as a sexually dangerous person, see Commonwealth v. Shedlock, 58 Mass. App. Ct. 445 (2003), contends that the Department of Correction (department) improperly confiscated his word processor and hot pot pursuant to the MTC policy. On appeal, he maintains that (1) the department violated the notice and hearing provisions of G. L. c. 30A when it allowed the MTC to adopt the policy; (2) the property fell within a clause in the MTC policy and the department's regulations that permitted him to retain the items; and (3) the confiscation amounted to a taking in violation of his constitutional rights.² We affirm.

Discussion. “We review the allowance of a motion to dismiss de novo.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). We recite the facts as the judge summarized them under the appropriate standard. “What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).³

1. Regulation vs. policy. Shedlock contends that the MTC's policy was a regulation improperly amended without adherence to the requirements of G. L. c. 30A, §§ 2 and 3.⁴ However, because the MTC's inmate property policy concerns internal management procedures alone, the policy is not a regulation, and the notice and hearing provisions of the statute do not apply. See G. L. c. 30A, § 1 (5) (b); Commonwealth v. Trumble, 396 Mass. 81, 88-89 (1985) (where State police guidelines for roadblocks only govern State troopers, they concern internal management and are not regulation).⁵ Compare Carey v. Commissioner of Correction, 479 Mass. 367, 372-374 (2018) (facility policy which impacts visitors as members of public is regulation).

2. Legacy policy. Shedlock's contention that he was authorized to retain the items under a look-back provision in the MTC policy is similarly unavailing. Although the policy does provide for sexually dangerous persons committed prior to February 3, 1997, to retain certain items including word processors and typewriters with memory, that exception does not apply to Shedlock, who was committed to the MTC on December 10, 2002.⁶ Rather, the department's regulations which prohibit “[t]ypewriters ․ hav[ing] a memory feature or text storing capacity,” apply to Shedlock. 103 Code Mass. Regs. § 403.10(5)(h) (2001). Shedlock does not contend that the regulation was established in violation of G. L. c. 30A, or that the MTC policy conflicts with the regulation. Contrast Ivey v. Commissioner of Correction, 88 Mass. App. Ct. 18, 19 (2015). “As with statutes, regulations must be interpreted as promulgated. Words are to be accorded their ordinary meaning and approved usage” (citations and quotations omitted). Id. at 23. Neither the policy nor the regulation authorized Shedlock to retain the confiscated items.

3. Takings. Shedlock contends that the takings clause of art. 10 of the Declaration of Rights of the Massachusetts Constitution grants him the right to receive reasonable compensation for the confiscated word processor and hot pot.⁷ This argument fails because no taking occurred. Shedlock was given the option to have his property retrieved by a visitor, mailed to an address, or “disposed of as seen fit by the institution.” 103 Code Mass. Regs. § 403.14(1) (2001).⁸ He elected to have the property disposed of.

Consequently, Shedlock did not suffer a per se taking, because the “physical appropriation” of his property -- through disposal by the MTC -- was one to which Shedlock consented. See Fitchburg Gas & Elec. Light Co. v. Department of Pub. Utils., 467 Mass. 768, 779 (2014) and cases cited. Nor did the confiscation effect a regulatory taking, because Shedlock was offered “adequate remedies” under 103 Code Mass. Regs. § 403.14(1), which would have entailed only the temporary deprivation of his contraband property during the term of his commitment. See Hudson v. Palmer, 468 U.S. 517, 539 (1984) (O'Connor, J., concurring).

Judgment affirmed.

FOOTNOTES

2.   Following the discovery of other contraband in Shedlock's cell, the Superintendent of the MTC determined that the items violated the prisoner property policy because the word processor contained memory, and because the hot pot was capable of boiling water. Shedlock initially sought the return of both items, but ultimately agreed that they could be disposed of by the institution (as opposed to stored or given to another person).

3.   The judge decided the matter as a motion to dismiss after considering the materials attached to or specifically referenced in the complaint. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). It appears from the record before us that the department moved in the alternative for summary judgment, and submitted matters outside the pleadings to which the plaintiff was given an opportunity to respond. The result we reach is the same under either standard.

4.   The relevant sections of the MTC policy apply a more lenient set of property rules to sexually dangerous persons confined to the MTC than 103 Code Mass. Regs. § 403.10 (2001), which applies to inmates generally. All word processors and typewriters with memory are barred by 103 Code Mass. Regs. § 403.10(5)(h) (2001), but the MTC policy in effect at the time of relevant events permitted sexually dangerous persons committed to the MTC prior to February 3, 1997, to retain word processors and typewriters with memory acquired before that date. 103 MTC § 403.07(A)(1)(a) (2015).

5.   “ ‘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 ․ regulations concerning only the 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.” G. L. c. 30A, § 1 (5) (b).

6.   The version of the MTC policy in effect at the time of relevant events superseded all previous versions and provided that sexually dangerous persons “committed to the Treatment Center prior to February 3, 1997 may retain personal computers, word processors and typewriters with memory capacity.” 103 MTC § 403.07(A)(1)(a) (2015). Shedlock claims he was incarcerated before February 3, 1997, but the MTC policy does not apply to those incarcerated in other facilities.The policy in effect when Shedlock was committed to the MTC permitted all sexually dangerous persons in the MTC to “retain personal computers, word processors and typewriters with memory,” without reference to the February 3, 1997 legacy date; under that policy, Shedlock's word processor was not contraband. 103 MTC § 403.07(A)(1)(a) (2002). Between the time of his commitment and the confiscation of Shedlock's word processor, the MTC amended the policy to include the February 3, 1997 legacy date. Compare 103 MTC § 403.07(A)(1)(a) (2009), with 103 MTC § 403.07(A)(1)(a) (2010). The MTC could, consistent with the requirements of due process, amend its policy to exclude Shedlock from the legacy clause permitting retention of personal computers, word processors, and typewriters with memory. See Sandin v. Conner, 515 U.S. 472, 478 (1995) (“Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner”).

7.   Article 10 provides, in relevant part, that “whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.”

8.   Another option available to Shedlock was to request that the MTC store the confiscated property until his release. See 103 Code Mass. Regs. § 403.16(2) (2001).