WILLIAM M. SHIPPS v. DEPARTMENT OF CORRECTION & 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-1390

WILLIAM M. SHIPPS

vs.

DEPARTMENT OF CORRECTION & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, William Shipps, filed a petition for

contempt in the Superior Court against the defendant Department

of Correction (department) and its agents for their alleged

violation of directives of the Supreme Judicial Court (SJC).

Acting on cross motions for judgment on the pleadings, a

Superior Court judge declined to hold the defendants in contempt

and entered judgment in their favor. The plaintiff timely filed

a notice of appeal. We affirm.

Background. The plaintiff is a "juvenile homicide

offender." Deal v. Commissioner of Correction, 475 Mass. 307,

1Carol A. Mici, as Commissioner of Correction, and Abbe E.

Nelligan, as the commissioner's designee for classification.

308 n.4 (2016) (Deal I), S.C., 478 Mass. 332 (2017) (Deal II).

At his annual classification review in January 2022, his

objective classification score made him eligible for placement

in a minimum security facility, and the departmental review

board voted two-to-one to recommend transfer to minimum

security. The minority recommended that Shipps remain at MCI-

Norfolk for further programming and rehabilitation. In May

2022, the commissioner's designee, defendant Nelligan, adopted

the minority view and utilized two discretionary override codes

(codes R and U) to deny the transfer.

The plaintiff argues that Nelligan's written explanation

for using codes R and U violated the SJC's directives in Deal

II, 478 Mass. at 342-343, discussed infra.

Discussion. 1. Mootness. While this appeal was pending,

after the plaintiff's classification review in 2024, the

plaintiff was recommended for transfer, and then transferred, to

a minimum security facility. Because the department and its

agents are no longer impeding the plaintiff's transfer, they

argue that his appeal from the denial of his petition for

contempt should be dismissed as moot. Given that the issue

underlying the contempt claim is not the plaintiff's placement,

but rather the department's history of blocking the placement of

juvenile homicide offenders in minimum security facilities,

which required the SJC's intervention in Deal I and Deal II, we

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are inclined to reach the merits. See LaChance v. Commissioner

of Correction, 475 Mass. 757, 767-768 (2016) (case not moot

where conduct is capable of repetition as to same plaintiff such

that plaintiff has ongoing personal stake in matter).

2. Contempt. In Deal II, the SJC gave the department

specific instructions for using code R and code U to override

objective classification scores that would otherwise warrant

placement in a minimum security facility.2 With respect to code

R, the court issued this directive:

"[T]o ensure true individualized consideration, we now

declare that, whenever code R is used as a discretionary

override, the written explanation for the decision must

explain in detail why this youthful offender's conduct in

committing the murder is so significantly different in its

seriousness as to reasonably distinguish it from the

conduct of others and, in particular, other juveniles who

committed murder."

Deal II, 478 Mass. at 342. With respect to code U, the court

declared as follows:

"Because the use of code U is so inconsistent with the

objective classification score's reliance on recent

disciplinary reports and acts of violence, and because it

is so broad in its scope and duration and conclusory in its

language, we now declare that, whenever code U is used as a

discretionary override, the written explanation for the

2 "According to the [department's classification] manual,

discretionary code R allows an override where '[t]he facts or

notoriety of the offense presents a seriousness that cannot be

captured in the score.' . . . Discretionary code U allows an

override where an 'inmate['s] behavior, while not always

negative enough to warrant disciplinary action, may serve to

threaten security or undermine the exercise of proper control

and maintenance of order within the institution.'" Deal II, 478

Mass. at 337-338.

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decision must explain in detail the specific conduct that

justifies its application."

Id. at 343. The plaintiff argues that Nelligan's explanation

for using codes R and U to block his transfer to minimum

security in 2022 was not sufficiently detailed and, therefore,

the defendants should be held in contempt, a remedy authorized

by G. L. c. 231A, § 5.3

"To constitute civil contempt there must be a clear and

undoubted disobedience of a clear and unequivocal command."

United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35,

36 (1972). See Birchall, petitioner, 454 Mass. 837, 851-852

(2009). The plaintiff bore the burden of proving the

department's clear and undoubted disobedience by clear and

convincing evidence. See id. at 852-853. "Where the order is

ambiguous or the disobedience is doubtful, there cannot be a

finding of contempt." Cooper v. Keto, 83 Mass. App. Ct. 798,

804 (2013), quoting Birchall, supra at 852.

To explain the use of code R, regarding the notoriety of

the plaintiff's offense, Nelligan stated, "Code R applies due to

the serious, violent, and premeditated nature of the offense in

which a brother and sister were fatally shot within their own

home and the brother's body was found on a blood-soaked bed and

3 The department acknowledges, and we agree, that the

plaintiff stated a claim eligible for relief under G. L.

c. 231A, § 5.

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his sister was initially found alive on her bed suffering from a

gunshot wound to the head from which she later succumbed to."

To explain the use of code U, concerning why the plaintiff's

conduct in prison might undermine control and order in a minimum

security facility, Nelligan explained that the plaintiff had

only recently begun to talk about "the atrocious nature of the

offense . . . which warrants further addressing through

participation in programs that address the causal factors of

such conduct."4 Nelligan further explained why the combination

of the plaintiff's crime and his failure to grapple with it made

him unready for transfer, writing that he would be a risk to "a

minimum-security facility and thus to public safety" because he

had not yet acquired and "internalized the skills needed to be

safely and securely housed at minimum security."

Although Nelligan's explanation for the use of code R could

have been more detailed -- for example, she could have compared

the plaintiff's crime to the crimes of other juvenile homicide

offenders -- the plaintiff has not shown by clear and convincing

evidence that the explanation amounted to clear and undoubted

4 Nelligan credited the plaintiff's "vast participation in

programming," but also noted that he denied shooting one of the

victims and "presented information about his crime which is not

supported by the facts of [the official version of] his case."

Accordingly, the plaintiff required additional "programs that

promote insight and empathy in order to understand the profound

impact that they have had on others."

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disobedience of the SJC's declarations in Deal II. Unlike the

department's explanations for the use of code R in Deal I, 475

Mass. at 314-315, Nelligan's explanation provided more than a

blanket "serious nature of offense" statement. She included

specific details about the plaintiff's crime, including that one

victim was found alive and suffering from a gunshot wound to the

head and the other was found in a "blood-soaked bed." The judge

concluded, and we agree, that the explanation "at least arguably

complie[d]" with Deal II's specificity requirement based on the

reasonable inference that the details Nelligan provided were the

factors that differentiated the plaintiff's crime from the

crimes of other similarly situated offenders.

Nelligan's explanation regarding her use of code U also

complied with the SJC's directives. While we agree with the

plaintiff that code U must be based on juvenile homicide

offenders' conduct in prison and not their underlying offenses,

see Deal II, 478 Mass. at 337-338, we disagree with the

plaintiff's assertion that the department relied on his offense

to invoke code U. Nelligan cited the plaintiff's failure to

address the root causes of his offense through programs and

services, his denial of culpability, and his unwillingness to

discuss his crimes as reasons for invoking code U. These

details sufficiently explained the plaintiff's specific conduct

in prison, or lack thereof, prior to the 2022 classification

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hearing that might have undermined the rehabilitative mission of

a minimum security facility. See id. at 343. In any event, the

explanation was not so generic as to show the clear and

unequivocal disobedience required for a finding of contempt.

Judgment affirmed.

By the Court (Massing, Hand &

Smyth, JJ.5),

Clerk

Entered: December 17, 2024.

5 The panelists are listed in order of seniority.

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