Shea v. Department of Correction

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22-P-227 Appeals Court

SHAWN SHEA vs. DEPARTMENT OF CORRECTION & others.1

No. 22-P-227.

Suffolk. February 14, 2023. - September 18, 2023.

Present: Henry, Shin, & Hodgens, JJ.

Imprisonment, Enforcement of discipline. Mail. Intent.

Evidence, Intent. Administrative Law, Prison disciplinary

proceeding, Substantial evidence. Practice, Civil, Action

in the nature of certiorari.

Civil action commenced in the Superior Court Department on

October 14, 2021.

The case was heard by Rosemary Connolly, J., on motions for

judgment on the pleadings.

Matthew J. Koes for the plaintiff.

Connor C. Tarr for the defendants.

Joel Thompson, for Harvard Prison Legal Assistance Project,

amicus curiae, submitted a brief.

HENRY, J. This case raises the question whether an

inmate's acceptance of what appeared to be legal mail can

1 Commissioner of Correction and the superintendent of the

Massachusetts Correctional Institution, Norfolk.

2

constitute sufficient evidence that the inmate intended to

introduce contraband contained therein into the facility. The

plaintiff, Shawn Shea, an inmate at the Massachusetts

Correctional Institution, Norfolk (MCI-Norfolk), brought this

suit against officials of the Department of Correction

(department) seeking injunctive relief and certiorari review of

a department disciplinary decision. He now appeals from a

Superior Court judgment dismissing the complaint on the parties'

cross motions for judgment on the pleadings. We reverse.2

Background. We summarize the pertinent facts, which are

not in dispute. On June 19, 2021, MCI-Norfolk received

correspondence addressed to the plaintiff. The mailing address

included typographical and capitalization errors.3 The return

address, to the "Law office of Robert Berk," contained similar

errors and listed a telephone number. In accordance with 103

Code Mass. Regs. § 481.11 (2022), Inner Perimeter Security (IPS)

Officer Joshua Malonson allowed the plaintiff to view the

envelope before signing for it; this meant that the plaintiff

was given the opportunity to review the exterior of the

2 We acknowledge the amicus curiae brief submitted by the

Harvard Prison Legal Assistance Project.

3 Specifically, the street name, the city name, and the

abbreviation for Massachusetts were not capitalized, and there

were no spaces between the street number and name and between

the city and the abbreviation for Massachusetts.

3

correspondence, including the mailing and return addresses.

After the plaintiff reviewed the exterior of the correspondence,

he acknowledged receipt of it by signing a legal mail

confirmation form.4

Malonson then opened the envelope. Its contents included a

golden-colored envelope containing a letter purporting to be

from the "Anthony F Clune &Robert Berk Law Office," which

referenced a court case against a different individual, and a

printout of a decision of this court in that matter. Malonson

reported that "[t]he paper[s] appeared to have been previously

wet and dried." The correspondence was secured and brought to

the IPS office for further inspection and was tested using a

"NARK II field test," which returned a positive result for

synthetic cannabinoids, a controlled substance. The department

investigated the correspondence to determine who sent it. The

department contacted Clune, who stated that he did not represent

the plaintiff and had never worked with an attorney named Robert

4 The legal mail confirmation form consisted of fields

calling for an inmate's printed name and signature, the date

when the inmate was notified of the arrival of the mail, the

date when the inmate picked up the mail, and the inmate's

commitment number.

4

Berk.5 The department's search for Robert Berk revealed a

retired attorney, Robert Berks,6 who resides out of State.

The plaintiff was moved to the restrictive housing unit,

where he was placed on "awaiting action status" until the

issuance of the disciplinary report. On June 29, 2021, the

plaintiff signed a waiver relinquishing his opportunity to have

a confirmation test performed on the initial results of the NARK

II field test. By waiving this opportunity, the plaintiff

acknowledged that he understood that the initial test could be

used as evidence against him in a disciplinary proceeding.

A disciplinary hearing took place on July 15, 2021, before

a hearing officer. The plaintiff represented himself and did

not request any witness testimony. His defense was that there

was nothing connecting him to the lawyers referred to in the

legal mail or the area in Massachusetts from which the mail was

sent. He explained at the hearing that he had previously

received letters from unknown attorneys and he does not know who

5 The Board of Bar Overseers' (BBO) website lists only one

attorney with the name Anthony Clune.

6 It is unclear whether the different spellings are the

result of a typographical error or whether the attorney who the

department discovered was a different person from the one listed

on the return address. The BBO website lists Robert J. Berks as

a retired attorney and has no listing for a Robert Berk.

5

the lawyers are until he receives the first letter from them.7

In a written decision, the hearing officer found, by a

preponderance of the evidence, that the plaintiff was guilty of

both the attempt to introduce and the introduction of a

controlled substance into the facility, with all other charges

being dismissed as either duplicative or unsupported by the

record.8 The hearing officer considered Malonson's "written

report . . . in conjunction with the legal mail confirmation

7 This is consistent with the policy of the Committee for

Public Counsel Services. See, e.g., Committee for Public

Counsel Services, Assigned Counsel Manual Policies and

Procedures, Performance Standards Governing Representation of

Indigents in Criminal Cases, § 4.B.1.c.iii ("the attorney must:

(1) write to the client within three business days of receiving

the assignment and advise the client that s/he has been assigned

to the representation"); Performance Standards Governing

Representation of Clients on Criminal Appeals Post-Conviction

Matters, § 4.F.2 ("Immediately upon receipt of the assignment

. . . [the appellate defender must] communicate with the client

to inform the client of the assignment") (June 12, 2023),

https://www.publiccounsel.net/wp-content/uploads/2023/06

/Assigned-Counsel-Manual-4.pdf [https://perma.cc/B7TG-RDBU].

8 The plaintiff was charged with: "Introduction,

distribution or transfer of any narcotic, controlled substance,

illegal drug, unauthorized drug or drug paraphernalia";

"Attempting to commit any of the above offenses"; "Unauthorized

use or possession of drugs . . . unauthorized drugs or drug

paraphernalia"; "Conduct which interferes with the security or

orderly running of the institution"; "Attempting to commit any

of the above offenses"; "Receipt or possession of any contraband

of items not authorized for retention by inmates"; "Conduct

which disrupts the normal operation of the facility or unit";

"Attempting to commit any of the above offenses"; "Receipt or

possession of contraband"; "Use of mail or telephone in

violation of established regulations"; "Violating any

departmental rule or regulation . . . of an institution"; and

"Attempting to commit any of the above offenses."

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form, available photos, field test, photocopies, emails and the

[plaintiff]'s statement."9 The hearing officer found:

"The legal mail confirmation form and disciplinary report

confirm the [plaintiff]'s admission that he did sign for

the mail. The photos, field test and photocopies confirm

the items . . . did contain synthetic cannabinoids as

indicated by the field test. The email shows that the

attorney confirms he did not represent [the plaintiff] and

that the attorney has no connection to the attorney listed

on the return address. The [plaintiff] does not dispute

signing for the legal mail . . . [and] acknowledges that he

did have an opportunity to view the legal mail prior to

signing for the item."

As a result of the guilty finding, the plaintiff was ordered to

undergo and pay for two years of mandatory substance abuse

monitoring at a cost of $288 and suffered a loss of canteen

privileges for 120 days.

The plaintiff appealed the decision to the superintendent

of MCI-Norfolk pursuant to 103 Code Mass. Regs. § 430.18(1)

(2019). After the superintendent denied the appeal, the

plaintiff filed a complaint in the Superior Court, pursuant to

G. L. c. 249, § 4, seeking injunctive relief and certiorari

review. On cross motions for judgment on the pleadings, the

motion judge issued a judgment denying the plaintiff's motion,

allowing the motion filed by the department and affirming the

disciplinary decision of the department. This appeal followed.

9 The reporting officer was present for the hearing but did

not testify.

7

Discussion. Prisoners may challenge the adverse findings

of a disciplinary board through an action in the nature of

certiorari pursuant to G. L. c. 249, § 4. "Our review of a

disciplinary proceeding is based on whether the record contains

substantial evidence to support the hearing officer's decision."

Puleio v. Commissioner of Correction, 52 Mass. App. Ct. 302, 305

(2001). Substantial evidence is evidence that "a reasonable

mind might accept as adequate to support a conclusion, . . .

taking into account whatever in the record fairly detracts from

the weight of the evidence" (citation and quotation omitted).

Cepulonis v. Commissioner of Correction, 15 Mass. App. Ct. 292,

296 (1983).

The court may not displace the hearing officer's "exclusive

function to weigh the credibility of the witnesses and to

resolve factual disputes" in the testimony. Cepulonis, 15 Mass.

App. Ct. at 295. However, we need not defer to the hearing

officer's decision "[w]here the evidence is so limited and

problematic" that it cannot support such a decision. Jordan v.

Superintendent, Mass. Correctional Inst., Cedar Junction, 53

Mass. App. Ct. 584, 589-590 (2002).

The department argues that the hearing officer's decision

was supported by substantial evidence. The department points to

the plaintiff's acceptance of the mail after observing the

errors in the return and mailing addresses, arguing that they

8

were "obvious red flags as to the legal mail's authenticity,"

and the fact that the plaintiff admits he had no connection to

the attorney named on the return address. The department also

argues that the plaintiff had the opportunity to decline the

legal mail if he did not know the sender. The department

contends that the "best-case scenario is that [the plaintiff] is

agreeing to take possession and control of an unknown package

with the hope that it contains contraband."

The plaintiff challenges the sufficiency of the evidence,

arguing that mere acceptance of the mail was insufficient to

constitute substantial evidence to support the hearing officer's

conclusion that the plaintiff intended to introduce contraband

into the facility. As the plaintiff contends, while the

plaintiff was able to view the outside of the envelope before he

accepted it, the department presented no evidence that the

plaintiff was able to inspect its contents before signing for

it. We thus agree that this circumstance is insufficient to

show that he intended to introduce contraband into the facility.

It is true that an inmate's knowledge and intent to

exercise dominion and control over an item of contraband can be

inferred from possession. See Puleio, 52 Mass. App. Ct. at 306

(concluding that hearing officer's decision was supported by

substantial evidence where contraband was discovered in inmate's

jacket pocket); Cepulonis, 15 Mass. App. Ct. at 294 (knowledge

9

and control over contraband could be inferred from discovery of

contraband in inmate's cell, which he had occupied for two and

one-half months). However, mere acceptance of privileged mail

does not constitute sufficient evidence that an inmate knowingly

attempted to introduce contraband into the facility.10 See

Jordan, 53 Mass. App. Ct. at 588-589 (finding insufficient

evidence of plaintiff's knowledge of or control over piece of

metal concealed in newspaper that was deposited in plaintiff's

cell by another inmate). Compare Puleio, 52 Mass. App. Ct. at

305-306 (substantial evidence found where inmate "admi[tted]

that he probably brought the [contraband] with him from his

confinement" at another facility); Cepulonis, 15 Mass. App. Ct.

at 294 (substantial evidence found where inmate "admi[tted] to

possession of . . . other contraband discovered"). The hearing

officer essentially concluded that, because the plaintiff did

not reject the mail, he arranged for it to be sent to him or

hoped it contained contraband. Knowledge cannot be imputed to

the inmate without some evidence, such as an admission to such

10The department's current standard operating procedure,

amended in July 2022, acknowledges as much, by providing that

"[a]n inmate's decision to decline to sign for, or decision to

accept, privileged mail, standing alone, shall not constitute

sufficient evidence that the inmate attempted to introduce

contraband" (emphasis added). Department of Correction Standard

Operating Procedure (SOP) for Privileged Mail § VI(c) (July

2022), https://www.mass.gov/doc/481-sop-privileged-mail

/download [https://perma.cc/LFD4-G6S2].

10

an arrangement or some other circumstantial evidence. Disbelief

of the plaintiff's statement is not affirmative evidence to the

contrary. See New Boston Garden Corp. v. Assessors of Boston,

383 Mass. 456, 472 (1981). Requiring inmates to reject mail

from an attorney who is unknown to them or because the envelope

has typographical errors, lest they risk discipline for

accepting the contents, raises serious concerns with an inmate's

constitutional right to counsel.11

The judgment in favor of the department is vacated. Within

thirty days of the issuance of the rescript, the department will

inform the judge of the Superior Court whether it proposes to

reinstate a hearing before the disciplinary board to offer

additional proof. See Jordan, 53 Mass. App. Ct. at 590;

Wightman v. Superintendent, Mass. Correctional Inst., Walpole,

19 Mass. App. Ct. 442, 447 (1985). If not, the plaintiff may

11While there were typographical errors on the outside of

the envelope, no evidence was produced to indicate that the

plaintiff should have known it was not sent from an attorney or

that the contents contained drugs. Regardless, the hearing

officer did not make a finding about the typographical errors or

rely on them in her decision. Nor did the underlying

disciplinary report mention the typographical errors. We review

an agency decision based on the reasons given in that decision,

not reasons supplanted by counsel on judicial review. See John

Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender

Registry Bd., 98 Mass. App. Ct. 307, 313 (2020), quoting

Department of Homeland Sec. v. Regents of the Univ. of Cal., 140

S. Ct. 1894, 1909 (2020) ("The basic rule . . . is clear: An

agency must defend its actions based on the reasons it gave when

it acted").

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move for relief, including expungement of the disciplinary

report, the hearing officer's decision, and all references

thereto.12

So ordered.

12The plaintiff also argues that the hearing officer's

findings were not supported by substantial evidence because the

department could not prove the reliability of the NARK II field

test or that Malonson was qualified to administer the NARK II

test. In a 2021 Superior Court decision, Green vs.

Massachusetts Dep't of Correction, Mass. Super. Ct., No.

2184CV02283-C (Suffolk County Nov. 30, 2021), a judge found that

"the NARK II Test, by itself, is a highly unreliable means of

determining whether a particular mail item actually contains any

illicit synthetic cannabinoids." Our decision does not turn on

the reliability of the NARK II test, and we take no position

with respect to the merits of that matter. We do note that the

department's current SOP, as amended in July 2022, states that

no inmate may be disciplined "for introduction of contraband

until a test from an outside laboratory is conducted and returns

a positive result regarding the privileged mail, and sufficient

evidence exists that the inmate attempted to introduce

contraband." Department of Correction SOP for Privileged Mail,

§ VI(b).