EDWARD G. WRIGHT v. THOMAS TURCO, THIRD, & Others (And a Companion Case).

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-185

23-P-991

EDWARD G. WRIGHT

vs.

THOMAS TURCO, THIRD, & others1 (and a companion case2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These matters generally concern the Department of

Correction's (DOC or department) implementation of a "Standard

Operating Procedure" (SOP) for processing inmate mail. Because

the two matters raise substantially identical issues, we have

considered them together, ultimately concluding that there

exists no basis on which to disturb the summary judgments

dismissing the plaintiffs' complaints. We commence with a

1 Steven Silva and Nelson Alves.

2Tony B. Gaskins, Jeffrey Britto, Terry Carter, Phillip

Rise, Michael Hunter, and Derrick Daniels vs. Thomas Turco,

Third, and Stephen Kennedy. As discussed infra, of the named

plaintiffs only Tony Gaskins remains a participant in this

appeal.

discussion of the captioned case, reserving additional comments

pertaining to the companion case for later discussion.

The captioned case. The plaintiff, Edward G. Wright, is an

inmate in the custody of the department. He brought this action

under 42 U.S.C. § 1983 in connection with the department's SOP.

The SOP provides for the opening and then photocopying of

nonprivileged incoming mail addressed to prison inmates at

medium security and maximum security prisons. Wright asserts

that the SOP violates his rights under the First, Fourth, and

Fourteenth Amendments to the United States Constitution and

seeks monetary damages from three prison officials in their

individual capacities, Thomas A. Turco, III, the former

Commissioner of Correction, Stephen Silva, the former

Superintendent of the Souza-Baranowski Correctional Center

(SBCC) and the Massachusetts Correctional Institution at Norfolk

(MCI-Norfolk), and Nelson Alves, the former Director of the

Policy Development and Compliance Unit and current

Superintendent of MCI-Norfolk.3 On cross motions for summary

3 This case has an extensive procedural history. For our

purposes it is sufficient to note the following. In 2018,

Wright and others brought an action seeking declaratory and

injunctive relief against the implementation of the SOP

described above (the 2018 case). Wright claimed that the SOP

violated the Constitution of the United States and had been

adopted without complying with the Administrative Procedures Act

(APA), G. L. c. 30A, §§ 1-5. A different judge of the Superior

Court entered judgment in favor of Wright on the latter ground.

The SOP at issue has since been promulgated in accordance with

2

judgment, a judge of the Superior Court concluded that the

defendants did not violate Wright's constitutional rights and,

alternatively, even if a violation occurred, the defendants were

entitled to qualified immunity. Consequently, the judge allowed

the defendants' motion for summary judgment and denied Wright's

cross motion. Wright appeals.

1. Background. We summarize the undisputed facts from the

record as follows. In an effort to reduce the smuggling of

drugs into correctional facilities, the department implemented

changes to the manner in which it processed inmate mail. On May

5, 2017, the DOC promulgated a regulatory amendment to 103 Code

Mass. Regs. § 481.00 (2017), which provided in pertinent part:

"All incoming non-privileged correspondence and packages

may be required to successfully pass a fluoroscope

examination for contraband materials, and shall be opened

and inspected before delivery to the inmate. The purpose

of inspection will be to receive and receipt any funds

enclosed for the inmate; to verify and record the receipt

of permitted personal property; and to prevent the

transmission of contraband to the inmate. If there is

the APA. Shortly after Wright prevailed in the 2018 action, he

filed the present action. A second judge of the Superior Court

dismissed the complaint on the ground that the judgment in the

2018 case precluded the present action. A panel of this court

reversed that judgment in an unpublished memorandum and order.

See Wright v. Turco, 100 Mass. App. Ct. 1133 (2022).

Essentially, the panel concluded that because the defendants in

the 2018 action had been sued solely in their official

capacities, and, in the present action, Wright sued the

defendants in their individual capacities, there was no privity

of parties. Id., slip op. at 6-7. The case was remanded to the

Superior Court where, as we discuss infra, summary judgment was

entered in favor of the defendants.

3

reason to believe contraband is being introduced through

the mail based on the paper color, texture, etc., a

photocopy of the original correspondence rather than the

original correspondence may be forwarded to the inmate."

103 Code Mass. Regs. § 481.12(2) (2017).

Thereafter, in 2018, the department adopted a pilot program,

and, later, the SOP at issue here for processing all

nonprivileged incoming mail at DOC facilities experiencing

issues with inmate drug use. DOC officials were particularly

concerned about situations where drugs could be diluted and

sprayed on paper. To address this concern, the pilot program

(and the SOP) entailed photocopying all nonprivileged mail,

providing photocopies to inmates, and then storing the original

mail for up to three months before shredding it unless the

inmate paid for the original mail to be returned to the sender.

As noted, the protocol set forth in the pilot program was

incorporated into the SOP, which has since been codified by

regulatory amendment. See 103 Code Mass. Regs. § 481.12(4)

(2022).

In his complaint, Wright alleged that notwithstanding his

incarceration, he retains an interest in his nonprivileged mail

that is protected by the First Amendment. He further asserted

that the seizure of his nonprivileged mail without probable

cause to believe he was engaged in criminal activity violates

his right under the Fourth Amendment. According to Wright, the

interception and copying of his mail can only be lawfully

4

accomplished by obtaining a search warrant. Lastly, Wright

argued that the SOP violates his liberty and property interests

protected by the Fourteenth Amendment. In a comprehensive

memorandum of decision and order, the judge addressed each

argument in turn and ultimately rejected them for the following

reasons.4

Regarding Wright's First Amendment claim, the judge

acknowledged that prison inmates retain their First Amendment

rights but noted that they do so only to the extent those rights

are consistent with the limitations inherent in the

circumstances of incarceration and the legitimate goals and

policies of the penal institution. Relying on Wolff v.

McDonnell, 418 U.S. 539 (1974), among other United States

Supreme Court and First Circuit decisions, the judge concluded

that the SOP did not infringe upon Wright's First Amendment

rights because the SOP did not authorize censorship of the mail

or impact the content of the inmate's correspondence. The judge

further determined that "[e]ven if the evidence permitted a

finding that photocopying [an inmate's mail] somehow infringed

upon [Wright's] First Amendment rights, any such infringement

4 Although our review is de novo, we are assisted in this

case by the judge's thorough analysis and reach the same

conclusions for the reasons he articulated in his memorandum of

decision and order.

5

was permissible as a matter of law" because it was justified as

a policy "reasonably related to legitimate penological interests

[quotation omitted]." In reaching this conclusion, the judge

applied the standard set forth by the United States Supreme

Court in Turner v. Safley, 482 U.S. 78, 89 (1987). That

standard, which requires consideration of four factors, has been

described by the Supreme Judicial Court in Commonwealth v.

Jessup, 471 Mass. 121, 131 (2015), as follows (quotations and

citations omitted):

"The first Turner factor is multifold [and involves

determining] whether the governmental objective underlying

the regulations at issue is legitimate and neutral, and

that the regulations are rationally related to that

objective. The second factor requires determining whether

alternative means exist for exercising the challenged

right. The third factor considers the impact the

accommodation of the asserted constitutional right will

have on others (guards and inmates) in the prison. Last,

. . . [i]f an inmate claimant can point to an alternative

that fully accommodates the prisoner's rights at de minimis

cost to valid penological interests, a court may consider

that as evidence that the regulation does not satisfy the

reasonable relationship standard."

The judge reasoned that (1) "the undisputed evidence of

record demonstrates that the photocopying SOP was promulgated

for the legitimate purpose of promoting institutional safety

through the enhanced detection of drug smuggling at DOC

facilities," (2) "[w]hile not themselves the original epistolary

documents, the photocopies nonetheless permitted inmates to

enjoy the full and undiminished substance of the letters

6

(including handwritten or hand-drawn letters and cards),"

(3) "removal of the photocopying SOP would likely compromise the

health and safety of prison personnel and inmates alike," and

(4) "[Wright] identifies no alternative solution that would

preserve his claimed First Amendment right in original mail

transmittal at only de minimus cost to valid penological

interests [quotation omitted]."

With respect to Wright's Fourth Amendment claim, the judge

observed that in order to establish a violation, Wright was

required to demonstrate that he had a reasonable expectation of

privacy in the items (incoming nonprivileged mail) that

(allegedly) were seized. To meet this burden, Wright needed to

show that he had both a subjective expectation of privacy and

that the expectation of privacy is one that society is prepared

to recognize as reasonable. See Commonwealth v. Miller, 475

Mass. 212, 219-220 (2016). Generally, as the judge noted, the

question whether an inmate has a subjective expectation of

privacy "turns on whether the inmate has notice of the policy of

the penal institution allowing for the search or seizure of a

particular item." Id. at 220. Wright could not meet this

burden, the judge concluded, because he had clear notice of the

SOP allowing for the seizure and photocopying of his

nonprivileged mail. Accordingly, the judge concluded that

Wright's Fourth Amendment claim failed as a matter of law.

7

Lastly, the judge addressed Wright's claim under the

Fourteenth Amendment and determined that although Wright had a

liberty interest in "uncensored communication by letter

[quotation omitted]," he failed to establish that he was

deprived of that right because he received the complete contents

of all nonprivileged mail in photocopied form. The judge

further observed that Wright's due process property right was

not violated because the SOP provided for the original mail to

be sent to a designated individual, thereby depriving Wright of

possession but not ownership of the mail.

After concluding that there was no infringement upon

Wright's constitutional rights, the judge addressed the

defendants' alternative ground advanced in support of their

motion for summary judgment, that is, that they were entitled to

qualified immunity. The defendants asserted, and the judge

agreed, that they have qualified immunity to civil rights

liability in this case because there was no clearly established

law providing that photocopies of nonprivileged incoming mail

violated inmates' constitutional rights.

2. Discussion.5 Our review of the allowance of a motion

for summary judgment is de novo. Gaskins v. Silva, 101 Mass.

5 We note that the defendants argue that Wright's claim for

damages is moot because his original mail was returned to him

after he prevailed in the 2018 case. Even if the case is moot,

we exercise our discretion to address the arguments as the SOP

8

App. Ct. 555, 557 (2022). "Summary judgment is appropriate

where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law." Id., quoting

Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 330

(2021).

Wright argues that the judge erred in allowing the

defendants' motion for summary judgment for several reasons.

First, he asserts that the judge erred in concluding that his

rights under the First, Fourth, and Fourteenth Amendments were

not violated. Second, Wright claims that there are genuinely

disputed material facts as to whether the DOC has a valid

penological interest in intercepting and photocopying

nonprivileged inmate mail and whether the DOC had a reasonable

individualized suspicion that Wright had engaged in the

smuggling of drugs or other contraband. Lastly, Wright argues

that the DOC failed to respond adequately to his discovery

requests and, as a result, the entry of summary judgment was

premature.

We begin our discussion with Wright's claim that the SOP

violates his rights under the First Amendment. "Regulations,

polices or practices that restrict the written correspondence or

is currently in effect and the issues raised by Wright will

otherwise evade review. See Lynn v. Murrell, 489 Mass. 579,

583-584 (2022).

9

mail of prisoners no doubt implicate the First Amendment's

guarantee of freedom of speech." Jessup, 471 Mass. at 129.

Here, however, the SOP at issue did not "restrict" Wright's

ability to receive correspondence. To the contrary, Wright

maintained full access to all correspondence, albeit in a

different form. While it is true, as Wright contends, that the

SOP does not provide an alternate means of receiving the

original nonprivileged mail, the photocopies sufficiently permit

an inmate to enjoy the substance of the mail.6 In addition, as

the judge aptly explained when applying the four factors set

forth in Turner, 482 U.S. at 89, an inmate's First Amendment

rights may be subordinated to the department's legitimate

penological interests and concerns. See Champagne v.

Commissioner of Correction, 395 Mass. 382, 386 (1995), quoting

Pell v. Procunier, 417 U.S. 817, 822 (1994) ("The United States

Supreme Court has held that 'a prison 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'"). In this case, the record demonstrates

that the DOC has a legitimate penological concern, namely the

prevention of drug smuggling into the correctional institutions,

6 We note that the SOP also provides for color photocopies

of drawings or pictures and allows for the direct receipt of

original photographs from "verifiable photo-printing companies."

10

which, in turn, protects the safety of employees and inmates.

It may very well be, as Wright argues, that implementation of

the SOP has not reduced the entry of drugs via mail to the

extent anticipated; however, the success or lack thereof of the

policy does not bear on the question of legitimacy. It suffices

that the policy is rationally related to a legitimate

penological objective. See Commonwealth v. Ecker, 92 Mass. App.

Ct. 216, 220 (2017).

We also reject Wright's claim that the SOP violated his

Fourth Amendment rights. Contrary to his assertion, there is no

basis on which we can conclude that DOC was required to obtain a

warrant before opening and photocopying Wright's nonprivileged

mail. For example, in Cacicio v. Secretary of Pub. Safety, 422

Mass. 764 (1996), the Supreme Judicial Court held that the

monitoring of inmate telephone calls by DOC does not violate the

Fourth Amendment (or art. 14 of the Massachusetts Declaration of

Rights) because the inmates did not have a reasonable

expectation of privacy in such calls and, in addition, the

inmates were notified that their calls were being monitored.

Id. at 769-773. By analogy, there is similarly no expectation

of privacy in nonprivileged mail such that a warrant is required

before its inspection and photocopying. And, despite Wright's

claim, the record demonstrates that he received notice of the

SOP.

11

Next, although inmates enjoy the procedural protections of

due process under the Fourteenth Amendment, such protections

against the deprivation of property 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). The

defendants argue, and we agree, that Wright has not been

deprived of property within the meaning of the due process

clause of the Fourteenth Amendment because he received the

contents of all nonprivileged mail through photocopies and was

permitted to forward the original mail to a designated

individual if he wished.7 Our cases recognize the distinction

between the right to own property and the right to possess

property while in prison. See Mason v. Department of

Correction, 75 Mass. App. Ct. 1111, slip op. at 4 (2009), citing

Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (no

deprivation of property where prisoner's ring and postage stamps

were sent to recipient of his choosing). Because Wright could

designate where his original mail should go, he was only

deprived of possession of that mail and not ownership of it.

Accordingly, we conclude that Wright has not established that

7 The SOP provided that original mail be stored for at least

thirty days, during which time "the inmate may choose to have

the original mail sent to a designated person at the inmate's

expense."

12

implementation of the SOP has deprived him of property or a

liberty interest without due process.8

More importantly, however, we conclude that even if the

defendants had infringed upon Wright's constitutional rights,

the defendants nonetheless were entitled to summary judgment

because they enjoy qualified immunity. "Qualified immunity

'shields law enforcement officials who reasonably but mistakenly

believe that they are acting in accordance with constitutional

mandates.'" Gutierrez v. Massachusetts Bay Transp. Auth., 437

Mass. 396, 403 (2002), quoting Medeiros v. Dracut, 21 F. Supp.

2d. 82, 85 (D. Mass. 1998). A determination of qualified

immunity entails a two-part inquiry. A judge must decide

whether, "taken in the light most favorable to the party

asserting the injury . . . the facts alleged show the officer's

conduct violated a constitutional right," and, if so, the judge

must then ask, "whether the right was clearly established so

that it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted [quotations

omitted])." Id. at 403-404. Here, the defendants are entitled

to qualified immunity because a reasonable corrections official

8 Even if we were to conclude otherwise, any infringement on

Wright's rights under the Fourteenth Amendment is permissible

for the same reasons that an infringement on Wright's First

Amendment rights is justified, that is, because the SOP is

reasonably related to legitimate penological goals.

13

would not have known that the adoption and enforcement of the

SOP violated a clearly established constitutional right.

While, as the judge observed, the SOP at issue was later

struck down because of a failure to follow the APA, the terms of

the SOP itself were never declared unlawful. We agree with the

judge that the record demonstrates that the defendants were

always acting in a good faith belief that the SOP was reasonable

and lawful. Wright has not pointed to any facts that show a

contrary intent. Nor has Wright pointed to any law or precedent

explicitly prohibiting the defendants' conduct. As a result, we

conclude that the defendants are entitled to qualified immunity.

Given our conclusion regarding qualified immunity, we need

not address Wright's claim that summary judgment was improper

due to the existence of genuinely disputed material facts. All

alleged factual disputes relate to Wright's constitutional

claims and do not have any bearing on the defendants' claim of

qualified immunity.

Finally, we agree with the defendants that Wright has

waived any challenge to alleged discovery violations when he

filed his cross motion for summary judgment and thereafter

asserted that the case should be decided as a matter of law in

his favor. Accordingly, any alleged discovery violations are

not before us.

14

The companion case. We now turn to the companion case,

which raises nearly identical challenges to the SOP at issue in

Wright's appeal.9 Like Wright, the lead plaintiff in the

companion case, Tony Gaskins, is an inmate in the lawful custody

and care of DOC. Gaskins and others, who are no longer

participating in the appeal,10 brought an action against Turco

and Stephen Kennedy, who at all relevant times was the Deputy

Superintendent of Operations at MCI-Norfolk, claiming, among

other things, that the SOP violated their rights under the First

and Fourteen Amendments.11 Given our conclusion that the

9 Unlike Wright, the plaintiffs in the companion case also

claimed that the SOP violated their rights under arts. 12 and 14

of the Massachusetts Declaration of Rights. We need not address

the State constitutional claims separately because in this

instance such an analysis does not lead to a contrary result.

Plaintiff Tony Gaskins, the only plaintiff to subscribe the

notice of appeal, see note 10, infra, does not argue otherwise.

10The defendants contend, and we agree, that because the

other plaintiffs, Jeffrey Britto, Terry Carter, Michael Hunter,

and Philip Rise, failed to properly notice an appeal from the

allowance of the defendants' motion for summary judgment, or

sign onto the memorandum of law submitted in lieu of a brief,

they have forfeited their appeal. See Mass. R. Civ P. 11 (a)

(1), as appearing in 488 Mass. 1403 (2021) ("Parties who are not

represented by an attorney shall sign their pleadings . . . [i]f

a pleading is not signed . . . it may be stricken and the action

may proceed as though the pleading had not been filed"). We

further note that plaintiff Derrick Daniels was dismissed from

the appeal by order entered November 2, 2023.

11Gaskins's action also has a lengthy procedural history.

We need only note that Gaskins initially sought declaratory,

injunctive, and monetary damages stemming from the

implementation of the first SOP, which was later declared

invalid. Before the SOP was reinstated, the defendants filed a

15

implementation of the SOP did not result in any constitutional

violations, and that, even if it did, the defendants are

entitled to qualified immunity, Gaskins's claims do not require

any discussion. They fail for the same reasons Wright's claims

do not warrant relief.

Conclusion. With respect to case no. 2084CV02961 (Suffolk

Superior Court), the summary judgment entered June 9, 2023, is

affirmed. With respect to case no. 1885CV01665 (Worcester

motion for summary judgment, which was allowed, and Gaskins

filed a notice of appeal. Meanwhile, as we have discussed, once

the SOP was properly promulgated, the defendants filed a second

motion for summary judgment, which also was allowed. The record

is not clear as to whether Gaskins filed a proper notice of

appeal from the second motion for summary judgment.

Furthermore, it is unclear whether Gaskins is challenging the

implementation of the first (now vacated) SOP or the SOP

currently in place. However, based on our review of the

proceedings, which include a series of motions and status

reports, we are satisfied that Gaskins's challenge to the

current SOP has been sufficiently raised and is properly before

us.

16

Superior Court), the summary judgment entered September 11,

2023, is affirmed.

So ordered.

By the Court (Vuono, Neyman &

D'Angelo, JJ.12),

Clerk.

Entered: November 27, 2024.

12 The panelists are listed in order of seniority.

17