James M. Feeney v. Department of Correction.

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-606

JAMES M. FEENEY

vs.

DEPARTMENT OF CORRECTION.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff brought an action in the nature of certiorari

challenging a disciplinary decision of the Department of

Correction (department). A Superior Court judge allowed the

department's motion for judgment on the pleadings and dismissed

the plaintiff's complaint. On appeal, the plaintiff contends

that in conducting the disciplinary hearing, the department

based its decision on insufficient evidence, and violated his

due process rights by denying his requests to call witnesses and

access certain evidence. Because we conclude that the

department failed to adequately support its decision to deny the

plaintiff's request to present certain witness testimony that

was relevant and potentially exculpatory, we vacate the judgment

and remand for further proceedings.

Background. On July 28, 2020, while the plaintiff was

incarcerated at the Souza-Baranowski Correctional Center,

Sergeant Aaron Gill observed the plaintiff wearing a 4XL

department-issued T-shirt with the "V-neck collar [having been]

intentionally removed." The plaintiff was issued a disciplinary

report alleging three separate infractions, including

"[m]utilating, defacing or destroying state property." 103 Code

Mass. Regs. § 430.24(4-2) (2019). Sergeant Gill seized the

shirt from the plaintiff, took photographs for evidence, and

then disposed of it.

Before his disciplinary hearing, the plaintiff requested

certain video footage between April 2019 and the date the

disciplinary report was issued to use as evidence in his

defense. 1 He alleged that the video footage would prove "th[e]

shirt was issued to [him] in th[e] same condition," and that it

was the only shirt he had worn outside his housing unit during

his time at the facility. Further, the plaintiff sought to call

Sergeant Joseph Bue, along with an unidentified inmate who had

worked for Sergeant Bue in January 2019, as witnesses. The

primary purpose of their testimony was to address whether

Sergeant Bue issued new or used clothing to inmates around that

1 On an evidence request form, the plaintiff sought "[a]ll video

footage of 'Happy Hour' in which between Jan 19 and the end of

happy hour in the corridor. Specifically, months June, July,

Aug[ust]. Also Booking in April 2019."

2

time, and whether the plaintiff was issued the used shirt "due

to lack of new ones." The plaintiff's requests were denied on

the grounds that his request for video footage was "[v]ague,"

and the expected testimony of Sergeant Bue and the unidentified

inmate was "irrelevant." 2

On August 11, 2020, the plaintiff's disciplinary hearing

was held. 3 At the hearing, the plaintiff repeated his requests

for certain evidence, testified in his own defense, and

questioned Sergeant Gill regarding the issuance of the

disciplinary report. 4 The plaintiff argued, among other things,

that he had been issued the shirt in the same condition nearly

two years prior, and that the denial of his requests for

evidence violated applicable department regulations and his due

process rights. The hearing officer found the plaintiff guilty

of charge 4-02, mutilating, defacing, or destroying State

property; the remaining charges were dismissed as duplicative.

See 103 Code Mass. Regs. § 430.24 (2019). In rendering his

2 At the August 11 disciplinary hearing, the plaintiff identified

the inmate worker as "Marty." The hearing officer also denied

this testimony for "[f]ailure to identify."

3 The plaintiff requested (and paid for) an audio recording of

the August 11 disciplinary hearing. The plaintiff relied on

this recording in filing a "supplemental motion" following the

May 24, 2021 hearing before the Superior Court, and both parties

cited to portions of the recording in their briefs on appeal.

We therefore have considered the recording here.

4 The plaintiff requested that the T-shirt be present for the

hearing, but it was disposed of. Sergeant Gill testified that

he did not observe the plaintiff alter the shirt.

3

decision, the hearing officer credited the oral and written

statements of Sergeant Gill, and determined that the evidence

requested by the plaintiff was properly denied. 5 As a sanction,

the plaintiff was assessed restitution in the amount of $8.45,

the cost of the shirt.

The plaintiff appealed the guilty finding to the acting

superintendent, which was later denied. Thereafter, the

plaintiff filed an action in the Superior Court pursuant to

G. L. c. 249, § 4, seeking relief from the disciplinary

decision. The parties filed cross motions for judgment on the

pleadings. After a hearing, the motion judge allowed the

department's motion, finding that substantial evidence supported

the guilty finding, and that the plaintiff's due process rights

had not been infringed. This appeal followed.

Discussion. In considering the plaintiff's appeal from the

final disciplinary decision, we review the administrative record

"to correct substantial errors of law on the record that

adversely affect material rights." Drayton v. Commissioner of

Correction, 52 Mass. App. Ct. 135, 140 (2001). Prison inmates

are entitled to procedural due process protections under the

5 In a written statement explaining the basis for the guilty

finding, the hearing officer stated: "In conclusion I find that

while the [plaintiff] was not actually observed altering [the]

garment, he was in possession of an altered state issued scrub

top."

4

United States and the Massachusetts Constitutions if sanctions

create an "atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life." Sandin v.

Conner, 515 U.S. 472, 484 (1995). See Torres v. Commissioner of

Correction, 427 Mass. 611, 617-618, cert. denied, 525 U.S. 1017

(1998).

It is well settled that "[t]he procedural protections of

due process 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). Here, the plaintiff asserts

that he had a protected property interest in the $8.45 withdrawn

from his account to satisfy the ordered sanction of restitution.

The United States Court of Appeals for the First Circuit has

stated that "[i]t is clear beyond hope of contradiction that an

inmate has a property interest in the balances held in his

accounts." Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011),

citing Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir. 1997). We

thus conclude that, at least in this context, the plaintiff was

entitled to due process prior to the deprivation of his funds.

See, e.g., Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir.),

cert. denied, 577 U.S. 889 (2015) ("[t]here is no question that

[an inmate's] interest in the funds in his prison account is a

protected property interest" [citation omitted]). See also

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

5

(assuming that "prisoners have a statutorily protected property

interest in the funds in their prison accounts entitling them to

due process protection"). We next consider whether the

plaintiff received the process he was due.

"At a minimum, the due process clause of the Fourteenth

Amendment to the United States Constitution requires that there

be notice and an opportunity for a hearing before a person is

deprived of a protected property interest." Ciampi, 452 Mass.

at 170.

"In a disciplinary proceeding where a prisoner's [property]

interest is at stake he must be given '(1) advanced written

notice of the disciplinary charges; (2) an opportunity,

when consistent with institutional safety and correctional

goals, to call witnesses and to present evidence in his

defense; and (3) a written statement by the factfinder of

the evidence relied on and the reasons for the disciplinary

action.'"

Id. at 170-171, quoting O'Malley, 415 Mass. at 138. The

gravamen of the plaintiff's due process claim here is that the

denial of his requests to call certain witnesses infringed on

his due process rights. We agree.

Although "[a] disciplinary board, at its discretion, may

refuse to call a witness [or produce evidence] requested by an

inmate on grounds of 'irrelevance, lack of necessity, or the

hazards presented in individual cases" (citation omitted),

Nelson v. Commissioner of Correction, 390 Mass. 379, 390 (1983),

"prison officials may be required to explain, in a limited

6

manner," the basis for limitations placed on an inmate's calling

of witnesses or the denial of requested evidence, Ponte v. Real,

471 U.S. 491, 497 (1985). An inmate ordinarily "should be

allowed to call witnesses if to do so will 'not be unduly

hazardous to institutional safety or correctional goals"

(citation omitted). Nelson, supra. See 103 Code Mass. Regs.

§ 430.14(4) (2019) (inmate may present evidence, "when

permitting him or her to do so will not be unduly hazardous to

personal or institutional safety"). "[T]he burden of persuasion

as to the existence and sufficiency of such institutional

concerns [justifying the denial of an inmate's request to call

witnesses] is borne by the prison officials, not by the

prisoners" (citation omitted). Smith v. Massachusetts Dep't of

Correction, 936 F.2d 1390, 1399-1400 (1st Cir. 1991).

In denying the plaintiff's request to call Sergeant Bue as

a witness, the department reasoned that the expected testimony

was irrelevant. Department regulations define "[e]xculpatory

[e]vidence" as "[e]vidence that is potentially helpful to the

inmate in either proving innocence or in establishing lesser

responsibility for the offense(s) as charged." 103 Code Mass.

Regs. § 430.05 (2019). Here, the plaintiff maintained that

Sergeant Bue, or an unidentified inmate working under his

supervision, issued him the shirt in the same condition as when

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it was seized. 6 He explained that the purported reason he was

issued the shirt in such a worn condition was that there were no

other shirts in his size (4XL) available, and that he was

supposed to be given new clothes. Had Sergeant Bue, who we

presume was responsible for issuing clothing to inmates in

January 2019, confirmed the plaintiff's version of events, it

would have likely proven the plaintiff's lack of culpability for

the mutilation or alteration of the shirt. It is therefore

apparent that the testimony of Sergeant Bue was relevant, 7 and

possibly exculpatory.

6 In his written disciplinary decision, the hearing officer

stated that the plaintiff "did not . . . dispute the condition

of the scrub top and indicated it was issued to him in disrepair

and that the collar eventually fell off." In apparent reliance

on this statement, the Superior Court judge stated in her

decision allowing the department's motion for judgment on the

pleadings that "whether the shirt issued to Feeney was new or

used was not relevant where Feeney testified that the collar

fell off after the shirt was in his possession." However, this

is not supported by the audio recording of the disciplinary

hearing. The plaintiff did not testify that the shirt collar

fell off after he received it. Rather, he pointed out that the

photographs of the shirt suggested that the stitching around the

collar had come apart, causing the collar to fall off, without

any reference to when that may have occurred. The plaintiff

stated multiple times at the hearing, during his own testimony,

and in examining Sergeant Gill, that the condition of the shirt

was the same as when it was issued to him. This is consistent

with the plaintiff's written request for video footage, dated

July 29, 2020, where he explained that "the[ ] tapes will show

this shirt was issued to me in this same condition."

7 If the inmate working under Sergeant Bue's supervision were to

be sufficiently identified, we would also view their testimony

as relevant.

8

In conclusion, while disciplinary proceedings are civil in

nature, and thus "the full panoply of rights due a defendant in

[a criminal prosecution] do[ ] not apply," Wolff v. McDonnell,

418 U.S. 539, 556 (1974), "[t]he touchstone of due process is

protection of the individual against arbitrary action" (citation

omitted). Nelson, 390 Mass. at 392. Here, we discern no

reasonable basis for the denial of the plaintiff's request to

call Sergeant Bue as a witness, 8 see 103 Code Mass. Regs.

§ 430.11(2) (2019) (conferring on disciplinary officer

responsibility to "approve or deny with good cause and in

writing any requests made by the inmate for witnesses or

evidence" [emphasis added]), and thus conclude that the

8 Although not determinative, we note that our conclusion here is

buttressed by the plaintiff's other grievances making up his due

process claim -- namely, the denial of the requested video

footage, the destruction of the shirt at issue, and the

expedited nature of the proceedings over the plaintiff's

objection. As for the video footage, we doubt that the hearing

officer, with institutional knowledge, could not discern the

meaning of the plaintiff's request. In any event, it would not

have been burdensome to seek clarification. Further, the shirt

for which the plaintiff was disciplined should have been

preserved as evidence. The department has not articulated any

safety or security risk that would warrant the disposal of the

shirt. See 103 Code Mass. Regs. § 430.11(7) (2019) ("Contraband

evidence that is deemed to constitute a risk to the safety or

security of the institution, its staff, inmates, or any

participant in the hearing process shall not be presented at the

hearing"). And the hearing officer's assertion that "having the

garment present . . . would not have affected the outcome" is

not a reasonable justification for its disposal in this case.

Again, although not determinative, we are troubled by these

issues.

9

plaintiff's disciplinary hearing did not comport with due

process. See Ayers v. Ryan, 152 F.3d 77, 81-82 (2d Cir. 1998)

(denial of requested witness testimony for prison disciplinary

hearing violated due process). Accordingly, we vacate the

judgment in favor of the department, and remand the matter for

the entry of a new judgment ordering further proceedings before

a hearing officer consistent with this memorandum and order.

So ordered.

By the Court (Wolohojian,

Singh & Hand, JJ. 9),

Clerk

Entered: August 28, 2023.

9 The panelists are listed in order of seniority.

10