Petition for Writ of Certiorari — Torres v. Commissioner of Correction of Massachusetts

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| Bupreme Court, U.S.

FILED

No. 98- _ |

98-5.0.4 Sip 24108

QFACE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1998

IN THE

VICTOR TORRES, ET AL.,

Petitioners,

COMMISSIONER OF CORRECTION, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

T’ - SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI

JOHN REINSTEIN ScoTT P. LEwis

American Civil Liberties Counsel of Record

Union of Massachusetts LAURIE S. GILL

99 Chauncy Street Lori B. SILVER

Boston, Massachusetts 02111 PALMER & DopDGE LLP

(617) 482-3170 One Beacon Street

Boston, Massachusetts 02108

(617) 573-0100

Counsel for Petitioners

September 24, 1998

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS Vv

QUESTION PRESENTED

Did the Supreme Judicial Court of Massachusetts err in

holding, contrary to this Court’s controlling case law and the

prevailing view in the Circuit Courts of Appeals, that expert

psychiatric testimony establishing that inmates have suf-

fered, and can be expected to suffer, serious mental illness as

a result of the isolated conditions of confinement in a

“supermax” prison is constitutionally irrelevant in reviewing

petitioners’ Eighth Amendment challenge?

LIST OF PARTIES

The petitioners in this case are Victor Torres, Corey

Glover, Mark MacDougall, Michael Leoney, Basil Williams,

William Dinkins, William Robinson, Keith Parkinson,

Adrian Almeida, Jerrell Bunce and Charles Chase.

The respondents are Michael Maloney, Commissioner of

Correction for the Massachusetts Department of Correction

and formerly Deputy Commissioner of Correction, individu-

ally and in his official capacity; Larry E. DuBois, formerly

the Commissioner of Correction, individually; the current

Deputy Commissioner of Correction, in his official capacity;

Ronald Duval, formerly Superintendent of the Massachusetts

Correctional Institution at Cedar Junction (“MCI-Cedar |

Junction”), individually; the current Superintendent of MCI-

Cedar Junction in his official capacity; Phillip L. Harrington

Jr., formerly the Director of the Department Disciplinary

Unit at MCI-Cedar Junction, individually; the current Di-

rector of the Department Disciplinary Unit at MCI-Cedar

Junction, in his official capacity; and Edwin Doolin, correc-

tional officer at MCI-Cedar Junction, individually.

iii

TABLE OF CONTENTS

IE ois ca ceica ddan nenonsaenuiunnabeneeeeetanes

I a shenbdenabansdsaciin’

The Punitive Purpose and Harmful Effects of

lcci cise vensavenuvntscutncas

TERS PUOCORGMNIS BROIOW .n...scsscscnsceecsecsvecsevessoccescee

How the Federal Question Was Raised ................

Reasons for Granting the Writ ..............cc::ccscsssessessseseeees

The Supreme Judicial Court’s Holding That

Expert Evidence of Psychiatric Harm Is

Irrelevant in Determining Whether Long-Term

Isolated Confinement Violates the Eighth

Amendment Is in Conflict With Controlling

Precedents of This Court and Many Courts of

TIS anilec culiciisiAiinanietatinhartonenesavdnsaseintantevees

TABLE OF AUTHORITIES

CASES: —

Copeland v. Lanham,

1994 WL 64748 (4th Cir. 1994) (unpublished

CN indicate ictssisiititsshae assign nsiecitcsainbsitiasibn

Del Raine v. Williford,

Tb me COO TC. 1DDA) casescccscsisciernesevinisesinn

Farmer v. Brennan,

CENTRE BIO ice a

Ferdik v. Gaspar,

1994 WL 127166 (9th Cir. 1994) (unpublished

OI ci issnitsiiciiassiiashaxciiiinchleleaciacde teats it

Goldyn v. Moran,

1997 WL 545484 (9th Cir. 1997) (unpublished

GUND acticinictisisihnnisiiihhaiisaiatiseaieaaciiet se

Hamilton v. Leavy,

ET FO Fee ce ts BODE D isiciviisisaiiccslnistctentans

Helling v. McKinney,

Fe BE RTD sivcteniatainninnsatiitnicninissiiisensiambll

Wn ann ie tbl ene nieve i.

Hickey v. Reeder,

Toe Fae I Ges CID scachccesyctnennonsnetnsvcncoctntaccintnns 14n

Inmates of Occoquan v. Barry,

eo kL on Eb | | Sra 17

Inmates of Occoquan v. Barry,

850 F.2d 796 (D.C. Cir. 1988) svsssnvnsnonenvsssnsensensenseneees 17n

Jackson v. Meachum,

Ce ae Ft it, BGG) a cccssncccseicecsessscsicsesniscisnnnss 14n

Jacobs v. Young,

1997 WL 809925 (6th Cir. 1997) (unpublished

SII sdiliidiiniathichenssdenbatlaaidcasvasededaeannesiciauniansiinc 11, 12

Jensen v. Clarke,

ee Fe Ct Gls BOP asin cnscacininennsossncscsssensacenense 13

Jordan v. Gardner,

Oem ER RINNE, ADI OD wncckatnccncstecnssuncibinvercceesoes 16

LaBounty v. Coughlin,

Bane re ails BIIID svcreisentnscnsntiiiccsnaiccdsnsesontebnees 12

Madrid v. Gomez,

889 F. Supp. 1146 (N.D.Cal. 1995) oe 14n, 16

Oliver v. Deen,

pre RS Ly. Co \ eee nee 13

Rhodes v. Chapman,

POU Bs REED scineecsentonsecosnsinseeecstnccsnms 4,15, 16, 17n

Santana v. Collazo,

FE HE COUT Gs BOGE) seticecrieernerecsminsicersevcvion 14n

Taylor v. Michigan Department of Corrections,

ee PN ails IT sarctsesinteriacsecnticsascarncnssosensncenen 16

Torres v. Commissioner of Correction,

427 Mass. 611, 695 N.E.2d-200-(1998) ....:ccscscseeess a

Waldrop v. Evans,

FE Fe ee CAN, TSI) vsnsecscscsesesieversccenssocineces 16

Wilson v. Seiter,

CIN IID scochsnvscehciscssite sheniechosennabcseinelohannaes 8n

CONSTITUTION, STATUTES AND RULES:

Tet A: UII, WEE. snsecicsestneissncsnsurncensstansncninnns passim

Be Aer RRS FN CREE) tsrnrkniennsniebsntlastiairneesoseniees 2

Mass. Regs. Code tit. 103, § 430.09(2) (1993) .............. 5

ee ee 2,9

PU es PIN Es BE incentsaitnnomecinsiimniod 9

anlbibssiin

wien rhne Acct elle bap aa AON A AMP APE AOL ENE A

OTHER AUTHORITY:

Lisa Anderson, Js ‘Supermax’ Too Much? Strict

Isolation of Inmates Called Cruel, Ineffective,

eR | Gee 17n

Adrian Angold, Seclusion, 154 BRIT. J. PSYCHIATRY

Peter Annin, Inside the New Alcatraz, NEWSWEEK,

July 13, 1998, at 35

Thomas B. Benjamin & Kenneth Lux, Solitary

Confinement as Psychological Punishment, 13

a. See RINT FD siccasccibidcheonsieansvcsnsenrnascsoes 18

Andrea Estes, SJC rules solitary cells not cruel,

BOSTON HERALD, June 6, 1998, at 6

Stuart Grassian, M.D., Psychopathological Effects of

Solitary Confinement, 140 AM. J. PSYCHIATRY

1450 (1983)

Craig Haney, “Infamous Punishment”: The Psycholo-

gical Consequences of Isolation, NAT’L PRISON

Ds Sr II RID dibs cnsnicseshandinsnsssnatinnéiwanionsoeces 19n

Human Rights Watch, COLD STORAGE: SUPER-

MAXIMUM SECURITY CONFINEMENT IN INDIANA

Lh fg QR ETE T RR eee aL See 18n

Viii

Martin Humphreys & Frances Burnett, Mono--—

symptomatic Hypochondriacal Psychosis and

Prolonged Solitary Confinement, 34 MED. SCI.

En BAe Ce Wisteitadiatatdiiataittaastritviavnicetenevanees 19n

Jeff Mitchell, M.D., and Christopher Varley, M.D.,

Isolation and Restraint in Juvenile Correctional

Facilities, 29 J. AM. ACAD. CHILD ADOLESC.

ee OE cits itincctancdetthscscathitinisenensiieecsnensone 19n

Nightline Special Edition: Crime & Punishment,

Part III, Blood In, Blood Out (ABC television

broadcast, Aug. 27, 1998) available in Westlaw,

database ALLNEWS, 1998 WL 9100174 ............00.0... 17n

Dorte Maria Sestoft et al., Jmpact of Solitary

Confinement on Hospitalization Among Danish

Prisoners in Custody, 21 INTL J.L. &

Pe I Naiitsaiennliniicthatpnininsinpsantnsnnnnsasenineis 18n

Kate Shatzkin, Supermax or Super Cruel?, THE

BALTIMORE SUN, May 19, 1996 at 1E .......eeeeeeeeeee 17n

No. 98-

IN THE

. 7 Supreme Court of the Gnited States

OCTOBER TERM, 1998

VICTOR TORRES, ET AL.,

Petitioners,

COMMISSIONER OF CORRECTION, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The decision of the Supreme Judicial Court of the Com-

monwealth of Massachusetts (“Supreme Judicial Court,” or

“S.J.C.”) is reported at 427 Mass. 611, 695 N.E.2d 200

(1998), and is reprinted as Appendix A (App. Al). The

opinion of the Superior Court of Suffolk County partially

granting respondents’ motion for summary judgment is un-

reported and is reprinted as Appendix B (App. Al3). The

order of the Superior Court directing the entry of partial final

judgment under Mass. R. Civ. P. 54(b) is unreported and is

reprinted as Appendix C (App. A84). The order of the Su-

preme Judicial Court denying petitioners’ timely petition for

rehearing is unreported and is reprinted as Appendix D (App.

A87).

JURISDICTION

The judgment of the Supreme Judicial Court of the Com-

monwealth of Massachusetis was entered on June 5, 1998.

See App. Al. On June 26, 1998, the Supreme Judicial Court

denied petitioners’ timely petition for rehearing. See App.

A87. The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(a) (1993).

CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment to the United States Constitution

provides that “[e]xcessive bail shall not be required, nor ex-

cessive fines imposed, nor cruel and unusual punishments

inflicted.”

STATEMENT OF THE CASE

This case arises from one of the most profound changes in

the American penal system in recent years: the widespread

and increasing use of so-called “supermaximum” security

prisons, sometimes referred to as “control units.” These

units are the culmination of the most restrictive trends in

prison architecture, correctional management and social

control. Although purporting to be justified to control vio-

lent and predatory inmates, “the worst of the worst,” they

sc rbeer nti.

have become the quick fix for dealing with prisoners who are

disruptive, dangerous, mentally ill or simply critical of prison

officials. These prisons are different in kind and in degree

from the penal institutions that have preceded them, a

uniquely American gulag designed to punish the prisoners

confined in them by subjecting them to conditions of ex-

treme social isolation and sensory deprivation.

The petitioners are prisoners who have been confined in

the Massachusetts Department of Correction’s supermax

prison, the Department Disciplinary Unit (““DDU”). It is the

most restrictive prison setting in Massachusetts. Prisoners in

the DDU are held in solitary confinement for at least 23

hours a day for prolonged periods as long as ten years. Their

contact with the outside world and with other prisoners is

strictly controlled and infrequently permitted. They are not

allowed to participate in group activities of any kind and

have no access to educational, vocational or other rehabilita-

tive programs. As a result of their confinement in this unit,

inmates endure years on end of physical, social and emo-

tional isolation. The petitioners claim that long-term solitary

confinement in the DDU, with its attendant social isolation

and sensory deprivation, violates the Eighth Amendment be-

cause it poses a substantial risk of serious psychological in-

jury and has in fact resulted in such harm.

In affirming summary judgment for the respondents on

the petitioners’ Eighth Amendment claim, the Supreme Judi-

cial Court held that evidence of the effects of long-term

solitary confinement is irrelevant in considering claims under

the Eighth Amendment. Summary judgment was appropri-

ate, it concluded, because there was no dispute concerning

the physical conditions in the DDU, and solitary confine-

ment, even for “very lengthy periods,” does not violate the

Eighth Amendment as a matter of law. App. A6. This peti-

tion asks the Court to decide whether a court may ignore ex-

pert testimony that long-term solitary confinement causes

serious mental illness and instead rule as a matter of law that

such confinement does not violate the Eighth Amendment.

Ignoring the controlling precedent of this Court in Helling

v. McKinney, 509 U.S. 25, 34-35 (1993), and the decisions of

at least six Federal Circuit Courts of Appeals that have cor-

rectly applied Helling, the S.J.C. held that a dispute pre-

sented by competing expert affidavits about the effect of

long-term confinement in the DDU raised only an issue of

law, rather than an issue of fact, that could properly be re-

solved by the trial court on a motion for summary judgment.

The S.J.C. misapprehended this Court’s decision in Rhodes

v. Chapman, 452 U.S. 337, 348 n.13 (1981), and simply ig-

nored the affidavit of petitioners’ psychiatric expert, who

concluded — based on thoroughly documented clinical obser-

vations — that long-term solitary confinement and sensory

deprivation in the DDU had inflicted and could be expected

to continue to inflict serious psychological harm on inmates.

A. The Punitive Purpose and Harmful Effects of DDU

Confinement.

The Massachusetts Department of Correction (“DOC”)

acknowledges that the DDU was created in 1992 to “deter

future disciplinary violations and to punish inmates.”’ Re-

' The building housing the DDU was originally designed to replace

the administrative segregation unit at MCI-Cedar Junction. Apparently

seeking to avoid state court orders that held that the DOC could not deny

prisoners in administrative segregation privileges and programs other-

wise available to inmates in the general population, the DOC renamed

the facility the “Department Disciplinary Unit” and proceeded to limit

spondents’ Brief in the S.J.C. at 7. Prisoners in the DDU are

locked alone in their cells for at least 23 hours a day for pro-

longed periods. Petitioners received DDU sentences ranging

from a year and a half to six and a half years. While con-

fined in the DDU, prisoners have no interaction with inmates

in the general population, and their interaction with each

other is extremely limited. DDU ceils, measuring about

seven by twelve feet, each have a solid steel door with a sin-

gle narrow window facing an internal concrete wall, effec-

tively preventing DDU inmates from seeing other inmates

and severely limiting communications. DDU prisoners eat

all of their meals alone in their cells. They may not partici-

pate in any educational, rehabilitative or religious programs.

Their only respite from perpetual solitary confinement is a

single hour of exercise, for a maximum of five days per

week, in a bare, seven by thirty-five foot outdoor space en-

tirely enciosed by a chain link fence. The isolation of DDU

prisoners is reinforced by DOC policies that severely and

deliberately restrict their access to sensory stimulation and to

human contact of any kind.’

DDU inmates to even fewer privileges than they had in the administra-

tive segregation unit before the court orders had taken effect. The harm-

ful effect of these isolated conditions is exacerbated by the fact that in-

mates may be sentenced to the DDU for as long as ten years through an

essentially arbitrary process that provides no standards for the determi-

nations about whether an inmate should be sentenced to the DDU, or if

so, for how long. DOC “disciplinary officers” can refer an inmate to a

DDU hearing for any alleged disciplinary violation they deem to be

“major.” See Mass. Regs. Code tit. 103, § 430.09(2) (1993).

? During the first thirty days that inmates are confined in the DDU,

they are not permitted to have a radio or television and they are denied

all visitation and telephone privileges. If inmates remain free of new

disciplinary reports for the first thirty days, they may obtain permission

There is no significant dispute about the actual physical

conditions of confinement in the DDU or the applicable poli-

cies and practices of the DOC. What was, and is, vigorously

disputed is whether those conditions of confinement have

caused serious mental harm or pose an intolerable risk of se-

rious mental harm to the inmates confined in the DDU. Pe-

titioners’ psychiatric expert, Dr. Stuart Grassian, documented

the harmful effects of confinement in the DDU.’ Dr. Gras-

sian testified in his affidavit that “DDU confinement has se-

riously or even dramatically exacerbated a previously exist-

ing psychiatric illness; in other cases DDU confinement

precipitated a mental illness where none had been observed

before.” S.J.C. Appendix (“S.J.C. App.”) 459. Dr. Grassian

also described numerous instances of harm to individuals

confined in the DDU. For example:

* One inmate had no pnor history of psychi-

atric illness before incarceration in the DDU.

After one year in the DDU, he began hearing

to have a radio, one telephone call and one non-contact visit during the

next thirty day period. Only after 120 days with no disciplinary reports

are inmates eligible for the maximum privileges ever afforded: a televi-

sion, a radio, four telephone calls and four non-contact visits a month.

Inmates who violate the DOC’s rigidly enforced rules, however, have

often spent months or years in a DDU cell without any visits, telephone

calls, radio or television.

* Dr. Grassian has been a board-certified psychiatrist and faculty

member at the Harvard Medical School for more than 20 years. He is an

expert on the psychological effects of solitary and small group confine-

ment in prisons, and he has written one of the leading articles in the field.

See Stuart Grassian, M.D., Psychopathological Effects of Solitary Con-

finement, 140 AM. J. PSYCHIATRY 1450 (1983).

voices, saving his urine and feces in cups,

rocking back and forth in his cell and banging

his head on the steel door. He also became

| reluctant to eat and drink out of fear that his

food was being poisoned.

* Another inmate began hearing voices, in-

cluding that of his dead father, and on several

occasions attempted to inflict self-harm by re-

fusing to eat, attempting to bite off his finger,

and slamming his head repetitively against a

cell wall. Although staff at the psychiatric

hospital to which the inmate was transferred

concluded that he was unable to tolerate DDU

confinement, the DOC ignored the recom-

mendation and returned him to the DDU.

Within 24 hours of his return to the DDU, the

inmate slashed open his left arm in a suicide

attempt.

* Several other inmates evaluated by Dr.

Grassian could be maintained in the DDU

only by use of antipsychotic medication,

which they had never before required and

which has the potential to cause permanent

neurological harm.

S.J.C. App. 458-459, 462-464, 475-477, 462-482.

B. The Proceedings Below.

The petitioners’ complaint and amended complaint as-

serted various state and federal claims, including violations

of the Eighth Amendment, and sought injunctive and de-

claratory relief and damages. After two years of extensive

discovery, the respondent prison officials moved for sum-

mary judgment on the Eighth Amendment claim. The cen-

tral question on summary judgment was whether long-term

solitary confinement in the DDU presented a substantial risk

of serious harm as required by Farmer v. Brennan, 511 U.S.

825, 834 (1994).* Petitioners opposed summary judgment,

claiming a right to a trial on the hotly contested issue of the

psychological effects of long-term confinement in the DDU.

They submitted a 107-page affidavit in which petitioners’

psychiatric expert, Dr. Stuart Grassian, described the serious

mental deterioration inflicted by the DDU. His affidavit

contained detailed clinical observations based on interviews

and reviews of the medical records of 32 DDU inmates. Dr.

Grassian concluded that the conditions of confinement in the

DDU have caused severe psychiatric harm to many of the

* The S.J.C. did not reach the “deliberate indifference” question. See

App. A6-7. However, the petitioners argued below that no special

showing of subjective intent was required because, as the DOC concedes,

the DDU was designed to punish inmates assigned to it. As this Court

has observed, because “punitive isolation is self-evidently inflicted with

punitive intent,” it is unnecessary to consider the issue of deliberate in-

difference in such cases. Wilson v. Seiter, 501 U.S. 294, 301 n.2 (1991).

In any event, the DOC’s failure to abate the risk of DDU confinement in

response to the petitioners’ evidence of harm during the pendency of this

suit is sufficient to establish respondents’ subjective intent for injunctive

purposes. See Farmer, 511 U.S. at 846 n.9.

i ta A lil lhe WA htt 08. NR SA aN) NA eb eb MND Dn geltg 2,

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‘

inmates confined there and pose a serious risk of harm to in-

mates who had not yet exhibited symptoms.°

The trial court granted the respondents’ motion for sum-

mary judgment on the Eighth Amendment claim, without

even acknowledging the petitioners’ evidence of the effects

of DDU confinement on their mental health. The trial

court’s decision contains no mention of Dr. Grassian’s affi-

davit or any of the other disputed evidence of serious mental

harm presented by the petitioners. An order directing the

entry of partial final judgment under Mass. R. Civ. P. 54(b)

was entered with respect to this claim, and the petitioners

appealed.

The Supreme Judicial Court accepted petitioners’ appli-

cation for direct appellate review. See Mass. R. App. P. 11.

The S.J.C. affirmed the grant of summary judgment for the

respondents. Although the S.J.C. acknowledged petitioners’

argument “that a genuine issue exists as to whether condi-

tions in the DDU pose a ‘substantial risk of serious harm,”” it

concluded that “whether prison conditions are sufficiently

harmful to establish an Eighth Amendment violation, is a

purely legal determination for the court to make.” App. A4-

Despite Dr. Grassian’s conclusion that the conditions of

confinement in the DDU can cause severe psychiatric harm,

* This evidence was presented to rebut conclusory affidavits from the

respondents who denied that conditions in the DDU caused harm. For

example, the Commissioner submitted an affidavit stating, “I do not be-

lieve conditions of confinement in the DDU cause or exacerbate existing

or latent mental illness .. ..”. S.J.C. App. 936-37. Respondents also

submitted the affidavit of a medical expert. Even though this expert

never visited the DDU or interviewed a single inmate confined there, he

opined that conditions in the DDU are not restrictive enough to cause

harm, and therefore the harm complained of by plaintiffs cannot be oc-

curring in the DDU. S.J.C. App. 2392-95.

the S.J.C. held that Dr. Grassian’s testimony went to the ul-

timate legal question “regarding what constitutes cruel and

unusual punishment.” App. A5. The court concluded his

opinion was “entitled to little weight.” App. A4-5.

C. How the Federal Question Was Raised.

Petitioners raised the Eighth Amendment claim in their

complaint, their amended complaint, in their opposition to

respondents’ motion for summary judgment and in their

briefs to the S.J.C. The S.J.C. specifically addressed and

ruled against petitioners on their Eighth Amendment claizn.

See App. Aé.

REASONS FOR GRANTING THE WRIT

I. THE SUPREME JUDICIAL COURT’S HOLDING THAT

EXPERT EVIDENCE OF PSYCHIATRIC HARM IS

IRRELEVANT IN DETERMINING WHETHER LONG-TERM

ISOLATED CONFINEMENT VIOLATES THE EIGHTH

AMENDMENT IS IN CONFLICT WITH CONTROLLING

PRECEDENTS OF THIS COURT AND MANY COURTS OF

APPEALS.

The S.J.C.’s decision directly conflicts with controlling

precedent of this Court. Helling v. McKinney, 509 U.S. 25

(1993), held that factual disputes about whether prison con-

ditions pose a substantial risk of serious harm to inmates

must be resolved before a court can determine as a matter of

law whether Eighth Amendment nghts have been violated.

In Helling, a prisoner claimed that forced exposure to envi-

a ae aoe eae

;

ronmental tobacco smoke posed a substantial risk of serious

harm to his future health. 509 U.S. at 28. Recognizing that

factual disputes about the risks posed by the conditions of his

confinement would have to be resolved at trial before the le-

gal test of the Eighth Amendment could properly be applied,

this Court held that it was “premature” to rule as a matter of

law that “the risk is not sufficiently grave to implicate a

‘serious medical nee[d]’” or that forced exposure to second-

hand smoke is consistent with “current standards of de-

cency.” Jd. at 34. Accordingly, the Court determined that

the prisoner’s complaint should not have been dismissed. Jd.

at 35.

The S.J.C.’s decision also conflicts with the decisions of

many of the Circuit Courts of Appeals. After Helling, the

Courts of Appeals have often ruled that genuine factual dis-

putes about the effects of challenged prison conditions must

be resolved before addressing the legal question of whether

there has been proof of a sufficiently substantial risk of seri-

ous harm to implicate the Eighth Amendment.

The Sixth and Ninth Circuits explicitly relied on Helling

to reverse grants of summary judgment for defendant prison

officials that were comparable to the S.J.C.’s decision in this

case. For example, the Sixth Circuit reversed a grant of

summary judgment for prison officials on an inmate’s Eighth

Amendment claims with regard to exposure to environmental

tobacco smoke, where the district court had found the evi-

dence “so one-sided that defendants must prevail as a matter

of law.” Jacobs v. Young, 1997 WL 809925, *2 (6th Cir.

1997) (unpublished decision). The Sixth Circuit found that

the inmate had established a genuine issue of material fact

“as to whether [he] faced a substantial risk of serious harm”

by presenting his medical records that included references to

the inmate’s angina and emphysema, and a physician’s rec-

ommendation that he share a cell with a nonsmoker. Jd.

Similarly, the Ninth Circuit has followed Helling in al-

lowing inmates to proceed to trial with evidence far less sub-

stantial than the expert testimony presented by the petitioners

in this case. See, e.g., Goldyn v. Moran, 1997 WL 545484,

*2 (9th Cir. 1997) (unpublished decision) (remanding for

trial where prisoner alleged she was exposed to environ-

mental tobacco smoke and her underwear was not sanitarily

cleaned; defendant prison officials’ contentions that under-

wear cleaning practices at the prison conform to industry

standards and that the unit passed Department of Health in-

spections created disputed issues of fact under Helling); Fer-

dik v. Gaspar, 1994 WL 127166 (9th Cir. 1994) (unpub-

lished decision) (reversing summary judgment for defendant

prison officials where inmate presented his own affidavit and

affidavit of cellmate stating that confinement in double-

bunked cell worsened his back condition).

Other Courts of Appeals have implicitly adopted the ap-

proach dictated by Helling in requiring that factual disputes

be resolved at trial before the court can decide the ultimate

legal question. See, e.g., LaBounty v. Coughlin, 137 F.3d 68,

73 (2nd Cir. 1998) (material issue of fact as to whether

plaintiff inmate had been exposed to friable asbestos in

prison precludes summary judgment); Hamilton v. Leavy,

117 F.3d 742, 746-49 (3rd Cir. 1997) (reversing grant of

summary judgment for defendant prison officials where in-

mate raised genuine issue of material fact about whether he

was at risk of serious harm from other inmates and whether

prison authorities could have taken additional steps to secure

his safety); Copeland v. Lanham, 1994 WL 64748, *4 (4th

Cir. 1994) (unpublished decision) (noting that inmate’s alle-

gations of risk of sexual assault are “sufficiently serious” to

en ert aes

raise genuine issue of material fact on objective component

of Eighth Amendment claim, but affirming summary judg-

ment because of insufficient evidence on subjective prong);

Jensen v. Clarke, 94 F.3d 1191, 1197-98 (8th Cir. 1996)

(affirming district court finding, after trial, that random dou-

ble-celling of inmates resulted in substantial risk of serious

harm based on statistics and prisoner testimony).

The Seventh Circuit has rendered conflicting decisions

about the proper application of Helling. That Court has cor-

‘rectly stated that an inmate plaintiff who raises an issue of

material fact about the harm caused by challenged conditions

of confinement “is entitled to have the trier of fact determine

whether the conditions . . . violate the Eighth Amendment.”

Del Raine v. Williford, 32 F.3d 1024, 1034 (7th Cir. 1994).

A different panel of the Seventh Circuit, however, affirmed

summary judgment in a decision that a dissenting judge

characterized as being “in substantial tension” with Helling.

Oliver v. Deen, 77 F.3d 156, 164 (7th Cir. 1996) (Woods, J.

dissenting).° 7

There is no principled way to reconcile the S.J.C.’s deci-

sion in this case with Helling or with the decisions of most of

* In Oliver, the plaintiff claimed that his asthma was worsened by ex-

posure to environmental tobacco smoke from his cellmate in violation of

the Eighth Amendment. 77 F.3d at 158. The Seventh Circuit affirmed

the district court’s grant of summary judgment for defendants, on the

ground that the inmate’s mild asthma did not constitute “a medical need

sufficiently serious to implicate the Constitution or to support his claim

for damages.” Jd. at 161. The court distinguished Helling because the

inmate was not seeking injunctive relief and did not claim that environ-

mental tobacco smoke may harm him in the future. See id. at 159. The

petitioners here are seeking injunctive relief, and have offered substantial

evidence that the conditions of confinement have caused and will con-

tinue to cause serious harm in the future.

the Courts of Appeals. The S.J.C. attempts to justify its de-

cision by stating that there is “no factual dispute over the

conditions endured by DDU inmates,” only an “arguable dis-

pute [concerning] the extent to which these conuaitions gener-

ally caused inmates’ psychological problems.” App. AS.

However, the S.J.C. failed to recognize that this was the pre-

cise situation at issue in Helling: there, the parties did not

dispute that the inmate had been exposed to environmental

tobacco smoke, but they did dispute the effects of that expo-

sure.’

The S.J.C.’s refusal to consider the petitioners’ expert af-

fidavit was based on the erroneous premise that it could de-

cide whether the challenged conditions were “sufficiently

” Indeed, the two cases cited by the S.J.C. in support of its “purely le-

gal” approach demonstrate instead that Helling provides the proper

analysis. See App. A5 (citing Hickey v. Reeder, 12 F.3d 754, 756 (8th

Cir. 1993); Madrid v. Gomez, 889 F. Supp. 1146, 1246 (N.D. Cal.

1995)). Both Hickey and Madrid reached the legal question of whether

the Constitution had been violated only after the plaintiff inmates had a

trial on the merits on their Eighth Amendment claims. In Madrid, the

trial court made painstaking findings of facts about the impact of segre-

gated confinement on inmate mental health before reaching its legal con-

clusions. See id. at 1230-36, 1261-66. In Hickey, plaintiff's trial testi-

mony about the pain and fright of being shot by a stungun was not

challenged by any contrary evidence. See 12 F.3d at 757 n.4 (“no

authority or supporting evidence” for the correctional official’s position).

The Hickey Court properly made a legal determination, on undisputed

facts, that the pain was sufficiently harmful to violate the Eighth

Amendment. The First Circuit has yet to consider the implications of

Helling in determining whether summary judgment is appropriate in a

prison conditions case. Its decisions in Jackson v. Meachum, 699 F.2d

578 (ist Cir. 1983), and Santana v. Collazo, 714 F.2d 1172 (ist Cir.

1983), expressing a disinclination to invalidate long-term confinement in

isolation units, preceded this Court’s decision in Helling by a decade and

should not have been relied upon by the S.J.C. See App. A6.

Beatie Na a a i cate ae a as i cial SNe bene a. oe heli

harmful” to trigger the Eighth Amendment as a “purely legal

determination.” App. A4-5. This error led the S.J.C. to con-

clude that the expert’s affidavit should be given “little

weight,” ostensibly on the basis of Rhodes v. Chapman, 452

U.S. 337, 348 n.13 (1981).

However, Rhodes did not foreclose the use of expert tes-

timony to demonstrate substantial harm in prison cases. In

Rhodes, expert testimony was offered on the ultimate legal

question of whether conditions of confinement comport with

contemporary standards of decency. The inmates in Rhodes,

challenging the practice of double-celling as unconstitu-

tional, offered as evidence the “generalized opinions” of ex-

perts about desirable prison conditions. 452 U.S. at 348

n.13. The district court relied on that expert testimony to

support its conclusion that double-celling violated the Eighth

Amendment. This Court reversed, noting that it was wrong

to assume that “opinions of experts as to desirable prison

conditions suffice to establish contemporary standards of de-

cency....” 452 U.S. at 348 n.13. Rhodes does not, however,

authorize courts to ignore expert testimony of the sort peti-

tioners offered here, which addresses the actual impact of

oppressive prison conditions, not the ultimate legal issue. As

Justice Brennan noted in his concurring opinion in Rhodes, a

court seeking information about challenged conditions of

confinement “must be open to . . . expert testimony and

studies on the effect of particular conditions on prisoners.”

452 U.S. at 363. The Court’s opinion did not “disparage use

of experts to assist the courts in these functions.” Jd. at 363

n.11.

In fact, in Helling this Court recognized that an inmate

may offer expert testimony to establish the risk of harm

posed by challenged conditions of confinement. Helling in-

vited a “scientific and statistical inquiry into the seriousness

of the potential harm and the likelihood that such injury to

health” will actually be caused by the conditions of confine-

ment. 509 U.S. at 36. Consistent with these precedents, the

petitioners here offered proof, through an expert’s affidavit,

that long-term confinement in the DDU had caused, and

could be expected to continue to cause, serious injury to the

mental health of inmates confined there.

The S.J.C.’s decision to ignore the petitioners’ expert tes-

timony on the basis of Rhodes is in conflict with the over-

whelming majority of lower court decisions in Eighth

Amendment cases. These courts have routinely accepted ex-

pert testimony as competent evidence of the harm likely to

befall inmates. See, e.g., Taylor v. Michigan Department of

Corrections, 69 F.3d 76, 83-84 (6th Cir. 1995) (reversing

grant of summary judgment for defendant where district

court erred by rendering decision before expert had submit-

ted report; reversing so expert could testify about risk of

harm at prison camp); Jordan v. Gardner, 986 F.2d 1521,

1526 (9th Cir. 1993) (considering expert testimony describ-

ing the psychological effects on abused female inmates of

“pat-down” searches by male guards); Waldrop v. Evans,

871 F.2d 1030, 1035 (11th Cir. 1989) (even where all actions

taken by prison psychiatrist were undisputed, he was not en-

titled to summary judgment because experts’ testimony

raised genuine dispute about whether psychiatrisi’s actions

constituted deliberately indifferent medical care); Madrid v.

Gomez, 889 F.Supp. 1146, 1159 (N.D. Cal. 1995) (noting

that it is proper to rely on expert testimony “in assessing sub-

sidiary issues which inform the court’s final determination”

on whether effects of solitary confinement in segregated

housing unit pose a substantial risk of serious harm to in-

mates). Only the Court of Appeals of the District of Colum-

bia appears to share the S.J.C.’s view that “[t]he Rhodes

ven tek

court flatly discounted expert opinion.” Inmates of Occo-

quan Vv. Barry, 844 F.2d 828, 836 (D.C. Cir. 1988).®

II. THE QUESTION PRESENTED HAS NATIONAL IMPORTANCE.

At least thirty states and the U.S. Bureau of Prisons have

recently constructed supermax prisons or control units simi-

lar to the DDU, and more will be built in the future.” These

* But see Inmates of Occoquan v. Barry, 850 F.2d 796, 798 (D.C. Cir.

1988) (denial of rehearing en banc) (Wald, C.J., dissenting) (“Rhodes

endorsed as legitimate the use of expert opinion — not to establish con-

stitutional standards of decency, but to summarize professional knowl-

edge and norms, and to guide the ultimate judicial judgment on what

constitutes ‘elementary decency.’ . . . Since Rhodes, courts in other cir-

cuits have continued to rely on expert opinion to describe actual prison

conditions and to evaluate their impact on prisoners’ health and safety.”)

(internal citations omitted; emphasis in original).

* The proliferation of supermax units has been well documented by

the news media. See Nightline Special Edition: Crime & Punishment,

Part III, Blood In, Blood Out (ABC television broadcast, Aug. 27, 1998),

available in Westlaw, database ALLNEWS, 1998 WL 9100174 (Ted

Koppel notes that “there is general agreement that this place [a supermax

prison unit in Texas] drives men mad;” noting that supermax units “are

becoming increasingly popular in this country. We have almost 60 of

them spread over 31 states. Five more in the pipeline are expected to be

up and running next year.”); Lisa Anderson, Js ‘Supermax’ Too Much?

Strict Isolation of Inmates Called Cruel, Ineffective, CH. TRIB., Aug. 2,

1998 at 1 (noting that supermax prisons have “become a trend in state

corrections” where the percentage of the total prison population in su-

permax ranges from 0.5 percent to as high as 20 percent in Mississippi);

Peter Annin, /nside the New Alcatraz, NEWSWEEK, July 13, 1998 at 35

(“more than 30 states now have supermax pens”); Kate Shatzkin, Super-

max or Super Cruel?, THE BALTIMORE SUN, May 19, 1996 at IE

(describing Maryland’s supermax prison that holds up to 288 prisoners

new prisons are controversial because they are designed to

hold prisoners in solitary confinement in conditions of pro-

found social isolation and restricted environmental stimuia-

tion for many years.

The impact of long-term confinement under these extreme

conditions presents novel and important issues under the

Eighth Amendment. Widespread concerns have been voiced

in the scholarly and professional literature about the harmful

effects of confinement in control units on the mental health

and well-being of the prisoners. See Thomas B. Benjamin &

Kenneth Lux, Solitary Confinement as Psychological Pun-

ishment, 13 CAL. W.L. REV. 265, 268 (1977) (“The evidence

appears overwhelming that solitary confinement alone, even

in the absence of physical brutality or unhygienic conditions,

can produce emotional damage, declines in mental function-

ing and even the most extreme forms of psychopathology,

such as depersonalization, hallucination and delusions”)."°

“who spend their days alone in their 65-square-foot cells, with no jobs,

classes or programs to fill their time. They eat in their cells and rarely

see one another, yelling to communicate through the vent system.”).

'© See also Dorte Maria Sestoft et al., Impact of Solitary Confinement

on Hospitalization Among Danish Prisoners in Custody, 21 INT’L J.L. &

PSYCHIATRY 99, 103 (1998) (finding that “[i]f a person remained in

[solitary confinement] for 4 weeks the probability of being admitted to

the prison hospital for a psychiatric reason was about 20 times as high as

for a person remanded in [non-solitary confinement] for the same period

of time.”); Human Rights Watch, COLD STORAGE: SUPER-MAXIMUM

SECURITY CONFINEMENT IN INDIANA 71 (1997) (“Mentally ill people

often have difficulty complying with rules, especially in prison setting

where the rules are very restrictive, the stresses intense, and there is scant

assistance to help the prisoners’ [sic] manage their disorders. Those

whose psychiatric disorders are reflected in aggressive or disruptive be-

havior can accumulate long histories of disciplinary infractions that land

them in administrative segregation or disciplinary detention. Once con-

The S.J.C.’s decision stands as a barrier to proper judicial

consideration of the central issue raised by the nationwide

introduction of control units: whether they create a substan-

tial risk of serious harm to the mental health of inmates that

violates the Eighth Amendment. The nature and magnitude

of the risks presented by the use of control units cannot prop-

erly be assessed without the benefit of expert testimony. The

S.J.C.’s ruling that expert testimony on the harmful effects of

long-term DDU confinement — no matter how powerful the

expert testimony may be — cannot justify a trial on the merits

appears to be the first decision by any state court of last re-

sort on this critical question. It will surely be invoked by

correctional officials throughout the country who seek to

avoid scrutiny of their own supermax prisons." This Court

fined [in such units] the infractions continue.”); Martin Humphreys &

Frances Burnett, Monosymptomatic Hypochondriacal Psychosis and

Prolonged Solitary Confinement, 34 MED. SCI. & L. 343, 345 (1994)

(presenting a psychiatric case history of a prisoner who developed unre-

mitting and treatment resistant psychosis following 12 months in solitary

confinement; solitary confinement played a significant role in the devel-

opment of the mental illness); Craig Haney, “/nfamous Punishment”:

The Psychological Consequences of Isolation, NAT’L PRISON PRO). J. 3,

5 (Spring 1993); Jeff Mitchell, M.D., and Christopher Varley, M.D.,

Isolation and Restraint in Juvenile Correctional Facilities, 29 J. AM.

ACAD. CHILD ADOLESC. PSYCHIATRY, 251, 252 (1990) (“The literature

suggests that a variety of mental and behavioral disturbances can be cre-

ated by isolation for long periods of time”). Cf Adrian Angold, Seclu-

sion, 154 BRIT. J. PSYCHIATRY 437, 440 (1989) (noting that “[i]t seems

clear that very long periods of seclusion (many days, weeks or months)

are unacceptable . . ., and some work on the effects of long-term solitary

confinement in prison serves to underline the possible psychopathologi-

cal harmfulness of such treatment.”) (internal citation omitted).

'' See Andrea Estes, SJC rules solitary cells not cruel, BOSTON

HERALD, June 6, 1998, at 6 (quoting Commissioner of Correction Mi-

should not allow the use of control units to proliferate with-

out providing for meaningful judicial consideration of Eighth

Amendment challenges on the basis of fully developed fac-

tual records illuminated by expert testimony.

CONCLUSION

For all the foregoing reasons, the petition for certiorari

should be granted.

Respectfully submitted,

JOHN REINSTEIN ScoTT P. LEWIS

American Civil Liberties Counsel of Record

Union of Massachusetts LAURIE S. GILL

99 Chauncy Street LORI B. SILVER

Boston, MA 02111 PALMER & DODGE LLP

(617) 482-3170 One Beacon Street

Boston, MA 02108

(617) 573-0100

Counsel for Petitioners

September 24, 1998

chael T. Maloney saying, “Other states were waiting to see what was

going to happen here. They can now point to this case when they deal

with challenges in their states”).

APPENDIX

TABLE OF CONTENTS

APPENDIX A

Opinion of the Massachusetts Supreme Judicial

RIE iahinsadaeticeinininiccunaadbsinuieitidenlnceniseatihanniiécensseses

APPENDIX B

Suffolk Superior Court Decision ..............cccccseeeeeeees

APPENDIX C

Order and Entry of Partial Final Judgment ..............

APPENDIX D

Denial of the Motion for Reconsideration ................

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

No. SJC-07633

VICTOR TORRES & others’ vs. COMMISSIONER OF

CORRECTION & others.’

Suffolk. May 7, 1998. - June 5, 1998.

Present: Abrams, Lynch, Greaney, Fried, Marshall,

& Ireland, JJ.

Constitutional Law, Imprisonment, Cruel] and unusual pun-

ishment. Imprisonment, Enforcement of discipline.

Practice, Civil, Summary judgment. Evidence, Expert

opinion. Due Process of Law, Prison disciplinary pro-

ceedings.

CIVIL ACTION commenced in the Superior Court Depart-

ment on January 19, 1994.

' Corey Glover, Mark MacDougall, Michael Leoney, Basil Williams,

William Dinkins, William Robinson, Keith Parkinson, Adrian Almeida,

Jerrell Bunce, and Charles Chase.

? The Deputy Commissioner of Correction; the superintendent of

Massachusetts Correctional Institution at Cedar Junction (MCI-Cedar

Junction); the director of the department disciplinary unit at MCI-Cedar

Junction; a correctional officer at MCI-Cedar Junction; and the Commis-

sioner of Mental Health.

The case was heard by Peter M. Lauriat, J., on a motion

for summary judgment.

The Supreme Judicial Court granted an application for

direct appellate review.

Scott P. Lewis (John Reinstein with him) for the plaintiffs.

Thomas O. Bean, Special Assistant Attorney General, for

the defendants.

LYNCH, J. The plaintiffs, prisoners presently or formerly

confined in a subunit of the Massachusetts Correctional In-

stitution at Cedar Junction known as the department discipli-

nary unit (DDU), challenge their conditions of confinement.

Their complaint contains thirteen counts alleging various

constitutional and statutory violations. A judge in the Supe-

nor Court allowed the defendants’ motion for summary

judgment on eight of the thirteen counts. After a timely ap-

peal we granted the plaintiffs’ application for direct appellate

review. The plaintiffs assert that the judge erred in finding

that (1) the conditions present in the DDU do not offend the

Eighth Amendment to the United States Constitution or art.

26 of the Massachusetts Declaration of Rights; (2) the DDU

is not an “isolation unit” and thus, not subject to the require-

ments of G.L. c. 127, § 40; (3) the procedures governing

DDU confinement do not deprive inmates of procedural due

process rights, as guaranteed by the Fourteenth Amendment

to the United States Constitution and art. 26; and (4) the con-

ditions present in the DDU do not violate G. L. c. 127, §§ 32,

39. For the reasons set forth below, we reject the plaintiffs’

claims and accordingly, affirm the allowance of summary

judgment.

Facts. The judge found the following facts. In April,

1992, the Department of Correction (department) opened the

DDU at MCI-Cedar Junction to house inmates who have

committed major disciplinary violations while incarcerated.

Inmates who, after a hearing before a department special

hearing officer, have been found guilty of committing a vio-

lation calling for a major sanction may be sentenced to up to

ten years in the DDU.’ 103 Code Mass. Regs. § 430.25 (3)

(d) (1993). The DDU is a modern secure facility which can

hold up to 124 male inmates in individual cells. The DDU

inmates are allowed five hours of outdoor exercise weekly,

weather permitting, and they also are allowed to leave their

cells to shower and to shave three times weekly.

At all other times, DDU inmates remain in their cells.

Each inmate’s cell is approximately seven by twelve feet,

- and contains a toilet, sink, bed, desk with attached seat, and

one window. The cell’s steel door also has a window, two

slots through which items can be passed, and several small

holes to facilitate communication through the door. While

there, DDU inmates receive hourly visits from correction of-

ficers, and daily visits from the director and captain of the

DDU. The correctional program officer also makes rounds

two or three times weekly. In addition, medical personnel

visit the inmates four times each day, while religious and

mental health staff make rounds once each week. Inmates

may communicate with any of their visitors through their cell

doors or by passing a note through one of the door’s slots.

Inmates may also speak with each other while in the exercise

yard or in their cells. While in their cells, DDU inmates have

access to the resources of the prison law library and the other

reading material. Finally, inmates who have not committed

further disciplinary violations while in DDU may eventually

have a radio and television in their cells, make four thirty-

> These plaintiffs were sentenced to from seventeen months to six and

one-half years.

minute telephone calls monthly, and have four one-hour,

noncontact visits per month.

1. Rights under the Eighth Amendment and art. 26. The

plaintiffs first claim that the judge erred in ruling on sum-

mary judgment that DDU confinement does not subject in-

mates to cruel and unusual punishment, in violation of the

Eighth Amendment, and cruel or unusual punishment in

violation of art. 26.‘ To succeed on an Eighth Amendment

claim, a plaintiff-inmate must demonstrate that (1) a prison’s

conditions of confinement present “a substantial risk of seri-

ous harm”; and (2) prison officials acted with “deliberate in-

difference” to inmate health or safety. See Farmer v. Bren-

nan, 511 U.S. 825, 834 (1994); Helling v. McKinney, 509

U.S. 25, 36 (1993). To survive a motion for summary judg-

ment, a nonmoving plaintiff must “designate ‘specific facts

showing that there is a genuine issue for trial.”” Kourou-

vacilis v. General Motors Corp., 410 Mass. 706, 714 (1991),

quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-324

(1986).

In support of their claim that a factual dispute exists the

plaintiffs cite the affidavit of Dr. Stuart Grassin, who opined

that DDU’s conditions of confinement can cause “severe

psychiatric harm.” The plaintiffs therefore contend that a

genuine issue exists as to whether DDU’s conditions pose “a

substantial risk of serious harm.” Farmer v. Brennan, supra

at 834. However, other courts have concluded, and we agree

that, whether prison conditions are sufficiently harmful to

* The Eighth Amendment to the United States Constitution states:

“Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” Similarly, art. 26 of the Mas-

sachusetts Declaration of Rights provides, in pertinent part: “No magis-

trate or court of law, shall demand excessive bail or sureties, impose ex-

cessive fines, or inflict cruel or unusual punishments.”

establish an Eighth Amendment violation, is a purely legal

determination for the court to make. See Hickey v. Reeder,

12 F.3d 754, 756 (8th Cir. 1993), citing Hudson v. McMil-

lian, 503 U.S. 1, 6 (1992); Madrid v. Gomez, 889 F. Supp.

1146, 1246 (N.D. Cal. 1995). Therefore, expert opinion re-

garding what constitutes cruel and unusual punishment is

entitled to little weight. Rhodes v. Chapman, 452 U.S. 337,

348 n.13 (1981) (expert opinions “may be helpful and rele-

vant with respect to some questions, but ‘they simply do not

establish the constitutional minima’”).’ Here, there is no

factual dispute over the conditions endured by DDU inmates.

Rather, the only arguable dispute concerned the extent to

which these conditions generally caused inmates’ psycho-

logical problems. In these circumstances the judge properly

concluded that no genuine issue of material fact existed. See

Curtis v. School Comm. of Falmouth, 420 Mass. 749, 754

(1995), cert. denied, 516 U.S. 1067 (1996) (deeming sum-

mary judgment proper where the “issues before the judge

were issues of law, i.e., whether the condom-availability

program, the provisions of which are not in dispute, infringes

on the rights of the plaintiffs”).

Absent a factual dispute, the judge properly allowed the

defendants’ motion for summary judgment. As the United

States Court of Appeals for the First Circuit has observed,

“federal appellate decisions during the past decade which

have focused on the factor of segregated confinement and

> At least one Federal District Court, however, has noted that, while

“the opinions of experts are entitled to little weight in determining

whether a condition is ‘cruel and unusual punishment’ under the Eighth

Amendment . . . expert opinion may be properly considered in assessing

the effects of challenged conditions or practices.” Madrid v. Gomez, 889

F. Supp. 1146, 1159 (N.D. Cal. 1995), citing Helling v. McKinney, 509

U.S. 25, 36 (1993).

lack of inmate contact reveals to us a widely shared disincli-

nation to declare even very lengthy periods of segregated

confinement beyond the pale of minimally civilized conduct

on the part of prison authorities.” Jackson v. Meachum, 699

F.2d 578, 583 (1st Cir. 1983). See Santana v. Collazo, 714

F.2d 1172, 1179 (1st Cir. 1983), cert. denied, 466 U.S. 974

(1984) (“courts that have examined the confinement of adults

in prison isolation cells have been reluctant to find them un-

constitutional, based either on the length of confinement or

on the possibility that isolation might cause psychiatric dete-

noration”). Similarly, in Libby v. Commissioner of Correc-

tion, 385 Mass. 421, 431 (1982), we held that a prison isola-

tion unit whose conditions were more restrictive than those

in DDU did not offend the Eighth Amendment because its

inmates were provided adequate food, clothing, sanitation,

medical care, and communication with others. Jd. at 431-

432.° “The ‘isolation’ and ‘loneliness’ of which the plaintiffs

complain,” we concluded, “is not in and of itself unconstitu-

tional.” Jd. at 432. If conditions of confinement harsher than

those posed by DDU did not offend the Eighth Amendment,

it follows that DDU’s confinement is likewise constitutional.

Consequently, the judge acted properly in allowing the de-

fendants’ motion for summary judgment.’

° For example, inmates there had no opportunity for exercise, and

were allowed to leave their cells to bathe only twice weekly. Moreover,

they were allowed no reading material other than a Bible and personal

legal papers. There was likewise no evidence that the inmates could have

radios or televisions in their cells. Finally, aside from prison and medical

staff, only attorneys and chaplains could visit the inmates. See Libby v.

Commissioner of Correction, 385 Mass. 421, 424-426 (1982).

” We do not reach the plaintiffs’ claim that there was a factual dispute

with respect to the defendants’ “deliberate indifference” (i.e., the second

requirement of an Eighth Amendment claim). The plaintiffs must meet

For identical reasons, we reject the plaintiffs’ contention

that summary judgment was improperly granted to the de-

fendants on the art. 26 claim. While the rights guaranteed

under art. 26 “are at least equally as broad as those guaran-

teed under the Eighth Amendment,” Michaud v. Sheriff of

Essex County, 390 Mass. 523, 534 (1983), a prisoner seeking

relief under this provision of the Massachusetts Constitution

must point to both (1) a condition or situation “which poses a

substantial risk of serious harm”; and (2) facts establishing

that a prison official “has knowledge of the situation and ig-

nores it.” Good v. Commissioner of Correction, 417 Mass.

329, 336 (1994). See ‘Abdullah v. Secretary of Pub. Safety,

42 Mass. App. Ct. 387, 395 (1997). As previously discussed,

the plaintiffs failed to establish a genuine issue of material

fact with respect to the first requirement. The evidence in-

stead described conditions of confinement more favorable to

inmates than those of an isolation unit we have previously

deemed adequate under art. 26. Libby v. Commissioner of

Correction, supra at 435. Consequently, the judge properly

allowed the defendants’ motion for summary judgment on

this claim.’

both the fiest and second requirements to have an Eighth Amendment

claim. Thus, the plaintiffs’ failure with respect to the first requirement

precludes the need for trial with respect to the second requirement.

® The defendants do not raise the claim of issue preclusion and we

express no opinion as to its applicability to this appeal. We note, how-

ever, that in Commonwealth vs. James Clark, Norfolk Superior Court

No. 97-4079 (April 6, 1998), several inmates claimed, inter alia. that

incarceration in DDU violates the Eighth Amendment and art. 26. After

making extensive factual findings regarding the conditions of confine-

ment in DDU, a Superior Court judge concluded that DDU’s conditions

offend neither the Eighth Amendment nor art. 26. F: idler v. E.M. Parker

Co., 394 Mass. 534, 537 (1985).

2. General Laws c. 127, § 40. The plaintiffs’ complaint

alleged that DDU’s conditions of confinement violated G. L.

c. 127, § 40, which limits confinement in an “isolation unit”

to fifteen consecutive days.” In allowing the defendants’ mo-

tion for summary judgment, the judge concluded that DDU is

not an “isolation unit” and therefore, is exempt from the fif-

teen-day limit imposed by § 40. The plaintiffs claim this was

erroneous.

Enacted in 1955, § 40 sought to “substitute more humane

treatment for the harsher conditions of solitary confinement

previously imposed, which were ‘deplored’ as ‘barbaric.””

See Attorney Gen. v. Sheriff of Worcester County, 382 Mass.

57, 61 (1980), citing Report and Recommendations of the

Governor’s Committee to Study the Massachusetts Correc-

tional System, 1955 Senate Doc. No. 750, at 43; McGrath,

Criminal Law, Procedure, and Administration, 1955 Ann.

Survey Mass. Law 119, 126-127. These “harsher condi-

tions,” as the motion judge expressly found, included twenty-

four hour solitary confinement without communication, ex-

ercise, reading material (other than a religious book), medi-

cal visits, showers, telephone calls, television, or radio. See

O'Malley v. Sheriff of Worcester County, 415 Mass. 132,

139 (1993) (“Isolation . . . involves a significant loss of free-

dom, opportunity for exercise or earning good time credits,

as well as contact with visitors and others”); Libby v. Com-

* General Laws c. 127, Sect. 40, provides, in its entirety:

“For the enforcement of discipline, an inmate in any correctional in-

stitution of the commonwealth may, at the discretion of its superinten-

dent, be confined, for a period not to exceed fifteen days for any one

offence, to an isolation unit.

“Such isolation units must provide light, ventilation and adequate

sanitary facilities, may contain a minimum of furniture, and shall provide

at least one full meal daily.”

missioner of Correction, 385 Mass. 421, 432-433 (1982)

(presupposing that § 40 was applicable to segregated unit in

which inmates had no exercise time, no reading material

other than Bible and legal papers, and no nonstaff visitors

other than attorneys and chaplains).

The judge’s findings and the parties’ stipulation demon-

strate that DDU confinement, while uncomfortable, is a far

cry from the “barbaric” conditions § 40 sought to alleviate.

Cell construction, access to prison officials and other prison-

ers, exercise, and entertainment opportunities, to name a few,

demonstrate much less severe conditions of confinement than

the isolation confinement regulated by § 40. Other courts

have reached the same conclusion. See McGuinness v.

DuBois, 891 F. Supp. 25, 29 (D. Mass. 1995), aff'd, 88 F.3d

1146 (lst Cir. 1996); Abrazinski v. DuBois, 876 F. Supp.

313, 319 (D. Mass. 1995). Accordingly, the judge’s allow-

ance of the defendants’ motion for'summary judgment on

this count was proper."®

3. Due process. The plaintiffs next contend that the judge

erred in ruling on summary judgment that the administrative

disciplinary process governing DDU confinement does not

violate the plaintiffs’ procedural due process rights under the

Federal and Massachusetts Constitutions. We disagree.

Prison inmates have the protections of procedural due

process only if there is an existing liberty or property interest

at stake. O'Malley v. Sheriff of Worcester County, supra at

135, citing Regents of State Colleges v. Roth, 408 U.S. 564,

571 (1972). In Sandin v. Conner, 515 U.S. 472, 484 (1995),

10 We note also that the department’s own regulations interpreting

G. L. c. 127, § 40, differentiate between “isolation” and a “[s]entence to

a [DDU].” See 103 Code Mass. Regs. § 430.25 (3) (1995). To that inter-

pretation we give “substantial deference.” Gately’s Case, 415 Mass. 397,

399 (1993).

Al0

the United States Supreme Court held that “these interests

will be generally limited to freedom from restraint which .. .

imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Whether a

particular restraint imposes an “atypical and significant hard-

ship” depends, in turn, on its “duration and degree.” Jd. at

486. Where such an interest is deemed to exist, we next ask

whether the disciplinary procedures afforded to inmates are

adequate to satisfy the due process requirements mandated

by the United States Supreme Court. Nelson v. Commis-

sioner of Correction, 390 Mass. 379, 389 (1983), citing

Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). In these

circumstances disciplinary procedures must include “(1) ad-

vance written notice of the disciplinary charges; (2) an op-

portunity, when consistent with institutional safety and cor-

rectional 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.” O'Malley v. Sheriff of Worcester County, supra at

138, quoting Superintendent, Mass. Correctional Inst. at

Walpole v. Hill, 472 U.S. 445, 454 (1985), citing Wolff v.

McDonnell, supra at 563-567.

Applying this analysis to the present case, we conclude

that, even if there has been an “atypical and significant hard-

ship” the plaintiffs’ due process rights have not been vio-

lated. Cf. Sandin v. Conner, supra at 484; Dominique v.

Weld, 73 F.3d 1156, 1160-1161 (ist Cir. 1996). An inmate

facing a DDU disciplinary hearing must receive both a disci-

plinary report and notice of the hearing at least twenty-four

hours in advance. See 103 Code Mass. Regs. § 430.11 (2)

(1993); Wolff v. McDonnell, supra at 564 (deeming twenty-

four hours notice of disciplinary hearing sufficient). More-

Over, an inmate may call witnesses and offer other evidence

All

at the DDU hearing in his defense, 103 Code Mass. Regs.

§ 430.14 (4), doing so either himself or with the assistance of

counsel, 103 Code Mass. Regs. § 430.12 (1). Finally, after

the hearing, the department is required to prepare a written

decision, which must include a description of the evidence

relied on, a statement of the reasons for the sanctions im-

posed, and an explanation for the exclusion of any evidence

or witnesses. 103 Code Mass. Regs. § 430.17 (1) (a)-(c).

With these procedural safeguards in place, DDU’s discipli-

nary process comports with the requirements of the Four-

teenth Amendment, as set forth in Wolff v. McDonnell, supra

at 563-567. Accordingly, the judge’s allowance of summary

judgment was proper." |

4. General Laws c. 127, § 32. Finally, the plaintiffs re-

quest that we reverse the judge’s ruling on summary judg-

ment that DDU’s conditions of confinement do not violate

G. L. c. 127, § 32. We decline to do so.

General Laws c. 127, § 32, requires prison officials to

“treat the prisoners with the kindness which their obedience,

industry and good conduct merit.” This requirement, how-

ever, extends only to those inmates “who are not being disci-

plined.” Inmates are sentenced to DDU only after commit-

ting a “major” disciplinary offense in a prison facility. See

103 Code Mass. Regs. § 430.25 (3). Cf. 103 Code Mass.

Regs. § 421.09 (providing that “[a]n inmate may be placed or

retained in a [departmental segregation unit] only for admin-

istrative, and not for disciplinary, reasons”). See also Com-

monwealth v. Forte, 423 Mass. 672, 673, 677 (1996)

'! For similar reasons, we likewise reject the plaintiffs’ claim that

DDU’s disciplinary process violates inmates’ due process rights as guar-

anteed by art. 12 of the Declaration of Rights of the Massachusetts Con-

stitution. The procedures governing DDU confinement previously de-

scribed are adequate to protect inmates’ art. 12 rights.

Al2

(confinement in DDU part of major prison discipline in Mas-

sachusetts). Considered in this light, G. L. c. 127, § 32, does

not apply to confinement in DDU. The judge, therefore, was

correct in allowing the defendants’ motion for summary

judgment.”

Judgment affirmed.

2 We likewise reject the plaintiffs’ contention that the judge erred in

allowing the defendants’ summary judgment motion regarding the plain-

tiffs’ claim under G. L. c. 127, § 39. Section 39 provides, in relevant

part, that prisons’ segregated units “shall provide regular meals, fully

furnished cells, limited recreational facilities, rights of visitation and

communication by those properly authorized, and such other privileges

as may be established by the commissioner.” Specifically, the plaintiffs

claim that the judge’s allowance of the motion was “an apparent clerical

error,” given the judge’s notation that “[njeither plaintiffs nor defendants

have addressed the allegation in Count V that the [department] defen-

dants have violated G. L. c. 127, § 39.” However, the record indicates

that the defendants did address this issue in their motion for summary

judgment. Moreover, undisputed facts in the summary judgment record

indicate that DDU has met § 39’s requirements. Each inmate receives

three meals daily, while residing in a cell equipped with a toilet, sink,

bed and desk with attached seat. Moreover, DDU inmates have access to

an exercise facility for five hours weekly. They also may communicate

with both prison staff and each other throughout the week.

Al3

APPENDIX B

REDACTED

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT

CIVIL ACTION

NO. 94-0270-E

VICTOR TORRES, COREY GLOVER, MARK

MACDOUGALL, MICHAEL LEONEY,

BASIL WILLIAMS, WILLIAM DINKINS, WILLIAM

ROBINSON, KEITH PARKINSON, ADRIAN

ALMEIDA, JERELL BUNCE and CHARLES CHASE

vs.

LARRY DUBOIS, MICHAEL MALONEY, RONALD

DUVAL, PHILLIP L. HARRINGTON, JR., EDWIN

DOOLIN, AND EILEEN ELIAS'

Defendants DuBois, Maloney, Duval, and Harrington who

serve respectively as Commissioner of the Massachusetts Department of

Correction, Deputy Commissioner of the Department of Correction, Su-

perintendent of MCI - Cedar Junction, and Director of the Department

Disciplinary Unit at Cedar Junction have been named in their individual

and official capacities. Defendant Doolin, formerly second-in-command

at the DDU, has been named in his individual capacity only. Defendant

Silva, second-in-command at the DDU, has been named in his official

capacity and has replaced Doolin. Defendant Elias, formerly Commis-

sioner of the Massachusetts Department of Mental Health, has been

named in her individual capacity only. Defendant Sudders, Commis-

sioner of the Massachusetts Department of Mental Health, has been

named in her official capacity and has replaced Elias.

Al4

MEM UM OF D N (1

P ‘ Y

JUDGMENT ON COUNT IV, AND (2) DEFENDANTS’

N FOR N ALL

COUNTS

The plaintiffs, inmates who were or are currently housed

in the Department Disciplinary Unit (“DDU”’) at the Massa-

chusetts Correctional Institution at Cedar Junction (“Cedar

Junction”), brought this class action in January, 1994, on

their own behalf and on behalf of all inmates who are or may

in the future be confined in the DDU. The defendants are

officials of the Department of Correction (“DOC”) and of the

Department of Mental Health (““DMH”). The plaintiffs have

challenged the allegedly “unlawful and inhumane condi-

tions” of their confinement at the DDU, and have asserted

that the defendants have violated plaintiffs’ constitutional

and statutory rights.

The plaintiffs were sentenced to prison after being con-

victed of first degree murder, second degree murder, aggra-

vated rape, and armed robbery. Each plaintiff was assigned

to the DDU after being found guilty of committing a major

disciplinary violation while incarcerated. These violations

include: stabbing another inmate, kicking and headbutting a

correction officer; destroying a cell and throwing coffee at a

correction officer; punching an officer in the face; and fight-

ing with an inmate and biting an officer who responded to

the fight. Some of the plaintiffs were found guilty of com-

mitting major disciplinary violations while incarcerated in

the DDU. One was found guilty of breaking out of an exer-

cise yard and attempting to attack another inmate; another, of

biting a correction officer and spitting at a doctor in the

Al5

DDU; and still another, of throwing urine at a correction of-

ficer.

Plaintiffs challenge the alleged lack of due process in the

disciplinary proceedings that led to their commitment to the

DDU, and the policies, procedures, and confinement prac-

tices that result in allegedly unlawful and inhumane condi-

tions of plaintiffs’ DDU confinement. (Amended Complaint,

par. 1). The plaintiffs’ action is a systemic challenge to the

operation of the DDU rather than to requests for relief based

on assertions of individual plaintiffs. The systemic nature of

their challenge is evident from the Amended Complaint and

the relief sought.

Plaintiffs contend that defendants inappropriately assert

that evidence regarding individual prisoners’ experiences in

the DDU is not relevant on the declaratory judgment counts

and does not raise material issues of disputed facts.

(Defendants’ Brief, 10). Plaintiffs contend that individual

prisoners’ experiences provide evidence of actual conditions

in the DDU. Hence, they claim that information pertaining

to the nature and effect of DDU confinement on individual

inmates is relevant and presents issues of material fact which

precludes summary judgment on their declaratory judgment

claims.’

z_ By stipulation, defendants may agree to accept the admissibil-

ity of evidence as to persons other than the named plaintiffs when rele-

vant to prove the existence of the alleged unlawful practices or proce-

dures that the plaintiffs claim had adversely affected them. Williams v.

Secretary of the Executive Office of Human Services, 414 Mass. 551,

554 n. 4 (1993) (action brought on behalf of homeless and mentally ill

individuals that failed to demonstrate that the practices and policies of

the DMH in allocating its resources discriminated against individuals

with disabilities in violation of the ADA; the Court determined that

DMH defendants were entitled to summary judgment on those claims).

Al6

On July 1, 1994, the Superior Court (Flannery, J.) entered

a Pre-Trial Case Management Order in this action which

provided that it would not proceed as a class action,’ that

pursuant to Mass. R. Civ. P. 42(b), plaintiffs’ damage claims

would be bifurcated from their declaratory judgment claims,

and that this court would resolve plaintiffs’ declaratory

judgment claims before considering their claims for dam-

ages.* The Case Management Order specified that after the

declaratory judgment stage, “the Court will entertain motions

for appropriate enforcement orders, including injunctions,

and will schedule a prompt trial on the damage claims.”

(CMO, p.3).

The plaintiffs have now moved for summary judgment on

Count IV of their Amended Complaint against the Commis-

sioner of the Department of Mental Health,’ and the defen-

dants have moved for summary judgment on all counts. On

Further, the Court determined that, “[i]n declaratory actions, even where

relief is denied, the rights of the parties must be declared.” Id. at 570.

’ The order states that “a speedy trial on the named plaintiffs’

declaratory judgment claims would be a superior method for the fair and

efficient adjudication of the controversy and will not prejudice any

member of the putative class . . . Notice . . . shall be given to members of

the putative class . . .” including al] those who were confined to the DDU

at the time the action was commenced and those who are currently or

will soon be confined to the DDU.

? The motions before this court and this memorandum of deci-

sion are therefore directed principally at plaintiffs’ claims for declaratory

and injunctive relief.

. Mary Lou Sudders (“Sudders”) replaced Eileen Elias (“Elias”)

as DMH Commissioner after this suit had been filed. Elias was named

both individually and in her official capacity. Plaintiffs have not moved

for summary judgment against Elias individually.

Al7

May 7, 1996, the court, accompanied by counsel for the par-

ties, took an extensive view of the DDU. Thereafter, the

parties presented oral arguments on their summary judgment

motions.

PROCEDURAL POSTURE OF THIS CASE

In the intervening two and one-half years since the Case

Management Order was issued, it appears that many of the

named plaintiffs have been released from the DDU, thereby

making their claims moot.’ At the same time, the parties,

through their attorneys, have spent substantial time, effort,

investigation and research in preparing and presenting the

issues in this case to the court. It would be unfair for this

court to dismiss or ignore some or all of the claims and is-

sues that have been raised simply because the named plain-

tiffs are no longer in the DDU.

Accordingly, with respect to any issue which remains

open as a result of this decision, the court would urge the

parties to stipulate to the facts regarding the allegations made

by those inmates no longer in the DDU.’ Alternatively, the

and McCrosson Aff., Ex. 4,

par. 7(F).

‘ See, e.g., Williams v. f the Executive Office of

Human Services, 414 Mass. 551, 554 n.4 (1993), where the defendants

agreed to the following: (1) to waive defenses based on the statute of

limitations through the date of final judgment in the case as to any sub-

sequent plaintiff whose claim for declaratory or injunctive relief is based

on the same factual elements which the plaintiffs are required to prove in

order to show entitlement to relief, provided that the subsequent claim-

ant’s claim was not already barred prior to a certain date; (2) to be bound

by the Superior Court’s judgment regarding the existence and scope of

any statutory, regulatory, common law, or constitutional rights as to any

Al8

parties could stipulate that those inmates no longer in the

DDU would be permitted to present evidence at trial with

respect to their claims, even though they were no longer par-

ties to the action. If the parties are unable or unwilling to so

stipulate and agree within ninety days from the date of this

decision, the court would order reconsideration of the portion

of the Case Management Order which denied class action

status to the plaintiffs in this case.

BACKGROUND

Plaintiffs have made claims of unlawful confinement in

isolation (Amended Complaint, pars. 32-47), inadequate

psychiatric screening, monitoring and treatment (pars. 48-

64), inadequate medical treatment (pars. 65-69), systematic

use of gassings, beatings and restraints (pars. 70-78), inade-

quate food (pars. 79-82), denial of access to the courts (pars.

83-87), and unlawful DDU hearings (pars. 83-95). The de-

fendants have denied each and all of these claims.

The summary judgment record* presently before the court

reveals the following material undisputed facts: Before the

subsequent similarly situated claimant; (3) to be bound by any judgment

of the Superior Court regarding the legality or illegality of any practice

or procedure as to any similarly situated claimant adversely affected by

such practice or procedure; (4) not to argue mootness based on the plain-

tiffs’ current situation, so long as there remains a risk that the plaintiffs

might be subjected to the challenged practices; and (5) to accept the ad-

missibility of evidence as to persons other than the named plaintiffs

when relevant to prove the existence of the alleged unlawful practices or

procedures that the plaintiffs claim have adversely affected them.

. The summary judgment record includes the Statement of

Agreed Facts, affidavits, and excerpts of deposition transcripts submitted

by the parties.

Al9

DDU opened, DOC inmates who committed major discipli-

nary violations while incarcerated were assigned to the De-

partment Segregation Unit (“DSU”). DSU inmates were

permitted to participate in prison rehabilitation and educa-

tional programs. They could also purchase items from the

canteen, smoke cigarettes, have a television and radio in their

cells, make up to three fifteen minute telephone calls per

week, and have a maximum of three contact social visits per

week. Nearly fifty percent (50%) of the inmates released

from the DSU were returned to it.

Defendant Larry E. DuBois (“DuBois”) became Commis-

sioner of the DOC in July, 1991. DuBois, along with defen-

dant Michael Maloney (“Maloney”), Deputy Commissioner

of the DOC, and defendant Ronald Duval (“Duval”), Super-

intendent of Cedar Junction, determined that a more restric-

tive disciplinary unit was needed to deter disciplinary viola-

tions more effectively. They decided to implement a unit

akin to the federal “control unit” facility in Marion, Illinois

where DuBois had previously worked and where the recidi-

vism rate was quite low.

The DDU opened in April, 1992, to house inmates who

had been found guilty of committing major disciplinary vio-

lations and to provide a more restrictive environment than

that of the DSU. According to the defendants, the DDU has

successfully deterred disciplinary violations and has had only

an eight percent (8%) recidivism rate.”

In order for an inmate to be sent to the DDU, a DOC offi-

cer must fill out a disciplinary report alleging a violation.

The disciplinary officer at the facility where the inmate is

’ It should be noted, however, that the DDU has only been op-

erating since 1992. It is not clear how many inmates have remained in

general population for a significant period of time after being released

from the DDU.

)

A20

housed must then determine that the violation is “major” un-

der 103 Code Mass. Regs. 430.09(4) and is sufficiently seri-

ous to refer the matter to a DDU Special Hearing Officer. In

1995, the disciplinary officer at Cedar Junction referred ap-

proximately three percent (3%) of the disciplinary violations

to the DDU hearing officer. Approximately five percent

(5%) of the disciplinary officer referrals were reversed by the

Deputy Commissioner, who must agree with the referral be-

fore the matter is heard by the Special Hearing Officer.

After a hearing, if the Special Hearing officer finds the

inmate guilty of the major disciplinary violation alleged and

concludes that the violation warrants a DDU sentence under

103 Code Mass. Regs. 430.09(4), he may sentence the in-

mate to a maximum of ten years in the DDU. The inmate

may then appeal to the Commissioner or his designee. In

approximately ten percent (10%) of the inmate appeals, Dep-

uty Commissioner Maloney, who has served as the Commis-

sioner’s designee, has either reversed the decision of the

Special Hearing officer or shortened the DDU sentence. If

Maloney denies the appeal, the inmate may seek redress

through an action in the Superior Court in the nature of cer-

tiorari pursuant to G.L. c. 249 § 4.

The DDU is a modern secure facility with a capacity to

house 124 male inmates in individual cells. It has three

wings; each wing has four tiers; and each tier has eleven or

twelve cells and one shower.

Each cell is approximately seven feet by twelve feet.

Each has a toilet, a sink, a bed, a desk with an attached seat,

and a five and one half inch by fifty-seven and one half inch

window at the rear of the cell. Each cell is illuminated by

two forty-watt four-foot long fluorescent lights. Each cell

also has a thirteen-wctt nightlight.

A21

The walls of each cell are concrete. There is a small gap

between the floor and the base of the cell door. Each cell

door is solid steel with a four inch by twenty-six inch win-

dow. Each door also has approximately twenty-three one-

eighth inch holes located four and a half feet above the

floor.'® Each door also has two slots. The upper slot is used

to serve food to and handcuff the inmate. The lower slot

provides access to the inmate’s ankles so that they may be

shackled. Inmates are shackled and handcuffed any time

they leave their cells. Because no two cells face each other,

inmates in their cells in the DDU cannot see one another.

There are three exercise pens attached to the DDU, each

of which contains seven separately fenced exercise areas.

Each area is approximately seven feet wide by thirty-five feet

long by ten feet high, and is covered with a chain-link fence

on the top and on all sides. Recreational equipment is not

allowed. According to the defendants, DDU inmates may

exercise one hour each day for five days each week. Defen-

dants admit, however, that prior to the Fall of 1995, DDU

inmates were deprived of exercise as a form of punishment.

The DOC no longer follows this practice, but DDU inmates

may be denied exercise for safety or security reasons, in-

cluding prison lock-downs. There is also evidence that, be-

cause there is no area for indoor exercise, DDU inmates do

not exercise during inclement weather. Further, the plaintiffs

claim that often they are forced to choose between a coun-

seling session and exercise because DDU authorities sched-

ule counseling to conflict with the exercise hour.

The DDU has approximately thirteen multi-purpose

rooms, some of which are used for mental health counseling.

These holes are apparently designed to facilitate communica-

tion through the cell door.

“ .

A22

It also has a health services unit. There are four observation

cells which have glass front walls and beds with modifica-

tions to allow the inmates to be placed in four-point re-

straints.

Correction officers make rounds on the tiers once every

hour. The Director of the DDU, defendant Phillip L. Har-

rington (“Harrington”) , and the Captain of the DDU”’ who is

second-in-command, make rounds once each business day.

The correctional program officer makes rounds two or three

times per week. Nurses or medical assistants generally make

rounds four times each day. Mental health and religious staff

make rounds once each week. During these rounds, inmates

may speak with the officers, medical personnel, or religious

staff through their cell doors or by passing a note. Inmates

may speak with one another while in the exercise yard. It is

possible for the inmates to speak to each other while in their

cells, although there is some evidence that communicating in

this fashion is quite difficult.

A DDU inmate may not participate in any prison pro-

grams or correspondence courses, and he may not have edu-

cational materials in his cell. During the first thirty days of a

DDU sentence, an inmate may not have a radio or television.

He may not make telephone calls or have any visits except

with clergy or with his attorney upon the attorney’s request.

He may keep up to twelve photographs in his cell and have

paper and a pen with which to write letters. He may shower

and shave three times a week and receive materials to clean

his cell once a week. He may borrow books from a general

book cart and may keep up to four books plus a religious

book in his cell at any one time.

" It appears from the Amended Complaint that defendant Edwin

Doolin (“Doolin”) serves as Captain of the DDU.

A23

He may also use a legal book cart which contains ap-

proximately thirty-five legal books. There is one such cart

for each wing of the DDU. If an inmate would like a photo-

copy of a case, he may submit a request for the main prison

law library to copy it for him. He may also request to use

materials from the main prison law library by completing

and submitting a request form.

According to the plaintiffs, however, the book cart mate-

rials are inadequate and there are lengthy delays in receiving

photocopies of cases and requested materials from the main

prison law library. Plaintiff claims that he

could not pursue an action against the DOC relating to a

claim of inadequate health care. According to plaintiff

he was unable to pursue challenges to his fed-

eral bank robbery conviction because of the lack of federal

case-law and materials. Plaintiff asserts that he

could not file a complaint arising from an isolation sanction.

Plaintiff maintains that because of the inade-

quacies of the book cart, he was unable to file a responsive

pleading in his appeal from an adverse ruling in a civil rights

action against DOC. Consequently, his appeal was dis-

missed.

An inmate in the DDU may receive a DOC-owned radio

after thirty days without a disciplinary violation. During the

next thirty days, he will be allowed to make one thirty-

minute telephone call and have one non-contact visit which

generally lasts about one hour. If the DDU inmate has sixty

consecutive days without a disciplinary violation, he will be

issued a DOC-owned television, be allowed to make two

phone calls, and have two visits. After ninety days without a

violation, he may make three telephone calls and have three

visits. After one hundred and twenty days without a viola-

tion, he may make four calls and have four visits. If a DDU

A24

inmate is found guilty of a major disciplinary violation, he

loses all privileges and returns to new-man status.

DDU inmates eat alone in their cells and they may not

purchase items from the canteen. According to Joanne Gun-

nard (“Gunnard”), registered dietician and Food Services Di-

rector at Cedar Junction since January, 1995, DOC’s Direc-

tor of Food Services, Peter Szafir, sends Gunnard a five-

week menu from which she prepares food for inmates and

correctional officers at Cedar Junction. Inmates in the DDU

receive three meals daily and the same quantity and quality

of food as inmates in general population at Cedar Junction.

Inmates on “alternate feeding,” who are not allowed to have

utensils, receive food that can be eaten without utensils.

Food is served in two “temp-tech” trays, one for cold food

and the other for hot food. The hot trays are placed on carts

which have electrical warming units to maintain the tem-

perature of the food at a minimum of 160 degrees Fahrenheit.

The carts are unplugged when the delivery truck is ready to

go to the DDU. The carts may be plugged in to an electrical

outlet prior to serving the food. At least five times per week,

a staff member checks the temperature of the food before it is

served. If the temperature is below 145 degrees, the food is

sent back to the kitchen to be reheated or replaced.

Mary Joan. McLarney (“McLarney”), a registered dietician

employed by Canteen Corporation to review institutional

menus for various clients including the DOC, analyzed the

DOC’s fall-winter cycle menu in November, 1995. Based on

the Nutritionist IV Diet Analysis and Evaluation Module, the

menu, according to McLarney, meets or exceeds the nutrient

requirements specified by the Recommended Daily Allow-

ances. The menu affords inmates on average approximately

2900 calories daily which reflects the mean population re-

quirement for males age twenty-five to fifty.

A25

Plaintiff went from 220 pounds to 180

wounds during a five-month DDU confinement and was de-

nied double portions which his doctor had ordered due to

HIV positive condition. Since leaving the DDU,

has regained the weight that he had lost. Plain-

tiff asserts that he has been deprived food on

three or four occasions as a result of his comments about the

quality or quantity of the food. According to plaintiff

, he lost thirty pounds while in the DDU, was

placed on alternate feeding twice when he received a sand-

wich and juice instead of a regular meal, and he received

smaller portions than those he received in general population.

Plaintiff claims he went froin 215 pounds to

160 pounds while in the DDU, the portions were too small,

the meat was undercooked to the point of being inedible,

and, despite a doctor’s orders to serve him double portions,

defendants refused, contending that the food was adequate.

From January 1, 1992, through June 30, 1994, the DOC

coniracted with Emergency Medical Services Associates,

Inc. (“EMSA”) to deliver medical and mental health services

to inmates. Since July 1, 1994, the DOC has contracted with

Correctional Medical Services, Inc. (“CMS”) to provide

these services. Nurses staff the DDU approximately sixteen

hours per day. Physicians periodically examine inmates and

see inmates referred by nurses in the health services unit.

Since February, 1994, Cedar Junction has been accredited

by the National Commission on Correctional Health Care

(“NCCHC”), a national association which oversees and ac-

credits correctional health care systems. The contract be-

tween CMS and the DOC requires that the DOC institutions

continue to be accredited by NCCHC.

Pursuant to G.L. c. 127, §39, the DOC is to provide peri-

odic examinations of inmates in segregated units under the

A26

supervision of the DMH. In 1991, the DMH agent who had

been in charge of such supervision expired and DMH’s su-

pervision of inmate health care apparently expired with him.

Six inmates’ counsel brought G.L. c. 127, §39 to the atten-

tion of Dr. M. Annette H. Hanson (“Hanson”), Deputy

Commissioner for Clinical and Professional Services for

DMH.”

In August, 1994, the DMH hired Neurological Associates

of Natick, P.C. (“NAN”) to review the health care at the seg-

regated units of Cedar Junction, including the DDU. Dr.

Benjamin Matzilevich (“Matzilevich”) of NAN reviewed the

protocols and standards of CMS. Matzilevich also inter-

viewed staff, reviewed randomly selected medical records

and interviewed a random selection of inmates. In Septem-

ber, 1994, Matzilevich completed a ten page report which

summarized his findings and concluded that quality health

care was being provided to the inmates in the segregated

units of Cedar Junction. Matzilevich reported, however, that

all of the men interviewed complained that mental health

services were inadequate and lacked privacy. Further,

“[ijssues related to privacy and confidentiality continually

need to be examined and improved. Mental health services

provide effective interventions to meet the needs of men who

are in acute crisis. However, proactive services offered

through mental health clinicians are limited.”

ic Hanson assumed this post in January, 1992, but since January,

1996, has been employed by the Division of Medical Assistance. Han-

son testified at her deposition that she is the person most knowledgeable

about DMH compliance with G.L. c. 127, §39. According to Hanson’s

affidavit, Elias delegated the responsibility of ensuring DMH compliance

with G.L. c. 127, §39 to her some time during the first half of 1994 but

Hanson has not informed Elias of the details of her efforts to effect com-

pliance.

A27

In February or March, 1995, Hanson conducted a one-day

inspection of the segregated units of Cedar Junction which

included the East Wing Segregation Unit, the West Wing

Segregation Unit, the Health Services Unit, and the DDU.

Hanson did not review any medical files or interview any

DDU inmates. However, she reviewed CMS’s policies and

procedures and discussed DMH’s role pursuant to G.L.

c. 127, §39 with Kathleen Dennehy, DOC’s Deputy Com-

missioner for Health Services.

According to Hanson, in the future, DMH will visit DDU

no more than annually for a one-day inspection during which

it will review a random selection of inmate files and meet

with inmates and staff. DMH will also follow up with DOC

officials at the conclusion of the annual reviews. Hanson has

stated, however, that DMH has no understanding of whether

it has the authority to direct DOC to correct problems with

inmate health care.

DISCUSSION

Summary judgment must be granted where there are no

material facts in dispute and the moving party is entitled to

judgment as a matter of law. Cassesso v. Commissioner of

Correction, 390 Mass. 419, 422 (1983); Community National

Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P.

56(c). The moving party bears the burden of affirmatively

demonstrating the absence of a triable issue, and that the

moving party is entitled to judgment as a matter of law.

Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). With

respect to any claim on which the party moving for summary

judgment does not have the burden of proof at trial, it may

demonstrate the absence of a triable issue either by submit-

ting affirmative evidence that negates an essential element of

A28

the opponent’s case or “by demonstrating that proof of that

element is unlikely to be forthcoming at trial.” Flesner v.

Technical Communications Corp., 410 Mass. 805, 809

(1991); Accord, Kourouvacilis v. General Motors Corp., 410

Mass. 706, 716 (1991). “If the moving party establishes the

absence of a triable issue, the party opposing the motion

must respond and allege specific facts which would establish

the existence of a genuine issue of material fact in order to

defeat a motion for summary judgment.” Pederson, 404

Mass. at 17. The opposing party cannot rest on his or her

pleadings and mere assertions of disputed facts to defeat the

motion for summary judgment. LaLonde v. Eissner, 405

Mass. 207, 209 (1989).

In ruling on a motion for summary judgment, the court

must not consider the “credibility of the witnesses or the

weight of the evidence, nor should the [court] make findings

of fact.” Riley v. Presnell, 409 Mass. 239, 244 (1991), citing

Attorney General v. Bailey, 386 Mass. 367, 370 (1982).

However, “the movant is held to a stringent standard... .

[A]ny doubt as to the existence of a genuine issue of material

fact will be resolved against the movant.” 10A C. Wright,

A.R. Miller & M. Kane, Federal Practice and Procedure,

§2727, at 125-125 (1983) (construing Fed. R. Civ. P. 56).

I. MOOTNESS

The defendants assert that the equitable claims of plain-

tiffs should be dismissed

as moot because these plaintiffs have been released from the

DDU. There is substantial authority holding that a prisoner’s

claims for declaratory and injunctive relief regarding his

conditions of confinement become moot when those condi-

tions change due to a transfer. See e.g. Pidge v. Superinten-

32 ines hos Ct. 14, 19 (1992). However, given co. proce-

dural posture of the case in light of the Case Management

Order, as noted infra, the defendants’ argument is premature

if not inappropriate. At a minimum, the denial of the plain-

tiffs’ initial request to treat this case as a class-action will be

reconsidered by the court if the parties are unable to stipulate

to the facts or the evidence that would be offered at the trial

of this case.”

Il. PLAINTIFFS’ SUMMARY JUDGMENT MOTION

Count IV: violation of G.L. c. 127, §39

General Laws c. 127, §39 provides that “[u]nder the su-

pervision of the department of mental health, all inmates

confined to a segregated unit shall be given periodic medical

and psychiatric examinations, and shall receive such medical

and psychiatric treatment as may be indicated.” The plain-

tiffs assert that they are entitled to summary judgment

against the Commissioner of DMH because DMH has failed

to supervise the periodic medical and psychiatric examina-

tions and treatment of inmates in segregated units as required

by G.L. c. 127, §39. The plaintiffs argue that DMH’s recent

supervision of inmate health care and the role which DMH

plans for the future is inadequate as a matter of law to fulfill

= For example, the parties could agree that evidence as to per-

sons other than those named plaintiffs still in the DDU would be admis-

sible when relevant to prove the existence of the alleged unlawful prac-

tices or procedures that the plaintiffs claim have adversely affected them.

Williams v. Secretary of the Executive Office of Human Services, 414

Mass. 551, 554, n.4 (1993).

A30

its duty under G.L. c. 127, §39. Plaintiffs further maintain

that DMH’s historic neglect of its supervisory role makes

injunctive relief appropriate.

There is no dispute that the DDU is a segregated unit to

which G.L. c 127, §39 applies, and that the DMH failed to

provide the mandated supervision from 1991 until several

months after this suit had been filed. Thus, for the first two

years of the DDU’s operation, the DMH provided no super-

vision of inmate health care. In Layne v. Superintendent,

MCI Cedar Junction, 406 Mass. 156 (1989), the Supreme

Judicial Court held that where the defendants had cured a

constitutional deprivation while the suit was pending, de-

claratory and injunctive relief was not appropriate. Id. at

160. The issue, then, is whether the DMH has cured its pre-

vious failure to comply with G.L. c. 127, §39. in other

words, is the DMH’s contemplated review of inmate health

care adequate and is the DMH currently providing the man-

dated “supervision”?

““Supervision’ is the act of one who supervises and to su-

pervise is to oversee, to have oversight of, to superintend the

execution of or performance of (a thing), or the movements

or work of (a person); to inspect with authority; to inspect

and direct the work of others.” Fluet v. McCabe, 299 Mass.

173, 179 (1938). As DMH has aptly argued, supervision

does not require micro-management. Nor will it prevent or

avoid all problems in the delivery of health care services.

However, it does require sufficient attention to identify

problems and it necessarily confers the authority to address

and correct such problems.

Plaintiffs rebut defendants’ argument that because G.L. c.

127, § 39 does not define the word “supervise” that the Court

must defer to DMH’s interpretation. Plaintiffs contend that

unless DMH’s interpretation of “supervision” rises to the

A31

level of the Supreme Judicial Court’s determination of the

definition as meaning to “oversee and direct” then DMH’s

interpretation fails. See Fluet v. McCabe, 299 Mass. 173,

179 (1938).

Plaintiffs argue that DMH cannot determine whether

DDU inmates are receiving the necessary psychiatric treat-

ment that may be indicated unless DMH learned the status of

inmates’ health. DMH conducted a one day inspection of the

DDU and did not speak with a single inmate or review any

inmate’s mental health file. (Hanson, TR1:90, 99-100).

Plaintiffs contend that this did not allow DMH to ascertain

the mental health status of DDU inmates.

Plaintiffs assert that § 39 was enacted to provide an addi-

tional safeguard for segregated inmates’ mental health.

Since DMH’s appraisal of inmates’ mental health status is

superficial, DMH’s conduct fails to satisfy the statute, ac-

cording to plaintiffs.

The person in charge of DMH’s compliance with G.L.

127, §39, M. Annette Hanson, M.D., construed the statute to

mean, the kind of overview done by accrediting and licens-

ing agencies in the health care field to determine whether

services were being delivered. (Hanson Aff. par. 8 at 4).

Hanson did not construe the statute to require DMH to re-

view the medical records of each inmate or to review the

clinical decisions made in treating those inmates. (Hanson

Aff. par. 8 at 4).

According to Hanson’s deposition testimony, she was not

aware of whether any changes had been made as a result of

Matzilevich’s report. Despite Matzilevich’s reported prob-

lems with mental health care, Hanson did not direct changes

in the delivery of such services and did not ensure that such

ee Te SIT NE

A32

changes were properly implemented. Clearly, supervision

requires more than just evaluation. Unless the DMH exer-

cises its authority to direct changes in health care services

when evaluation of those services reveals inadequacies, then

the DMH fails to provide the mandated supervision. It is

particularly troubling that the reported inadequacy was in the

delivery of mental health care, an area which the DMH

should be prepared to address, yet, no steps were taken to

ensure that changes would be implemented."*

On September 12, 1986, DMH entered into a stipulation

of dismissal in Alston v. Fair, D. Mass., Civil No. 77-3519-

G. The stipulation provided that “DMH [would] comply

with the provisions of G.L. c. 127, §39 that require DMH to

supervise the provision of periodic medical and psychiatric

examinations and treatment given to inmates of segregated

units, as that term ha[d] earlier been defined by the court.”

Previously, an Order Concerning the DMH’s Supervision of

Medical and Psychiatric Care for Inmates in Segregated

Units at MCI Walpole had entered which detailed what that

supervision would entail. See Appendix A. Among other

things, the provisions included a requirement that “[a]t least

twice each year the DMH shall inspect MCI Walpole, in-

cluding records of confinement of inmates in segregated

According to the affidavit of Dr. Richard Vinnaco, a CMS

psychologist, CMS has taken steps to rectify the problems identified in

the NAN report.

'S Hanson did write a letter to Kathleen Dennehy in which she

wrote, “At this time, DMH does not have any recommendations for

changes needed in the provision of . . . services. DMH would, however,

encourage DOC to review [NAN’s] comments about areas in which there

might be improvement in the delivery of mental health service, and take

actions as it deems appropriate.”

A33

units and records of the provision of medical and psychiatric

examinations and treatments given to inmates... .”

It is clear that even the future plan of the DMH to inspect

the DDU annually does not meet the standard of supervision

established by Alston. According to Hanson’s affidavit, al-

though she was aware that the DMH had developed protocols

in response to Alston, she has not seen them and would not

follow them because of the significant changes in health care

services since the early 1980’s, including the retention of

CMS, a well-respected provider, the accreditation of Cedar

Junction by NCCHC, and the reports of NAN. While these

changes may affect the degree of supervision required, they

do not relieve DMH of its duty to supervise. Clearly, this

duty has previously been ignored or forgotten and even now

seems to be a point of confusion as the DMH continues to be

uncertain about its authority to effectuate changes in health

care services.

Plaintiffs are entitled to summary judgment on Count IV

of their Amended Complaint. By failing to provide supervi-

sion after NAN’s report, DMH has violated its statutory ob-

ligation pursuant to c. 127, §39 and, further, has ignored the

Alston protocols. It is not the position of this Court that it

should micro-manage the system at DMH. The parties

should propose a remedy in keeping with the intent of the

Legislature pursuant to G.L. c. 127, §39. The DMH shall

supervise the provision of periodic medical and psychiatric

examinations and treatments to DDU inmates pursuant to the

protocols of Alston v. Fair, D. Mass. C.A. No. 77-3519-G.

See Appendix A.

Further, the DMH should be notified about transfers of

inmates to and from Bridgewater and the DDU. Section 39

requires that, “all inmates confined to a segregated unit shall

. . . receive such medical and psychiatric treatment as may be

A34

indicated.” DMH cannot be fully aware of the medical and

__. psychiatric treatment that an inmate may require if it is not

notified of the need for an inmate to be treated at Bridgewa-

ter.

Il. D Ss’ Y NT

MOTION

Counts I and II: Cruel and Unusual Punishment

The plaintiffs contend that their confinement to and

treatment in the DDU constitutes cruel and unusual punish-

ment in violation of the federal and state constitutions and 42

U.S.C. §1983."°

Incarceration constitutes crue] and unusual punishment in

violation of the Eighth Amendment and Article 26 of the

Massachusetts Declaration of Rights when conditions of con-

finement pose a substantial risk to inmates, and prison

authorities are deliberately indifferent to that risk. Dee

Farmer v. Edward Brennan,"’ 114 S.Ct. 1970, 1977 (1994);

Good v. Commissioner of Correction, 417 Mass. 32° 335-

337 (1994).

“The Eighth Amendment, which applies to the States

through the Due Process Clause of the Fourteenth Amend-

ment, (citation omitted), prohibits the infliction of ‘cruel and

unusua! punishments’ on those convicted of crimes.” Wilson

. The plaintiffs’ Amended Complaint, while long on factual as-

sertions (pars. 1-95), is remarkably inartful and confusing in describing

its legal contentions (Counts J through XIII), and in associating the al-

leged facts with specific causes of action.

od Edward Brennan, Warden, et al.

A35

v. Seiter, 111 S.Ct. 2321 (1991). “Only the ‘unnecessary and

wanton infliction of pain’ implicates the Eighth Amendment.

...” Id. at 2323, quoting Estelle v. Gamble, 429 U.S. 97,

104, 97 S.Ct. 285, 291 (1976).

“Article 26 of the [Massachusetts] Declaration of Rights

prohibits the infliction of cruel or unusual punishments.

[The Supreme Judicial Court] has read art. 26 to be at least as

broad as the Eighth Amendment to the Fede:al Constitution.

(citation omitted). Article 26 bars punishments which are

found to be cruel or unusual in light of contemporary stan-

dards of decency which mark the progress of society.

(citation omitted). In divining contemporary standards of

decency, we may look to State statutes and regulations,

which reflect the public attitude as to what those standards

are. (citation omitted).” Good v. Commissioner of Correc-

tion, 417 Mass. 329, 335 (1994).

“An inmate need not wait until he suffers actual harm be-

fore he can assert a cause of action under art. 26.... Rather,

a claim is made out if there is a substantial risk that the in-

mate will suffer serious harm as a result of the conditions of

his confinement.” Good, 417 Mass. at 336. _

“Eighth Amendment claims based on official conduct

that does not purport to be the penalty formally imposed for

a crime require inquiry into state of mind... .” The Court

determined that it remains for the Court to consider what

state of mind applies in cases challenging prison conditions.

Wilson, 111 S.Ct. at 2326. The offending conduct must be

“wanton”. Where prison officials are acting in response to a

prison disturbance, then wantonness consists of acting

“maliciously and sadistically for the very purpose of causing

harm.” Wilson, 111 S.Ct. at 2326. “[A]ssuming the con-

duct is harmful enough to satisfy the objective component of

an Eighth Amendment claim, . . . (citation omitted) whether

A36

it can be characterized as ‘wanton’ depends upon the con-

straints facing the official.” Wilson, 111 S.Ct. at 2326.

In Counts II and V of their Amended Complaint plaintiffs

claim violations of Article 26 of the Massachusetts Declara-

tion of Rights and of G.L. c. 127, §§32 and 39, grounded in

the alleged lack of medical care and adequate food in the

DDU.

A. Medical Treatment

“(T]he medical care a prisoner receives is just as much a

‘condition’ of his confinement as the food he is fed, the

clothes he is issued, . . . and the protection he is afforded

against other inmates. There is no indication that . . . the ac-

tions of prison officials with respect to these non-medical

conditions are taken under materially different constraints

than their actions with respect to medical conditions. . . .”

Wilson, 111 S.Ct. at 2326, 2327. “[I]t is appropriate to apply

the ‘deliberate indifference’ standard articulated in Estelie.””

Wilson, 111 S.Ct. at 2326, 2327. “‘It is only such indiffer-

ence’ that can violate the Eighth Amendment, (citation

omitted) (emphasis added); allegations of ‘inadvertent failure

to provide adequate medical care,’ . . . simply fail to establish

the requisite culpable state of mind.” Wilson, 111 S.Ct. at

2323. ““*[T]Jhe State’s responsibility to attend to the medical

needs of prisoners does not ordinarily clash with other

equally important governmental responsibilities.’”” Wilson,

111 S.Ct. at 2326, quoting Whitley v. Albers, 475 U.S. 312,

320 (1986).

“An inmate must rely on pnson authorities to treat his

medical needs; if the authorities fail to do so, those needs

will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976).

“(DJeliberate indifference to serious medical needs of pris-

A37

oners constitutes the ‘unnecessary and wanton infliction of

pain,’ (citation omitted) . . . proscribed by the Eighth

Amendment in their response to the prisoner’s needs or by

prison guards . . . intentionally interfering with the treatment

once prescribed.” Estelle, 429 U.S. at 104, 105. “In order to

State a cognizable claim, a prisoner must allege acts or omis-

sions sufficiently harmful to evidence deliberate indifference

to serious medical needs. It is only such indifference that

can offend ‘evolving standards of decency’, in violation of

the Eighth Amendment.” Estelle, 429 U.S. at 106.

DDU Director Phillip Harrington has received few com-

plaints from inmates alleging that they are not receiving ade-

quate medical treatment. When an inmate has complained,

Harrington has advised Correctional Medical Services of the

inmate’s complaint. Harrington believes that inmates are re-

ceiving adequate medical treatment. (Harrington Aff. pars.

25, 27, 28 March 1996).

In March 1996, plaintiff began experiencing

extreme discomfort in one of his eyes as if something was

stuck in the eye. He made numerous requests to corrections

officers to be seen by a member of the medical staff, includ-

ing verbal requests and letters to Director Harrington, Su-

perintendent Duval, the DDU doctor and Health Services

Unit Administrator Sandy Diskin. About a week after he had

reported the problem, was told by a C.O. that if

he continued to complain about the lack of medical treatment

he was receiving for the problem that he would be given a

disciplinary report. continued to ask to be seen

by a doctor, since the eye condition was painful. He received

a disciplinary report which alleged that he had verbally

abused a nurse, which was not true. ( __ Aff. par. 4

at 2).

A38

broke his hand in January 1995. Prison offi-

cials did not provide treatment, medication or other medical

attention form more than three hours after he broke his hand.

( Answers to Defendants’ First Set of Interroga-

tories, Response to Interrogatory No. 4).

states that in 1993 he complained about ex-

treme stomach pain for approximately eight days. He told

the DDU nurse and a number of the night nurses about his

stomach discomfort. Every time asked to see

the doctor, he was told that there was a two to three week

waiting list. When he finally saw a doctor he was sent the

next day to the hospital where he remained for approximately

seven days. ( Answers to Defendants’ First Set

of Interrogatories, General Objections at 20).

Summary judgment must be allowed without prejudice to

plaintiffs since the facts do not sustain a claim indicating that

a systemic problem of inadequate medical treatment exists

for inmates. This determination does not preclude plaintiffs

asserting individual claims for injury suffered as a result of

inadequate medical treatment.

B. Inadequate Food

“Because depriving a prisoner of adequate food is a form

of corporal punishment, the eighth amendment imposes lim-

its on prison officials’ power to so deprive a prisoner.”” Coo-

per v. Sheriff, Lubbock County, Tex., 929 F.2d 1078 (Sth

Cir. 1991). “{Sjedentary men on the average need 2000 calo-

ries or more to maintain continued health.” Landman v.

Royster, 333 F.Supp. 621, 647 (1971) (imposition of bread

and water diet designed to break a man’s spirit to the end that

his powers of resistance diminish, is inconsistent with cur-

rent minimum standards of respect for human dignity, and is

A39

a violation of the Eight Amendment), “[P]rison authorities

enjoy complete control over all sources of pleasure, comfort,

and basic needs. Moreover, the pains of hunger constitute a

dull, prolonged sort of corporal punishment. That marked

physical effects ensue is evident from the numerous in-

stances of substantial weight loss during solitary confine-

ment.” Landman, 333 F.Supp. at 647.

The DOC defendants rely on the food services staff of the

DOC to provide nutritionally and calorically adequate food

to DDU inmates. The food services unit at Cedar Junction

designs the menus and prepares the food for DDU inmates.

The DOC determines that the meals meet recommended

daily nutritional allowances prescribed by the federal gov-

ernment, and contain approximately 2900 calories, on the

average.

In February 1996, there were seventy-eight inmates who

had been housed in the DDU for more than six months Of

these, fifty-three files contained both the inmates’ weichts

upon arrival in the DDU and their weights on a later date.

By comparison, forty of the fifty-three inmates weighed

within 10% of their initial body weight; five had gained more

than 10% of their initial weight; and eight had lost 10% or

more of their body weight. Out of the eight who had lost

more than 10%, two had lost more than 20% of their body

weight upon arrival. The first of these two inmates was five

feet, nine inches tall, and weighed 297 pounds upon entry

into the DDU. The second inmate was five feet, eleven

inches tall, and weighed 279 pounds upon entry. (McCrosson

Affidavit, par. 8 at 4, 5 (March 18, 1996).

Plaintiff contends that on approximately

three or four occasions, he was deprived of food after ex-

pressing concern about the quality or quantity of the food.

On those occasions, the food was being delivered by a cor-

A40

rections officer who refused to give the meal to

after statements. ( Aff. par. 5 at 2,

3).

Plaintiff ”) lost approximately thirty pounds

while he was in the DDU. He alleges that the food portions

were smaller than those he received when he was in with the

general population. He asserts that he was put on “alternate

feeding” twice for a week at a time and was given a sand-

wich and juice rather than a regular meal during those weeks.

alleges he saw correctional officers spit on a

food tray before they delivered it. ( Affidavit,

par. 13, at ,». 3).

Plaintiff contends in an affidavit that he lost

forty pounds in approximately five months while confined to

the DDU. This was cause for concern since is

HIV positive and physicians have informed him that it is im-

portant for him to maintain his strength. ( Affi-

davit, par. 3, at 1).'* Further, was under doc-

tor’s order to receive double-portions of food when he

entered the DDU in . After an infraction in

he obtained a temporary restraining order and

was removed from the DDU. He was placed in a segregation

unit at that time. When he returned to the DDU in

, he was told by a nurse that he would no longer

receive double-portions of food. When was seen

by a physician several months later, the doctor confirmed we

nurse’s assertion. The physician told he would

not receive double-portions of food until his weight deterio-

rated. weighed 180 pounds when he left the

DDU in . Since then has gained

Bean Affidavit, Ex. 8, at 29, 82-86. See n. 9, supra.

A41

approximately 34 pounds and weighed 214 pounds as of

( Affidavit, pars. 4, 5, 6 and 7 at 2).

Plaintiff ) complained of weight loss for lack

of food because the portions were allegedly too small or the

meat undercooked to the extent of being inedible. (Affidavit,

pars. 2, 3 at p. 1). A physician at the Shattuck Hospital in-

structed to get double-portions of food because

of a concern about weight loss.

complained to Director Harrington, Commissioner DuBois,

Superintendent Duval and Captain Doolin about the food in

the DDU and defendants refused to allow plaintiff to receive

double-portions of food. ( Affidavit, pars. 3, 5,

6 at p. 1, 2).

Summary judgment on the inadequate food claim must be

denied, since there are genuine issues of material facts.

Plaintiffs assert that most of the inmates have lost substantial

weight during their stay in the DDU. Defendants dispute this

allegation. A trial is necessary to determine whether defen-

dants were deliberately indifferent to plaintiffs’ dietary

needs, especially since physicians proscribed that adequate

amounts of food be provided for plaintiffs for

medical reasons.

C. Excessive Force

Although the plaintiffs have not asserted a specific legal

claim in their Amended Complaint concerning the defen-

dants’ alleged unlawful use of excessive force, they have

raised factual allegations of the unconstitutional use of ex-

cessive force (Amended Complaint, pars. 70-78).

“(T]he Eighth Amendment, which is specifically con-

cerned with the unnecessary and wanton infliction of pain in

A42

penal institutions, serves as the primary source of substantive

protection to convicted prisoners in cases . . . where the de-

liberate use of force is challenged as excessive and unjusti-

fied.” Whitley v. Albers 475 U.S. 312, 327 (1986).

‘““Prison administrators . . . should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional se-

curity.’ [internal citation omitted]. That deference extends

to a prison security measure taken in response to an actual

confrontation with notous inmates, just as it does to prophy-

lactic or preventive measures intended to reduce the inci-

dence of these or any other breaches of prison discipline. It

does not insulate from review actions taken in bad faith and

for no legitimate purpose, but it requires that neither judge

nor jury freely substitute their judgment for that of officials

who have made a considered choice. Accordingly, in ruling

on a motion for a directed verdict . . . courts must determine

whether the evidence goes beyond a mere dispute over the

reasonableness of a particular use of force or the existence of

arguably superior alternatives. Unless it appears that the

evidence, viewed in the light most favorable to the plaintiff,

will support a reliable inference of wantonness in the inflic-

tion of pain under the standard . . . described, the case should

not go to the jury.” Whitley v. Albers, 475 U.S. 312, 322

(1986).

“(O}fficials confronted with a prison disturbance must

balance the threat unrest poses to inmates, pnson workers,

administrators, and visitors against the harm inmates may

suffer if guards use force. Despite the weight of these com-

peting concerns, corrections officials must make their deci-

sions ‘in haste, under pressure, and frequently without the

luxury of a second chance’,” [internal citation omitted]... .

ee ee

A43

[A]pplication of the deliberate indifference standard is inap-

propriate when authorities use force to put down a prison

disturbance. Instead, ‘the question whether the measure

taken inflicted unnecessary and wanton pain and suffering

ultimately tums on ‘whether force was applied in a good

faith effort to maintain or restore discipline or maliciously

and sadistically for the very purpose of causing harm.’” Hud-

son v. McMillian, 503 U.S. 1, 6 (1992). “[W]henever prison

officials stand accused of using excessive physical force in

violation of the Cruel and Unusual Punishments Clause, the

core judicial inquiry is . . . whether force was applied in a

good-faith effort to maintain or restore discipline, or mali-

ciously and sadistically to cause harm.” Hudson, 503 U.S. at

“{Cjourts considering a prisoner’s claim must ask both if

‘the officials act[ed] with a sufficiently culpable state of

mind’ and if the alleged wrongdoing was objectively

‘harmful enough’ to establish a constitutional violation.”

Hudson, 503 U.S. at 8. Thus the subjective aspect of an

Eighth Amendment claim can be distinguished from the ob-

jective facet of the same claim. Hudson, 503 U.S. at 8.

Under Whitley v. Albers, 475 U.S. 312 (1986), the extent

of injury suffered by an inmate is one factor that may suggest

whether the use of force was wanton and unnecessary. Hud-

son, 503 U.S. at 7. “The absence of serious injury is. . .

relevant to the Eighth Amendment inquiry, but does not end

it.” Hudson, 503 U.S. at 7. “When prison officials mali-

ciously and sadistically use force to cause harm, contempo-

rary standards of decency always are violated. (citation

omitted). This is true whether or not significant injury is evi-

dent. Otherwise, the Eighth Amendment would permit any

physical punishment, no matter how diabolic or inhuman,

A44

inflicting less than some arbitrary quantity of injury.” Hud-

son, 503 U.S. at 9.

The scope of supervisory liability in the context of a con-

stitutional claim of excessive use of force requires plaintiffs

to demonstrate (a) a constitutional violation arising from a

subordinate’s use of excessive force, (b) deliberate indiffer-

ence by the supervisor, and (c) an affirmative connection

between the supervisor’s conduct and the subordinate’s un-

lawful act. Maldonado-Denis v. Catillo-Rodriguez, 23 F.3d

576, 582 (1st Cir. 1994). To defeat summary judgment,

plaintiffs must establish by means of “material of evidentiary

quality,” the requisite affirmative link between a supervisor

and the wrongful conduct of his subordinates. Mal-

donado-Denis, 23 F.3d at 581-585.

In the present case, received threats by a

Corrections Officer that he would be physically harmed

during unjustified cell extractions if wrote let-

ters to the courts complaining about such cell extractions.

The C.O. stated “you can rat to the courts all you want, but I

can gas you. Watch your back --- you'll get yours.”

has been subjected to cell extractions in which

he was beaten and gassed as a consequence of making com-

plaints. ( Aff. pars. 2, 3 at 1, 2).

Although plaintiff does not recall the dates

on which he witnessed the use of excessive force, he did ob-

serve being gassed and beaten during a cell

extraction. Additionally heard a C.O. throw a

prisoner on the ground in one of the DDU yards and heard

the prisoner being kicked and punched. ( An-

swers to Defendants’ First Set of Interrogatories, Response to

Interrogatory No. 6 at 8).

was subjected to a forcible cell extraction

for refusing to return a disposable styrofoam tray to the cor-

, a eee ee ee

A45

rectional staff. He claims that staff had left him unclothed in

his cell and he refused to return his tray so that he could talk

with the Captain. A “move team”, consisting of five correc-

tion officers in riot gear, appeared at cell door.

They opened the food slot and sprayed a chemical into

cell. The team returned forty-five minutes later

with a dog. The team allegedly ignored at-

tempts to give up and allow himself to be cuffed.

cell was sprayed with gas, which hit him in the

face. The team attempted to enter the cell, which allegedly

jammed. Once in the cell the team punched and kicked

and the dog bit his foot. This continued after

was handcuffed. was chained to a

cement slab and left overnight in an observation cell that was

freezing. He was given a blanket by the nurse at 4 a.m., that

was taken away before the next shift. eye

continued to bleed and the dog bite was left untreated."

stated in answer to interrogatories that Kenneth

Ayala and Richard Holden were involved in the excessive

use of force, along with other individuals that

cannot identify. ( Answers to Defendants’ First

Set of Interrogatories, Response to Interrogatory No. 6 at 7).>

In response to interrogatories, plaintiff be-

lieves that excessive force was used during a cell extraction

in April 1994 when inmate was gassed, beaten,

forcibly removed from his cell, and placed in four point re-

straint for several days. This may have been as a result of

Leonardi not returning his food tray when requested to do so

because he was not served a full meal with the rest of his tier.

” The cell extraction, as described by in his affi-

davit, seems to pass Constitutional muster. Complaints against individ-

ual prison guards may be addressed in a different cause of action.

A46

( Answers to Defendants’ First Set of Interroga-

tories, Response to Interrogatory No. 6 at 7).

DOC Commissioner Larry DuBois contends that the DOC

takes numerous steps to ensure that excessive force is not

used against inmates at the DDU. He contends that Deputy

Commissioner Maloney advised him that during the almost

four years the DDU has been operating, only three inmates

out of the more than four hundred who have been housed in

the DDU have complained to the DOC alleging that they had

been assaulted by staff. The complaints were investigated

and were not found to have merit. (DuBois Aff. pars. 19, 20

at 7, 8 March 14, 1996). Nancy White, General Counsel for

DOC, advised DuBois that six present or former DDU in-

mates have filed lawsuits alleging that correctional officials

used excessive force against them while in the DDU. Only

one officer in the DDU has been disciplined for using exces-

sive force against an inmate. DuBois does not believe that

excessive force is used against inmates housed in the DDU.

(DuBois Aff. pars. 21, 22, 23 at 8, 9 March 14, 1996).

In answers to interrogatories, four of the eleven plaintiffs

did not identify excessive force having been used against

them while in the DDU. (Bean Aff. Ex. 8, at

94-96, at 107-109, at 115-117, and

at 123-125). However, three out of those four

plaintiffs contend that they did witness excessive force being

used against other inmates. (Bean Aff. Ex. 8, at

96, at 108, 109, and at 124).

Summary judgment on the claim of excessive force is al-

lowed, without prejudice. The facts do not indicate wide-

spread use of excessive force rising to the level of violations

on a systemic basis. However, this order does not preclude

plaintiffs asserting individual claims against individual cor-

rections officers for use of excessive force.

A47

Count III: G.L. c. 127 § 40

General Laws c. 127 § 40 provides that “an inmate. . .

may . . . be confined, for a period not to exceed fifteen days

for any one offense, to an isolation unit.” Plaintiffs maintain

that DDU is an “isolation unit” and, therefore, that any

sentence to the DDU which exceeds fifteen days violates

G.L. c. 127 § 40. The question, then, is whether the DDU

constitutes an “isolation unit.”

This issue has been addressed by several State and Fed-

eral courts, all of which have held that DDU is not an isola-

tion unit. See e.g. McGuinness v. DuBois, 891 F.Supp. 25,

27-29 (D. Mass. 1995); Abrazinski v. DuBois, 876 F.Supp.

313, 319 (D. Mass. 1995) and cases cited; MacDougall v.

DuBois, 2 Mass.L.Rptr. 294 (1994). Plaintiffs assert that

DDU inmates have exhibited signs of mental harm as a result

of their DDU confinement and, because the legislature

sought to prevent such harm by enacting G.L. c. 127, § 40,

the statute should be construed to apply to the DDU.”' Al-

though well-reasoned, plaintiffs’ argument is unavailing.

General Laws c. 127, § 40 “was rewritten in 1955 to sub-

stitute more humane treatment for the harsher conditions of

solitary confinement previously imposed .. . .” Attorney

General v. Sheriff of Worcester County, 382 Mass. 57, 60-61

(1980) citing St. 1955, c. 770 § 31; Report and Recommen-

™ According to the statute, an isolation unit “must provide light,

ventilation and adequate sanitary facilities, may contain a minimum of

furniture, and shall provide at least one full meal daily.” G.L. c. 127

§ 40.

- Plaintiffs’ evidence that some inmates have exhibited signs of

mental disturbances as a result of their DDU confinement represents only

a small percentage of the men who have been confined in the DDU.

A48

dations of the Governor’s Committee to Study the Massa-

chusetts Correctional System, 1955 Senate Doc. No. 750 at

43; McGrath, Criminal Law, Procedure, and Administration,

1955 Ann. Survey Mass. Law 119, 127-127. According to

Fred Butterworth, who was employed by the DOC from

1950 until 1986, inmates serving isolation sanctions from

1956 until 1972 were housed in cells without windows, were

prohibited from communicating with each other, were gener-

ally confined to their cells twenty-four hours per day, were

not offered exercise, and were provided with no reading ma-

terial other than a religious book. Further, these inmates had

no regularly scheduled medical visits, no social visits, show-

ers, telephone calls, television, or radio. Thus, the isolation

that followed the 1955 reform of the Massachusetts penal

system was considerably more restrictive than the DDU.

The conditions of the DDU do not reflect the “isolation”

contemplated by the Legislature.” See Abrazinski, 876

F.Supp at 319 n. 9.

Although the Legislature clearly sought to end the bar-

baric conditions existing prior to 1955, it does not appear

that its intent was as far-reaching as plaintiffs assert: the stat-

ute does not place a fifteen-day limit on any confinement

which may be mentally harmful. Furthermore, DOC’s inter-

pretation that the DDU is not an isolation unit under G.L.

c. 127, § 40 must be given substantial deference. Gateley’s

Case, 415 Mass. 397, 399 (1993). Consequently, the defen-

dants are entitled to summary judgment on Count III.

” It is noteworthy that the Legislature defined isolation in terms

of the conditions of confinement and not in terms of the effect of such

confinement. See G.L. c. 127, § 40 par. 2.

A49

Count IV: Supervision

See page 19 infra.

Count V: G.L c. 127, §§ 32

In Count V, plaintiffs allege that “the DOC defendants

have failed to treat plaintiffs with the kindness required by

their circumstances in violation of G.L. c. 127, §§ 32 and

39.” General Laws c. 127, § 32 mandates that DOC “treat

the prisoners with the kindness which their obedience, in-

austry and good conduct merit.” In Blaney v. Commissioner

of Correction, 374 Mass. 337 (1978), the court held that the

purpose of the statute is to assure equal treatment “for pris-

oners who are not being disciplined.” Blaney, 374 Mass. at

341. Therefore, G.L. c. 127, §32 does not apply to inmates

who are being disciplined such as those in the DDU.

Plaintiffs argue in rebuttal that § 32 should apply to those

inmates in the DDU because the unit serves a classification

function, as the DSU had, and not merely a disciplinary

function. Plaintiffs cite Hoffer v.Fair, $.J.C. Suffolk No. &5-

71 (Judgment #11, Mar. 3, 1988), in contending that because

Justice Liacos recognized that the DSU served a classifica-

tion and a disciplinary function but applied § 32 to the treat-

ment of DSU inmates, this court should apply §32 to the

DDU. Contrary to plaintiffs’ assertion, however, Justice Li-

acos recognized that “DSU placement appears to be consid-

ered as one possible response to disciplinary infractions, but

not as punishment for those infractions,” Hoffer v. Fair, su-

pra at 17, and ruled that “[i]f DSU placement is not an inte-

gral component of **e institution’s internal punishment proc-

. then it is appropriate to apply § 32...” Hoffer v.

AS0

Fair, supra at 40.” Unlike the DSU, the DDU is an integral

component of the inmate punishment process. Therefore,

regardless of the DDU’s ancillary classification function,

G.L. c. 127, § 32 does not apply.”

Defendants’ motion for summary judgment is allowed on

Count V, without prejudice to plaintiffs asserting individual

claims where declaratory judgment, injunctive relief, or

damages to correct the particular inadequacies would be ap-

propriate. :

Counts V1 and VII: Access to Written Materials

Plaintiffs complain that “[b]y denying plaintiffs access to

educational materials and by otherwise arbitrarily restricting

plaintiffs in their access to written material and the commu-

nication of ideas, the DOC defendants have violated plain-

tiffs’ nghts under the First and Fourteenth Amendments [and

under Article 16 of the Massachusetts Declaration of

3 The thrust of the decision was that although DSU classifica-

tion is not a means of discipline, because “the reality usually is experi-

enced as restriction and discipline . . . Departmental segregation, with an

impact which may well exceed that of a disciplinary proceeding, ought to

be governed by procedures which require no less than that required in a

disciplinary hearing.” Hoffer at 23.

- Neither plaintiffs nor defendants have addressed the allegation

in Count V that the DOC defendants have violated G.L. C. 127, § 39. In

addition to mandating the conditions of segregated units, G.L. c. 127,

§ 39 provides the process by which an inmate may be transferred to such

a unit. This procedure is not that which is utilized to sentence an inmate

to the DDU, however.

A51

Rights].”*° Defendants contend that the ban on educational

and rehabilitative materials in the DDU cells is constitutional

according to the four factors announced in Turner v. Safley,

482 U.S. 78 (1987). However, the record before this court

does not demonstrate that the ban on educational materials is

reasonably related to legitimate penalogical interests as a

matter of law. See Affidavit of E. Eugene Miller, and Lovell

v. Superintendent. North Central Correctional Institution, 26

Mass. App. Ct. 35, 36-38 (1988). Consequently, summary

judgment for the defendants on these counts is not appropri-

ate.

?° It is unclear what policy, other than that which forbids inmates

from having educational materials in their cells, plaintiffs are challenging

in counts VI and VII. The only prayer for injunctive relief which relates

to these counts asks that “DDU prisoners [be allowed] access to educa-

tional materials in their cells.” Further, this issue is the only one pressed

by the plaintiffs with respect to these counts despite the fact that the de-

fendants have also raised the DOC’s ban on inmate-to-inmate correspon-

dence, the restrictions on DDU inmates’ participation in rehabilitative

and educational programs, the ban on contact visits, and the ban on cor-

respondence courses and textbooks. Because the defendants’ evidence

that these policies have legitimate penological purposes remains unre-

butted, they are entitled to summary judgment to the extent that these

policies are at issue.

” The four factors are: (1) whether there is a valid, rational,

connection between the prison regulation and the legitimate governmen-

tal interest put forward to justify it; (2) whether the inmates may exercise

the right through alternative means; (3) the impact accommodation of the

right would have on guards, other inmates, and the allocation of re-

sources; (4) the absence of ready alternatives. Lovell v. Superintendent,

North Central Correctional Institution, 26 Mass. App. Ct. 35, 38

n.6(1988) citing Turner, 482 U.S. at 89-91.

A52

Count VIII: 1 2 4 1

“Unless security or safety considerations dictate other-

wise, each inmate should be afforded the opportunity for rec-

reation and exercise for personal enjoyment and physical fit-

ness outside of his cell . . . Each inmate within the special

management or disciplinary units shall be afforded not less

than one hour per day, five days a week, of exercise outside

his cell.” 105 Code Mass. Regs. 451.212 (B). Plaintiffs seek

a declaration that the DOC has violated this regulation and

an injunction to prevent further violation.

Defendants admit that prior to the Fall of 1995, inmates

were denied exercise as a form of punishment. This practice

has since ceased, however. In fact, plaintiffs acknowledge

that DDU inmates are offered outdoor exercise, one hour a

day, five days per week. Consequently, the defendants assert

that the plaintiffs’ claim with respect to defendants’ violation

of 105 Code Mass. Regs. 451.212 is moot. See Layne v. Su-

perintendent, MCI-Cedar Junction, 406 Mass. 156, 160

(1989).

Plaintiffs contend that their claim is not moot because the

new policy does not provide for indoor exercise outside of

their cells during inclement weather.”’ According to plaintiff

MacDougall, he could not exercise on several occasions due

to inclement weather.“ 105 Code Mass. Regs. 451.212(B)

2? Plaintiffs also contend that they are entitled to equitable relief

to ensure DOC compliance with 105 Code Mass. Regs. 451.212. In-

junctive relief is not appropriate based on a speculation about a future

violation.

= During its tour of the DDU in May, 1996, the court observed

that the units’ outdoor exercise area consisted of a series of long and nar-

row, ‘dog run’, type enclosures, surrounded on the top and all sides by

A53

requires the DOC to allow one hour per day of exercise. Be-

cause there is evidence that they have failed and continue to

fail to provide this exercise to DDU inmates during inclem-

ent weather, summary judgment is not appropriate.” Unless

the defendants can show that security and safety considera-

tions make indoor exercise impossible, plaintiffs may be en-

titled to the declaratory and injunctive relief they seek. See

Amended Complaint, par. f at 35; par. 10 at 38.°° Summary

judgment on this count must be denied.

oun and X: Access to the Courts

In Bounds v. Smith, 430 U.S. 817 (1977), the United

States Supreme Court held that “the fundamental constitu-

tional right of access to the courts requires prison authorities

to assist inmates in the preparation and filing of meaningful

legal papers by providing prisoners with adequate law li-

braries or adequate assistance from persons trained in the

law.” Bounds, 430 U.S. at 828. Defendants contend that

plaintiffs cannot demonstrate a systemic problem with re-

spect to DDU inmates’ access to the courts because they are

chain-link type fencing, and with no solid roof or other covering suffi-

cient to permit inmates to exercise there in inclement weather.

" There is also a genuine issue of material fact regarding

whether DDU prisoners are frequently forced to choose between going to

counseling sessions and exercise.

*° Even if plaintiffs demonstrate that defendants violated their

rights under 105 Code Mass. Regs. 451.212 during inclement weather

and by scheduling counseling sessions, the State Civil Rights Act would

not apply because there was no threats, intimidation, or coercion in-

volved and § 1983 would not apply because this is not a Federally guar-

anteed right.

~w t as re Pt bas —

A54

provided with adequate research time and legal resources.

“Where an adequate law library is available to prisoners,

courts have found that prisoners’ right of access to courts is

satisfied.” Tolbert v. DuBois, Superior Court C.A. No. 95-

3862 (Middlesex, April 29, 1996), citing Bounds, 430 U.S. at

824. “At least where an adequate library exists, however,

there is no separate right to the assistance of trained staff.”

Tolbert v. DuBois, supra at 3, citing Bounds, 430 U.S. at

828. “[A]s long as books are reasonably available, there is

no constitutional right to have them in a given place or to

have them constantly at the ready.” Tolbert v. DuBois, supra

at 4.

Plaintiffs rely principally on the affidavits of

to demonstrate that the DOC does not provide the DDU in-

mates with sufficient legal materials, research time, or pho-

tocopying services. These affavits raise issues of material

fact regarding deficiencies in uiese inmates’ access to the

courts.

However, notwithstanding this dispute, plaintiffs must

produce evidence of system-wide injury in order to succeed

on their systemic challenge. The Supreme Court recently

elaborated on Bounds in Lewis v. Casey, 116 S.Ct. 2174

(1996). In Lewis, the Court ruled that “the success of [the

inmates’] systemic challenge was dependent on their ability

to show widespread actual injury...” Lewis, 116 S.Ct. at

2179. Thus, if the plaintiffs do not demonstrate widespread

actual injury, “(t]he remedy must of course be limited to the

inadequacy that produced the injury-in-fact that the plain-

tiff[s] ha[ve] established.” Lewis, 116 S.Ct. at 2183.

A55

Only four plaintiffs have presented evidence of actual in-

jury in connection with existing or contemplated litigation.”

This evidence is insufficient to establish widespread actual

injury sufficient to deny summary judgment for the defen-

dants on Counts IX, and X. The plaintiffs’ evidence is suffi-

cient, however, to allow these plaintiffs to proceed with their

individual claims. If they succeed in demonstrating that they

have sustained injury related to an existing or contemplated

non-frivolous claim, and that the injury is the result of

DOC’s failure to provide adequate access to adequate law

libraries or assistance from persons trained in the law, then

declaratory judgment or injunctive relief to correct the par-

ticular inadequacies which caused their injuries would be

appropriate.

Count XI: G.L. c. 12, §§ 11H and 111

Defendants maintain that the plaintiffs cannot meet their

burden to demonstrate that their rights under the Massachu-

setts Civil Rights Act, G.L. c. 12, §§ 11H and 111, have been

violated. Plaintiffs have not adduced facts to show that the

named defendants have coerced, threatened, or intimidated

" claims that he was unable to challenge his federal

bank robbery conviction. maintains that he was unable to

file a complaint regarding a disciplinary proceeding. asserts

that he could not file a claim against DOC relating to inadequate health

care. States that he was unable to pursue an appeal after

losing a Superior Court action arising from his deprivation of contact

Visits. also claims injury in that the Probate and Family

Court ruled adversely to him.

This latter injury is irrelevant because resources on family law

are not “[t]he tools . . . that the inmates need in order to attack their sen-

tences, directly or collaterally, and in order to challenge the conditions of

their confinement.” Lewis, 116 S.Ct. at 2182.

A56

them. However, according to the affidavit of

corrections officers threatened that if com-

plained about the meals, he would be denied food and if he

continued to ask to see a doctor, he would receive a discipli-

nary report. According to the affidavit of he

was told by corrections officers that if he filed suit against

them he would be physically harmed.

There is no respondeat superior liability for G.L c. 12,

§$11H and 11I violations, however. See Lyons v. National

Car Rental Systems, Inc., 30 F.3d 240, 244-247 (ist Cir.

1994) and cases cited. Although plaintiffs have submitted

evidence that their rights have been violated, plaintiffs have

not provided evidence that the named defendants, them-

selves, interfered with the plaintiffs’ mghts through threats,

intimidation, or coercion. Further, “[a] direct violation of a

persons’ rights does not by itself involve threats, intimida-

tion, or coercion and thus does not implicate the Act.”

Longval v. Commissioner of Correction, 404 Mass. 325, 333

(1989). Thus, the establishment and operation of the DDU

and the conditions of plaintiffs’ confinement, even if viola-

tive of their mghts, does not implicate the Massachusetts

Civil Rights Act.

Qualified Immunity

Plaintiffs seek relief against the DOC defendants through

G.L. c. 12, §§ 11H and 111, the Massachusetts Civil Rights

Act, and through 42 U.S.C. § 1983. Plaintiffs seek damages

as well as injunctive and declaratory relief. Because this ac-

tion has been bifurcated, this decision is aimed principally at

plaintiffs’ claims for declaratory relief. The individual de-

fendants have moved for summary judgment based on quali-

fied immunity with respect to plaintiffs’ claims for damages

: PED EEE LPG SOMME EIDE FPL EGIL IS AEPAE CS I atIY

A57

em G.L. c. 12, §§11H and 11] and 42 U.S.C. § 1983, how-

> Because qualified immunity under these statutes pro-

vides cies cen from suit -_ not merely from liability, see

Springfield, 401 re 26, 31 ‘and 34-35 n. 9 (1987), cert.

denied, 485 U.S. 906 (1988), the question of its application

affects not only the damages issue but also the propriety of

the action itself. Therefore, it is appropriate, and not in

derogation of the Case Management Order, to address the

issue here.

The doctrine of qualified immunity applies to claims un-

der G.L. c. 12, §§ 11I and 11H, as well as to 42 U.S.C.

§ 1983. Duarte v. ealy, 405 Mass. 43, 46 (1989). But it

applies only to discretionary functions. Duarte, 405 Mass. at

47 citing Dobos v. Driscoll, 404 Mass. 634, 646 (1989), cert.

denied, 493 U.S. 850 (1989). Plaintiffs argue that they are

challenging the daily operation of the DDU which is non-

discretionary. However, plaintiffs have not attacked par-

ticular acts of the defendants except to the extent that they

have alleged that the regulations promulgated and the proce-

dures followed by the defendants violate plaintiffs’ rights.

These acts are clearly discretionary. See Duarte, 405 Mass.

at 48 citing Davis v. Scherer, 468 U.S. 183 (1984) (where a

law does not “specify the precise action that the official must

take in each instance[,] it creates only discretionary author-

ity.”). See also Duarte, 405 Mass. at 48 n. 3 (distinguishing

discretionary functions under G.L. c. 258).

Consequently, defendants- are not individually liabie

“unless their actions violated [plaintiffs’] mghts that were

‘clearly established’ under the relevant law.” Duarte, 405

- Plaintiffs have not alleged violations of the State and Federal

Civil Rights Acts by the DMH defendants.

A58

Mass. at 48. “[P]laintiffs must show that the defendants di-

rectly participated in violating [these] rights.” O’Malley v.

Sheriff of Worcester County, 415 Mass. 132, 142 (1993).

Further, plaintiffs’ mghts must be clearly established so that a

reasonable official would understand that his or her acts vio-

late those rights. See Id. and cases cited. See also Breault,

401 Mass. at 26 (immunity withheld if officials intentionally

violate G.L. c. 12 §§ 11] and 11H).

Plaintiffs cite Madrid v. Gomez, 889 F.Supp. 1146

(N.D.Cal. 1995), to support their blanket contention that in-

mates cannot be held in conditions which put them at severe

risk of mental illness. However, “there is no static test for

determining whether the conditions of an inmate’s confine-

ment are ‘cruel and unusual’ .. ..” Mormis v. Travisono, 549

F.Supp. 291, 294 (D.R.I. 1982), aff'd 707 F.2d 28 (1st Cir.

1983). “The term ‘cruel and unusual punishment’ is relative

rather than absolute.” Davenport v. DeRobertis, 844 F.2d

1310, 1315 (7th Cir. 1988), cert. denied, 488 U.S. 908

(1988). Extended segregated confinement is not unconstitu-

tional per Travisono, 449 F.Supp. 149, 160 (D.R.I. 1980).

In the cases upon which plaintiffs rely, the conditions

were not identical to those in the DDU. See e.g. Morris, 549

F.Supp. at 292 (no visitors, one book per week); Davenport,

844 F.2d at 1314 (not clear error to hold one hour per week

of exercise falls below Eighth Amendment standards); Ma-

drid, 889 F.Supp. at 1161-1171 (overwhelming evidence of

excessive force, use of fetal restraints, and cagings), Madrid,

889 F.Supp. at 1228-1229 (no windows in cells, walled exer-

cise areas). Thus, it has not been clearly established that

conditions such as those in the DDU violate inmates’ rights.

Consequently, a reasonable official, in the position of the

AS9

defendants, would not understand that his acts, in establish-

ing the conditions of the DDU, violated plaintiffs’ rights.”

This conclusion is not contrary to the ruling that a ques-

tion of fact exists whether defendants violated the plaintiffs’

Eighth Amendment rights. Although there is evidence that

defendants were indifferent to a risk of substantial harm as

required for an Eighth Amendment claim, see Farmer, 114

S.Ct. at 1977, because it is not clear what constitutes cruel

and unusual punishment, defendants did not violate a known

right. See McGuinness v. DuBois, 893 F.Supp. 2, 3

(D.Mass. 1995) (although deprivation of exercise may con-

stitute a violation of the Eighth Amendment, “the state of the

law in this area does not clearly establish that the conditions

of [plaintiff's] confinement violated the Constitution. The

defendants are therefore entitled to qualified immunity . . .”)

(emphasis added).

State Sovereign Immunity

Although the Eleventh Amendment does not apply to

Suits brought in State courts, a state agency or a state official

in an official capacity may not be sued for retrospective relief

under § 1983 because a State is not a “person” under that

Statute. See Will v. Michigan Dept. of State Police, 491 U.S.

” Plaintiffs have not argued that other rights at issue were

clearly established. The DOC defendants would be entitled to summary

judgment on the basis of qualified immunity with respect to the particu-

lar instances of excessive force, inadequate health care, etc., because the

defendants had no personal involvement in these events and there is no

evidence that they intentionally failed to fulfill their Statutory duties.

O’Malley, 415 Mass. at 142-143. Further, although Maloney heard the

inmates’ appeals from the DDU sentences, plaintiffs have not alleged any

wrongdoing in this respect.

A60

58, 70 (1989). Prospective relief is available, however. Will,

491 U.S. at 71 n. 10. See also Martin A. Schwartz & John E.

Kinklin, 1 Section 1983 Litigation, 2nd ed. (1991) § 8.14.

In Commonwealth v. ELM Medical Laboratories, Inc., 33

Mass. App. Ct. 71 (1992), the court held that the State is not

a “person” under the State Civil Rights Act. Id. at 76. Thus,

G.L. c. 12, §§ 11H and 111 did not abolish sovereign immu-

nity. Ibid. at 80. See also Converse Const. Co., Inc. v. Mass.

Bay Transp. Auth., 899 F.Supp. 753, 762 (D.Mass. 1995).**

In light of the bifurcation of this action, it may seem pre-

mature to point out that plaintiffs are not entitled to damages

against the defendants in their official capacities. It is appro-

priate, however, because, unless plaintiffs’ claims for dam-

ages are viable, their claims for declaratory relief are moot.

In sum, because there is sovereign immunity, if at trial it is

determined that defendants are individually entitled to quali-

fied immunity, plaintiffs will have no viable claims for dam-

ages, thus rendering several plaintiffs’ claims for declaratory

relief moot.

Coun a : d

State Due Process Claims

Counts XII ard XIII assert violations of procedural due

process. Plaintiffs assert that the administrative disciplinary

process on its face and as applied violate plaintiffs’ federal

and state due process nights.

** Contrast Monell v. Dept. of Social Services of New York, 436

U.S. 658 (1978) (municipal liability under § 1983); Broderick v. Roache,

803 F.Supp. 480, 484-485 (D.Mass. 1992) (municipal liability under G.

L. c. 12 §§ 11H and 111). But see ELM, 33 Mass. App. Ct. at 76 n. 8.

(“We express no opinion with regard to the immunity . . . of municipali-

ties. . . under the State Civil Rights Act.”).

A61

Plaintiffs contend that inmates repeatedly have not been

given notice of disciplinary hearings or were prevented from

attending their own hearing. ( Aff., par. 11;

Aff., pars. 2-5; Aff. pars. 7-9).

DDU inmates have been denied Opportunity to present evi-

dence and witnesses. ( _ Aff., par. 6;

Aff, par. 15). all experienced being given

written notice of a hearing which they were not given an op-

portunity to attend. ( _ Aff., par. 11;

Aff., pars. 2-5; Aff., pars. 7-9).

Judge Dortch-Okara found that due process

rights were violated at two “special” disciplinary hearings by

denial of his right to present four inmate witnesses and denial

of an opportunity to make an oral statement, resulting in his

being sentenced to the DDU. 9.

At a November 1992 hearing, was denied the

opportunity to present evidence on his own behalf, without

any justification being given for the denial. Each time

tried to speak, Special Hearing Officer Sherwin

cut him off, telling him to “shut up.” (_ Aff., par.

6). was sentenced to the DDU after this hear-

‘ing.

Plaintiff was denied the opportunity to pres-

ent wittiesses without being given a justification for the de-

nial. Prior to the hearing, in conformance with DDU policy,

he had requested the presence of a corrections officer as a

witness. The C.Q. did not appear at the hearing and the re-

port in connection with the hearing falsely indicated that

did not request any witnesses. re-

ceived a two year DDU sanction.

A62

A. Federal Due Process Claims

In Sandin v. Conner, 115 S. Ct. 2293 (1995), respondent

was an inmate who brought a civil nghts action against

prison officials and the state of Hawaii challenging the impo-

sition of disciplinary segregation for misconduct. Conner al-

leged that prison officials deprived him of procedural due

process when an adjustment committee refused to allow him

to present witnesses during a disciplinary hearing and then

sentenced him to segregation for misconduct. Sandin, 115

S.Ct. at 2294.

In its opinion the Supreme Court revisited Hewitt v.

Helms, 459 U.S. 460 (1983), and determined that Hewitt

produced two undesirable effects. First, that it created

“disincentives for States to codify prison management proce-

dures in the interest of uniform treatment. Prison adminis-

trators need be concerned with the safety of the staff and in-

mate population. Ensuring that welfare often leads prison

administrators to curb the discretion of staff on the front line

who daily encounter prisoners hostile to the authoritarian

structure of the prison environment. Such guidelines are not

set forth solely to benefit the prisoner. They also aspire to

instruct subordinate employees how to exercise discretion

vested by the State-in the warden, and to confine the author-

ity of prison personnel in order to avoid widely different

treatment of similar incidents. The approach embraced by

Hewitt discourages this desirable development: States may

avoid creation of ‘liberty’ interests by having scarcely any

regulations, or by conferring standardless discretion on cor-

rectional personnel.” Sandin, 115 S.Ct. at 2299.

Second, the Supreme Court determined that “the Hewitt

approach has led to the involve:aent of federal courts in the

day-to-day management of prisons, often squandering judi-

A63

cial resources with little off-setting benefit to anyone. In so

doing, it has run counter to the view expressed in several of

our cases that federal courts ought to afford appropriate def-

erence and flexibility to state officials trying to manage a

volatile environment.” Sandin, 115 S.Ct. at 2299.

The Supreme Court concluded that, “[t]he time has come

to return to the due process principles we believe were cor-

rectly established and applied in Wolff and Meachum.

Sandin, 115 S.Ct. at 2300. The Court held that the States

may still create liberty interests that afford prisoners Federal

due process protections, but explained: ‘[T]hese interest will

be generally limited to freedom from restraint which, while

not exceeding the sentence in such an unexpected manner as

to give nse to protection by the Due Process Clause of its

own force . . . nonetheless a

vs ere added). Sendin. 115 $.Ct. at 2300.

“By shifting the focus of the liberty interest inquiry to one

based on the language of a particular regulation, and not the

nature of the deprivation, the Court encouraged prisoners to

comb regulations in search of mandatory language on which

to base entitlements to various state-conferred privileges... .

Not only are . . . regulations not designed to confer rights on

inmates, but the result of the negative implicatic> jurispru-

dence is not to require the prison officials t~ follow the

negative implication drawn from the regulation, but is in-

stead to attach procedural protections that may be of quite a

different nature.” Sandin, 115 S.Ct. at 2299.

The United States Court of Appeals for the First Circuit in

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), applied

the holding of the Sandin opinion to an inmate who was re-

moved from a prerelease facility despite his good standing in

a work-release program and transferred to the Massachusetts

A64

Correctional Institution, at Shirley, a medium-security facil-

ity. Hastings v. Commissioner of Correction, 424 Mass. 46,

51, 52 (1997); citing Dominique, 73 F.3d at 1159. “The court

held that the removal and transfer did not, in the words of the

Sandin case, constitute an ‘atypical hardship’ and, conse-

quently, no Federal right of due process had been violated.”

Hastings, 424 Mass. at 52.

are foreclosed by Sandin and Dominique. The facts alleged

by the plaintiffs do not support any claim of system-wide

violations of plaintiffs’ federal or state due process rights by

the defendants.

B. State Due Process Claims.

Prison disciplinary proceedings must comport with certain

minimal requirements. “[D]ue process requires that before a

prisoner can be deprived of a State-created liberty interest he

must be given advance written notice of the alleged violation

of the disciplinary rules, he must be accorded impartial tri-

bunal, and must be given ‘a written statement by the fact

finders as to the evidence relied upon and the reasons for the

disciplinary action taken.’ ... The Court also stated that an

inmate should be allowed to call witnesses if to do so will

‘not be unduly hazardous to institutional safety or correc-

tional goals.’ A disciplinary board, at its discretion, may re-

fuse to call a witness requested by an inmate on the grounds

of ‘irrelevance, lack of necessity, or the hazards presented in

individual cases.” Nelson v. Commissioner of Correction,

390 Mass. 379, 389, 390 (1983).

Defendants assert that twenty-four hours’ notice of a

prison disciplinary hearing is constitutionally sufficient no-

tice. O’Malley v. Sheriff of Worcester County, 415 Mass.

A65

132, 140 n. 12 (1993). Further, DOC regulations require that

inmates receive at least twenty-four hours’ notice prior to a

disciplinary hearing. 105 C.M.R. 430.11(2).

Further, “(cJonfrontation and cross-examination of ad-

verse witnesses may create a high risk of reprisal in a prison

system; hence, the Supreme Court has left the exercise of the

right to confrontation and cross-examination in disciplinary

__hearings to the discretion of prison officials.” Nelson v.

Commissioner of Correction, 390 Mass. at 390.

In Hastings v. Commissioner of Correction, 424 Mass. 46

(1997), the plaintiffs, six inmate serving life sentences for

convictions of murder in the second degree, sought injunc-

tive and declaratory relief, damages, and attorney’s fees in

connection with an administrative order of the Commissioner

of Co

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