Opinion
14-P-806
10-29-2015
JOHN MCCABE v. COMMISSIONER OF CORRECTION.
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 appeals from the dismissal of his amended complaint seeking, at its core, a transfer from the Massachusetts Correctional Institution at Shirley (MCI-Shirley) to the Massachusetts Treatment Center (treatment center). We affirm.
After the plaintiff's transfer request was denied by the Commissioner of Correction (commissioner) in 2012, he filed a complaint in Superior Court challenging, among other things, that denial. The plaintiff then filed a petition for like relief with the single justice of the Supreme Judicial Court, who transferred the petition to the Superior Court for consolidation with the pending complaint. See McCabe v. Commissioner of Correction, 465 Mass. 1001 (2013). That petition effectively was subsumed in the plaintiff's subsequent amended complaint. The commissioner then filed a motion to dismiss the amended complaint, which the motion judge allowed as to each count except for the plaintiff's claim challenging the 2012 transfer denial. The judge dealt with that claim as "subject to judicial review in the nature of certiorari, pursuant to G. L. c. 249, § 4," and did not dismiss it. The parties then filed cross motions for judgment on the pleadings concerning the transfer denial claim. The motion judge ruled that the commissioner did not commit an abuse of discretion in denying the transfer request. Judgment then entered dismissing the amended complaint. The plaintiff's notice of appeal designates only the denial of his motion for judgment on the pleadings as the subject of the appeal; we therefore need not review the ruling on the motion to dismiss. See Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999); Robinson v. Boston, 71 Mass. App. Ct. 765, 771 (2008).
The plaintiff is serving a life sentence for convictions including murder in the second degree and rape of a child. In 1986 he was adjudicated a sexually dangerous person under the then-existing G. L. c. 123A, § 6. In 1989, following a long history of institutional violence, the plaintiff briefly escaped from the treatment center. After being captured, he was transferred to a correctional facility. He currently is incarcerated at MCI-Shirley.
In 1991, after his escape from the treatment center and transfer to a correctional facility, the Supreme Judicial Court ordered that the plaintiff be returned to the treatment center because the commissioner did not have the authority, at that time, to transfer the plaintiff to a correctional facility. See Commissioner of Correction v. McCabe, 410 Mass. 847, 851-853 (1991). However, a short time thereafter, the Legislature enacted G. L. c. 123A, § 9A, which authorized the commissioner to petition the Superior Court to transfer an inmate from the treatment center to a correctional facility if he either was dangerous or posed a risk of escape. The plaintiff was transferred back to a correctional facility by a 1992 order on a G. L. c. 123A, § 9A, petition and has remained incarcerated in correctional facilities since that time. In 1994, the Legislature repealed G. L. c. 123A, § 9A, replacing it with G. L. c. 123A, § 2A, which provided a similar transfer procedure with additional protections for inmates, including the right to access voluntary treatment services and an annual review of the inmate's current sexual dangerousness. In addition to the procedure under § 2A, the commissioner promulgated regulations establishing a transfer board to conduct hearings and make recommendations on transfers. See 103 Code Mass. Regs. §§ 460.00 (2004). In 2012, after the transfer board recommended that the plaintiff be transferred to the treatment center, the commissioner's designee rejected the recommendation and the plaintiff remained incarcerated at MCI-Shirley.
We conclude that in dismissing the plaintiff's complaint and affirming his transfer denial, the motion judge properly analyzed and rejected the plaintiff's complaint, and correctly treated his challenge to the denial of his transfer request as an action in the nature of certiorari. See G. L. c. 249, § 4. Furthermore, the plaintiff's challenge to the statutory and regulatory framework authorizing transfers of inmates from the treatment center to correctional facilities is unavailing. He was appropriately transferred to a correctional facility pursuant to G. L. c. 123A, § 9A, and although that statute has since been replaced by G. L. c. 123A, § 2A, his incarceration remains valid.
Similarly, the plaintiff's various challenges to previous transfers were appropriately dismissed as either being time barred or litigated to conclusion.
The plaintiff's "separation of powers" argument miscomprehends that statutory framework and was properly dismissed both for that reason and because the claim was time barred. In the same way, there is nothing in the record to support his argument that the administrative record submitted to the Superior Court was incomplete. The plaintiff's claim that 103 Code Mass. Regs. §§ 460.00 (2004) impose a notice requirement is meritless, as the plain language of the regulations impose no such requirement. Lastly, the motion judge properly dismissed the plaintiff's "deliberate indifference" claim, to the extent he asserted one, because he did not allege that his physical or mental health required sex offender treatment, but only that he needed to complete the treatment to secure a better chance at receiving parole.
In sum, we discern no error in either the commissioner's refusal to transfer the plaintiff or the motion judge's dismissal of his claims and grant of judgment on the pleadings.
Judgment affirmed.
By the Court (Cypher, Berry & Grainger, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 29, 2015.