Butler v. Turco , 93 Mass. App. Ct. 80 ( 2018 )

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17-P-814 Appeals Court
17-P-968
BRIAN BUTLER vs. THOMAS A. TURCO & others1
(and a companion case2).
Nos. 17-P-814 & 17-P-968.
Worcester. Suffolk. February 5, 2018. - March 30, 2018.
Present: Meade, Sullivan, & Wendlandt, JJ.
Imprisonment, Grievances. Commissioner of Correction.
Constitutional Law, Imprisonment, Ex post facto law, Double
jeopardy, Cruel and unusual punishment. Due Process of
Law, Prison regulation. Practice, Civil, Dismissal.
Civil action commenced in the Superior Court Department on
January 5, 2016.
A motion to dismiss was heard by David Ricciardone, J.
Civil action commenced in the Superior Court Department on
November 13, 2015.
1 Sean Medeiros and Lynn Lizotte. The defendants were sued
in their official capacities. As pertinent here, Turco was the
Commissioner of Correction, Medeiros was the Superintendent of
Massachusetts Correctional Institution at Norfolk (MCI-Norfolk),
and Lizotte was the Deputy Superintendent for classification and
treatment at MCI-Norfolk.
2 Owen McCants vs. Superintendent, MCI-Norfolk.
2
A motion to dismiss was heard by Paul D. Wilson, J.
Brian Butler, pro se.
Owen McCants, pro se.
Sheryl F. Grant for the defendants.
MEADE, J. The plaintiffs, Brian Butler and Owen McCants,
inmates supervised by the Massachusetts Department of Correction
(department) and housed at MCI-Norfolk, each brought actions pro
se challenging the consequences imposed on them pursuant to the
department's "Program Engagement Strategy" (PES). The
defendants filed motions to dismiss both complaints, which were
allowed by two different judges. The plaintiffs appeal,
alleging what we construe to be3 various constitutional
infirmities in the PES program. We consolidated the cases for
hearing in this court, and now affirm.
Background. PES program. In accordance with its mission
to "promote public safety by managing offenders," the department
established "appropriate programming in preparation for
[inmates'] successful reentry into the community," such as the
Sex Offender Treatment Program (SOTP). However, the department
is unable to mandate participation in such programs. As a
result, by 2012, a high percentage of offenders declined to
3 Butler's complaint advances several specific
constitutional claims. McCants's complaint is less clear. We
read it, however, to include the same arguments as Butler's
complaint.
3
attend recommended programs, spending their time in ways that
did not address "the very issues that [would] decrease the
likelihood that they recidivate."4 Nevertheless, these inmates
enjoyed the same privileges as "program compliant" offenders,
such as single rooms, housing seniority, and institutional jobs.
In response, in December of 2013, the department announced it
would implement PES, an incentivization structure for program
participation.5 Under PES, privileges are awarded as incentives
for inmates who voluntarily participate in programs and are
4 Butler takes issue with the department's use of the word
"criminogenic" in its description of PES, which provides, in
pertinent part:
"[T]he inability to mandate program participation for high
to moderate risk offenders . . . has lead to many offenders
refusing to address their criminogenic need areas
increasing the likelihood they will recidivate soon after
release."
Butler claims the term refers to offenders possessing a
"criminal gene." We note that, besides being insufficient to
rise to the level of appellate argument, see Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975), Butler's claim is
based on a misunderstanding. The term does not relate to genes
or genetics. Rather, "criminogenic" refers to the tendency to
cause crime or criminality, or, something that "contributes to
the occurrence of crime." Coleman v. Schwarzenegger, 922 F.
Supp. 2d 882, 973 n.68 (E.D. Cal. 2009).
5 The department appears to have modelled PES on a similar
program at the Massachusetts Treatment Center (MTC). At MTC,
rather than mandating program participation, which the
department is apparently unable to do, MTC rewarded offenders
who participated, and "[o]ffenders who refused programming were
assigned to an accountability unit without televisions, hot
pots, microwaves and [with] limited job privileges." As a
result, MTC's program participation increased by thirty percent.
4
withdrawn from inmates who refuse. The department notified
inmates about PES by amending its institutional procedures,
hosting informational sessions for inmates, and creating
informational flyers. PES went into effect on January 1, 2014.
Butler. Butler was convicted in 1993 of aggravated rape,
assault and battery by means of a dangerous weapon, and
kidnapping. He was sentenced to twenty-five to thirty years for
the aggravated rape and to concurrent eight to ten year terms on
the remaining convictions. This court affirmed Butler's
convictions and the Supreme Judicial Court denied further
appellate review.6
Butler was, at all relevant times, an inmate at MCI-
Norfolk. He became eligible to participate in SOTP classes, and
the department recommended that he do so. In May of 2015,
Butler was informed that his failure to attend SOTP classes
would result in the imposition of PES consequences. Butler
began attending a "preliminary" SOTP phase, but in September of
2015, he refused to participate further. Consequently, in
accordance with PES protocol, he lost his seniority with respect
to housing. On October 1, 2015, he was reassigned from the
single room he had occupied for nineteen years to a double room,
and his seniority date was changed to September 24, 2015.
6 See Commonwealth v. Butler, 41 Mass. App. Ct. 1101, S.C.,
423 Mass. 1107 (1996).
5
McCants. McCants was convicted of rape of a child by
force, kidnapping, assault with intent to rape, drugging for
sexual intercourse, and assault and battery by means of a
dangerous weapon. Commonwealth v. McCants, 83 Mass. App. Ct.
1129 (2013). He was separately convicted of being an habitual
offender. This court affirmed McCants's convictions and the
Supreme Judicial Court denied further appellate review.7 He
later filed a motion for new trial, which was denied. This
court affirmed that denial.8
McCants was, at all relevant times, an inmate at MCI-
Norfolk. The department recommended that McCants participate in
SOTP classes. In February, 2014, McCants refused to attend the
classes and subsequently lost his single cell housing
assignment, institutional job, and seniority9 with respect to
housing and job placement.
Discussion. 1. Standard of review. "We review the
allowance of a motion to dismiss de novo. . . . We accept as
true the facts alleged in the plaintiffs' complaint as well as
any favorable inferences that reasonably can be drawn from
7 See Commonwealth v. McCants, 65 Mass. App. Ct. 1121, S.C.,
447 Mass. 1102 (2006).
8 Commonwealth v. McCants, 83 Mass. App. Ct. 1129 (2013).
9 On March 5, 2014, McCants was assigned a seniority date of
March 5, 2014. On July 25, 2014, without explanation in the
record or in McCants's brief, he was given a new seniority date
of July 22, 2014. This does not affect our analysis.
6
them." Galiastro v. Mortgage Electronic Registration Sys., 467
Mass. 160, 164 (2014). To survive a motion to dismiss, a
plaintiff must include in the complaint factual allegations that
sufficiently "raise a right to relief above the speculative
level." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636
(2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007).
2. Due process. We construe some of Butler's claims to be
due process claims, i.e., that PES consequences imposed on him
denied him of liberty for which he should have been afforded due
process. We disagree. "The Fourteenth Amendment [to the United
States Constitution] prohibits any State from depriving a person
of life, liberty, or property without due process of law."
Meachum v. Fano, 427 U.S. 215, 223 (1976). A liberty interest
may arise from the Constitution itself, or it may arise from an
expectation or interest created by State laws or regulations.
See Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974). See also
Torres v. Commissioner of Correction, 427 Mass. 611, 617, cert.
denied, 525 U.S. 1017 (1998) ("Prison inmates have the
protections of procedural due process only if there is an
existing liberty or property interest at stake"). However, for
prisoners, liberty interests are generally limited to "freedom
from restraint which . . . imposes atypical and significant
hardship . . . in relation to the ordinary incidents of prison
7
life." Sandin v. Conner, 515 U.S. 472, 484 (1995).10 See
Wilkinson v. Austin, 545 U.S. 209, 221-223 (2005).
Thus, the Sandin standard requires us to determine whether
the PES "imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life." Sandin
v. Conner, supra. It does not. The due process clause itself
does not create a liberty interest in inmates having a room of
their choice, maintaining seniority in their housing
assignments, or keeping an institutional job. See id. at 484-
485. See also LaChance v. Commissioner of Correction, 88 Mass.
App. Ct. 507, 512 n.9 (2015) ("[L]oss of prison employment or
participation in the garden program does not implicate a liberty
or property interest"). Furthermore, nothing in the record
suggests that returning to a more "default" housing and
employment status is atypical of ordinary prison life, a
necessary prerequisite for a due process claim under Sandin.
Although Butler's decrease in seniority and loss of the single
Prior to Sandin, the Court had employed a methodology for
10
identifying State-created liberty interests that emphasized "the
language of a particular [prison] regulation" instead of "the
nature of the deprivation." Sandin v. Conner, supra at 481.
See Hewitt v. Helms, 459 U.S. 460, 469-472 (1983). In Sandin,
the Court criticized this methodology as creating a disincentive
for States to promulgate procedures for prison management, and
as involving the Federal courts in the day-to-day management of
prisons. Sandin v. Conner, supra at 482-483. As a result, the
Court abrogated the former methodology of parsing the language
of particular regulations in search of mandatory directives from
which a State-created liberty interest may have sprung. Id. at
483 & n.5.
8
room may have been a dramatic change in his circumstances, that
does not elevate his conditions to "the type of atypical,
significant deprivation in which a State might conceivably
create a liberty interest." Sandin v. Conner, supra at 486.
See Murphy v. Cruz, 52 Mass. App. Ct. 314, 319 (2001) ("The
plaintiff's temporary loss of canteen privileges and attendance
at the residents council's meeting are at most losses of
privileges that do not give rise to a liberty interest"). Also,
courts have repeatedly held that no liberty interest exists in
these incentives. See, e.g., DuPont v. Saunders, 800 F.2d 8, 10
(1st Cir. 1986) (no "property or liberty rights to either obtain
or maintain prison jobs"); Restucci v. Clarke, 669 F. Supp. 2d
150, 157 (D. Mass. 2009) ("There is . . . no constitutionally
protected right to a single-cell").
Nor does the PES "inevitably affect the duration of
[Butler's] sentence." Sandin v. Conner, supra at 487. Butler
has not been impermissibly incarcerated beyond his sentence, nor
was he denied parole solely as a result of PES consequences. On
the contrary, Butler was denied parole on January 4, 2012 --
roughly two years prior to the PES amendment and its effective
date of January 1, 2014 -- for denying his offenses, refusing to
participate in SOTP, and failing to demonstrate that he was
rehabilitated. He was again denied parole on January 10, 2014.
9
Butler is not scheduled for release until 2019.11 As in
Dominique v. Weld, were we to rule in favor of Butler on his
claims, "we would open the door to finding an 'atypical
restraint' whenever an inmate is moved from one situation to a
significantly harsher one that is, nonetheless, a commonplace
aspect of prison existence." Dominique v. Weld, 73 F.3d 1156,
1160 (1st Cir. 1996). We decline to do so.
To the extent that Butler alleges the department failed to
follow its internal procedures, stated in 103 Code Mass. Regs.
§ 420.09 (2007), in assessing his compliance with the SOTP, we
note that this section merely establishes the rules and
procedures related to classification of inmates "to determine
the status of an inmate's housing, program[,] and work
assignment within a correctional facility." 103 Code Mass.
Regs. § 420.06 (2007). These procedures must be followed when
an inmate undergoes a periodic internal classification status
review, which must occur regularly at predetermined intervals,
and not, as here, when a PES-initiated removal of certain
privileges occurs. Put another way, when Butler is
reclassified, these procedures will guide the department in
11Butler does not enjoy a liberty interest in being granted
parole, and he makes no such claim. See Greenholtz v. Inmates
of the Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979);
Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836 (1996).
10
assessing his housing, program compliance, and work assignment,
but were not required under the circumstances presented here.
3. Ex post facto. Butler next claims that PES
consequences are impermissible ex post facto laws. We disagree.
The United States Constitution prohibits States from passing ex
post facto laws. United States Constitution, art. I, § 10.
These include "[e]very law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the
crime, when committed." Miller v. Florida, 482 U.S. 423, 429
(1987), quoting from Calder v. Bull, 3 U.S. (3 Dall.) 386, 390
(1798). "[T]he proper focus of [the] ex post facto inquiry is
whether the relevant change 'alters the definition of criminal
conduct or increases the penalty by which a crime is
punishable." Dominique v. Weld, 73 F.3d at 1162, quoting from
California Dept. of Corrections v. Morales, 514 U.S. 499, 506
n.3 (1995). The prohibition against ex post facto laws
necessarily relates to punishment, and not "remedial" policies,
such as PES. See Lyman v. Commissioner of Correction, 46 Mass.
App. Ct. 202, 207 (1999). See also Opinion of the Justices to
the Senate, 423 Mass. 1201, 1220 (1996) ("[L]aws[ that]
rearrange rights so as to effect what is believed to be the
public good[] are described compendiously as regulatory or
remedial"). The stated goal of the PES program was to promote
public safety by incentivizing program compliance, not to punish
11
those who do not comply. PES consequences merely constitute a
change in Butler's conditions, and do not "inflict a greater
punishment than the law imposed for the same crime."12 Lyman v.
Commissioner of Correction, supra at 206, citing Dominique v.
Weld, supra at 1162.
4. Double jeopardy. To the extent that Butler alleges the
PES policy violates his right against double jeopardy, the claim
is without merit. "The double jeopardy clause of the Fifth
Amendment to the United States Constitution protects against a
second prosecution for the same offense, either after acquittal
or after conviction, and multiple punishments for the same
offense." Lyman v. Commissioner of Correction, supra at 207.
See Opinion of the Justices to the Senate, 423 Mass. at 1221-
1222. Butler's circumstances fit none of these categories. He
was not tried a second time for his offenses, and he did not
receive multiple punishments for the same offenses. Once
12Butler also argues that PES should not be applied
"retroactive[ly]" to him, because, he maintains, only the
regulations in place at the time of his sentencing should be
applied to him. Assuming such a principle could be applied to
internal department policies or practices, which seems doubtful,
we note that PES was not applied retroactively to behavior that
occurred prior to the implementation of PES. See Koe v.
Commissioner of Probation, 478 Mass. 12, 16 (2017) (a statute or
regulation is retroactive only when new legal consequences
attach to events completed before enactment). In any event,
were Butler to prevail on this claim, each inmate would be
subject to individualized regulations according to his
incarceration date. We defer to the department's assessment
that such a result would prove unworkable. See Cacicio v.
Secretary of Pub. Safety, 422 Mass. 764, 771-772 (1996).
12
convicted and sentenced as a sex offender, Butler was
recommended to participate in SOTP to decrease the likelihood
that he would recidivate. When he elected not to participate,
certain privileges were rescinded as a result. This was not
additional punishment for his crimes. See LaChance v.
Commissioner of Correction, 88 Mass. App. Ct. at 512-513.
Indeed, encouraging program participation by withholding
incentives from inmates who elect not to participate in sex
offender rehabilitation programs does not increase the penalty
for their crimes or extend the length of their overall
sentence.13 See Dominique v. Weld, 73 F.3d at 1162, citing
California Dept. of Corrections v. Morales, 514 U.S. at 506 n.3.
See also 103 Department of Correction regulations (DOC) § 400
(2014) "Program Access."
5. Eighth Amendment. Butler also claims that reassigning
him from a single room to a double, without any screening for
13To the extent Butler claims that the SOTP requires him to
admit his guilt, and that enforcement of the PES consequences
against him violates his right against self-incrimination under
the Fifth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights, the judge
properly determined that the claim is without merit. See Quegan
v. Massachusetts Parole Bd., 423 Mass. at 837-838, and cases
cited; Lyman v. Commissioner of Correction, 46 Mass. App. Ct. at
205 (requirement that prisoner admit that he is a sex offender
as part of treatment program implicates neither Federal nor
State privilege against self-incrimination). We note further
that in April, 2015, the department revised its policy to
provide that inmates are no longer required to admit guilt as a
condition of participating in the SOTP.
13
compatibility (presumably with his new cellmate), violated the
Eighth Amendment to the United States Constitution and art. 26
of the Massachusetts Declaration of Rights, which prohibit cruel
and unusual punishments. We disagree.
To prove a violation of the Eighth Amendment, Butler must
satisfy a demanding standard. "Because routine discomfort is
part of the penalty that criminal offenders pay for their
offenses against society, only those deprivations denying the
minimal civilized measure of life's necessities are sufficiently
grave to form the basis of an Eighth Amendment violation."
Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citation and
quotation omitted). To prove a "conditions of confinement"
claim under the Eighth Amendment, Butler must show (1)
conditions "sufficiently serious" as to "result in the denial of
the 'minimal civilized measure of life's necessities,'" Farmer
v. Brennan, 511 U.S. 825, 832, 834 (1994), quoting from Rhodes
v. Chapman, 452 U.S. 337, 347 (1981), and (2) that the
department acted with "deliberate indifference" to his health or
safety.14 Farmer v. Brennan, supra at 834.
14In both Butler's amended complaint and on appeal, he
failed to specify the basis for his otherwise unadorned Eighth
Amendment claim. In dismissing the complaint, the judge
properly determined that Butler insufficiently raised a
deliberate indifference claim. For substantially the same
reasons, we agree with the judge that, if construed as a
deliberate indifference claim, it would nonetheless fail. See
Hudson v. Commissioner of Correction, 46 Mass. App. Ct. 538, 548
14
"No static 'test' can exist by which courts determine
whether conditions of confinement are cruel and unusual."
Rhodes v. Chapman, supra at 346. Courts interpreting the Eighth
Amendment and art. 26 of our Declaration of Rights take a
flexible approach, deriving their "'meaning from the evolving
standards of decency that mark the progress of a maturing
society[,]' . . . as measured by objective standards." Michaud
v. Sheriff of Essex County, 390 Mass. 523, 527-528 (1983),
quoting from Libby v. Commissioner of Correction, 385 Mass. 421,
431 (1982). See Good v. Commissioner of Correction, 417 Mass.
329, 335 (1994). One such objective standard can be found in
State legislation and regulations governing the department and
its treatment of inmates. Michaud v. Sheriff of Essex County,
supra at 529-531.
With respect to Butler's claim, 103 DOC § 400.08 (2014)
addresses inmate housing cell assignments, including the use of
double occupancy cells and rooms. This regulation permits
double occupancy "where single cells are not . . . appropriate"
and requires the department to consider a series of guidelines,
which prioritize inmate safety, when authorizing such
(1999), S.C., 431 Mass. 1 (2000) (insufficient facts to show
"the defendants acted . . . with deliberate indifference to the
claimed unlawful conditions and that those conditions
constituted extreme deprivation and the unnecessary and wanton
infliction of pain grossly disproportionate to the severity of
his offense"). As addressed infra, we review additional grounds
for rejecting Butler's Eighth Amendment claim.
15
assignments.15 In fact, from our reading of the regulation,
double occupancy appears to be the norm, with single occupancy
reserved for inmates who are more vulnerable or who are likely
to present a risk of harm to others. Measured by this objective
standard, reassigning inmates to double occupancy cells is
acceptable. However, it is important to note that even if the
guidelines or regulations were violated, or if they ceased to
exist, such a circumstance would not itself constitute a "per
se" Eighth Amendment or art. 26 violation given the flexibility
of the standard to be applied. See Michaud v. Sheriff of Essex
County, 390 Mass. at 531.
Here, pursuant to the PES, Butler lost the privilege of
living in a single cell due to his choice not to participate in
the SOTP. These facts neither demonstrate nor allow an
inference that Butler has been denied "the minimal civilized
measure of life's necessities." Rhodes v. Chapman, 452 U.S. at
347. Nor can we infer from his complaint that he faces any
danger in his double cell assignment.16 Simply put, "the
These guidelines include an inmate's legal status,
15
whether the inmate is a new arrival and is thus provided
intensive supervision, the potential for predatory behavior
between cellmates, an inmate's own perception of the potential
for danger and conflicts with others, and any language barriers.
103 DOC § 400.08 (2014).
Assuming Butler's claim could be construed as an argument
16
that, categorically, sex offenders are more vulnerable than
other offenders, such that they should automatically be assigned
16
Constitution does not mandate comfortable prisons." Id. at 349.
See Wilson v. Seiter, 501 U.S. 294, 298 (1991). At bottom, as
the United States Supreme Court has held, requiring a prisoner
to share his cell with another inmate or multiple other inmates
does not constitute cruel and unusual punishment. Rhodes v.
Chapman, 452 U.S. at 349-352.
Various other arguments the plaintiffs presented on appeal
failed to cite to relevant legal authority or to their basis in
the record and, as such, do not rise to the level of appellate
argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921
(1975). They are therefore deemed to be waived. See Popp v.
Popp, 477 Mass. 1022, 1023 n.1 (2017).
Judgments affirmed.
a single room, that claim would similarly fail. Pursuant to 103
DOC § 400.08 (2014), single occupancy is permitted "when
indicated," as where the department determines it necessary by
its "classification system, medical diagnosis, or other
professional conclusions." The 2008 version of 103 DOC
§ 400.07, addressing "Inmate Protection," included sexual
predators as a category of inmates who "shall be" assigned
single rooms, but again, only "when indicated." This provision
was removed from § 400.07 in 2011. In any event, the department
is duty-bound to consider each inmate's special needs and
circumstances in assigning rooms to inmates. We decline to
strip the department of its ability to, in its discretion,
assess and utilize its resources most efficiently and
effectively.