NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-606
JAMES M. FEENEY
vs.
DEPARTMENT OF CORRECTION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff brought an action in the nature of certiorari
challenging a disciplinary decision of the Department of
Correction (department). A Superior Court judge allowed the
department's motion for judgment on the pleadings and dismissed
the plaintiff's complaint. On appeal, the plaintiff contends
that in conducting the disciplinary hearing, the department
based its decision on insufficient evidence, and violated his
due process rights by denying his requests to call witnesses and
access certain evidence. Because we conclude that the
department failed to adequately support its decision to deny the
plaintiff's request to present certain witness testimony that
was relevant and potentially exculpatory, we vacate the judgment
and remand for further proceedings.
Background. On July 28, 2020, while the plaintiff was
incarcerated at the Souza-Baranowski Correctional Center,
Sergeant Aaron Gill observed the plaintiff wearing a 4XL
department-issued T-shirt with the "V-neck collar [having been]
intentionally removed." The plaintiff was issued a disciplinary
report alleging three separate infractions, including
"[m]utilating, defacing or destroying state property." 103 Code
Mass. Regs. § 430.24(4-2) (2019). Sergeant Gill seized the
shirt from the plaintiff, took photographs for evidence, and
then disposed of it.
Before his disciplinary hearing, the plaintiff requested
certain video footage between April 2019 and the date the
disciplinary report was issued to use as evidence in his
defense. 1 He alleged that the video footage would prove "th[e]
shirt was issued to [him] in th[e] same condition," and that it
was the only shirt he had worn outside his housing unit during
his time at the facility. Further, the plaintiff sought to call
Sergeant Joseph Bue, along with an unidentified inmate who had
worked for Sergeant Bue in January 2019, as witnesses. The
primary purpose of their testimony was to address whether
Sergeant Bue issued new or used clothing to inmates around that
1 On an evidence request form, the plaintiff sought "[a]ll video
footage of 'Happy Hour' in which between Jan 19 and the end of
happy hour in the corridor. Specifically, months June, July,
Aug[ust]. Also Booking in April 2019."
2
time, and whether the plaintiff was issued the used shirt "due
to lack of new ones." The plaintiff's requests were denied on
the grounds that his request for video footage was "[v]ague,"
and the expected testimony of Sergeant Bue and the unidentified
inmate was "irrelevant." 2
On August 11, 2020, the plaintiff's disciplinary hearing
was held. 3 At the hearing, the plaintiff repeated his requests
for certain evidence, testified in his own defense, and
questioned Sergeant Gill regarding the issuance of the
disciplinary report. 4 The plaintiff argued, among other things,
that he had been issued the shirt in the same condition nearly
two years prior, and that the denial of his requests for
evidence violated applicable department regulations and his due
process rights. The hearing officer found the plaintiff guilty
of charge 4-02, mutilating, defacing, or destroying State
property; the remaining charges were dismissed as duplicative.
See 103 Code Mass. Regs. § 430.24 (2019). In rendering his
2 At the August 11 disciplinary hearing, the plaintiff identified
the inmate worker as "Marty." The hearing officer also denied
this testimony for "[f]ailure to identify."
3 The plaintiff requested (and paid for) an audio recording of
the August 11 disciplinary hearing. The plaintiff relied on
this recording in filing a "supplemental motion" following the
May 24, 2021 hearing before the Superior Court, and both parties
cited to portions of the recording in their briefs on appeal.
We therefore have considered the recording here.
4 The plaintiff requested that the T-shirt be present for the
hearing, but it was disposed of. Sergeant Gill testified that
he did not observe the plaintiff alter the shirt.
3
decision, the hearing officer credited the oral and written
statements of Sergeant Gill, and determined that the evidence
requested by the plaintiff was properly denied. 5 As a sanction,
the plaintiff was assessed restitution in the amount of $8.45,
the cost of the shirt.
The plaintiff appealed the guilty finding to the acting
superintendent, which was later denied. Thereafter, the
plaintiff filed an action in the Superior Court pursuant to
G. L. c. 249, § 4, seeking relief from the disciplinary
decision. The parties filed cross motions for judgment on the
pleadings. After a hearing, the motion judge allowed the
department's motion, finding that substantial evidence supported
the guilty finding, and that the plaintiff's due process rights
had not been infringed. This appeal followed.
Discussion. In considering the plaintiff's appeal from the
final disciplinary decision, we review the administrative record
"to correct substantial errors of law on the record that
adversely affect material rights." Drayton v. Commissioner of
Correction, 52 Mass. App. Ct. 135, 140 (2001). Prison inmates
are entitled to procedural due process protections under the
5 In a written statement explaining the basis for the guilty
finding, the hearing officer stated: "In conclusion I find that
while the [plaintiff] was not actually observed altering [the]
garment, he was in possession of an altered state issued scrub
top."
4
United States and the Massachusetts Constitutions if sanctions
create an "atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life." Sandin v.
Conner, 515 U.S. 472, 484 (1995). See Torres v. Commissioner of
Correction, 427 Mass. 611, 617-618, cert. denied, 525 U.S. 1017
(1998).
It is well settled that "[t]he procedural protections of
due process apply . . . only if there is an existing liberty or
property interest at stake." O'Malley v. Sheriff of Worcester
County, 415 Mass. 132, 135 (1993). Here, the plaintiff asserts
that he had a protected property interest in the $8.45 withdrawn
from his account to satisfy the ordered sanction of restitution.
The United States Court of Appeals for the First Circuit has
stated that "[i]t is clear beyond hope of contradiction that an
inmate has a property interest in the balances held in his
accounts." Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011),
citing Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir. 1997). We
thus conclude that, at least in this context, the plaintiff was
entitled to due process prior to the deprivation of his funds.
See, e.g., Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir.),
cert. denied, 577 U.S. 889 (2015) ("[t]here is no question that
[an inmate's] interest in the funds in his prison account is a
protected property interest" [citation omitted]). See also
Ciampi v. Commissioner of Correction, 452 Mass. 162, 170 (2008)
5
(assuming that "prisoners have a statutorily protected property
interest in the funds in their prison accounts entitling them to
due process protection"). We next consider whether the
plaintiff received the process he was due.
"At a minimum, the due process clause of the Fourteenth
Amendment to the United States Constitution requires that there
be notice and an opportunity for a hearing before a person is
deprived of a protected property interest." Ciampi, 452 Mass.
at 170.
"In a disciplinary proceeding where a prisoner's [property]
interest is at stake he must be given '(1) advanced written
notice of the disciplinary charges; (2) an opportunity,
when consistent with institutional safety and correctional
goals, to call witnesses and to present evidence in his
defense; and (3) a written statement by the factfinder of
the evidence relied on and the reasons for the disciplinary
action.'"
Id. at 170-171, quoting O'Malley, 415 Mass. at 138. The
gravamen of the plaintiff's due process claim here is that the
denial of his requests to call certain witnesses infringed on
his due process rights. We agree.
Although "[a] disciplinary board, at its discretion, may
refuse to call a witness [or produce evidence] requested by an
inmate on grounds of 'irrelevance, lack of necessity, or the
hazards presented in individual cases" (citation omitted),
Nelson v. Commissioner of Correction, 390 Mass. 379, 390 (1983),
"prison officials may be required to explain, in a limited
6
manner," the basis for limitations placed on an inmate's calling
of witnesses or the denial of requested evidence, Ponte v. Real,
471 U.S. 491, 497 (1985). An inmate ordinarily "should be
allowed to call witnesses if to do so will 'not be unduly
hazardous to institutional safety or correctional goals"
(citation omitted). Nelson, supra. See 103 Code Mass. Regs.
§ 430.14(4) (2019) (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" (citation omitted). Smith v. Massachusetts Dep't of
Correction, 936 F.2d 1390, 1399-1400 (1st Cir. 1991).
In denying the plaintiff's request to call Sergeant Bue as
a witness, the department reasoned that the expected testimony
was irrelevant. Department regulations define "[e]xculpatory
[e]vidence" as "[e]vidence that is potentially helpful to the
inmate in either proving innocence or in establishing lesser
responsibility for the offense(s) as charged." 103 Code Mass.
Regs. § 430.05 (2019). Here, the plaintiff maintained that
Sergeant Bue, or an unidentified inmate working under his
supervision, issued him the shirt in the same condition as when
7
it was seized. 6 He explained that the purported reason he was
issued the shirt in such a worn condition was that there were no
other shirts in his size (4XL) available, and that he was
supposed to be given new clothes. Had Sergeant Bue, who we
presume was responsible for issuing clothing to inmates in
January 2019, confirmed the plaintiff's version of events, it
would have likely proven the plaintiff's lack of culpability for
the mutilation or alteration of the shirt. It is therefore
apparent that the testimony of Sergeant Bue was relevant, 7 and
possibly exculpatory.
6 In his written disciplinary decision, the hearing officer
stated that the plaintiff "did not . . . dispute the condition
of the scrub top and indicated it was issued to him in disrepair
and that the collar eventually fell off." In apparent reliance
on this statement, the Superior Court judge stated in her
decision allowing the department's motion for judgment on the
pleadings that "whether the shirt issued to Feeney was new or
used was not relevant where Feeney testified that the collar
fell off after the shirt was in his possession." However, this
is not supported by the audio recording of the disciplinary
hearing. The plaintiff did not testify that the shirt collar
fell off after he received it. Rather, he pointed out that the
photographs of the shirt suggested that the stitching around the
collar had come apart, causing the collar to fall off, without
any reference to when that may have occurred. The plaintiff
stated multiple times at the hearing, during his own testimony,
and in examining Sergeant Gill, that the condition of the shirt
was the same as when it was issued to him. This is consistent
with the plaintiff's written request for video footage, dated
July 29, 2020, where he explained that "the[ ] tapes will show
this shirt was issued to me in this same condition."
7 If the inmate working under Sergeant Bue's supervision were to
be sufficiently identified, we would also view their testimony
as relevant.
8
In conclusion, while disciplinary proceedings are civil in
nature, and thus "the full panoply of rights due a defendant in
[a criminal prosecution] do[ ] not apply," Wolff v. McDonnell,
418 U.S. 539, 556 (1974), "[t]he touchstone of due process is
protection of the individual against arbitrary action" (citation
omitted). Nelson, 390 Mass. at 392. Here, we discern no
reasonable basis for the denial of the plaintiff's request to
call Sergeant Bue as a witness, 8 see 103 Code Mass. Regs.
§ 430.11(2) (2019) (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]), and thus conclude that the
8 Although not determinative, we note that our conclusion here is
buttressed by the plaintiff's other grievances making up his due
process claim -- namely, the denial of the requested video
footage, the destruction of the shirt at issue, and the
expedited nature of the proceedings over the plaintiff's
objection. As for the video footage, we doubt that the hearing
officer, with institutional knowledge, could not discern the
meaning of the plaintiff's request. In any event, it would not
have been burdensome to seek clarification. Further, the shirt
for which the plaintiff was disciplined should have been
preserved as evidence. The department has not articulated any
safety or security risk that would warrant the disposal of the
shirt. See 103 Code Mass. Regs. § 430.11(7) (2019) ("Contraband
evidence that is deemed to constitute a risk to the safety or
security of the institution, its staff, inmates, or any
participant in the hearing process shall not be presented at the
hearing"). And the hearing officer's assertion that "having the
garment present . . . would not have affected the outcome" is
not a reasonable justification for its disposal in this case.
Again, although not determinative, we are troubled by these
issues.
9
plaintiff's disciplinary hearing did not comport with due
process. See Ayers v. Ryan, 152 F.3d 77, 81-82 (2d Cir. 1998)
(denial of requested witness testimony for prison disciplinary
hearing violated due process). Accordingly, we vacate the
judgment in favor of the department, and remand the matter for
the entry of a new judgment ordering further proceedings before
a hearing officer consistent with this memorandum and order.
So ordered.
By the Court (Wolohojian,
Singh & Hand, JJ. 9),
Clerk
Entered: August 28, 2023.
9 The panelists are listed in order of seniority.
10