Opinion
19-P-1667
10-22-2020
Bodhisattva SKANDHA v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, Norfolk.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Bodhisattva Skandha, brought this action against the defendant, in his official capacity, (i) seeking judicial review of the denial of his grievance, in which he challenged the seizure as contraband of drawings mailed to him by his sister, as well as the envelope in which the drawings had been sent, and (ii) asserting that the defendant had violated his constitutional rights, including his rights to due process and, under the First Amendment to the United States Constitution, by confiscating the drawings and the envelope. On cross motions for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), a judge of the Superior Court denied the plaintiff's motion and entered judgment for the defendant. We affirm.
Background. The following facts and history are undisputed. The plaintiff is an inmate at the Massachusetts Correctional Institution at Norfolk. On September 25, 2017, he was sent notification that "2 crayon colored pics" mailed to him from a specified address in Maine had been confiscated on the grounds that the "Item(s) [were] not authorized by 103 CMR 403, Inmate Property Policy." At the same time, the plaintiff was also provided with a form on which he could indicate whether he chose to have the confiscated property redirected or destroyed.
The sender was the plaintiff's sister.
The plaintiff filed first an informal complaint challenging the seizure as contraband of the drawings and the envelope in which they were sent, and, when the complaint was denied, a grievance on grounds identical to those set forth in his complaint. On November 14, 2017, the institutional grievance coordinator (IGC) denied the plaintiff's grievance, concluding that both the "homemade pictures" and "the envelope in which the content was received" were properly confiscated as contraband, and reiterated that the plaintiff should indicate how he would like to have the confiscated materials disposed of. On November 16, 2017, the plaintiff appealed the denial of his grievance to the defendant, arguing that the denial was not based on existing "policy or regulation," and that "no one has stated any legitimate government interest in not allowing me to have the colored pencil artwork from my sister." The defendant denied the appeal on December 26, 2017, noting that he "concur[red] with the IGC's response" to the plaintiff's grievance.
On January 18, 2018, the plaintiff sought judicial review of the denial of his grievance pursuant to G. L. c. 30A, § 14, and G. L. c. 127, §§ 38E - 38H. Pursuant to Superior Court Standing Order 1-96 (2016), the defendant filed, as his answer to the grievance appeal, a copy of the administrative record. After a hearing, a judge denied the plaintiff's motion for judgment on the pleadings, and allowed the defendant's cross motion. This appeal followed.
Discussion. On appeal, the plaintiff challenges the sufficiency of the evidence supporting the defendant's decision, and argues that his due process rights were violated by the defendant's failure to provide a reason for determining that the drawings were contraband, and that his rights under the First Amendment were infringed by the confiscation of the drawings. Our review is de novo. See UBS Fin. Servs., Inc. v. Aliberti, 483 Mass. 396, 405 (2019) ; Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 136 n.4 (2001).
In his brief, the defendant makes a passing reference to having "previously" argued that the plaintiff failed to exhaust his administrative remedies. Although we understand the defendant to refer to the argument in his opposition to the plaintiff's motion for judgment on the pleadings, the defendant does not provide any appellate argument on the issue, and, accordingly, we do not address it. See Foley v. Lowell Sun Publ. Co., 404 Mass. 9, 11 (1989) (appellate court may, but need not, consider issue not addressed by parties).
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1. Sufficiency of the evidence. We will not reverse the agency's decision if, based on the entire record, it is supported by substantial evidence. See Chadwick v. Board of Registration in Dentistry, 461 Mass. 77, 96 (2011). " ‘Substantial evidence’ means such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1 (6). The standard of review is "highly deferential to the agency, which requires ... according due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" (quotations and citation omitted). Friends & Fishers of the Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830, 836-837 (2006). See Carey v. Commissioner of Correction, 479 Mass. 367, 369 (2018), quoting Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010) ("A plaintiff challenging an agency interpretation [of its own regulation] has a ‘formidable burden’ "). Where an agency's interpretation of its own regulation is at issue, we defer to the agency's interpretation unless it is "arbitrary, unreasonable, or inconsistent with the plain terms of the rule." Carey, supra at 369-370, quoting Manor v. Superintendent, Mass. Correctional Inst., Cedar Junction, 416 Mass. 820, 824 (1994). We also defer to the agency's exclusive function of weighing the credibility of witnesses and resolving factual disputes. See Jordan v. Superintendent, Mass. Correctional Inst., Cedar Junction, 53 Mass. App. Ct. 584, 588 (2002).
In his grievance, the plaintiff complained that the confiscation of the drawings and envelope "appears to be a made-up ruling with no policy or regulation to support it." We are not persuaded.
The defendant's denial of the plaintiff's grievance appeal explicitly adopted the reasoning of the IGC in denying the grievance itself; the IGC's denial of the grievance implicitly adopted the denial of the plaintiff's informal complaint on the grounds that "[t]he entire correspondence was appropriately deemed contraband per the 103 CMR 481 Inmate mail policy." That section of the regulations: "establish[es] rules governing the sending and receiving of mail by inmates confined in state correctional institutions," 103 Code Mass. Regs. § 481.01 (2017) ; requires the inspection of "[a]ll incoming non-privileged correspondence" in order "to prevent the transmission of contraband to the inmate," 103 Code Mass. Regs. § 481.12(2) (2017) ; and permits the superintendent to authorize "disapproval of incoming non-privileged correspondence" for certain purposes, including, inter alia, to "prevent interference with institutional goals of security, order, discipline, or if the correspondence might facilitate ... criminal activity," including where "[t]he correspondence facilitates the introduction of contraband drugs, etc.," 103 Code Mass. Regs. § 481.13(2), (2)(h) (2017). While prohibiting "[d]isapproval of incoming, non-privileged correspondence ... based upon an employee's personal views about the correspondence," the regulations otherwise leave to the superintendent the determination of whether particular incoming, nonprivileged correspondence should be "disapprov[ed]" consistent with the foregoing provisions. 103 Code Mass. Regs. § 481.13(2) (2017).
Viewing the record in its entirety, we conclude that the defendant had the authority to disapprove incoming inmate mail based on concerns about institutional safety, and that he did so. The fact that the drawings and envelope did not contain any immediately apparent drugs is of no consequence. See Commonwealth v. Jessup, 471 Mass. 121, 131 (2015) (as "[t]he term contraband ... includes, in accordance with its ordinary meaning and usage, any item not approved for retention," inmate letter to another inmate still qualified as contraband despite fact that letter "did not contain any physical items such as drugs or weapons"). We are satisfied that the basis for the defendant's denial of the plaintiff's complaint was adequately explained through his endorsement of the IGC's determination. Given our deferential standard of review, we conclude that the evidence in the record was sufficient to support the defendant's denial of the plaintiff's grievance.
2. Due process. "The due process rights of inmates are limited by the fact of confinement as well as by the legitimate goals and policies of the penal institution." Rasheed v. Commissioner of Correction, 446 Mass. 463, 477 (2006), citing Bell v. Wolfish, 441 U.S. 520, 545–546 (1979). Prison administrators are " ‘accorded wide-ranging deference’ in the ‘adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ " Champagne v. Commissioner of Correction, 395 Mass. 382, 387 (1985), quoting Bell, supra at 547. Their interest in preventing the introduction of illicit drugs into a correctional facility is clear. See 103 Code Mass. Regs. § 481.13(2) ; Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 772 n.12 (1996) (upholding regulation monitoring inmate phone calls that incontestably demonstrated "good results" in foiling attempts to smuggle drugs into prison facility).
Here, the plaintiff was notified that the drawings and envelope had been disapproved as contraband; he was afforded an opportunity to direct the manner of their disposal, including the option to have the items directed to someone else, and was given a reasonable opportunity to appeal the decision. As we have discussed, we conclude that the plaintiff was provided an adequate explanation for the disapproval of the drawings and envelope. Under these circumstances, the agency did not violate the plaintiff's due process rights in disapproving and declining to deliver the drawings and envelope to the plaintiff. See Procunier v. Martinez, 416 U.S. 396, 418-419 (1974) ; Champagne, 395 Mass. at 393-394.
3. First Amendment. "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Champagne, 395 Mass. at 386, quoting Pell v. Procunier, 417 U.S. 817, 822 (1974). As we note, supra, however, inmates' retained rights are limited; "even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security." Champagne, supra at 387, quoting Bell, 441 U.S. at 545–547.
Massachusetts has adopted the "deferential standard of scrutiny for the review of regulations and policies in the prison context that infringe on free speech rights under the First Amendment" set out in Turner v. Safley, 482 U.S. 78, 89 (1987). Jessup, 471 Mass. at 130 & n.19. See Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 220 (2017). In light of this standard, a policy of confiscating inmate mail does not offend the First Amendment if it is "reasonably related to legitimate penological interests." Id., quoting Jessup, supra at 130-131 (considering prison policy authorizing censorship of inmate mail).
In his brief, the plaintiff appears to concede that the policy here is reasonable as applied to the drawings, stating, "The defendant may be allowed to take away the plaintiff's right to receive colored pencil drawings from his family in order to run the prison more safely and smoothly." On that point, we agree with the plaintiff. However, we see no essential distinction under the policy between the drawings and the envelope in which they were mailed. As to both, we conclude that the mail policy applied to the plaintiff was reasonably related to the legitimate penological interests of preventing the introduction of drugs into the facility. See Ecker, 92 Mass. App. Ct. at 220.
Any remaining arguments raised by the plaintiff do not require further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.