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Appeals Court of Massachusetts.



Decided: February 08, 2021

By the Court (Vuono, Meade & Blake, JJ.1)


The plaintiff, Che Pope, filed an emergency complaint pursuant to G. L. c. 249, § 4, challenging the Massachusetts Parole Board's (board) decision to provisionally revoke his parole until his final parole revocation hearing. Pope also moved for a preliminary injunction requiring the board to release him from confinement pending that hearing on the ground that, because he suffers from a number of underlying medical conditions (type 2 diabetes mellitus, obesity, and asthma), he is at high risk for serious complications or death from COVID-19. A judge of the Superior Court denied relief and also denied a motion for reconsideration. We affirm the orders denying both motions.

Background. Pope pleaded guilty to murder in the second degree in 1998 and was sentenced to State prison for a term of life. He was seventeen years old at the time. Pope also was convicted of possession of a firearm and sentenced to a concurrent term of four to five years. Approximately sixteen years later, on November 20, 2014, the board granted Pope parole and he was released on parole supervision on January 27, 2016. Over the next few years, Pope committed a number of minor parole violations for which he received warnings and additional conditions of supervision.2 Then, on December 20, 2019, he was arrested and charged with indecent assault and battery on a medical employee who was treating him at a Brigham and Women's Hospital office. That same day, he was arrested by parole officers on a temporary parole violation detainer. He is currently in custody at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk) and has declined to have his final revocation hearing until after his trial on the new charge. On April 3, 2020, Pope submitted a request to withdraw the parole violation warrant and asked to be placed on house arrest pending a final revocation hearing. That request was denied. Pope asked the board to reconsider its decision denying his motion, and the board again denied his request to withdraw the parole violation warrant. On July 1, 2020, Pope filed a second request to withdraw the parole violation warrant that was denied on August 6, 2020.

On October 6, 2020, Pope filed an action in Superior Court in which he claimed that the board had violated his constitutional rights and his rights under the Americans with Disabilities Act by refusing to withdraw the revocation warrant. On the same day, he filed an emergency motion for a preliminary injunction “requiring that the [board] immediately cease violating [plaintiff's] constitutional rights by releasing him from confinement awaiting his final parole revocation hearing and permitting him to await his final revocation at home on a GPS monitor.” As previously noted, that motion and a subsequent motion for reconsideration were denied by a judge of the Superior Court. This appeal ensued.

For substantially the reasons articulated by the judge, we conclude that Pope is not entitled to a preliminary injunction and that his request for reconsideration was properly denied.

Discussion. 1. Motion for a preliminary injunction. To succeed on a motion for a preliminary injunction,

“a plaintiff must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of [Pope's] likelihood of success on the merits, the risk of irreparable harm to [Pope] outweighs the potential harm to the defendant in granting the injunction.”

Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001). We review the denial of a motion for a preliminary injunction for abuse of discretion. Id.

The judge denied Pope's motion on the ground that he failed to demonstrate a likelihood of success in the underlying certiorari action. To the extent that parole decisions are subject to certiorari review, such review is limited to “whether the board acted arbitrarily and capriciously,” given that it “is free to use its judgment” and its “decisions can be considered the exercise of the board's administrative discretion.” Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217 (1989). Because Pope has not yet had a final revocation hearing and did not otherwise allege a defect in the issuance of the parole violation warrant or preliminary revocation hearing, he has failed to state a claim on which relief can be granted under G. L. c. 249, § 4, as to the revocation matter itself. Relying on Committee for Public Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 451-452 (2020) (CPCS), the judge correctly determined that she could not overrule the board's decision not to retract the parole revocation warrant that caused Pope to return to custody. As she explained, “[i]f the court in [CPCS] did not have the power to grant release to sentenced inmates due to Covid; because it found such decision was a discretionary act within the prerogative of the executive branch through its Parole Board, then this court cannot override the [board's] decision not to retract the parole revocation warrant which landed [plaintiff] back in jail,” and so, “[t]his court does not have the jurisdiction to release sentenced inmates within the [board's] authority notwithstanding [plaintiff's] Covid concerns.” See id. The judge further correctly observed that Pope was not denied due process, because the board followed its rules and regulations when it issued its warrant and because it was Pope who requested the continuance of the parole revocation hearing, even though the board was prepared to hold the revocation hearing within sixty days after service of the warrant. Given these circumstances, the judge did not abuse her discretion in concluding that Pope had failed to demonstrate a likelihood of success on the merits of the underlying claim for certiorari relief and denying the motion for a preliminary injunction.

2. Motion for reconsideration. Pope filed an emergency motion for reconsideration of the denial of his motion for a preliminary injunction on November 11, 2020. In that motion, Pope asserted that the risk to his health had increased. At the time of the hearing on his motion for a preliminary injunction, there were no reported COVID-19 cases at MCI-Norfolk, but as of November 6, 2020, there were more than 140 cases there and the number was expected to increase.

We review the denial of Pope's motion for reconsideration for abuse of discretion and discern none. See Commonwealth v. Gonsalves, 437 Mass. 1022, 1022 (2002). First, in her memorandum of decision on the motion for reconsideration, the judge repeated that the denial of Pope's motion for a preliminary injunction was based in part on her lack of authority to grant the relief that Pope sought, which, as we observed above, was correct. Second, as the judge noted, Pope is able to request a parole revocation hearing at any time but has not done so. Moreover, relying on Foster v. Commissioner of Correction (No. 1), 484 Mass. 698 (2020), and Foster vs. Mici, Mass. Super. Ct., No. 2084CV00855 (Suffolk County Nov. 12, 2020), the judge correctly reasoned that, if the plaintiff sought to prove a violation of the Eighth Amendment to the United States Constitution as grounds for his release, then he must do so as part of the pending class action seeking the release of medically compromised inmates, particularly since Massachusetts does not have an “opt-out” provision in its class action rule. Finally, the judge rightly observed that, to the extent the plaintiff's current conditions of confinement form the basis for his demand for release, he should have named his custodian or the Department of Correction -- and not the board, who is not responsible for those conditions -- as the defendant in his civil action. As she stated, “[t]he [board] is not responsible for the terms or conditions of [plaintiff's] prison confinement” and “has not refused to give [plaintiff] a hearing.” Accordingly, the judge acted within her discretion when she denied the motion for reconsideration.

Order denying motion for preliminary injunction affirmed.

Order denying motion for reconsideration affirmed.


2.   On July 3, 2018, he appeared before a hearing examiner for a preliminary revocation hearing based on allegations of alcohol consumption. He was given a final warning and the board resumed parole supervision with the added conditions of mandatory GPS monitoring with Sobrietor and a curfew. On December 8, 2019, the plaintiff missed a SCRAM test and received a warning.

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