Haas v. Commissioner of Correction

NOTICE: All slip opinions and orders are subject to formal

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22-P-435 Appeals Court

GORDON HAAS & others1 vs. COMMISSIONER OF CORRECTION & others.2

No. 22-P-435.

Worcester. March 7, 2023. – July 17, 2023.

Present: Sullivan, Sacks, & Ditkoff, JJ.

Imprisonment, Earnings of prisoner. Commissioner of Correction.

Administrative Law, Regulations. Due Process of Law,

Prison regulation. Regulation. Practice, Civil,

Dismissal.

Civil action commenced in the Superior Court Department on

July 24, 2019.

A motion to dismiss was heard by David M. Hodge, J., and a

motion for reconsideration was considered by him.

Gordon Haas, pro se.

Heidi D. Handler for the defendants.

1 Daniel Holland, Ricky Alford, James Keown, and Martin

Lovato.

2 Director of Classification for the Department of

Correction, Superintendent of the Massachusetts Correctional

Institution, Norfolk (MCI-Norfolk), and Deputy Superintendent of

Reentry at MCI-Norfolk.

2

SACKS, J. The plaintiffs, all of whom are serving life

sentences in the custody of the Department of Correction (DOC),

brought this action for declaratory and injunctive relief

against DOC officials to challenge the validity of a newly

issued DOC "standard operating procedure" (SOP) that restricts

the disbursement of funds from inmates' institutional accounts.

The SOP's stated purpose is to prevent disbursements "related to

any illicit or improper activity." SOP § I.3 Its core

provisions essentially prohibit inmates (1) from sending funds

directly to private individuals outside prison walls; and (2)

from sending funds to businesses or organizations unless the

inmate's disbursement request is accompanied by an invoice from,

or an order form issued by, the business or organization. On

the defendants' motion, a Superior Court judge dismissed the

verified complaint for failure to state a claim on which relief

could be granted. We conclude that the verified complaint

states claims, sufficient to withstand a motion to dismiss, that

the SOP (a) conflicts with a preexisting DOC regulation

governing disbursements of inmate funds; and (b) was itself

required to be promulgated as a regulation pursuant to G. L.

c. 30A procedures. We also conclude that it was premature to

dismiss the plaintiffs' due process claim. We therefore reverse

3 The same SOP was at issue in Fitzpatrick v. Department of

Correction, 102 Mass. App. Ct. 617, 618, 624 (2023).

3

the judgment as to those claims and remand for further

proceedings.

Background. We summarize the factual allegations of the

verified complaint, accepting them as true at this motion to

dismiss stage and drawing all reasonable inferences in the

plaintiffs' favor. See Curtis v. Herb Chambers I-95, Inc., 458

Mass. 674, 676 (2011).

1. Factual allegations. The five plaintiffs are serving

life sentences at Massachusetts Correctional Institution,

Norfolk (MCI-Norfolk or institution), three of them without the

possibility of parole. None of the plaintiffs has been subject

to any disciplinary action at times relevant to this case.4

The defendant Commissioner of Correction (commissioner)

approved the SOP on January 24, 2019, for the stated purpose of

"amend[ing]" the "policy" with respect to 103 Code Mass. Regs.

§§ 405.00 (2017) governing inmate funds. Thereafter, two of the

other defendant DOC officials issued a memorandum, addressed to

all inmates and staff at MCI-Norfolk, summarizing the SOP's new

process for disbursements to recipients outside the institution.

That memorandum summarized the SOP as follows:

"[A]ny request for disbursement from account funds for a

monetary 'gift' shall be deemed invalid.

4 We acknowledge the allegation of good behavior by all of

the plaintiffs but note that their statement regarding "times

relevant" to the case is a legal conclusion.

4

"The inmate may[,] however, order a gift from an outside

company/business. This request must be accompanied by an

order form the inmate has obtained from the specific

company/business. The name and address of the intended

recipient of the gift shall be listed on the order form.

"If the request for disbursement from funds is to pay a

bill, a copy of that bill must be submitted at the time of

the request."

The SOP applies to disbursements from an inmate's "personal

account."5 SOP §§ I, II.

The plaintiff Gordon Haas then wrote several letters to the

commissioner, on behalf of the "Lifer's Group Inc." (lifers'

group), listing various concerns that prisoners serving life

sentences and other "long-termers" had about the SOP's

restrictions.6 He received responses from other DOC officials

that, inferably, did not substantively address the issues he had

raised. One of the responses stated that "all charge slips

5 The verified complaint alleges that DOC "maintains for

every prisoner two accounts -- a [p]ersonal [a]ccount for funds

to be accessed by a prisoner and a [s]avings [a]ccount for funds

to be set aside for when a prisoner leaves the DOC to return to

society." This structure is also reflected in G. L. c. 127,

§ 48A, and in, e.g., 103 Code Mass. Regs. § 405.07.

6 A letter from Haas to the commissioner, inferably one of

those referenced in the verified complaint, is appended to the

plaintiffs' brief. The letter states that "[l]ifers comprise

over 40% of the population at MCI-Norfolk" and that Haas's

lifers' group "estimates that over one-third of our members have

been regularly sending funds to family members for birthdays and

other occasions or just to help out with daily finances." As it

is unclear whether this letter was before the judge, we do not

consider it in our analysis.

5

[i.e., the forms inmates must submit to request disbursements]

are reviewed upon receipt. Exceptions may be deemed necessary."

Each of the five plaintiff inmates then requested

disbursements from their accounts, in some cases mirroring

disbursements made without difficulty in the past, but each of

the new requests was denied based on the SOP. Each plaintiff

then pursued some form of complaint or grievance, but none

obtained any relief.

Haas, for example, submitted two charge slips, requesting

that twenty-five dollars from his account be sent to each of two

different named individuals in Detroit, Michigan. A DOC

employee declined to process the slips. He told Haas that the

DOC official responsible for implementing the SOP had instructed

that no charge slips for disbursement to individuals should be

submitted, because they "would obviously be denied." Haas

submitted a complaint form, which was returned to him with the

notation that "[p]er [the SOP], you are no longer allowed to

send out money to outside individuals. This is DOC wide."

The plaintiff Daniel Holland submitted a charge slip "to

send [twenty dollars] to Mellon to be invested in stocks

designated for his son upon . . . Holland's death."7 The request

7 The judge described Mellon as a bank in his decision.

6

was denied, as was his informal complaint about the denial.

Holland submitted a grievance but received no response.

The plaintiff Ricky Alford, on twenty-nine occasions dating

back to 2012, had sent funds to his son, who is incarcerated in

Louisiana, "to assist his son to purchase hygienic necessities

and other items." After the SOP was issued, Alford requested

another such disbursement, in the same manner as before, but

this request was denied based on the SOP. Alford's informal

complaint, formal grievance, and internal grievance appeal were

likewise denied. Alford also wrote to the commissioner and

received a response stating that "exceptions to [the SOP] are

unable to be made."

The plaintiff James Keown submitted a charge slip to send

twenty-five dollars to his sister to help pay for his mother to

travel from Missouri to visit him. Keown submitted a second

charge slip to send ten dollars to a named Massachusetts State

representative "as a donation to his reelection campaign."

After waiting five days without receiving a written denial,

Keown submitted an informal complaint. That complaint was

denied with the notation, "Per [the SOP] this type of financial

transaction is no longer allowed. MCI-Norfolk is adhering to

the policy."

Finally, the plaintiff Martin Lovato had previously been

sending funds monthly "to invest in Allete, Inc. to provide a

7

legacy of stocks for his niece upon . . . Lovato's death."8

After the SOP was issued, however, Lovato was informed that a

charge slip to send funds to Allete, Inc. was denied. He filed

an informal complaint, which was denied with a citation to the

SOP and the regulation governing inmate funds. Lovato filed a

formal grievance, which was denied, and he filed an internal

appeal of the denial but received no response. Lovato also

wrote to the superintendent of MCI-Norfolk, stating, "unless you

possess documentation that implicates Allete, Inc. and myself in

some sort of illicit or improper activity, I am respectfully

requesting that I be allowed to continue the transactions I

engaged in." The superintendent responded that Lovato's request

did not comply with the SOP.

In addition to these details about the individual

plaintiffs' disbursement requests, the verified complaint

alleged that the impetus for the SOP was DOC's "belief that drug

transactions within [DOC] are funded through money sent from

inmates' personal accounts." Before the SOP was implemented,

"any and all charge slips involving a possible misuse of funds

were flagged and investigated by correctional staff before said

charge slips were processed and funds sent from a prisoner's

8 An Internet search shows that there is an energy company,

"Allete, Inc.," that is traded on the New York Stock Exchange.

See https://www.allete.com [https://perma.cc/9CR4-A33U].

8

personal account, including, but not limited to, the

[p]laintiffs['] personal accounts." None of the plaintiffs was

ever found to have misused personal funds while in DOC custody,

and, prior to the SOP's implementation, none of them was ever

denied the use of his personal funds. None of the plaintiffs

has ever tested positive for substance use while incarcerated.

2. Legal claims. We briefly review the plaintiffs' legal

claims, mindful that "there is no requirement that a complaint

state the correct substantive theory of the case," and that "[a]

complaint is not subject to dismissal if it would support relief

on any theory of law" (citation omitted). Gallant v. Worcester,

383 Mass. 707, 709-710 (1981). See Goodwin v. Lee Pub. Sch.,

475 Mass. 280, 286 (2016); Gutierrez v. Board of Managers of

Flagship Wharf Condominium, 100 Mass. App. Ct. 678, 683 n.10

(2022). See also Lamoureux v. Superintendent, Massachusetts

Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983) (pro

se filings interpreted liberally where complaint presents

cognizable legal theory); Braley v. Bates, 100 Mass. App. Ct.

259, 262, 263 n.4 (2021) (same, in prisoner's G. L. c. 231A

action against State prison official).

9

The plaintiffs' complaint advanced five claims, only three

of which they press on appeal.9 First, they claim that the SOP

violates 103 Code Mass. Regs. § 405.12, which imposes only a few

limited prerequisites that inmates must meet in order to obtain

disbursements of their funds. Second, they claim that the SOP

was issued and implemented without legislative authority -- a

claim that, as developed in the proceedings on the motion to

dismiss, encompassed the argument that the SOP is a "regulation"

as defined in G. L. c. 30A, requiring a public hearing before

its implementation, and is not within an exemption to that

definition. See Braley, 100 Mass. App. Ct. at 263 n.4. Third,

the plaintiffs claim that the SOP arbitrarily restricts the use

of their property, in violation of their due process rights

under the United States Constitution's Fourteenth Amendment,

enforceable under 42 U.S.C. § 1983.

A judge granted DOC's motion to dismiss the complaint for

failure to state a claim upon which relief could be granted. A

9 The verified complaint also claimed that the SOP (1)

violated Haas's and Keown's rights under the First Amendment to

the United States Constitution to donate their money to persons,

causes, and political campaigns which they support, and (2)

violated G. L. c. 127, § 32 (providing that superintendents of

DOC institutions "shall treat the prisoners with the kindness

which their obedience, industry and good conduct merit"). On

appeal, the plaintiffs have not argued either claim.

10

subsequent motion for reconsideration was denied, and the

plaintiffs appealed from both decisions.

Discussion. 1. Propriety of declaratory relief. We

reject DOC's threshold argument that, because the plaintiffs (in

DOC's view) challenge the individual denials of their requests

for disbursements of funds, they may not seek declaratory

relief. An otherwise proper request for declaratory relief is

not barred merely because a plaintiff also seeks review of an

individualized administrative decision.10 See Grady v.

Commissioner of Correction, 83 Mass. App. Ct. 126, 137 n.9

(2013). And here, the plaintiffs' pursuit of declaratory relief

is proper because they challenge the validity of the SOP itself,

which they allege DOC has consistently and repeatedly relied

upon to deny their requests to transfer their money to outside

individuals and entities for lawful purposes. "[A] complaint

for declaratory relief is an appropriate way of testing the

validity of regulations or the propriety of practices involving

violations of rights, which are consistent and repeated in

nature." Id. at 135, quoting Nelson v. Commissioner of

Correction, 390 Mass. 379, 388 n.12 (1983). Nor is an inmate

with a grievance required to exhaust the administrative

10We therefore need not decide whether the plaintiffs

actually do seek review of individualized decisions. Their

appellate brief, at least, focuses instead on the validity of

the SOP.

11

grievance process before seeking declaratory relief. See Grady,

supra at 137 n.9. citing G. L. c. 127, §§ 38F, 38H. Finally,

although Grady focused on declaratory judgment actions asserting

constitutional claims, declaratory relief may also be sought, as

the plaintiffs do here, based on alleged violations of statutes

or regulations. See Braley, 100 Mass. App. Ct. at 261-262.

2. Conflict between SOP and regulations. The DOC has

promulgated regulations governing inmate funds. See 103 Code

Mass. Regs. §§ 405.00. These properly promulgated regulations

"ha[ve] the force of law . . . and must be accorded all the

deference due to a statute." Borden, Inc. v. Commissioner of

Pub. Health, 388 Mass. 707, 723, cert. denied sub nom.

Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983).

Of course, "courts permit prison administrators

considerable discretion in the adoption and implementation of

prison policies. . . . However, the limits of such discretion

are established by the rules and regulations promulgated by the

Department of Correction. Once an agency has seen fit to

promulgate regulations, it must comply with those regulations."

Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983).

See Dexter v. Superintendent, Massachusetts Correctional Inst.,

Concord, 88 Mass. App. Ct. 325, 326 (2015) (same; accordingly,

DOC "is bound by its 'inmate property' regulation, as

promulgated in 103 Code Mass. Regs."). As the Supreme Judicial

12

Court has recently reiterated in the medical parole context, a

court "cannot acquiesce" to DOC's failure to do what is

"required by the regulation." McCauley v. Superintendent,

Massachusetts Correctional Inst., Norfolk, 491 Mass. 571, 598

(2023). "The regulations must be complied with." Haverty v.

Commissioner of Correction, 437 Mass. 737, 763 (2002), S.C., 440

Mass. 1 (2003). See Northbridge v. Natick, 394 Mass. 70, 76

(1985) (State "agency must follow its own regulations even in

the face of inconsistent internal guidelines"); Dougan v.

Commissioner of Correction, 34 Mass. App. Ct. 147, 148 (1993).

And, "[b]ecause they allege that the policy violates DOC

regulations, the plaintiffs properly brought this action under

the declaratory judgment act." Ivey v. Commissioner of

Correction, 88 Mass. App. Ct. 18, 22 (2015).

The particular regulation most relevant here is 103 Code

Mass. Regs. § 405.12, which sets forth the relatively simple

procedure by which inmates may obtain disbursements of funds

from their personal accounts. The inmate need only fill out a

"withdrawal/issue slip" -- what the plaintiffs refer to as a

"charge slip" -- that includes five items: the date, amount to

be withdrawn, purpose, inmate's signature, and staff

verification signature. 103 Code Mass. Regs. § 405.12(1). The

superintendent of each DOC institution designates an employee

responsible for verifying, through the employee's signed

13

approval, that the request came from the inmate; the employee

then submits the slip to the institution's treasurer's office.

See 103 Code Mass. Regs. § 405.12(2). Once the slip is there,

the procedure is as follows:

"The Accounting Clerk/Cashier shall take the

withdrawal/issue slip and:

(a) Ensure that inmate has signed the request;

(b) Ensure that the staff member[']s verification signature

is present;

(c) Check the inmate account to ascertain there are

sufficient funds for withdrawal;

(d) Disburse the funds from the inmate[']s account in

accordance with the request." (Emphasis added.)

Id. The plain language of this regulation appears to require

the accounting clerk, upon receipt of the completed slip and

verification of the signatures and the inmate's account balance,

to "[d]isburse the funds from the inmate[']s account in

accordance with the request." Id. The regulation does not

restrict the purpose for which a disbursement may be made or the

person or entity to whom or which it may be made.

The SOP, in contrast, restricts both. The SOP states that

"[a]n inmate's request for disbursement of his/her inmate

account funds for a monetary 'gift' shall be deemed invalid as

such monetary disbursements are frequently used for illegitimate

purposes." SOP § II.A.2. The DOC appears to interpret the

SOP's term "gift" broadly, to encompass any transfer of money to

14

a natural person. As a DOC official informed Haas, inmates "are

no longer allowed to send out money to outside individuals.

This is DOC wide." And as a DOC official informed Keown when he

sought a twenty-five dollar disbursement to his sister to help

pay for his mother to visit him from Missouri, and a ten dollar

disbursement to a State representative for his reelection

campaign, "this type of financial transaction is no longer

allowed" under the SOP, and "MCI-Norfolk is adhering to the

policy."

Does the SOP prohibit all "gifts"? No. The SOP states,

"Instead, the inmate may submit an order form to purchase a gift

for the intended recipient through an outside company/business

using funds from the inmate's personal account. The inmate may

submit an order form he/she has obtained from any outside

company/business." SOP § II.A.2. The SOP also permits an

inmate to pay a bill on behalf of an outside person, provided

the inmate furnishes DOC a physical copy of the company's or

business's bill to that outside person. SOP § II.A.3. In

either case, DOC then disburses the inmate's funds directly to

the company or business.

But the ability to purchase an in-kind gift for a person,

or to pay a bill on that person's behalf, is not the same as the

ability to transfer money to that person to spend, or save, or

invest, or donate, as and when that person wishes. Under the

15

regulation, an inmate may request such a direct transfer, and

the DOC accounting clerk is required to make it. Under the SOP,

a request for such a transfer "shall be deemed invalid" and, at

least as the SOP allegedly has been implemented so far, the DOC

accounting clerk may not make the transfer. The SOP, far from

merely interpreting and implementing the regulation, appears to

directly contradict it.

Of course, we do not assume that DOC has heretofore applied

the regulation so literally that disbursement requests were

approved even where their stated purpose was unlawful or

improper.11 Indeed, the plaintiffs themselves allege that, even

before the SOP, "charge slips involving a possible misuse of

funds were flagged and investigated by correctional staff before

said charge slips were processed and funds sent." We also

assume that, even under the SOP, gifts through company order

forms -- allowed by the SOP -- are not permitted when used as

payment for contraband.

We further recognize that the SOP contains hints that

exceptions might be possible. For example, the SOP states that

11See Commonwealth v. Buccella, 434 Mass. 473, 481 (2001),

cert. denied, 534 U.S. 1079 (2002) (court will reject literal

interpretation of regulation that would be "utterly absurd" and

"clearly not what the [agency] intended"); Commonwealth v.

Hourican, 85 Mass. App. Ct. 408, 411 (2014) (same). Cf.

Springfield Preservation Trust, Inc. v. Springfield Library &

Museums Ass'n, Inc., 447 Mass. 408, 423 (2006) (same, for

statute or municipal bylaw).

16

an institution's deputy superintendent of reentry or her

designee is to review all disbursement requests and decide if

the request, "whether for purchase of a gift, payment of a bill,

or for any other reason, should be approved or denied" (emphasis

added). SOP § II.B.1. Also, "[r]equests for disbursements for

special matters, such as paying child support obligations,

returning bail funds, one-time requests for back-to-school

supplies, and expenses related to establishing housing and

transportation for release or parole, require additional

verification to ensure the legitimacy of the request" (emphasis

added). SOP § II.B.5.

So far, however, according to the verified complaint, the

plaintiffs have not benefited from these possible exceptions.

Their requests have been denied, without any indication that the

relevant DOC officials reviewed whether a "special matter" may

include contributing to a State representative's reelection

campaign, or purchasing an investment to benefit the inmate's

family member upon the inmate's death, or assisting the inmate's

son incarcerated in another State with the purchase of

necessaries, or helping a family member to travel from out of

State to visit the inmate. Instead, inmates are informed that

"exceptions . . . are unable to be made."

The DOC argues that the SOP is "explicitly authorized" by

another provision of the inmate funds regulations that, in DOC's

17

view, places strict limits on disbursements from inmate

accounts. Under that regulation,

"In accordance with [G. L.] c. 127, § 48A, inmates may

expend earned savings and earned personal funds for

circumstances of compelling need with the approval of the

Superintendent. Such requests shall be submitted in

writing to the Superintendent" (emphasis added).

103 Code Mass. Regs. § 405.07(3). Without expressing any

further view concerning the correctness of DOC's current

position about the meaning and applicability of this regulation,

which we recently observed "applies only to 'earned' funds,"

Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617,

623 n.11 (2023), the short answer to this argument is that the

SOP on its face applies not just to "earned" inmate personal

funds but to all inmate personal funds, including those an

inmate receives from outside sources. See, e.g., 103 Code Mass.

Regs. § 405.15 ("Individuals and/or organizations may make

donations to an inmate by check for deposit in the inmate's

personal account"). Neither the regulation DOC relies upon, 103

Code Mass. Regs. § 405.07(3), nor the statute the regulation

cites, G. L. c. 127, § 48A, subjects inmates' use of such donated

funds to any "compelling need" determination by the

institution's superintendent.

More important, nowhere in the ordinary process for

disbursement of inmate funds, set forth in 103 Code Mass. Regs.

§ 405.12 and discussed in detail supra, is there any provision

18

for a superintendent or any other DOC official or employee to

find a compelling need -- or any need at all -- before an

inmate's personal funds may be disbursed to outside persons or

entities at the inmate's request. The scope and meaning of the

"compelling need" provisions in the regulation and the statute

are thus unclear. And at this early stage of the litigation, we

are skeptical that they authorize what the SOP purports to

require.

Nothing we have said calls into question the importance of

the SOP's stated purpose, to prevent disbursements "related to

any illicit or improper activity." SOP § I. That plainly

encompasses the use of inmate funds to facilitate the

introduction of unlawful substances or other contraband into

prisons. Nor do we doubt that DOC's commissioner has the

authority, under G. L. c. 124, § 1 (q), to promulgate

regulations for that purpose.12 Here, however, as in Braley, 100

Mass. App. Ct. at 265, "[f]urther development of the issues

12 Under G. L. c. 124, § 1 (q), the commissioner may

"make and promulgate necessary rules and regulations

incident to the exercise of [her] powers and the

performance of [her] duties including but not limited to

rules and regulations regarding nutrition, sanitation,

safety, discipline, recreation, religious services,

communication and visiting privileges, classification,

education, training, employment, care, and custody for all

persons committed to correctional facilities."

19

discussed is necessary in order to decide the merits of the

claim[;] at this stage in the proceeding, the plaintiff[s']

complaint should not have been dismissed." The plaintiffs have

stated a claim that the SOP conflicts with 103 Code Mass. Regs.

§ 405.12 and to that extent should be declared unenforceable.13

3. SOP as a "regulation" under G. L. c. 30A. The

plaintiffs also claim that the SOP is a "regulation" within the

meaning of G. L. c. 30A and therefore must be promulgated under

chapter 30A procedures in order to be enforceable.14 A

regulation "depends for its validity upon compliance with the

provisions of law (G. L. c. 30A, §§ 2, 3 and 5) relative to the

promulgation of regulations." Robinson v. Secretary of Admin.,

12 Mass. App. Ct. 441, 444 n.6 (1981), and cases cited. See

G. L. c. 30A, § 6.

a. Definition of regulation; internal management

exemption. Chapter 30A generally defines the term "regulation"

and then creates several exemptions. The general definition is:

13The verified complaint appears to allege that the SOP

conflicts with the regulation on its face, and that the

plaintiffs have been injured by the SOP's implementation. It is

for the parties to address, on remand, whether the SOP conflicts

with the regulation on its face, as implemented, or both.

14Whether the applicable procedures would be those of G. L.

c. 30A, § 2 (regulations requiring public hearings), or G. L.

c. 30A, § 3 (regulations not requiring public hearings), has not

been briefed and need not now be addressed.

20

"'Regulation' includes the whole or any part of every rule,

regulation, standard or other requirement of general

application and future effect, including the amendment or

repeal thereof, adopted by an agency to implement or

interpret the law enforced or administered by it, but does

not include [certain exempted items]."

G. L. c. 30A, § 1 (5).15 We are to "interpret [the] definition

of regulation broadly," Carey v. Commissioner of Correction, 479

Mass. 367, 371 (2018), while recognizing that "[a]gencies

intending to fill in the details or clear up an ambiguity of an

established policy may issue interpretation or informational

pronouncements without going through the procedures required for

the promulgation of a regulation" (quotation and citation

omitted). Id. at 373.

Here, there is no dispute that the SOP falls within the

general definition of "regulation." And, although the SOP is

labeled a procedure, "the substance, not the name, [is] to

control." Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371

Mass. 705, 708 n.9 (1977) (agency "letter" or "bulletin" might

also qualify as regulation). Rather, the principal dispute here

concerns whether the SOP falls within one of the exemptions of

15This definition, depending in part as it does on the term

"agency," must be read together with c. 30A's definition of

"agency," as well as related provisions. See G. L. c. 30A,

§ 1 (2) (defining "agency" and excluding DOC, among others,

therefrom); G. L. c. 30A, § 1A (notwithstanding DOC's exclusion

from G. L. c. 30A, § 1, definition, DOC remains subject to

provisions of G. L. c. 30A, §§ 1-8, including those concerning

regulations).

21

G. L. c. 30A, § 1 (5), that is, clause (b), which exempts from

the general definition any "regulations concerning only the

internal management or discipline of the adopting agency or any

other agency, and not substantially affecting the rights of or

the procedures available to the public or that portion of the

public affected by the agency’s activities." For convenience,

we refer to this as the internal management exemption.

The case law construing this exemption is sparse. In

Commonwealth v. Trumble, 396 Mass. 81, 88-89 (1985), the court

held that guidelines promulgated by the Secretary of Public

Safety to govern the State police department's conduct of

roadside sobriety checkpoints or roadblocks fell within the

internal management exemption. The court reasoned that because

"[t]he guidelines are directed solely toward troopers, and

instruct them as to the manner in which they are to fulfil their

duties," they "concern the internal management of th[e] agency."

Id. at 89. Moreover, the guidelines did not substantially

affect the rights of or the procedures available to the public.

Rather, they described the roadblocks' "purpose and operational

philosophy," set forth "important procedural and safety

considerations," and attempted to ensure compliance with

governing constitutional principles. Id. "They do not purport

directly to regulate public conduct. The guidelines are simply

22

an accurate reflection of the rights of the public as set forth

in [governing case law]." Id.

More recently, in Carey, 479 Mass. at 367-368, 371-373, the

court held that a new DOC policy subjecting prison visitors to

searches by drug-detecting dogs did not fall within the internal

management exemption. "Simply put, the introduction of the new

policy substantially affected the procedures available to the

public because, prior to the implementation of the policy,

visitors to correctional facilities were not subject to dog

sniff searches, but now they are." Id. at 372. "This change

could have a potentially significant impact on the visiting

public's experience." Id. The court distinguished Trumble on

the ground that "it concerned how [the] State police should

conduct roadblocks already taking place." Id. Moreover, "[t]he

fact that [DOC] publicized the new policy" well before its

"implementation date is a strong indicator that [DOC] was well

aware that implementing canine searches would be of substantial

concern to those affected" and did not "concern[] only internal

management issues." Id.

The Carey court also rejected DOC's argument that the

policy was merely "intend[ed] to fill in the details or clear up

an ambiguity of the regulation governing searches of visitors,

rather than to initiate a material change, and that thus the

policy is not subject to [G. L. c. 30A]" (quotation and citation

23

omitted). Id. at 372-373. The court acknowledged its prior

decisions stating the general principle regarding subregulatory

guidance. See id., citing Arthurs v. Board of Registration in

Med., 383 Mass. 299, 313 n.26 (1981); Massachusetts Gen. Hosp.,

371 Mass. at 707. See also G.A. McDonough, Administrative Law

and Practice § 12:3 (2d ed. 2016). But the Carey court

recognized that there are limits to that principle, and DOC's

dog sniff search policy went beyond those limits. See Carey,

supra at 373. The court thus concluded: "An agency's

interpretation of its own regulations may trigger [G. L. c. 30A]

if that interpretation leads to a rule or policy that meets the

[c. 30A] definition of a regulation."16 Id.

b. Application to SOP. Here, the SOP, although largely

phrased as a series of procedures that DOC staff must follow,

16The Carey court explained that "the purpose of [the

administrative procedure act] would be disserved if an agency

with a broad statutory command . . . could avoid notice-and-

comment rulemaking simply by . . . invoking its power to

interpret that statute and regulation in binding the public to a

strict and specific set of obligations." 479 Mass. at 373,

quoting Electronic Privacy Info. Ctr. v. United States Dep't of

Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011). Compare Atlas

Distrib. Co. v. Alcoholic Beverages Control Comm'n, 354 Mass.

408, 414 (1968), where the court held that a particular agency's

decision could "reasonably be characterized as a

reinterpretation of the reasoning behind the application of

existing rules," rather than as itself a regulation requiring

promulgation under G. L. c. 30A. At the same time, the court

acknowledged that "it is often difficult to draw a clear and

objective line between a regulation and the reasoning behind

it." Atlas Distrib. Co., supra.

24

imposes new substantive limitations on what inmates may do with

their own money. The SOP thus appears to "substantially

affect[] the rights of" all DOC inmates, who are certainly a

"portion of the public affected by the agency's activities."

G. L. c. 30A, § 1 (5) (b). The SOP classifies inmate requests

for disbursements of money to outside individuals as "invalid,"

meaning inmates can no longer make such transfers, as they did

before the SOP was issued. Also, among those who can no longer

receive such transfers are inmates' family members, another

portion of the public affected by DOC's activities. Cf. Carey,

479 Mass. at 372 (dog sniff search policy "substantially

affect[ed] the procedures available to visitors to correctional

facilities"; visitors are portion of public affected by DOC's

activities).

In addition, the SOP appears to substantially affect "the

procedures available" to inmates. G. L. c. 30A, § 1 (5) (b).

The SOP does so by limiting inmates, in the case of gifts, to

submitting an order form to purchase a gift for the intended

recipient through an outside company or business, using "an

order form [the inmate] has obtained from [that]

company/business";17 or, in the case of bills, to paying a bill

17Although unclear from the SOP itself, the summary

memorandum issued to all inmates and staff at MCI-Norfolk states

that inmates must use "an order form the inmate has obtained

25

on behalf of an outside person only if the inmate can furnish a

physical copy of the bill. SOP § II.A.2, 3. The SOP's

procedures thus make it more cumbersome, at a minimum, for

inmates to obtain disbursements to provide in-kind assistance to

outside persons. In an era of Internet commerce, it is not

self-evident that inmates have access to physical order forms,

or access to the Internet to print order forms. The plaintiffs

also plausibly question whether, for example, a transportation

company in Missouri will send Keown a bill for advance payment

of his mother's travel expenses, or whether a prison canteen in

Louisiana will send Alford a bill for his incarcerated son's

hygienic necessities.

These are not mere quibbles with minor implementation

details. Rather, the extent of the new procedural burdens the

SOP imposes is a factor that may bear on whether the SOP is a

regulation. See Massachusetts Gen. Hosp., 371 Mass. at 707

(agency pronouncement more likely to be viewed as regulation

where it "is seen to involve difficulties of compliance"). And

from the specific company or business." There apparently is no

room for an inmate to write a letter to the business that gives

the information necessary to fulfill the order.

26

here, as in Massachusetts Gen. Hosp., the extent of the burdens

may present questions of fact.18 See id. at 712-713.

Imposition of these new limits on inmates' transfer of

their money, and of these new requirements for what they must do

to exercise the options they still have, support a claim that

the SOP substantially affects inmates' rights and the procedures

they must follow, and thus that the internal management

exemption does not apply. Cf. Carey, 479 Mass. at 372

(substantial effect shown where "prior to the implementation of

the policy, visitors to correctional facilities were not subject

to dog sniff searches, but now they are").

Another factor suggesting that the internal management

exemption does not apply is that an MCI-Norfolk official

assertedly issued a memorandum explaining the SOP, not merely to

staff, but to all inmates. Although this was not a "coordinated

multimedia campaign" as in Carey, 479 Mass. at 372, it plainly

suggests that the SOP "concern[s] [more than] the internal

management or discipline of" DOC. G. L. c. 30A, § 1 (5) (b).

18In Massachusetts Gen. Hospital, 371 Mass. at 712-713, a

hospital claimed that obtaining the data and documentation

required by an agency "bulletin" would "seriously burden" it,

but the trial testimony did not support that claim. Moreover,

some of the harder-to-obtain data was required only when the

agency requested it -- a request "which, we should assume, would

not be made lightly or unreasonably." Id. at 713. Whether a

similar assumption should apply here is an open question.

27

Finally, the SOP on its face does not merely "fill in the

details or clear up an ambiguity of" an established policy

(citation omitted). Carey, 479 Mass. at 372-373. Instead, the

SOP appears to establish new rules, which contradict the

regulations already in effect, and which prohibit disbursements

that the plaintiffs allege were routinely permitted under those

regulations. We conclude that the verified complaint states a

claim, sufficient to survive a motion to dismiss, that the SOP

is a regulation and, not having been promulgated as such through

G. L. c. 30A procedures, is unenforceable.19

4. Constitutional claim. The plaintiffs' complaint also

claims that the SOP arbitrarily restricts the use of their

property in violation of their due process rights.20 See Ciampi

v. Commissioner of Correction, 452 Mass. 162, 170 (2008)

(assuming without deciding that "prisoners have a statutorily

19We add that this case is unusual; in most instances, it

will be clear, without any factual dispute, whether an agency's

guidance document merely fills in details or clears up

ambiguities in established policies, as opposed to substantially

affecting the rights of or the procedures available to that part

of the public the agency serves. And it is desirable that

agencies be able to readily determine, without extensive factual

inquiries, when a guidance document rises to the level requiring

promulgation as a regulation.

20Although on appeal the plaintiffs have made no separate

First Amendment argument, we recognize that among the various

purposes for which they seek to make disbursements to

individuals are purposes that may further their speech and

associational rights.

28

protected property interest in the funds in their prison

accounts entitling them to due process protection").21 "[W]hen a

prison regulation impinges on inmates' constitutional rights,

the regulation is valid if it is reasonably related to

legitimate penological interests." Turner v. Safley, 482 U.S.

78, 89 (1987). See Massachusetts Prisoners Ass'n Political

Action Comm. v. Acting Governor, 435 Mass. 811, 819-820 (2002)

(MPAPAC) (adopting Turner test for prison regulations and

policies); Gaskins v. Silva, 101 Mass. App. Ct. 555, 563 (2022).

"Acknowledging the difficulty that prison officials face in the

operation of prisons, [the Supreme Judicial Court has] expressly

adopted Turner's deferential standard of review for

constitutional challenges to prison regulations and policies."

MPAPAC, supra at 819-820, citing Cacicio v. Secretary of Pub.

Safety, 422 Mass. 764, 769–770 (1996).

The court has "also adopted Turner's four-factor inquiry to

determine whether a prison regulation is reasonably related to a

legitimate penological interest." MPAPAC, 435 Mass. at 820.

The Turner test asks:

"(1) Is there a valid, rational connection between the

regulation and the governmental interest put forward to

21See also Massachusetts Prisoners Ass'n Political Action

Comm. v. Acting Governor, 435 Mass. 811, 819, 822 (2002)

(recognizing that inmates' ability to "contribute their personal

funds to candidates and outside organizations," subject to

neutral limitations imposed by 103 Code Mass. Regs. §§ 405.00,

were means of exercising free speech and associational rights).

29

justify it, and is the governmental interest legitimate and

neutral; (2) do alternative means of exercising the

[asserted] right remain open to inmates; (3) will

accommodating the [asserted] right have a significant

'ripple effect' on guards, other inmates, and the

allocation of prison resources in general; and (4) does an

alternative to the regulation exist which would fully

accommodate the inmates' rights at de minimis cost to valid

penological interests?"

Cacicio, 422 Mass. at 770, citing Turner, 482 U.S. at 89-91.22

Importantly, application of the Turner factors sometimes

requires factual inquiries. Turner itself was resolved only

after a trial, and the Court, in holding the challenged prison

regulation invalid, repeatedly referred to the factual record in

applying its four-factor test. See Turner, 482 U.S. at 82, 97-

99. See also Gaskins, 101 Mass. App. Ct. at 562-564 (affirming

invalidation of regulation based on Turner factors as

illuminated by summary judgment record); Abdul-Alazim v.

Superintendent, Mass. Correctional Inst., Cedar Junction, 56

Mass. App. Ct. 449, 456-458 (2002) (vacating summary judgment

for prison officials and ordering summary judgment invalidating

We note that Cacicio and subsequent Massachusetts cases,

22

in describing the second and third Turner factors, have referred

to "exercising the challenged right" and "accommodating the

challenged right" (emphasis added). Cacicio, 422 Mass. at 770.

See, e.g., MPAPAC, 435 Mass. at 820; Commonwealth v. Jessup, 471

Mass. 121, 131 (2015); Gaskins, 101 Mass. App. Ct. at 563-564.

Turner itself, however, referred to the exercise and

accommodation of "the asserted right" (emphasis added), i.e.,

the right asserted by the inmate, with which the challenged

prison regulation was claimed to interfere. Turner, 482 U.S. at

90. See Jessup, supra. We use the clearer phrase "asserted

right" herein.

30

policy, where record evidence did not show policy furthered

claimed penological interest, or any adverse impact from

accommodating asserted right); Lovell v. Superintendent, N.

Cent. Correctional Inst., 26 Mass. App. Ct. 35, 40 (1988)

(reversing summary judgment upholding prison directive and

remanding for further proceedings where first and fourth Turner

factors could not be evaluated solely as matter of law).

The Turner test does not focus solely on the challenged

prison regulation or policy. Inmates' proposed alternatives to

the regulation or policy must also be considered, both for their

efficacy and for the degree of any adverse impact on valid

penological interests. See Turner, 482 U.S. at 90-91; MPAPAC,

435 Mass. at 820, 822. Significantly, however, the Turner test

"is not a 'least restrictive alternative' test." Turner, 482

U.S. at 90. See MPAPAC, 435 Mass. at 820 n.9. It is a test

that is "deferential" to prison administrators. Commonwealth v.

Jessup, 471 Mass. 121, 130 (2015).

Against this backdrop, we conclude that sufficient

questions remain, about the implementation both of the

preexisting regulation and of the SOP, that extended discussion

of the Turner factors here would be premature and unwise.

Courts "do not . . . decide constitutional questions

unnecessarily or prematurely." Massachusetts Gen. Hosp. v.

C.R., 484 Mass. 472, 488 (2020). Moreover, DOC has sought to

31

recharacterize the right the plaintiffs are asserting, and the

parties have not briefed the question of how we should go about

characterizing that right. In these circumstances, attempting

to apply the Turner test would be an exercise in hypotheticals,

and courts "prefer not to pass on [a] constitutional question on

a hypothetical basis." Boston Gas Co. v. Department of Pub.

Utils., 387 Mass. 531, 540 (1982). Without implying any view on

the merits of the constitutional claim, we determine only that

its dismissal at this stage of the litigation was not warranted.

As should be obvious, a decision in the plaintiffs' favor on

either of their other remaining claims would make resolution of

the constitutional issue unnecessary.

Conclusion. Insofar as the judgment dismissed the claims

that the SOP conflicts with 103 Code Mass. Regs. § 405.12, is

invalid because it was not promulgated as a regulation under

G. L. c. 30A, and violates the plaintiffs' due process rights,

it is reversed and the matter is remanded for further

proceedings. The judgment is otherwise affirmed.

So ordered.