NADWORNY v. BONNER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, who is serving a life sentence following his conviction of murder in the second degree in 1984, appeals from a judgment of the Superior Court, dismissing his complaint for failure to state a claim on which relief may be granted. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). We affirm the judgment.

In his complaint, the plaintiff alleged that the defendants violated certain constitutional and civil rights during a parole board (board) hearing held on May 12, 2015. In particular, the plaintiff alleged that (1) the defendant Charlene Bonner (the former chair of the defendant board) displayed bias against him, and should have recused herself from his hearing, (2) the board deviated from a recently adopted practice of not questioning parole applicants about their underlying crimes, placing him at a disadvantage by requiring him to respond to questions for which he was unable to prepare, and (3) improperly altered the video record of his hearing, by excising from it a statement made by Bonner to the effect that “we don't retry cases anymore, but we're going to retry this one.”

Our review of a judgment of dismissal, based on an allowed motion to dismiss, is de novo. Like the motion judge, we accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).³

As the defendants observe in their brief, the statutory and regulatory framework governing the board's consideration of a parole application include among the factors it is to consider the inmate's criminal history and the underlying crime for which the inmate is incarcerated. See G. L. c. 127, § 130; 120 Code Mass. Regs. 300.05 (1997). See also Greenman v. Massachusetts Parole Bd., 405 Mass. 384, 387-388 (1989). The plaintiff has identified no statute or constitutional provision prohibiting the board from conducting such an inquiry. Accordingly, the board was under no obligation to refrain from asking the plaintiff questions about the underlying crime at his parole hearing.⁴ For that reason, the plaintiff suffered no actionable injury as a result of the board's questions about the crime.

For similar reasons, the plaintiff has identified no entitlement to relief as a result of the alleged alteration of the video record of his hearing. Accepting as true (for purposes of our review) the premise that the board excised Bonner's statement from the record, the plaintiff has identified no actionable injury he suffered as a result. Because the board was entitled to ask questions about the underlying crime, any such statement (if made) had no bearing on the conduct of the hearing, or the plaintiff's substantive or procedural rights. Moreover, the plaintiff has identified no other basis for an award of damages based on any such alteration (again assuming such an alteration occurred).⁵

Judgment affirmed.

FOOTNOTES

3.   To the extent the plaintiff claims error in factual findings made by the motion judge, the argument is misplaced; the motion judge made no such findings, and in any event our de novo review of the judgment is based solely on the complaint. Moreover, and contrary to the plaintiff's contention, the motion judge did not err in dismissing his complaint before he conducted discovery, since all allegations in his complaint are accepted as true, even though unsupported by evidence he might have obtained during discovery. Finally, though the plaintiff assigns error to the discussion by the motion judge in his written decision of a certiorari challenge to the board's decision denying parole, the discussion is immaterial. We note that the plaintiff filed a separate certiorari action challenging the board's decision, and appealed the dismissal of that complaint in a separate appeal (docket number 19-P-1059). Following the filing of a stipulation of dismissal by the plaintiff, that appeal was dismissed on August 10, 2020.

4.   At oral argument, the plaintiff suggested that the board affirmatively misled him, by representing through its agents that it had adopted such a policy. However, the complaint includes no such factual allegation.

5.   The plaintiff directs no argument in his brief to the claim in his complaint that Bonner displayed bias and should have recused herself from his hearing, and we do not consider it.