Foster v. Commissioner of Correction (No. 2)

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SJC-12935

STEPHEN FOSTER1 & others2 vs. COMMISSIONER OF CORRECTION &

others3 (No. 2).

June 2, 2020.

Commissioner of Correction. Parole. Commissioner of Public

Safety. Governor. Imprisonment, Safe environment.

Constitutional Law, Sentence, Imprisonment, Cruel and

unusual punishment. Due Process of Law, Sentence,

Commitment. Practice, Criminal, Sentence, Execution of

sentence. Practice, Civil, Civil commitment.

In Foster v. Commissioner of Correction (No. 1), 484 Mass.

, (2020) (Foster [No. 1]), we denied the plaintiffs' motion

for a preliminary injunction and transferred the case to the

Superior Court for a final adjudication on the merits. In this

opinion, we address the motions brought by the Governor and the

chair of the parole board (parole board) to dismiss the claims

against them. For the reasons that follow, we allow the

Governor's motion and we allow in part and deny in part the

parole board's motion.

Discussion. 1. Allegations of the complaint. In deciding

the motions to dismiss, we accept as true the factual

1 On behalf of himself and all others similarly situated.

2 Michael Gomes, Peter Kyriakides, Richard O'Rourke, Steven

Palladino, Mark Santos, David Sibinich, Michelle Tourigny,

Michael White, Frederick Yeomans, and Hendrick Davis, on behalf

of themselves and all others similarly situated.

3 Chair of the parole board, Secretary of the Executive

Office of Public Safety and Security, and the Governor.

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allegations of the complaint and the reasonable inferences that

can be drawn from those facts in the plaintiffs' favor. See

Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008).

We do not address, let alone attempt to resolve here, the truth

of those allegations; that is, whether in fact the conditions of

confinement during the COVID-19 pandemic comport with State and

Federal constitutional requirements, and whether the defendants

have in fact "acted or failed to act with deliberate

indifference." Foster (No. 1), 484 Mass. at . Instead, our

narrow focus is on whether the plaintiffs' complaint adequately

"state[s] a claim upon which relief can be granted" against the

Governor and the parole board,"4 Mass. R. Civ. P. 12 (b) (6), 365

Mass. 754 (1974); in other words, whether the allegations, if

true, plausibly suggest an entitlement to any relief against

these defendants. Iannacchino, supra at 635-636.

The complaint alleges that, by confining the plaintiffs

"under conditions that put them in grave and imminent danger of

contracting the COVID-19 virus, and failing to implement an

effective mechanism to reduce the incarcerated population to a

safe level, [the] [d]defendants are deliberately indifferent to

the substantial risk of serious harm suffered by [the]

[p]laintiffs." They allege that each of the defendants is (1)

violating the plaintiffs' right to be free from cruel or unusual

punishment and their right to substantive due process, as

guaranteed under the Declaration of Rights in the Massachusetts

Constitution, and as secured by G. L. c. 231A (count one); and

(2) violating their right to be free from cruel and unusual

punishment and their right to substantive due process as

guaranteed by the Federal Constitution, and as secured by 42

U.S.C. § 1983 (count two). Additionally, the plaintiffs allege

that confining persons who have been civilly committed under

G. L. c. 123, § 35, in correctional facilities violates those

individuals' rights to substantive due process under the Federal

and State Constitutions, as secured by 42 U.S.C. § 1983 and

G. L. c. 231A, respectively (count three).

By its terms, the complaint seeks injunctive relief

pursuant to G. L. c. 231A and 42 U.S.C. § 1983. In particular,

it seeks an order requiring the defendants, "their agents,

officials, employees, and all persons acting in concert with

them" to confine prisoners in particular ways; requiring certain

4 The Governor has also moved to dismiss the complaint for

"[l]ack of jurisdiction over the subject matter." Mass. R. Civ.

P. 12 (b) (1), 365 Mass. 754 (1974). Because of the result

reached, we do not separately address the point.

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medical and health arrangements; prohibiting the ongoing

confinement in correctional facilities of persons civilly

committed under G. L. c. 123, § 35; reducing the number of

persons incarcerated in prisons and jails; and mandating that

the parole board take certain actions. The complaint also seeks

an order "[m]aximizing the use of commutation and clemency" by

the Governor and "[m]aximizing the use of the Governor's

emergency powers and all other available mechanisms to grant

releases to all those who are vulnerable."

2. Governor's motion to dismiss. Although the complaint

broadly alleges that the defendants have violated the

plaintiffs' State and Federal constitutional rights, the

specific allegations against the Governor are notably few. The

complaint alleges that the "Governor has refused to act on his

near plenary emergency powers when it comes to the health and

safety of prisoners." The plaintiffs seek to compel the

Governor to use his authority to order a reduction in the prison

population, because, absent his exercise of authority, "[t]here

have been no commutations, no furloughs, no increase in earned

good times, no releases by the [Department of Correction] to

home confinement, little if any increase in the use of medical

parole, and no effort by the parole board to streamline the

parole process or modify the criteria for release in light of

COVID-19."

The plaintiffs are not entitled to relief against the

Governor under the declaratory judgment statute, G. L. c. 231A,

because the statute, by its terms, expressly does "not apply to

the governor and council or the legislative and judicial

departments." G. L. c. 231A, § 2. See Milton v. Commonwealth,

416 Mass. 471, 475 (1993); Alliance, AFSCME/SEIU, AFL-CIO v.

Secretary of Admin., 413 Mass. 377, 377 n.1 (1992), and cases

cited.

Nor is their position enhanced by invoking, as they do, the

inherent power of this court "to say what the Constitution

requires, when the question is properly presented." Bates v.

Director of the Office of Campaign & Political Fin., 436 Mass.

144, 168 (2002), quoting Horton v. Attorney Gen., 269 Mass. 503,

507 (1929), and citing Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803). Had they alleged that the Governor affirmatively took

action that was unconstitutional, or that anything he has done

actually caused harm to the plaintiffs from alleged

constitutional violations, the situation may well be different.

But they do not challenge anything the Governor has in fact

done; they only complain of what they allege he could have done

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but did not. And they certainly do not contend that the

Governor had any direct, affirmative involvement in causing the

challenged prison conditions. See Hannon v. Beard, 979 F.

Supp. 2d 136, 141-142 (D. Mass. 2013) (no direct connection

between prison conditions and Governor's actions), and cases

cited. See also Brown v. Rhode Island, 511 Fed. Appx. 4, 5 (1st

Cir. 2013) (dismissing claims against Governor where plaintiff

did not challenge any affirmative acts of Governor). Moreover,

the Governor cannot be found liable based on a theory of

respondeat superior or vicarious liability, that is, on the

theory that he is legally responsible for the conduct of those

he appointed to government service or to the agencies they lead.

See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (vicarious

liability not applicable in such actions); Brown, supra

(respondeat superior theory of liability not available in such

circumstances).

In short, the complaint claims that the Governor is liable

for things he has not done. First, it alleges that he is

responsible for failing to reduce the prison population by

failing to exercise his executive authority to pardon and grant

clemency. Second, it alleges that he has failed to exercise his

emergency powers to mitigate the situation. These are not

actionable claims. With respect to the first alleged failure to

act, it is well settled that the Governor's authority to grant

pardons and other clemency is exclusively an executive

authority. See Part II, c. 2, § 1, art. 8, of the Massachusetts

Constitution, as amended by art. 73 of the Amendments to the

Massachusetts Constitution ("The power of pardoning offences

. . . shall be in the governor, by and with the advice of

council . . ."). This court cannot compel him to exercise it.

See District Attorney for the Suffolk Dist. v. Watson, 381 Mass.

648, 667 n.10 (1980) (judicial branch cannot control executive

clemency).

With respect to the second alleged failure to act, viz.,

the Governor's failure to utilize his emergency powers to

mitigate the situation, this court should tread lightly in

telling any Governor when or how to exercise his or her powers.

It is one thing for a court to order a Governor to cease

engaging in action the court has found to be unconstitutional;

it is quite another for a court affirmatively to direct a

Governor how to act. For that reason, among others, this court

historically has been unwilling to order a Governor to act where

the relief sought, if deserved, can be provided by means of a

court order against some defendant other than the Governor. See

Milton, 416 Mass. at 475-476; Rice v. Draper, 207 Mass. 577, 579

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(1911). Cf. LIMITS v. President of the Senate, 414 Mass. 31, 34

(1992). If the plaintiffs in this case are indeed entitled to a

remedy at the conclusion of the case, it can be provided by an

appropriate order or orders directed to the other executive

branch officials in the case. See Milton, supra. See also

Barnes v. Secretary of Admin., 411 Mass. 822, 822 n.2 (1992).

As stated, there is no claim that the Governor himself, by any

affirmative act he has taken, has "overstepp[ed] constitutional

bounds." Horton, 269 Mass. at 507. And we are confident, as

this court always has been, that any declaration that we or the

Superior Court may ultimately issue requiring action by any of

the remaining defendants will be met with prompt compliance.

See LaChance v. Commissioner of Correction, 475 Mass. 757, 765

(2016), quoting Massachusetts Coalition for the Homeless v.

Secretary of Human Servs., 400 Mass. 806, 825 (1987) (where

declaratory judgment is directed to public officials, injunctive

order is "generally unnecessary" because Massachusetts courts

"assume that public officials will comply with the law declared

by a court"). The Governor's presence is simply not necessary

to provide any relief that a court may order in this case.

3. Parole board's motion to dismiss. The plaintiffs

allege in their complaint that the parole board has "fail[ed] to

implement an effective mechanism to reduce the incarcerated

population to a safe level," and that there has been "little if

any increase in the use of medical parole, and no effort by the

parole board to streamline the parole process or modify the

criteria for release in light of COVID-19." The complaint in

essence claims that the parole board is failing to take steps

that it is empowered to take to protect the plaintiffs from

COVID-19, and that its deliberate indifference to the

plaintiffs' plight creates "a substantial risk of serious harm

to [the plaintiffs'] health or safety." Foster (No. 1), 484

Mass. at . Accordingly, the complaint seeks an order

requiring the parole board to exercise its authority under G. L.

c. 127, §§ 130 et seq., and 120 Code Mass. Regs. § 200.10 (2017)

to make persons serving house of correction sentences eligible

for early parole; to consider the dangers posed by COVID-19 when

evaluating, as the statute requires it to do, whether "release

is not incompatible with the welfare of society"; to

presumptively grant parole to parole eligible individuals; to

expedite the release of individuals who have been granted parole

or medical parole; to ensure no prisoner is held beyond his or

her "release to supervision date," see G. L. c. 127, § 130B; and

to conduct parole hearings for parole eligible prisoners not

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later than sixty days prior to their parole eligibility date, as

required by G. L. c. 127, § 136.5

Accepting the allegations of the complaint as true, as we

must in considering a motion to dismiss, we conclude that the

plaintiffs have alleged facts which, if proved, are sufficient

to state a constitutional claim that the parole board was

deliberately indifferent to the risk of death and serious

illness to certain prisoners, particularly elderly and medically

vulnerable prisoners. See Iannacchino, 451 Mass. at 636. See

also Good v. Commissioner of Correction, 417 Mass. 329, 334

(1994) (Commissioner of Correction proper party defendant where

he had "ability to prevent harm"). The complaint alleges that

the parole board has authority to implement effective measures

to reduce the incarcerated population by, for example,

expediting parole hearings and releases and, perhaps,

considering the impact of COVID-19 as part of its assessment.

If, as the plaintiffs contend, the parole board has been

deliberately indifferent in its exposure of the prisoners to

"unreasonable risks from the COVID-19 pandemic," Foster (No. 1),

484 Mass. at , then the parole board's failure to act within,

and to the extent of, its authority may, if such deliberate

indifference is proved, entitle the plaintiffs to relief.

We recognize that the scope of the parole board's authority

is defined by statute, see G. L. c. 27, § 4, and G. L. c. 127,

§§ 130 et seq., and that "the court's equitable powers may not

be used to provide relief that is contrary to statutory or

constitutional requirements." McCarthy v. Governor, 471 Mass.

1008, 1010-1011 (2015), citing Haverty v. Commissioner of

Correction, 440 Mass. 1, 8 (2003). See Immigration &

Naturalization Serv. v. Pangilinan, 486 U.S. 875, 883 (1988)

("Courts of equity can no more disregard statutory and

constitutional requirements and provisions than can courts of

law" [citation omitted]). Where, however, the parole board has

authority to act and it fails to do so, for example, by failing

to consider early parole in circumstances that are "sufficiently

compelling," see Committee for Pub. Counsel Servs. v. Chief

Justice of the Trial Court, 484 Mass. 431, 452 (2020), quoting

120 Code Mass. Regs. § 200.10, or by failing to hold timely

hearings, this court (and likewise the Superior Court) can

exercise its equitable authority to require the parole board to

exercise its statutory authority to remedy a constitutional

5 The plaintiffs do not oppose dismissal of the claim

against the parole board relating to individuals civilly

committed under G. L. c. 123, § 35.

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violation, if such a violation were to be found. Indeed, if the

plaintiffs' constitutional claims were to prevail and if this

court (or the Superior Court) were to order the population of

incarcerated inmates to be reduced, the parole board would be a

logical and necessary party to accomplish a reasonable and

sensible remedial process. See Richardson v. Sheriff of

Middlesex County, 407 Mass. 455, 469-470 (1990).

Conclusion. The Governor's motion to dismiss the complaint

is allowed. The parole board's motion is allowed only with

respect to the claims of the individuals civilly committed under

G. L. c. 123, § 35, and is otherwise denied.

So ordered.

James R. Pingeon for the plaintiffs.

Stephen G. Dietrick for Commissioner of Correction &

another.

Ryan P. McManus, Special Assistant Attorney General, for

the Governor.

Michael R. Byrne for the parole board.

The following submitted briefs for amici curiae:

Tatum A. Pritchard for Disability Law Center, Inc.

Rachael Rollins, District Attorney for the Suffolk

district, & Hon. Jon Santiago, pro se.

Matthew R. Segal for American Civil Liberties Union of

Massachusetts & another.