RASHAD RASHEED v. COMMISSIONER 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

21-P-1015

RASHAD RASHEED

vs.

COMMISSIONER OF CORRECTION & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On December 13, 2019, plaintiff Rashad Rasheed, an inmate

in the custody of the Department of Correction (department) and

housed at the Massachusetts Correctional Institution at Concord,

filed a complaint seeking declaratory, equitable, and monetary

relief, stemming from the consequences imposed on him pursuant

to the department's "Program Engagement Strategy" (PES). A

judge of the Superior Court allowed the defendants' motion to

dismiss and then denied the plaintiff's motion for

reconsideration. The plaintiff now appeals from the judgment

and the order denying the motion for reconsideration.2 We affirm

1 Former superintendent, former director of treatment, and

correctional program officer at the Massachusetts Correctional

Institution at Concord.

2 The plaintiff does not raise any separate arguments with

respect to the denial of his motion for reconsideration, and we

therefore do not address it.

the judgment in part, vacate it in part, and remand for further

proceedings.

Background. 1. PES program. "In accordance with its

mission to 'promote public safety by managing offenders,' the

department established 'appropriate programming in preparation

for [inmates'] successful reentry into the community,' such as

the Sex Offender Treatment Program (SOTP)." Butler v. Turco, 93

Mass. App. Ct. 80, 81 (2018). The department is unable to

mandate participation in such programs, and "a high percentage

of offenders declined to attend recommended programs." Id.

Accordingly, in 2013, "the department announced it would

implement PES, an incentivization structure for program

participation. Under PES, privileges are awarded as incentives

for inmates who voluntarily participate in programs and are

withdrawn from inmates who refuse." Id. at 82.

2. Plaintiff's complaint.3 In 1975, the plaintiff was

sentenced to life imprisonment for rape, kidnapping, and armed

robbery. In 1987, while incarcerated, the plaintiff voluntarily

sought sex offender treatment and was ultimately found not to be

a "sexually dangerous person" (SDP). Between 1989 and 1993, the

plaintiff participated in various sex offender treatment

3 We briefly summarize the material facts, drawn from the

plaintiff's complaint and viewed in the light most favorable to

him, reserving additional facts for later discussion.

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programs and a recovery training drug treatment program. In or

around 2016, the department recommended that the plaintiff

participate in an SOTP, which he refused to do. In addition,

the department recommended that he participate in Correctional

Recovery Academy (CRA), a substance use treatment program, which

he also declined. As a result of his refusal to participate, in

2019, the department informed the plaintiff that in accordance

with PES policy, he was at risk of losing his privileges. After

he failed to attend an SOTP, the department confiscated the

plaintiff's "television, table radio, hot pot, [and] fan, moved

[the plaintiff] to [new housing] and prohibited [the plaintiff]

from working and earning . . . goodtime credits and other

programs." The plaintiff filed informal and formal grievances,

which were denied, then filed a complaint in the Superior Court,

which was dismissed. The plaintiff's motion for reconsideration

of that decision was denied.

Discussion. We review the allowance of a motion to dismiss

de novo, reading "the complaint's allegations generously and in

the plaintiff's favor." Lalchandani v. Roddy, 86 Mass. App. Ct.

819, 822 (2015), quoting Vranos v. Skinner, 77 Mass. App. Ct.

280, 287 (2010). Under Mass. R. Civ. P. 12 (b) (6), 365 Mass.

754 (1974), the judge must allow a motion to dismiss if the

complaint fails to allege sufficient facts, stating a recognized

cause of action, to plausibly suggest that the plaintiff is

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entitled to relief. See Iannacchino v. Ford Motor Co., 451

Mass. 623, 636 (2008).

The plaintiff argues that PES transforms SOTPs into

mandatory programs, which is inconsistent with various statutes

allowing for the creation of voluntary programs, as well as

department regulations.4 This argument fails, as the plaintiff,

a convicted sex offender, has been recommended for participation

in the treatment program; he has not been compelled to

participate. Indeed, he has exercised his right not to

participate. See Lyman v. Commissioner of Correction, 46 Mass.

App. Ct. 202, 205 (1999) (impact that nonparticipation might

have on such things as future parole eligibility does not amount

to wrongful compulsion). The withholding of such privileges

does not constitute punishment. See Butler, 93 Mass. App. Ct.

at 86 (labeling PES as "remedial" policy, not punishment).

Next, the plaintiff argues that because a psychiatrist

determined in 1987 that he was not an SDP, it was improper for

the department to identify him as a sex offender or recommend

that he participate in an SOTP. In making this claim, the

plaintiff conflates the related, but separate, concepts of SDP

and sex offender. An SDP is defined in G. L. c. 123A, § 1, as a

4 Specifically, the plaintiff argues PES is inconsistent with

G. L. c. 127, § 49; St. 1990, c. 150, § 104; G. L. c. 124, § 1

(c)-(g), (q); and G. L. c. 30A, § 1A.

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person "who suffers from a mental abnormality or personality

disorder which makes the person likely to engage in sexual

offenses if not confined to a secure facility." A sex offender,

on the other hand, is defined in the department's sex offender

management policy, 103 Department of Correction Regulations

(DOC) § 446 (2015), as "[a]n inmate . . . who has ever been

convicted of a sex offense defined by M.G.L. c. 6, § 178C,

regardless of whether the inmate will be required to register

with the Sex Offender Registry Board upon release from custody."

Simply put, the definition of sex offender is broader than the

definition of an SDP. Hence, one may be a sex offender, even if

they have not been adjudicated an SDP.5

As the plaintiff was convicted of rape, the department

properly classified the plaintiff as a sex offender for purposes

of recommending an SOTP. The fact that he participated in some

treatment years ago does not mean he completed an SOTP.

Similarly, it was proper for the department to recommend that

the plaintiff participate in the CRA, regardless of his past

participation in a program, because department policies require

5 We are also unpersuaded by the plaintiff's argument that PES

should not be applied retroactively to him, as the department is

permitted to update its policies and practices over time,

otherwise "each inmate would be subject to individualized

regulations according to his incarceration date." Butler, 93

Mass. App. Ct. at 86 n.12.

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follow-up to be conducted after an inmate has completed a

substance use treatment program. 103 DOC § 445.05 (2019).6

The plaintiff also contends that the DOC's sex offender

management policy, 103 DOC § 446, and PES are "regulations,"

which must be promulgated or amended pursuant to G. L. c. 30A.

He then argues that because the department did not adhere to the

statute in amending a previous version of the sex offender

management policy, or in announcing PES, those policies are

improperly promulgated regulations that are unenforceable.

General Laws c. 30A generally defines the term "regulation"

and then creates several exemptions. The general definition is:

"'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).

Here, there is no dispute that the sex offender management

policy and PES both fall within the definition of "regulation."

The dispute concerns whether they fall into the internal

management exemption, G. L. c. 30A, § 1 (5) (b), which exempts

from the general definition any "regulations concerning only the

6 To the extent that the plaintiff argues that PES violates his

due process rights, is an ex post facto law, violates his Fifth

Amendment right against self-incrimination, or violates his

Eighth Amendment right to be free from cruel and unusual

punishment, the motion judge did not err in dismissing his

complaint. Butler, 93 Mass. App. Ct. 83-89.

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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."

After the briefs in this case were submitted to the panel,

this court issued Haas v. Commissioner of Correction, 103 Mass.

App. Ct. 1 (2023). In Haas, supra at 2-3, we concluded that an

inmate complaint alleging that a standard operating procedure

(SOP) of the DOC was a regulation concerned more than the

internal management or discipline of DOC and stated a claim

sufficient to survive a motion to dismiss. The SOP at issue in

Haas, supra at 14-15, restricted disbursement of funds from

inmates' institutional accounts and "appear[ed] to substantially

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

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

(quotations and citation omitted). We also noted that the SOP

"appear[ed] to substantially affect the procedures available to

inmates" (quotation and citation omitted). Id. at 15.

Here, as in Haas, the question is whether both the sex

offender management policy and PES may fall under the internal

management exemption. DOC inmates "are certainly a portion of

the public affected by the agency's activities" (quotation

omitted). Haas, 103 Mass. App. Ct. at 15, quoting G. L. c. 30A,

§ 1 (5) (b). In addition, the plaintiff, by claiming that he is

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subject to the loss of job, housing, and seniority privileges,

and that he has had possessions taken away, has alleged

sufficient facts to support an inference that the policies

substantially affect "the rights of or the procedures available"

to inmates. G. L. c. 30A, § 1 (5) (b). We therefore conclude

that portions of counts one, two, and five of the verified

complaint state a claim, sufficient to survive a motion to

dismiss, that the sex offender management policy and PES are

regulations, and not having been promulgated as such through

G. L. c. 30A procedures, are unenforceable.

Conclusion. So much of the judgment as dismissed the

portions of counts one, two, and five claiming that the sex

offender management policy and PES are invalid because they were

not promulgated as regulations under G. L. c. 30A is vacated,

and those aspects of counts one, two and five are remanded for

further proceedings. In all other respects, the judgment is

affirmed.

So ordered.

By the Court (Milkey,

Massing & Henry, JJ.7),

Clerk

Entered: August 31, 2023.

7 The panelists are listed in order of seniority.

8