BURKE v. TURCO (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The pro se plaintiff, Andrew Burke, an inmate at Massachusetts Correctional Institution at Norfolk, is appealing from a Superior Court judgment denying his motion for judgment on the pleadings and the entry of judgment for the defendants.

Following an administrative disciplinary hearing by the Department of Correction (DOC), Burke was found to have committed aggravated assault on a correctional program officer and was disciplined.⁴ The hearing officer determined that Burke had grabbed a correctional program officer from behind, in a stairwell, and placed his hand over her nose and mouth as he pulled her backwards onto the landing. Burke sought review of the disciplinary decision by filing an action for certiorari in the Superior Court. The Superior Court ultimately denied Burke's motion for judgment on the pleadings and entered judgment for the defendants, finding that there was substantial evidence to support the disciplinary decision. We affirm.

Discussion. 1. Standard of review. On appeal Burke contends that the administrative disciplinary decision was not supported by substantial evidence, was arbitrary and capricious, and that he was denied due process, because the defendants failed to adhere to established policies and procedures. “The remedy for failure to adhere to regulations in prison disciplinary proceedings is an action in the nature of certiorari under G. L. c. 249, § 4.” Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1128 (1989). Judicial review of a decision in a certiorari proceeding is limited. “Certiorari allows a court to correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff․ In its review, the court may rectify only those errors of law which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public” (quotation and citation omitted). DiMasi v. State Bd. of Retirement, 474 Mass 194, 199 (2016). The court is not permitted, however, to weigh evidence, find facts, exercise discretion, or substitute its judgment for that of the administrative body. See FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, 41 Mass. App. Ct. 681, 684-85 (1996). The court's review is instead limited to determining whether the agency's decision is legally erroneous, or so devoid of factual support as to be arbitrary and capricious. Id.

2. Due process. Burke argues his due process rights were violated because (1) a timely waiver for the Inmate Disciplinary Report was not issued, (2) his request to present two inmate witnesses was denied, (3) his defense materials were mishandled prior to the hearing,⁵ and (4) the mental health directors of MCI Norfolk and Cedar Junction (“mental health defendants”) violated the DOC's Mental Health Policy.⁶

Prison disciplinary proceedings are civil in nature, and thus “the full panoply of rights due to a defendant in [a criminal prosecution] does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). While a prisoner is not stripped of all rights when imprisoned, their rights are balanced with the interest of maintaining prison security and are subject to restrictions reflecting the institutional needs and the penological objectives of the prison system. Id. at 555-556. Where it has been determined that a prisoner has a liberty interest that is affected by prison discipline, certain minimum requirements of procedural due process must then be satisfied. Id. at 563. These requirements are: (1) written notice of the claimed violations at least twenty-four hours prior to the disciplinary hearing; (2) a written statement by the fact finder as to the evidence relied upon and the reasons for the disciplinary action taken; and (3) allowing a prisoner to call witnesses and present documentary evidence in his defense if it is not unduly hazardous to institutional safety or correctional goals. Id. at 563-565. Before determining whether an inmate may call witnesses, the hearing officer may consider the relevance of the proposed witness. 103 Code Mass. Regs. § 430.14(4)(a) (2017).

Here, Burke maintains that the department's violation of his due process rights required that the hearing officer's finding that he committed aggravated assault be vacated. We disagree. Even assuming that the disciplinary report was filed beyond the time provided for in the regulations without first obtaining a timely waiver, Burke has failed to show that he was adversely affected by this delay. See DiMasi, 474 Mass at 199. Burke had time to secure a student attorney to represent him and the student attorney had ample time to prepare prior to the disciplinary hearing that occurred almost five months later.⁷ Burke, through his student attorney, presented evidence on his behalf,⁸ and cross-examined witnesses. Although the hearing officer denied Burke's request to present two inmate witnesses, the request was denied because neither proposed witness was present at the time of the incident nor could testify as an expert regarding Burke's mental health. See 103 Code Mass. Regs. § 430.14(4)(a) (hearing officer may deny request to call witness based on relevance of their testimony). Where Burke was (1) given advanced notice of the hearing, (2) provided a written explanation that included the evidence relied on and the reasons for the disciplinary action, and (3) allowed to call witnesses and present evidence, he received all the process he was due. See Wolff, 418 U.S. at 563-565; 103 Code Mass. Regs. § 430.14(4)(a).

Burke also argues that the mental health defendants failed to adhere to 103 DOC Policy § 650 and, as a result, he was denied due process. Under § 650.10, “the Superintendent or designee shall receive consultation from a site mental health staff member regarding mental health issues that may be implicated in the events described by the disciplinary report, and whether there are appropriate alternatives for addressing the matter by means other than the disciplinary process.” 103 DOC Policy § 650. The record shows that Superintendent Medeiros consulted Mental Health Director Jean Bradnick, who determined there were no contraindications in proceeding with the disciplinary proceeding under with 103 DOC Policy § 650. Because the Superintendent consulted with the mental health director prior to the disciplinary proceeding, the defendants complied with the requirements under 103 DOC Policy § 650 and Burke was not denied any due process rights when the Superintendent proceeded with the disciplinary hearing.

Burke additionally argues that Deputy Commissioner Gelb's decision to affirm the guilty finding and sanction was insufficient under 103 Code Mass. Regs. § 430.18(a). “The Superintendent shall normally decide an appeal within 30 days of its receipt and notify the inmate in writing of the decision with supporting reasons.” 103 Code Mass. Regs. § 430.18(2) (2017). There is no requirement that the decision of the superintendent on appeal include a written statement as to the evidence relied upon, as required for the hearing officer under Wolff. Here, the superintendent denied the appeal in writing to Burke within thirty days, and listed “no merit, denied” as the reasoning. While this is not a lengthy statement of reasoning, it does comply with the regulation. See 103 Code Mass. Regs. § 430.18(2).

3. Substantial evidence. Lastly, relying on various statutory definitions, Burke argues there was insufficient evidence that he committed aggravated assault because the correctional program officer was not sixty years or older, pregnant, or protected by an outstanding abuse prevention order against Burke, and did not suffer any serious bodily injury. At the time of the incident, the regulation in effect did not define the term “aggravated assault.” The interpretation of a regulation is a question of law and courts apply the traditional rules of statutory construction. See Ivey v. Commissioner of Correction, 88 Mass. App. Ct. 18, 23 (2015). We give considerable deference to the Department of Correction's interpretations of its own regulations. See Hastings v. Commissioner of Correction, 424 Mass. 46, 50 n.10 (1997). See also Boston Police Superior Officers Fed'n v. Boston, 414 Mass. 458, 462 (1993), quoting Northbridge v. Natick, 394 Mass. 70, 74 (1985) (“An agency's construction of its own rules and regulations ‘is one to which considerable deference is due’ ”). Here, the hearing officer determined that Burke committed aggravated assault because “it [was] more likely than not that ․ Burke would have continued his assault if CPO Paul had not been able to fend him off due to the manner in which he had grabbed her from behind. He covered her nose and mouth in an attempt to prevent her from breathing and/or calling out for help.” The hearing officer's interpretation is in line with how the current regulation defines aggravated assault ⁹ and also in line with how the Massachusetts General Laws define aggravated assault.¹⁰ Therefore, the interpretation of aggravated assault was reasonable and not arbitrary or an abuse of discretion. See J.M. Hollister, LLC. v. Architectural Access Bd., 469 Mass. 49, 58 (2014). Based on this reasonable interpretation, there was substantial evidence to support the finding that Burke committed aggravated assaulted.

Judgment affirmed.

FOOTNOTES

4.   The plaintiff was represented by a student attorney at the disciplinary hearing.

5.   We conclude this argument is without merit where Burke chose to proceed with the disciplinary hearing without the documents. Moreover, Burke fails to explain how these missing documents impacted his ability to present his defense.

6.   We acknowledge the brief from the mental health defendants and determine that the motion judge properly dismissed the complaint as it relates to them. Burke's only claim against them was that the DOC did not comply with its mental health policy by failing to consult with the mental health defendants. Here there was substantial evidence presented at the disciplinary hearing to support that the disciplinary report was reviewed in compliance with the DOC's mental health policy.

7.   Burke received at least twenty-four hours’ notice of his disciplinary hearing as required under Wolff, 418 U.S. at 564.

8.   Burke's student attorney submitted in evidence his medical timeline, a private psychiatric evaluation, and medical/mental health records.

9.   The Code of Massachusetts Regulations currently define aggravated assault as “An assault where aggravating factors exist including, but not limited to: use of a weapon; biting; use of a shod foot; multiple participants involved in the assault; seriousness of bodily injury; or, any other factors that manifest extreme indifference to life.” 103 Code Mass. Regs. § 430.05 (2022).

10.   The Massachusetts General Laws define aggravated assault to include an assault causing serious bodily injury. G. L. c. 265 § 13A. Serious bodily injury is defined by the same statute to include a substantial risk of death. Id.