LEIVA v. TURCO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Julio B. Leiva, appeals from a judgment entered after a judge of the Superior Court allowed the defendants' motion for judgment on the pleadings, denied the plaintiff's cross motion, and dismissed the plaintiff's certiorari complaint.⁴ The plaintiff, an inmate at the Souza-Baranowski Correctional Center (SBCC), was disciplined by the Department of Correction (department). On appeal, the plaintiff argues that in conducting its disciplinary proceedings, the department violated his due process rights by denying him access to certain exculpatory evidence; based its decision on insufficient evidence; and denied him the right to an internal appeal of the department hearing officer's disciplinary decision. Because we conclude that the department failed adequately to support its decision to deny the plaintiff access to certain evidence that the plaintiff claimed was exculpatory, we vacate the judgment, and remand for further proceedings before a hearing officer. Additionally, we conclude that the department was not entitled to judgment on the pleadings with respect to the plaintiff's claim that he was denied the right to an internal appeal.

Background. The following facts are undisputed. On January 9, 2017, the plaintiff participated in a disturbance inside the P1 housing unit of the SBCC that developed into a riot. Department officials and police quelled the riot, and after an investigation, the department issued a disciplinary report (report) charging the plaintiff with multiple offenses.⁵ The report included an allegation, based on an investigation, that during the riot, “inmate LEIVA [was] observed on video surveillance ․ on the first tier of P1 gaining access to the Officer's room. He was then observed removing the SCOTT air pack and tampering with it until finally wearing it.”⁶

After a disciplinary hearing, a department hearing officer found the plaintiff guilty of possession of a weapon, rioting, and mutilating State property; the remaining charges were dismissed. See 103 Code Mass. Regs. § 430.24 (2015). The plaintiff was sentenced on the rioting charge to one year in the department disciplinary unit. Additionally, the hearing officer ordered the plaintiff to pay restitution, including $5,474 for the damaged Scott Air Pack. The plaintiff appealed the sanction to the department's deputy commissioner; his appeal was denied.

The plaintiff filed a certiorari action in the Superior Court pursuant to G. L. c. 249, § 4.⁷ After a hearing, the judge allowed the defendants' motion for judgment on the pleadings, denied the plaintiff's motion, and dismissed the plaintiff's complaint. This appeal followed.

Discussion. We review de novo a decision on a motion for judgment on the pleadings. See UBS Fin. Servs., Inc. v. Aliberti, 483 Mass. 396, 405 (2019); Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 136 n.4 (2001). In considering the plaintiff's appeal from the hearing officer's decision, we review the administrative record “to correct substantial errors of law on the record that adversely affect material rights.” Drayton, 52 Mass. App. Ct. at 140. “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). We defer to the hearing officer's exclusive function of weighing the credibility of witnesses and resolving factual disputes. See Jordan v. Superintendent, Mass. Correctional Inst., Cedar Junction, 53 Mass. App. Ct. 584, 588 (2002).

1. Denial of exculpatory evidence. In anticipation of the disciplinary hearing, the plaintiff requested access to handheld video recordings made after the riot; on appeal, he argues that those recordings were exculpatory because they would have shown the damage to the Scott Air Pack was actually caused by someone other than himself, and was done after he had discarded it. See 103 Code Mass. Regs. § 430.06 (2015) (defining “exculpatory evidence” in context of inmate discipline); 103 Code Mass. Regs. § 430.11(1), (2) (2015) (disciplinary officer's prehearing discovery obligations). The department denied the plaintiff's request for the handheld video footage “[d]ue to safety and security concerns” and because the video was “duplicative to photographs provided of damage.” The plaintiff contends that in denying his discovery request, the department violated his due process rights. On this record, we agree.

a. Safety concerns. Although “[a] disciplinary board, at its discretion, may refuse to call a witness [or produce evidence] requested by an inmate on the grounds of ‘irrelevance, lack of necessity, or the hazards presented in individual cases[,]’ ” Nelson v. Commissioner of Correction, 390 Mass. 379, 390 (1983), quoting Wolff v. McDonnell, 418 U.S. 539, 566 (1974), prison officials may be required to explain, in a limited manner, the reasons why the witness was not allowed to testify, or in the present case, why the requested evidence was not provided. See Ponte v. Real, 471 U.S. 491, 497 (1985); 103 Code Mass. Regs. § 430.14(4) (2015) (inmate may present evidence, when permitting him or her “to do so will not be unduly hazardous to personal or institutional safety”). “[T]he burden of persuasion as to the existence and sufficiency of such institutional concerns [justifying the denial of an inmate's request to call witnesses] is borne by the prison officials, not by the prisoners.” Smith v. Massachusetts Dep't of Correction, 936 F.2d 1390, 1399-1400 (1st Cir. 1991), quoting Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir. 1985). See Smith, supra at 1401 (noting that “[i]n these circumstances, we think this request for discovery stands on the same footing as a request to call witnesses”).

Where the sanctions imposed are severe, due process demands more than “broad conclusory findings” to justify the department's withholding of potentially pivotal evidence. See Torres v. Commissioner of Correction, 427 Mass. 611, 617–618 (1998), quoting Sandin v. Conner, 515 U.S. 472, 484 (1995) (inmates entitled to procedural due process protections if sanctions create “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”); Nelson, 390 Mass. at 393-394 (broad, conclusory findings of possible hazard to potential witnesses and institutional security insufficient where inmate's guilt hinged on hearsay information derived from unidentified informant). Cf. Ponte, 471 U.S. at 497, quoting Wolff, 418 U.S. at 566 (noting that while explaining reasoning for not allowing evidence will not immunize prison officials from subsequent court challenges, “so long as the reasons are logically related to preventing undue hazards to ‘institutional safety or correctional goals,’ ” explanation should meet due process requirements).

While we acknowledge that the department may have had legitimate security reasons for withholding some or all of the requested video, we conclude that the department's cursory explanation for its denial of the plaintiff's request did not suffice to establish them. Here, the department provided no explanation of how disclosure of any of the requested video would impact institutional safety; the hearing officer thus lacked an adequate basis on which to assess the validity of the professed safety concerns. See 103 Code Mass. Regs. § 430.11(2) (2015) (conferring on disciplinary officer responsibility to “approve or deny with good cause and in writing any requests made by the inmate for witnesses or evidence” [emphasis added]). Accordingly, the decision to deny the plaintiff access to any of the video that he requested did not comport with due process.

b. Duplicative evidence. The second reason given for the denial of the plaintiff's request was that the handheld video was “duplicative” of the still photographs to which the plaintiff did have access at the time of the hearing. While we recognize that the hearing officer was authorized to deny the plaintiff's request for “cumulative or repetitive” evidence, we also note the department's obligation to show “good cause” for its claim that the evidence at issue was duplicative. See 103 Code Mass. Regs. § 430.11(2)(b) (2015). In light of the plaintiff's representation that the handheld video would show the damage being done to the Scott Air Pack, and show who actually did that damage (information that does not appear to have been captured in the still photographs), we conclude that the hearing officer's decision was not properly supported. See 103 Code Mass. Regs. § 430.25(6) (2015) (preponderance standard for findings requiring payment of restitution by inmate).

In light of our conclusion that the department failed to demonstrate a proper basis for its denial of the plaintiff's request for access to the handheld video, and the resulting questions raised about the plaintiff's ability fairly to defend against the allegation that he damaged the Scott Air Pack, we vacate the judgment in favor of the defendants, and remand for the entry of a new judgment ordering further proceedings before a hearing officer.

2. Denial of internal appeal. The plaintiff's complaint alleged that after the disciplinary hearing, he filed an administrative appeal; the deputy commissioner's decision denying that appeal predated by three days the date on which the appeal papers were delivered to the deputy commissioner; and, accordingly, “the denial was a pre-determined decision” that did not consider the plaintiff's arguments. In responding to the plaintiff's motion for judgment on the pleadings, the defendants did not address this aspect of the plaintiff's complaint.

At the hearing on the parties' cross motions, defense counsel argued that there was a commonsense explanation for the discrepancy in the dates -- that the deputy commissioner simply misdated the denial. Defense counsel told the judge that he had not spoken with the deputy commissioner, who had retired by the time of the hearing, but that “from my understanding, it's a typo. He put the wrong date.”

Under the standard applicable to motions for judgment on the pleadings, the plaintiff made out a claim that he was denied the internal appeal to which he was entitled under the department's regulations, see 103 Code Mass. Regs. § 430.18(1) (2015), compliance with which was required as a matter of due process. See Ivey v. Commissioner of Correction, 88 Mass. App. Ct. 18, 25-26 (2015). Even assuming that the judge had relied on the department's plausible argument to convert the plaintiff's motion for judgment on the pleadings on this point to one for summary judgment, see Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002) (motion for judgment on pleadings may be converted to motion for summary judgment if judge permits presentation of matters outside pleadings), the defendants' reliance on mere argument and second-hand explanations would not have been sufficient to refute the plaintiff's showing that he was denied an internal appeal. See O'Rourke v. Hunter, 446 Mass. 814, 821 (2006), quoting Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n, 399 Mass. 886, 890 (1987) (“factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment”).

3. Sufficiency of the evidence. Given our conclusion that the judgment here must be vacated based on the department's lack of justification for withholding of the handheld video, and its failure to establish that it provided an internal appeal, we do not reach the plaintiff's challenge to the sufficiency of the evidence on which the hearing officer's decision was based.

Conclusion. In light of our conclusion on this record that the hearing officer erred in denying the plaintiff's request for access to the handheld video evidence, and that the department failed to supply a factual record regarding the internal appeal, we vacate the judgment. The matter is remanded for the entry of a new judgment ordering further proceedings before a hearing officer.

So ordered.

Vacated and remanded.

FOOTNOTES

4.   Although in her memorandum of decision the judge referred to the parties' motions as being motions for summary judgment, and the judgment entered as such, the transcript of the motion hearing reflects the parties' intent to raise motions for judgment on the pleadings, and the judge's agreement. We understand the judge to have treated the motions, correctly, as seeking judgment on the pleadings.

5.   The plaintiff was charged with sixteen offenses, including “possession, manufacture or introduction of any gun, firearm, sharpened instrument, knife or poison or any component thereof”; rioting; and “mutilating, defacing or destroying [S]tate property or the property of another person.” 103 Code Mass. Regs. § 430.24 (2015).

6.   A Scott Air Pack is a wearable breathing apparatus used by department staff in extinguishing fires.

7.   The plaintiff's complaint also set forth a claim under 42 U.S.C. § 1983. At the motion hearing, the plaintiff withdrew the § 1983 claim.