Opinion
14-P-591
12-03-2015
MICHAEL L. LARKIN v. COMMISSIONER OF CORRECTION & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The plaintiff, Michael L. Larkin, is an inmate housed at the Massachusetts Treatment Center (MTC) serving sentences on his convictions of three counts of indecent assault and battery on a child under the age of fourteen.
In February, 2012, the plaintiff filed an action in the Superior Court against four Department of Correction (DOC) employees. In an amended complaint, he alleges that he was denied access to a work program because of his disability; subjected to retaliation by the defendants because of his filing grievances; and refused a reasonable accommodation for his disability, which would have otherwise enabled him to participate in the work program and, thus, earn "good-time" credit against his criminal sentence. The plaintiff essentially claims that, by these acts and omissions, the defendants violated both the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12112 et seq., and administrative regulations promulgated by DOC.
In July, 2012, the defendants filed a motion to dismiss, or in the alternative, for summary judgment. At the motion hearing held in January, 2013, the defendant filed an opposition to the defendant's motion in which he essentially identified the grievances for which he sought judicial review. A judge allowed the defendants' motion in part, and ordered that the case proceed under G. L. c. 249, § 4, as a review of the legality of those grievances identified in the plaintiff's opposition. The judge further ordered that DOC file the administrative record with the court and that the parties submit motions for judgment on the pleadings. DOC filed a partial administrative record.
The motion judged erred in ruling that the case was to proceed under G. L. c. 249, § 4. See Grady V. Commissioner of Correction, 83 Mass. App. Ct. 126, 130-131 (2013). "An inmate grievance involves a challenge to a DOC regulation or policy and appeals from such decisions are governed by G. L. c. 127, § 38H." Id. at 130. As such, a final decision of an inmate grievance is subject to judicial review in accordance with the process set out in G. L. c. 30A, § 14. Id. at 132. "On the other hand, an inmate disciplinary appeal involves a challenge to a DOC determination in an official disciplinary proceeding, and appeals are governed by the certiorari statute, G. L. c. 249, § 4." Id. at 131.
Based on DOC's representation that the presentment requirement applied to claims arising under the ADA, the motion judge determined that the only available remedy was certiorari. See note 2, supra. The presentment requirement is a creature of State law under the Massachusetts Tort Claims Act, G. L. c. 258, § 4, and is inapplicable to the ADA. The DOC acknowledged at oral argument that it had not supplied a record that was complete with respect to the plaintiff's disability, medical certifications, and grievance appeals, because the ADA claim was dismissed during the January, 2013, hearing. In the event that the plaintiff pursues his claims under G. L. c. 30A, § 14, DOC should file a complete administrative record.
Subsequently, the parties filed cross motions for judgment on the pleadings. After a hearing in December, 2013, in which the plaintiff participated, a different judge allowed the defendants' motion and dismissed the amended complaint. The judge reasoned that, as a prison inmate, the plaintiff did not have an unqualified right to work, citing Jackson v. Hogan, 388 Mass. 376, 379 (1983), but rather only had a right to be eligible to participate in available correctional facility programs, a right conditioned on and "subject to the DOC's valid penological concerns." The judge concluded that DOC's decisions were supported by relevant evidence in the record and determined there was "no evidence" to show that the defendants had "acted unjustly" in making decisions respecting plaintiff's employment requests. The plaintiff appeals from the resulting judgment in favor of the defendants.
Background. We briefly outline the fact-based allegations of the amended complaint, which must be accepted as true, in view of the procedural posture here. See Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002); Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 597 n.5 (2010).
The plaintiff moved to file an "Amended and Supplemented Complaint." No action was taken on that motion; the amended and supplemented complaint, among other things, alleges a denial of an extra supply of hygiene items (toilet paper) in violation of the Eighth and Fourteenth Amendments to the United States Constitution, G. L. c. 127, § 32, and certain (unspecified) DOC regulations.
The plaintiff sought an institutional job in order to earn good time credits, and requested a job which he could perform with a disability, because he has physical limitations and walks with a cane. He alleges that one of defendants, a correctional officer, has repeatedly told him that he would not give him a job because he walks with a cane, refused to give him additional toilet paper necessitated by a medical condition, and stated that he "did not 'give a shit'" about the plaintiff's "medical problems." The plaintiff further alleges that his cane has since been taken away.
The plaintiff filed written grievances with DOC officials, asserting that he had been denied a job in prison because of his disability. The plaintiff claims that he was denied a reasonable accommodation that would have enabled him to participate in the work program, even with his disabling condition. He sought an accommodation. DOC officials denied the grievances. He further alleged that DOC officials retaliated against him by taking away his cane and denying him toilet paper on account of filing the grievances regarding his disability.
At some point the plaintiff obtained a paying job with the canteen corporation, a DOC vendor, but later quit allegedly so that he could be considered indigent and receive free postage.
On appeal the plaintiff argues that the ADA and controlling case precedent require that the judgment be vacated and that he be allowed to go forward in the Superior Court on his discrimination-based ADA claim. We agree.
Standard of review. We review de novo a judge's order allowing a motion for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 756 (1974). See Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. at 600; Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013). "A defendant's rule 12(c) motion is 'actually a motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which relief can be granted.'" Jarosz v. Palmer, 436 Mass. at 529, quoting from Smith & Zobel, Rules Practice § 12.16 (1974). We inquire here whether the amended complaint is sufficient to "raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965 (2007).
Analysis. It has long been the law and remains so that a prison inmate "does not have an unqualified right to work and to receive the attendant benefits." Jackson v. Hogan, 388 Mass. at 379. The plaintiff concedes as much. As a balancing principle, a prison inmate "as of right 'shall be eligible to participate in programs available within correctional facilities.'" Ibid., quoting from 103 Code Mass. Regs. § 467.07(1) (1981). The ADA has since altered somewhat the legal landscape for State prisons.
An inmate's interest in employment is neither a "protected liberty interest" nor a "property right entitled to protection under the due process clause." Murphy v. Cruz, 52 Mass. App. Ct. 314, 318-319 (2001).
The Supreme Judicial Court stated that these "programs may provide educational, training, or employment opportunities." Jackson v. Hogan, 388 Mass. at 379.
Title II of the ADA mandates that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (2012). The term "public entity" is defined by the ADA to include "any State or local government" and "any department, agency, . . . or other instrumentality of a State." 42 U.S.C. § 12131(1) (2012). The United States Supreme Court has held that, for purposes of the ADA, a "public entity" encompasses a State prison. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1998); United States v. Georgia, 546 U.S. 151, 157 (2006). Accord Shedlock v. Department of Correction, 442 Mass. 844, 846-859 (2004) (case involving an aggrieved inmate who had difficulty walking and appealed disciplinary rulings claiming that he had been subject to retaliatory actions for his having sought an accommodation for his disability).
Drawing from his fact-based allegations, and reasonable inferences therefrom, we determine that the plaintiff has raised a plausible claim upon which relief may be granted to him; that claim, simply put, being that DOC officials have excluded him from "participation in or . . . denied [him] the benefits of . . . [MTC's] services, programs, or activities" -- i.e., work program for inmates to earn good-time credit -- in violation of the ADA. 42 U.S.C. § 12132.
Accordingly, so much of the judgment as dismisses the plaintiff's ADA claim is hereby vacated and is remanded to the Superior Court for further proceedings consistent with this memorandum and order. In all other respects the judgment is affirmed.
Given our limited holding, we leave it to the judge on remand to determine whether to grant the plaintiff leave, pursuant to Mass.R.Civ.P. 15, 365 Mass. 761 (1974), to file and serve his "Amended And Supplemented Complaint." See note 4, supra.
So ordered.
By the Court (Vuono, Rubin & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 3, 2015.