Opinion
19-P-242
07-07-2020
JOHN DUTCHER v. COMMISSIONER OF CORRECTION & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Dutcher, an inmate at the Massachusetts Correctional Institution-Norfolk (MCI-Norfolk), appeals from a Superior Court judgment dismissing, on the parties' cross motions for judgment on the pleadings, his complaint against various officials of the Department of Correction (DOC) seeking a declaratory judgment and judicial review of a DOC grievance decision. We affirm the judgment of dismissal.
Contrary to Dutcher's claim on appeal that his complaint sought only a declaratory judgment, the first sentence of his complaint also requested relief under G. L. c. 127, § 38H, which provides for judicial review of final administrative decisions on inmate grievances, and under G. L. c. 30A, § 14.
Background. In 1989, Dutcher was convicted of various sex offenses, including two separate charges of aggravated rape, and was sentenced on the second aggravated rape charge to a term of incarceration of twenty to forty years that was to be served concurrently with other sentences, including a term of twenty to forty years on the first such charge. Dutcher was also civilly committed as a sexually dangerous person (SDP). In 2011, after a jury found that he was no longer sexually dangerous, he was discharged from his civil commitment to begin serving his criminal sentences. DOC thereafter determined that although Dutcher's security classification score qualified him for a minimum security facility, he nonetheless was required to be committed to a medium security facility under DOC's "Code C" nondiscretionary override policy.
Under the policy as in effect at the relevant time, "[n]o inmate who is subject to civil commitment pursuant to M.G.L. c. 123A shall be classified lower than level four in the absence of notification that the District Attorney does not intend to petition for civil commitment."
In late 2013, Dutcher achieved seniority status at MCI-Norfolk, which obtained him certain privileges, including a single-inmate cell. However, after he refused to participate in a recommended, but voluntary, sex offender treatment program (SOTP) in early 2014, DOC revoked his seniority status; he also lost his single-inmate cell.
Dutcher subsequently filed a grievance seeking restoration of his seniority status and his single-inmate cell, in addition to the removal of the "Code C" override on his security classification. DOC denied the grievance regarding seniority and housing, but it did not address the security classification issue. Dutcher appealed, and DOC affirmed the denial of the grievance. This decision, and the issue regarding Dutcher's security classification, constitute the basis for the relief he requested in the complaint at issue here.
Security classification. To the extent that Dutcher challenges DOC's decisions regarding his classification level, he failed to follow the proper procedure for doing so. Classification decisions are not grievable, but are subject to a separate administrative appeal process, which Dutcher did not invoke. See 103 Code Mass. Regs. §§ 420.08(3)(h)-(i) (2007); 103 Code Mass. Regs. § 491.08(1) (2001). Because classification decisions are not grievable, no judicial review under G. L. c. 127, § 38H (providing for judicial review of grievance decisions), or G. L. c. 30A, § 14, is available. Nor is such an individualized quasi adjudicatory decision reviewable in a declaratory judgment action. See Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 725 (2016). Rather, because neither chapter 30A nor any other statute provides for judicial review, the motion judge correctly ruled that the appropriate vehicle by which Dutcher could obtain judicial review of the classification decision is an action in the nature of certiorari under G. L. c. 249, § 4. See Frawley, supra at 725-726. Cf. McLellan v. Commissioner of Correction, 29 Mass. App. Ct. 933, 934 (1990) (DOC disciplinary decisions are reviewable through action for certiorari relief).
A certiorari action "lies only where the petitioner has exhausted all administrative remedies." Carney v. Springfield, 403 Mass. 604, 605 (1988). Here, Dutcher's available administrative remedy was to appeal to the Commissioner of Correction or her designee, see 103 Code Mass. Regs. §§ 420.08(3)(h)-(i), and his failure to do so regarding his 2014 classification forecloses certiorari. Moreover, even if he had exhausted that remedy, he failed to file his complaint in court within sixty days of DOC's final decision, as the certiorari statute requires. See Pidge v. Superintendent, Mass. Correctional Inst., Cedar Junction, 32 Mass. App. Ct. 14, 17-18 (1992).
Although the security classification issue is not properly before us, we note that a prisoner "enjoys no constitutionally protected interest in his expectation of a lower security status." Lyman v. Commissioner of Correction, 46 Mass. App. Ct. 202, 205 (1999).
Grievance denial. We review inmate grievance appeals under G. L. c. 30A, § 14. See Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 130-132 (2013). To obtain relief, the party seeking review of the agency decision must show that his "substantial rights" have been prejudiced by some error in that decision. G. L. c. 30A, § 14 (7). Dutcher has not done so.
That DOC withheld privileges to induce Dutcher's participation in the SOTP does not mean that he was forced to participate in it. See Butler v. Turco, 93 Mass. App. Ct. 80, 81-82 (2018). "Although [his] decrease in seniority and loss of the single 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.'" Butler, supra at 84, quoting Sandin v. Conner, 515 U.S. 472, 486 (1995). Nor does the withholding of such privileges constitute punishment. See Butler, supra at 85-86.
The judge's decision indicates that DOC acted pursuant to a policy, 103 DOC 446.04(7), providing that "[i]n an effort to enhance program compliance, sex offenders who refuse to participate in the SOTP may be subject to the loss of a job, housing and seniority." Although no copy of that policy is in the record before us, Dutcher does not challenge the existence of the policy during the time at issue.
We are not persuaded by Dutcher's argument that because he was found in 2011 to no longer be an SDP, he is exempt from having his privileges revoked for failing to participate in the SOTP. The 2011 adjudication does not mean he completed, or is deemed to have completed, the SOTP. It means only that the Commonwealth failed to persuade the finder of fact that Dutcher remained an SDP. Moreover, attached to Dutcher's complaint was a letter from one of the defendants, DOC's director of program services, informing Dutcher that a review of Dutcher's evaluations "indicates that you did not complete sex offender treatment while you were civilly committed as [an SDP]." Evaluations attached to the complaint stated that Dutcher received an "Incomplete" in his "Cognitive Distortions II" class and a "Did not pass" in his "Relapse Prevention II" class. Dutcher has not shown that his grievance was improperly denied.
"Unless the trier of fact finds that such person remains a sexually dangerous person, [the court] shall order such person to be discharged from the treatment center." G. L. c. 123A, § 9. "Sexually dangerous person" is defined in G. L. c. 123A, § 1, without reference to whether a person has completed any particular course of treatment.
Declaratory relief. Dutcher's claim for a declaration that he cannot be adjudicated as an SDP in the future fails because, among other reasons, he did not name all necessary parties as defendants. See Service Employees Int'l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 338 (2014) ("The failure to name necessary parties may be jurisdictional in a declaratory judgment action, thereby precluding the court's consideration of the issue"). It remains the case that, before Dutcher's release from incarceration, if either the relevant district attorney or the Attorney General "determines that the prisoner . . . is likely to be [an SDP]," he or she is entitled to "file a petition alleging that the prisoner . . . is [an SDP]," thus triggering the judicial procedures for determining whether Dutcher is an SDP. G. L. c. 123A, § 12 (b). The relevant district attorney and the Attorney General thus have an "interest which would be affected by the declaration" Dutcher seeks, and must be named as parties in any action seeking such a declaration. G. L. c. 231A, § 8. In their absence, as the judge ruled, he had no jurisdiction to reach the merits of Dutcher's declaratory judgment claims, and thus he properly dismissed them.
Dutcher argues that he cannot be so classified and thus that the "Code C" override, see note 3, supra, cannot be applied to him.
We decline to consider the claims in Dutcher's complaint that G. L. c. 123A, § 12, amounts to a bill of attainder as applied to him and is void for vagueness, as neither point is argued in his appellate brief. For the same reason, we do not address the claim that Dutcher was threatened, coerced, and intimidated in an attempt to have him participate in the SOTP.
Although Dutcher is correct in differentiating himself from the prisoner in Commonwealth v. Chapman, 444 Mass. 15 (2005), that decision does not insulate him from the filing of a petition under G. L. c. 123A, § 12 (b), while he remains incarcerated. In Chapman, although the prisoner had been determined in 1991 to be no longer sexually dangerous, his later conduct while in prison was held a sufficient basis for the Commonwealth to seek a new SDP determination shortly before his anticipated release. Id. at 18, 23-24. Here, so far as the record before us shows, the Commonwealth has not determined whether Dutcher has engaged in conduct warranting a new SDP petition, nor is it clear that Dutcher's anticipated release date is near. Nevertheless, Dutcher would still appear to be subject to Chapman's holding that "neither the doctrine of collateral estoppel nor substantive due process prevents a judge from determining whether probable cause exists to find that [such a prisoner] (many years later) is presently a sexually dangerous person on a showing of sufficient facts." Id. at 22.
Judgment affirmed.
By the Court (Sacks, Wendlandt & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 7, 2020.