Opinion
13-P-1889
12-10-2014
ALEX J. REIS v. COMMISSIONER OF CORRECTION.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff, Alex J. Reis, appeals from the dismissal of his complaint against the Commissioner of Correction (Commissioner) pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). On appeal, Reis contends that the judges erred in (1) dismissing his complaint, as the Commissioner had violated G. L. c. 127, § 129D, as amended in 2012, when she declined to award Reis the increased earned good time (EGT) credits he was entitled to; (2) denying Reis leave to file his second amended complaint; and (3) failing to declare the rights of the parties pursuant to G. L. c. 231A. We affirm.
Different judges ruled on Reis's motion for leave to file a second amended complaint and the Commissioner's motion to dismiss.
1. Background. On August 2, 2012, Governor Deval Patrick signed into law Chapter 192 of the Acts and Resolves of 2012, which amended G. L. c. 127, § 129D. Section 129D gives the Commissioner discretionary power to grant additional EGT credits for a prisoner's satisfactory participation in certain programs. As relevant here, the amendment increased the limits on monthly EGT credits from 2.5 days to five days per program and from 7.5 to ten days total. St. 2012, c. 192, § 33.
2. Motion to dismiss. "We review the allowance of a motion to dismiss de novo, accepting as true all well-pleaded facts in the complaint and favorable inferences drawn therefrom." Cook v. Patient Edu, LLC, 465 Mass. 548, 549 (2013). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Here, Reis contends that the language in § 129D requires that the Commissioner award the full amount of monthly EGT credits allowed by the statute (five days per program, ten days total). We disagree for substantially the reasons set forth in the judge's well-reasoned memorandum of decision.
"Although some leniency is appropriate in determining whether a pro se complaint meets the requirements of [the rules of civil procedure] . . . the rules bind a pro se litigant as they bind other litigants." Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985). Here, we note that the pro se litigant demonstrated a commendable grasp of procedural and substantive requirements and submitted a thoughtful brief.
First, the plain and unambiguous language of § 129D gives the Commissioner the discretionary power to award EGT credits. See Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008) ("Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent"). Nothing in the 2012 amendment changes this. To the contrary, the amendment did not disturb the language indicating that the award of EGT credits is discretionary: "the commissioner may grant . . . a further deduction of sentence of not more than 5 days per program . . . ; provided, however, that in no event shall said deductions exceed a maximum monthly total of 10 days." G. L. c. 127, § 129D, as amended by St. 2012, c. 192, § 33 (emphasis supplied). Moreover, we have consistently interpreted § 129D as "unambiguously giv[ing] the commissioner discretion whether or not to award [EGT] credits." Piggott v. Commissioner of Correction, 40 Mass. App. Ct. 678, 684 & n.6 (1996). See, e.g., Commonwealth v. DeWeldon, 80 Mass. App. Ct. 626, 632 (2011). Accordingly, construing all factual allegations and inferences therefrom in favor of Reis, we conclude that the judge properly dismissed his complaint under rule 12(b)(6).
3. Leave to amend the complaint. Similarly unpersuasive is Reis's contention that the judge abused his discretion by denying Reis leave to file his second amended complaint. First, Reis's proposed due process claims are without merit because "[t]here is no constitutional right to good time credits" until the Commissioner actually awards them. Haverty v. Commissioner of Correction, 440 Mass. 1, 5 (2003). See Commonwealth v. DeWeldon, supra at 632-633 & n.10 ("The distinction is the difference between an expectancy and an entitlement). Moreover, Reis's equal protection claims are similarly meritless because he failed to allege specific instances where similarly-situated prisoners were treated differently, or facts indicating that the other prisoners were, in fact, similarly-situated. See Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 376 (2006) ("Plaintiffs who claim an equal protection violation must 'identify and relate specific instances where persons situated similarly 'in all relevant aspects' were treated differently . . .'") (citations omitted); DuPont v. Commissioner of Correction, 448 Mass. 389, 399 (2007). Indeed, Reis's equal protection claims are utterly conclusory. Because Reis's proposed amendments were futile, the judge did not abuse his discretion by denying Reis leave to file a second amended complaint. See Jessie v. Boynton, 372 Mass. 293, 295 (1977) ("[A] judge properly may deny a motion to amend because the complaint as amended would fail to state a claim on which relief could be granted"); All Seasons Servs., Inc. v. Commissioner of Health & Hosps., 416 Mass. 269, 272 (1993).
4. Declaration under G. L. c. 231A. Finally, we reject Reis's claim that the judge erred in not declaring the rights of the parties pursuant to G. L. c. 231A. "'When an action for declaratory relief is properly brought and relief is denied on the merits, the action should not be dismissed,' and the rights of the parties should be declared. However, action on a motion to dismiss under rule 12(b)(6) does not relate to the merits." Wallerstein v. Bar Examrs., 414 Mass. 1008, 1009 (1993), quoting from Attorney Gen. v. Kenco Optics, Inc., 369 Mass. 412, 418 (1976). See Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 748 n.5 (2006). Accordingly, the judge was not required to declare the rights of the parties.
Other arguments advanced by Reis have not been overlooked. We have considered them and find them meritless. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: December 10, 2014.