Date: 08-22-2015

Case Style: JOHN J. SULLIVAN vs. GARY RODEN

Case Number: 14-P-1845

Judge: Ariane Vuono

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Plaintiff's Attorney: H. J. Williams

Defendant's Attorney: J. W. Murdoch

Description: Sullivan delivered a letter that he had written to Nelia Sousa, a female correction officer. In the letter, Sullivan stated that he had developed "an attraction" to Sousa, described their interactions as "courting," requested that she move him into her unit so they
1 Individually and in his capacity as superintendent of Massachusetts Correctional Institution at Norfolk (MCI-Norfolk). 2 Individually and in their official capacities: Scott A. Plante (hearing officer at MCI-Norfolk), Kelly A. Ryan (superintendent of Massachusetts Correctional Institution at Shirley [MCIShirley]), Nelia Sousa (correction officer at MCI-Norfolk), Michael O'Malley (internal perimeter security sergeant at MCINorfolk), William J. Grossi (director of security at MCINorfolk), Martin Devine (special management unit at MCINorfolk), and Timothy Bariamis (grievance coordinator at MCIShirley).
could have "quality time" together, and suggested that she write to him using false names to avoid detection. Sousa promptly gave the letter to her supervisors, and shortly thereafter, Sullivan was issued a disciplinary report for violating 103 Code Mass. Regs. § 430.24(3-25) (2006) (rule 3-25). Sullivan requested that Sousa be present as a witness at his disciplinary hearing on the charge, but his request was denied after the defendants declared and approved a conflict pursuant to 103 D.O.C. § 426.01 (2012). Subsequently, Sullivan was found guilty of violating rule 3-25, and was eventually transferred to MCIShirley, based on the declaration of a conflict. See 103 D.O.C. § 426.04(3)(i) (2012). After his transfer, Sullivan filed a number of grievances for "lost" or "stolen" property,3 which were, in large part, denied. Sullivan then filed this suit against a number of Department of Correction (DOC) officials seeking, among other things, (1) review of rule 3-25, which he asserted was facially overbroad and violated his rights under the First Amendment to the United States Constitution, (2) damages pursuant to 42 U.S.C. § 1983 for his retaliation claims, and (3) review of his grievances involving lost or stolen property pursuant to G. L.
3 Specifically, Sullivan asserted that certain property was either lost or stolen during his transfer from MCI-Norfolk to MCI-Shirley.

c. 249, § 4, and G. L. c. 30A, § 14.4 Eventually, all of Sullivan's claims were dismissed. Sullivan now appeals, contending that the judges5 erred in dismissing his claims because they applied the wrong standards in evaluating the defendants' motions. We affirm. 1. Rule 3-25. Sullivan first claims that the judge erred in dismissing his claim that rule 3-25 is facially overbroad and, as such, violates his rights under the First Amendment. He argues that the judge improperly drew inferences in the defendants' favor and analyzed his claim as an as-applied challenge instead of a facial challenge. We disagree.
4 Sullivan also seeks review of the dismissal of his civil rights claim, brought under G. L. c. 12, § 11I, and his requests for declaratory judgment. Neither claim warrants significant discussion. With respect to his civil rights claim, the judge properly dismissed it because Sullivan's allegations were conclusory and failed to "plausibly suggest[] . . . an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quotation and citation omitted). Likewise, his requests for declaratory relief properly were dismissed because he failed to identify the specific DOC policies not being followed or the ways in which the DOC's grievance system is not fair or impartial. See Duane v. Quincy, 350 Mass. 59, 61 (1966). See also Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 137 n.9 (2013) ("[T]o make out a request for declaratory judgment, a plaintiff must plead sufficient facts that an administrative agency has 'practices or procedures . . . in violation of the Constitution of the United States . . . which . . . has been consistently repeated'"), quoting from G. L. c. 231A, § 2, as amended by St. 1974, c. 630, § 1. 5 Different judges ruled on the defendants' motion to dismiss, motion for judgment on the pleadings, and motion for summary judgment.
3

It is well settled that courts apply a more deferential standard when evaluating the constitutionality of prison regulations. See Turner v. Safley, 482 U.S. 78, 89 (1987); Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 769-770 (1996). Under this deferential standard, a regulation that "impinges on inmates' constitutional rights . . . is valid if it is reasonably related to legitimate penological interests." Turner, supra. See Champagne v. Commissioner of Correction, 395 Mass. 382, 386 (1985) (inmate "retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system") (citation omitted). In analyzing whether a regulation satisfies this standard, we ask: "(1) Is there a valid, rational connection between the regulation and the governmental interest put forward to justify it, and is the governmental interest legitimate and neutral; (2) do alternative means of exercising the challenged right remain open to inmates; (3) will accommodating the challenged right have a significant 'ripple effect' on guards, other inmates, and the allocation of prison resources in general; and (4) does an alternative to the regulation exist which would fully accommodate the inmates' rights at de minimis cost to valid penological interests?" Cacicio, supra at 770. Here, the judge properly applied this standard in reaching his conclusion that rule 3-25, which prohibits inmates from "[c]ommunicating, directly or indirectly with any staff member or contract employee . . . for non-official business," is not
4
facially overbroad. As found by the judge, rule 3-25 is "clearly rationally connected to the DOC's legitimate interest in preventing the formation of relationships between staff and inmates that may undermine the security of the prison," inmates retain ample opportunities to discuss nonofficial business with other inmates and visitors, and the potential impact of improper social relationships between inmates and correction officers is clear, as those relationships could "lead to favoritism or lax enforcement of prison rules." See Poirier v. Massachusetts Dept. of Correction, 558 F.3d 92, 96 (1st Cir. 2009) ("The prospect of a guard-prisoner . . . relationship poses a clear and obvious threat to the maintenance of prison order and security"). Finally, Sullivan failed to offer any "alternative solution[s] that could accommodate the inmates' rights 'at de minimis cost to valid penological interests.'" Massachusetts Prisoners Assn. Political Action Comm. v. Acting Governor, 435 Mass. 811, 822 (2002) (citation omitted). Accordingly, the judge correctly found that rule 3-25 is not overbroad and dismissed Sullivan's claim.6 2. Retaliation claims. As an initial matter, we note that the complaint did not specifically allege that Sullivan was
6 Because we conclude that Sullivan's letter to Sousa was not protected speech under the First Amendment, we need not discuss his claim that prison officials retaliated against him for sending the letter.

subjected to retaliation for his filing of grievances. Nonetheless, the judge construed the allegations, which claimed that Timothy Bariamis filed a disciplinary report against Sullivan after Sullivan filed grievance number 61641,7 as a retaliation claim.8 Sullivan now claims that the judge erred in dismissing this claim because Bariamis's filing of a disciplinary report against Sullivan after he used the grievance process satisfied the adverse action requirement of 42 U.S.C. § 1983. In order to successfully prove that a "disciplinary proceeding was instituted in retaliation for" the filing of a grievance (a right protected by the First Amendment), an inmate must first "overcome the defendants' showing that [they] had legitimate penological reasons for imposing the disciplinary sanctions against him." Puleio v. Commissioner of Correction, 52 Mass. App. Ct. 302, 310 (2001). Here, the judge properly concluded that the defendants were entitled to judgment as a 7 In grievance number 61641, Sullivan claimed, among other items, that a chambray shirt (valued at twenty-five dollars) and two pairs of jeans (valued at fifty dollars) were missing. Both items, however, later were determined to be state-issued property, for which Sullivan had no right to reimbursement. As such, Bariamis properly charged Sullivan with violating 103 Code Mass. Regs. § 491.08(6) (2006) for filing a knowingly false grievance and omitting material information. 8 The judge also read into the complaint a claim that Sullivan's rights under the Eighth Amendment to the United States Constitution were violated based on Sullivan's allegation that the defendants withheld his diabetes medication. Sullivan does not appeal the dismissal of that claim.
6

matter of law because Sullivan's conduct, namely the filing of a clearly frivolous, repetitious, or knowingly false grievance, violated 103 Code Mass. Regs. § 491.17 (2006), and thus, Bariamis had an "independent, permissible reason for" issuing the disciplinary report. Puleio, supra. 3. Conflict policy. Sullivan's claim that the judge erred in concluding that the defendants improperly approved and declared a conflict, as defined in 103 D.O.C. § 426.01 (2012), is without merit. A conflict, is a "relationship or situation . . . between inmates and staff members, which may likely result in placing them or other inmates or staff members in danger of harm or personal injury, as such, this relationship or situation may pose a threat to the security of the institution." Here, Sullivan propositioned Sousa, requested special treatment, and suggested that Sousa write letters to him using false names and post office boxes. This conduct posed a clear threat to the security of the prison and plainly fell within the definition of a conflict.9 Gomes v. Fair, 738 F.2d 517, 524 (1st Cir. 1984)
9 For this reason, we conclude that the hearing officer did not abuse his discretion, see Smith v. Massachusetts Dept. of Correction, 936 F.2d 1390, 1399 (1991), in denying Sullivan's request for Sousa as a witness at his disciplinary hearing. See 103 Code Mass. Regs. § 430.14 (4) (2006) (inmate's right to call witnesses limited where doing so will be "unduly hazardous to personal or institutional safety"). See also Puleio, supra at 307-308. Moreover, contrary to Sullivan's claims, inmates do not have a constitutional right to confront witnesses at disciplinary hearings. See Nelson v. Commissioner of
7

("sexual proposition need not ripen into a physical assault before prison officials can take steps"). See Poirier, 558 F.3d at 96. See also Commonwealth v. Chou, 433 Mass. 229, 234 (2001) ("[L]anguage properly may be understood and treated as a threat even in the absence of an explicit statement of an intention to harm the victim"). 4. Property claims. Sullivan also sought review of a number of grievances involving lost or stolen property under both G. L. c. 249, § 4, and G. L. c. 30A, § 14. With respect to his claims under G. L. c. 249, § 4, which include allegations that the defendants erred in denying three grievances because they either failed to issue a timely decision or failed to properly investigate the claim, we agree with the judge that certiorari review was unavailable because the claims should have been brought under G. L. c. 30A, § 14. See Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 131-133 (2013) (dismissal proper where inmate appealed under wrong statute). The claims that Sullivan did bring under G. L. c. 30A, § 14, also properly were dismissed. His claims arising
Correction, 390 Mass. 379, 390-391 (1983). Additionally, Sullivan's transfer to MCI-Shirley (medium security) from MCINorfolk (medium security), based on the declaration of a conflict, was proper. See 103 D.O.C. § 426.04(3)(i) (2012) ("Whenever possible, an approved conflict shall result in the inmate being moved to another institution with the same security rating"). See also Hudson v. Commissioner of Correction, 431 Mass. 1, 4 (2000) (DOC has broad discretion "to transfer inmates within the prison system").
8

from grievance numbers 61772 and 61869 were untimely. See G. L. c. 30A, § 14 (action must be commenced within thirty days of final decision). Regarding grievance number 61641, Sullivan failed to provide a copy of the DOC's final decision. See G. L. c. 127, § 38H, inserted by St. 1999, c. 127, § 133 (complaint "shall be accompanied by a copy of the final decision for which [judicial] review is sought, . . . and a complaint not so accompanied . . . shall not be accepted for filing").10

Outcome: Judgment affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: