WILLIAM SANTIAGO v. KRYSTAL HEDGE & Others.

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

23-P-1143

WILLIAM SANTIAGO

vs.

KRYSTAL HEDGE & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, William Santiago, appeals from judgments

dismissing his complaint for failure to state a claim on which

relief could be granted. At all relevant times Santiago has

been a prisoner in State custody. The gist of Santiago's

complaint is that in 2019, he voluntarily transferred to the

Massachusetts Treatment Center (MTC) in Bridgewater so that he

could participate in the sex offender treatment program there,

but that the various defendants "illegally" prevented him from

progressing through the program and thereby deprived him of due

process of law. The sex offender treatment program at the MTC

1 Malee Prete, Jennifer McAllister, Jaleesa Freitas, Kathryn

Degnan-LeDoux, Susan Lantagne, Chika Bosah, Chelsea Routhier-

McNeil, and Victor J. Correia.

was not run by State employees, but rather by a private

contractor, Wellpath, LLC; Santiago's complaint names as

defendants several Wellpath employees and affiliates, as well as

the superintendent of the MTC, Victor Correia. Because Santiago

has failed to plausibly assert any violation of the due process

clause, we affirm.

Background. 2 Santiago began the sex offender treatment

program at the MTC in September of 2019. He progressed to stage

three of the program in 2021. In December of 2021, his

therapist recommended that he be advanced to stage four, but

shortly thereafter, Santiago failed a psychoeducation class in

human sexuality. Santiago claims that defendant Bosah, a

Wellpath employee, failed him "maliciously" due to a

disagreement over class materials. Santiago filed grievances

with respect to the decision to fail him in the class, both

informally and then formally, but the grievances were denied.

Thereafter Santiago was notified to appear for an interview

with the "Senior Clinical Review Team" (SCRT) -- a panel

established by Wellpath Policy 85.00 "to provide clinical

oversight and consultation . . . for treatment decisions" in the

sex offender treatment program. The interview occurred on March

2 The facts cited are from the well-pleaded allegations in

Santiago's complaint, and for present purposes are taken as

true, in accordance with the standard of review of an allowance

of a motion to dismiss. Osborne-Trussell v. Children's Hosp.

Corp., 488 Mass. 248, 253 (2021).

2

22, 2022, after which the SCRT "failed" Santiago, preventing him

from advancing from stage three to stage four.

Santiago's claim arises from the SCRT interview process.

He claims that the Wellpath defendants violated their own

policy, 85.00, in multiple ways. These include, for example,

his assertions that there was no proper basis for having an SCRT

interview of him, that the SCRT failed to document the reasons

for the interview, and that the SCRT failed to provide a timely

written report of its decision, all as required by policy 85.00.

Santiago alleges that the Wellpath defendants' failures to

follow Wellpath's policy amounted to a deprivation of due

process. As to whether he was deprived of a liberty interest,

Santiago posits that the interview prevented him from advancing

in the sex offender treatment program, and that if he had

completed the program, he would have better results applying for

parole, and better results with respect to his sex offender

level designation.

In his appellate brief, Santiago emphasizes an additional

argument, which is that his First Amendment rights were violated

by the Wellpath defendants' decision to subject him to an SCRT

interview, because that decision was made in retaliation for

Santiago's filing of the grievances against his Wellpath

teacher. Santiago made a similar argument in opposition to the

motion to dismiss in the trial court, but no First Amendment

3

retaliation claim is alleged in Santiago's complaint. The

Superior Court judge dismissed all claims against the Wellpath

defendants and Correia, reasoning that it was not improper to

refer Santiago for an SCRT interview, and that Santiago had no

due process claim because, among other things, he had no liberty

interest in being granted parole. See Greenman v. Massachusetts

Parole Bd., 405 Mass. 384, 388 n.3 (1989), citing Greenholtz v.

Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 9

(1979). The judge did not address any First Amendment

retaliation argument. This appeal followed.

Discussion. 1. Alleged deprivation of due process.

Santiago's claim is that the Wellpath defendants and Correia

violated his Federal constitutional rights. It is thus a claim

under 42 U.S.C. § 1983, which creates a claim for deprivations

of Federal constitutional rights effected under color of State

law. As noted, Santiago's complaint claimed only one

constitutional violation -- of the due process clause -- based

on the allegation that the Wellpath defendants required an

"illegal" SCRT interview, and failed to follow Wellpath's

procedures under policy 85.00.

To establish a claim for violation of the due process

clause, Santiago needed to allege (1) a deprivation of a

recognized liberty (or property) interest, (2) that occurred

without the provision of the required procedural safeguards.

4

Parsons v. Mobile Home Park Rent Control Bd. of Chicopee, 423

Mass. 631, 634-635 (1996); Rumford Pharmacy, Inc. v. East

Providence, 970 F.2d 996, 999-1000 (1st Cir. 1992). 3 Here,

Santiago failed to plausibly allege either element. Santiago

does not have a protected liberty interest in taking a sex

offender treatment program. It is true that the Commonwealth

recommends that sex offenders engage in the program, and the

Commonwealth offers the program to some (but not all)

incarcerated individuals. The Commonwealth is not required by

the due process clause to provide sex offender treatment to

prisoners, however, nor is there a material infringement of

Santiago's liberty because he was denied (or delayed) in

advancement through the program. A liberty interest is

infringed when a punishment "imposes an 'atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.'" Puleio v. Commissioner of

Correction, 52 Mass. App. Ct. 302, 306 (2001), quoting Sandin v.

Conner, 515 U.S. 472, 484 (1995). Unavailability of a program

of this type does not meet this definition.

3 Santiago would also have to show that the deprivation

resulted from State action. Here, where Wellpath was a private

contractor working for the Commonwealth arguably performing a

state function, we will assume, without deciding, that the

complaint plausibly alleges a deprivation arising from State

action. See Baptiste v. Executive Office of Health & Human

Servs., 97 Mass. App. Ct. 110, 115-116 (2020), cert. denied, 141

S. Ct. 2626 (2021).

5

Santiago argues, however, that as a result of being denied

(or delayed) in completing the sex offender treatment program,

he was disadvantaged in his efforts to obtain parole, and

disadvantaged when litigating his sex offender classification

level. The disadvantages Santiago alleges, even if true, do not

rise to the level of a deprivation of a liberty interest. As

the motion judge pointed out, there is no cognizable liberty

interest in being granted parole -- that is, in the possible

early release from a lawfully imposed sentence. See Greenman,

405 Mass. at 388 n.3. Moreover, the deprivation of liberty that

Santiago claims (concerning his sex offender classification or

parole status) is too speculative and attenuated from the wrong

of which he complains. For example, completion of a sex

offender treatment program relates to only two of over thirty

factors that the Sex Offender Registry Board must consider in

establishing sex offender classification levels. It by no means

controls what level a particular sex offender is assigned, and

often has little influence on the result in a particular case.

See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 633 (2011), citing Smith v. Sex

Offender Registry Bd., 65 Mass. App. Ct. 803, 812-813 (2006)

(hearing examiner has discretion to consider which factors are

applicable and how to weight each factor). Similarly,

completion of a sex offender treatment program is one of many

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factors considered by the parole board. See Rodriguez v.

Massachusetts Parole Bd., 490 Mass. 596, 599-600 & n.4 (2022).

The delay in completing the sex offender treatment program at

issue does not qualify as an impairment of a protected liberty

interest.

Second, and in any event, Santiago received more than

adequate process here. Santiago received a hearing of which he

had notice, an opportunity to be heard before the panel, and a

written explanation of the reasons why he was not advanced. See

Thaddeus v. Secretary of the Executive Office of Health & Human

Servs., 101 Mass. App. Ct. 413, 424-425 (2022), quoting Mathews

v. Eldridge, 424 U.S. 319, 333 (1976) ("[p]rocedural due process

requires at least the 'opportunity to be heard at a meaningful

time and in a meaningful manner'"). Santiago's complaint is

that in requiring the SCRT hearing and then (allegedly) failing

to document it properly, the Wellpath defendants did not follow

Wellpath's policy. However, a failure to follow an internal

policy (assuming such occurred) does not equate to a failure to

provide the process required by the due process clause. See,

e.g., Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017)

(prison's failure to follow inmate grievance procedure not

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federal due process violation). Santiago received all necessary

process here. 4 See Thaddeus, supra. 5

4 We do not understand Santiago to be making a substantive

due process argument and, in any event, such an argument could

be successful only on a showing that the governmental conduct

was "so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience." County of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998). See Commonwealth v. G.F.,

479 Mass. 180, 192 (2018). No such allegation is made here.

5 As noted, in his appellate brief Santiago advances a

different constitutional argument, not in his complaint, which

is that the Wellpath defendants also violated his First

Amendment rights, because the decision to hold an SCRT review

was in retaliation for the grievances Santiago filed. Santiago

first raised this First Amendment claim in his opposition to the

motion to dismiss.

We do not address Santiago's purported First Amendment

claim, as we do not have an operative complaint, and clear

allegations, to consider. We note that to make out such a claim

one element Santiago must meet is that the defendants took a

qualifying "adverse action" against him. Partelow v.

Massachusetts, 442 F. Supp. 2d 41, 51 (D. Mass. 2006), citing

Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). We also

note that Wellpath Policy 85.00 establishes SCRT review as an

integral component of the MTC's sex offender treatment program,

in which Santiago was a voluntary participant.

8

The judgments of dismissal are affirmed.

So ordered.

By the Court (Ditkoff,

Englander & Smyth, JJ. 6),

Clerk

Entered: August 14, 2024.

6 The panelists are listed in order of seniority.

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