Reply Brief — Torres v. Commissioner of Correction of Massachusetts

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=> No. 98-0504 OFFICE OF THE CLERK

~— —_———_—_—_—_———_—- . —$-— SUPREME COURT, U.S.

gt IN THE

ae Y Supreme Court of the United States

OCTOBER TERM, 1998

VICTOR TORRES, ET AL.,

Petitioners,

v.

COMMISSIONER OF CORRECTION, Er AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

REPLY TO BRIEF IN OP°OSITION TO

PETITION FOR WRIT OF Cex RTIORARI

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

November 4, 1998

Ce _

oe ——

TABLE OF CONTENTS

Page

I. THE SUPREME JUDICIAL COURT’S

DECISION IS FINAL FOR PURPOSES

OF REVIEW BY CERTIORARI. ..........cccceecseeoeee 2

A. The Judgment At Issue Is Final

And Not Subject To Further

Review In State Court. .............cccc0c0. 3

B. The Petitioners Will Not Have

Any Opportunity To Press Their

Eighth Amendment Claims If

Certiorari Is Denied...............cc.cc0000.. 3

Il. THIS CASE PRESENTS ISSUES WORTHY OF

TABLE OF AUTHORITIES

Cases:

Canton v. Harris, 489 U.S. 378 (1989) 0... 5n

Commonwealth v. Clark,

8 Mass. L. Rptr. 97 (April 6, 1998) .......... 2n

Farmer v. Brennan, 511 U.S. 825 (1994)... 6

Gibbs Ford, Inc. v. United Truck Leasing

Corporation, 399 Mass. 8,

502 N.B26 SUR LLP GT) sivistineisntsiisccikenss 3

Helling v. McKinney, 509 U.S. 25 (1993) .......... 4,5

Lewis v. Casey, 518 U.S. 343 (1996) «0... Sn

Market Street R. Co. v. Railroad Comm'n of Cal.,

S04 US. FAB GPS) ociniciointaeian 2

Procunier v. Martinez, 416 U.S. 396 (1974) ......... 5

Turner v. Safley, 482 U.S. 78 (1987) .......ccccsecccseees 5

Statutes and Rules:

BO UES TA | stukinwhcaibiaieian eta ASR 2

Mass. R. Ca¥. 2. S60) sceniccoanniineanidnnens 3

~ No. 98-0504

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

VICTOR TORRES, ET At.,

Petitioners,

v.

COMMISSIONER OF CORRECTION, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

REPLY TO BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

In their oppesition to the petition for certiorari, the

respondents misrepresent the procedural posture of this

petition for review in an effort to convince the Court that it

does not have jurisdiction to review this case. The Court’s

examination of the merits of the petition should not be

obscured by the respondents’ smokescreens. The Supreme

Judicial Court’s misguided decision in this case represents a

2

final judgment that this Court has both jurisdiction and

reason to review. !

I. THE SUPREME JUDICIAL COURT’S DECISION IS FINAL

FOR PURPOSES OF REVIEW BY CERTIORARI.

The decision of the Supreme Judicial Court (“S.J.C.”)

is a final decision within the meaning of 28 U.S.C. § 1257.

Section 1257 allows this Court to review “[flinal judgments

or decrees rendered by the highest court of a State in which a

decision could be had . . . where any title, right, privilege or

immunity is specially set up or claimed under the

Constitution.” For purposes of this statute, a final judgment

is one that is not subject to further review or correction in

any other state tribunal and represents “the final word of a

final court.” Market Street R. Co. v. Railroad Comm’n of

Cal., 324 U.S. 548, 551 (1945).

The respondents attempt to confuse this Court by describing as a

“related lawsuit” an entirely inapposite Massachusetts trial court

decision. The uncontroverted record in the Supreme Judicial Court

showed that the decision in Commonwealth v. Clark, 8 Mass. L. Rptr. 97,

102 (April 6, 1998), was on motions to dismiss pending criminal

indictments by prisoners who claimed that a disciplinary sentence to the

DDU as a result of prison misconduct would bar a later criminal

prosecution for the same misconduct on the basis of double jeopardy. No

party presented (or could have presented) in their criminal prosecutions

claims under the Eighth Amendment that the conditions of confinement

in the DDU are themselves unconstitutional. The Department of

Correction did not argue, and the Supreme Judicial Court did not hold,

that the trial court decision in Clark should have any impact on the

disposition of this case.

—— - 2. a7.

3

A. The Judgment At Issue Is Final And Not

Subject To Further Review In State Court.

There is no question under Massachusetts law that a

judgment entered under Mass. R. Civ. P. 54(b), like a

judgment entered under the parallel provision of the Federal

Rules, is a final judgment for all purposes and, as such, was

subject to review on appeal by the Supreme Judicial Court.

See Gibbs Ford, Inc. v. United Truck Leasing Corporation,

399 Mass. 8, 11, 502 N.E.2d 508, 510 (1987). As

respondents concede (at 1 n.1), the trial court made the

specific determinations required by Rule 54(b), and directed

the entry of final judgment with regard to the claims asserted

in Count I that respondents violated the Eighth Amendment

by deliberately creating an environment of sensory

deprivation that they knew was likely to cause harm to DDU

inmates. App. A84-85. The respondents have never

contended that the state’s highest court lacked jurisdiction to

hear the appeal or that further review of the S.J.C’s decision

is available in a state tribunal.

B. The Petitioners Will Not Have Any

Opportunity To Press Their Eighth

Amendment Claims If Certiorari Is Denied.

In affirming the trial court’s judgment, the S.J.C.

categorically rejected the petitioners’ claims under the

Eighth Amendment that the conditions of confinement in the

DDU pose an intolerable risk of serious psychological harm.

App. A4-6. The S.J.C. did not differentiate in any way

between “systemic” or “individual” proof or preserve the

rights of any of the petitioners to pursue injunctive or

declaratory relief on these critical claims. Given the S.J.C.’s

decision that, as a matter of law, the risk of psychological

harm created by the conditions of DDU confinement does

4

not violate the Eighth Amendment, the trial court would

never entertain claims by individual petitioners that they are

entitled to Eighth Amendment relief from the intolerable

conditions of confinement in the DDU or that the operation

of the DDU must be altered to meet constitutional

requirements. The respondents would surely argue that any

Eighth Amendment claims of that kind are barred by the

S.J.C.’s decision. This Court should not indulge the

respondents’ attempt to place petitioners in the untenable

position of being unable to obtain review now because of

misplaced finality concerns and later being unable to obtain

review after all other claims are tried because the time in

which to seek review of the S.J.C.’s decision has lapsed.

Il. THIS CASE PRESENTS ISSUES WORTHY OF REVIEW.

The S.J.C.’s decision is in direct conflict with Helling

v. McKinney, 509 U.S. 25 (1993), which held that factual

disputes about whether prison conditions pose a substantial

risk of serious harm must be resolved before a court can

determine as a matter of law whether Eighth Amendment

rights have been violated. See Pet. at 10-11. The

respondents’ argument that the Eighth Amendment approach

to individual claims articulated in Helling somehow does not

apply to systemic claims is not supported by any reasoned

analysis or precedent.”

2

The respondents’ characterization of the petitioners’ claims as a

“facial,” rather than “as-applied,” attack on the DDU, like their purported

distinction between “individual” and “systemic” claims, is meaningless

because petitioners challenge the conditions under which they are

actually confined.

5

In Helling, the Court reversed the dismissal of a

claim involving exposure to second-hand tobacco smoke

because it found that it was “premature” to rule as a matter

of law that the risk of harm was not sufficiently grave to

implicate a “serious medical need” or that forced exposure to

second-hand smoke is consistent with “current standards of

decency.” Jd. at 34. The essence of Helling is that the

magnitude of the risk must be resolved as a matter of fact

before a court can properly judge as a matter of law whether

it can be tolerated under the Eighth Amendment. This

fundamental principle has nothing to do with whether claims

are asserted on an individual or systemic basis.’ In the face

of petitioners’ expert testimony underscoring the gravity of

the risk presented by long-term confinement in the DDU, the

S.J.C.’s determination that the risk of psychological harm

posed by DDU conditions did not, as a matter of law, violate

the Eighth Amendment cannot be reconciled with the

holding in Helling.

Neither Turner v. Safley, 482 U.S. 78 (1987), nor

Procunier v. Martinez, 416 U.S. 396 (1974), involved Eighth

Amendment claims. There is no basis for the respondents’

’ Neither Lewis v. Casey, 518 U.S. 343 (1996), nor Canton v.

Harris, 489 U.S. 378 (1989), suggests, much less holds, that the Helling

standard does not apply to Eighth Amendment claims seeking

prospective injunctive relief to prevent harm from occurring as a result of

intolerable conditions of confinement. Lewis merely stands for the

proposition that the scope of injunctive relief should be tailored to the

extent of the established violation. Canton deals with the standards for

imposing liability on a municipality for inadequate training of police

officers. This case does not involve negligent administration of an

otherwise sound prison program. The Eighth Amendment claim here

challenges the intentionally punitive conditions of confinement in the

DDU.

6

assertion that the problems of dealing with difficult prisoners

somehow immunize their administration of the DDU from

meaningful review under the Eighth Amendment. Farmer v.

Brennan, 511 U.S. 825 (1994), reaffirms that al] inmates

have a right to seek relief under the Eighth Amendment

when their conditions of confinement pose an intolerable risk

of serious harm. The S.J.C.’s decision — that a court can

determine, as a matter of law, that the risk to inmates in

“supermax” prisons is acceptable without ever considering

their proof that serious psychological harm has been and will

continue to be caused by their conditions of confinement —

presents an issue of national importance that should be

reviewed b; this Court.

CONCLUSION

For all the reasons offered here and in the petition, a

writ of certiorari should issue.

Respectfully submitted,

JOHN REINSTEIN Scott P. LEwis

American Civil Liberties Counsel of Record

Union of Massachusetts LAURIE S. GILL

99 Ciauncy 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

November 4, 1998

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