Opinion
20-P-521
06-08-2021
Thomas SMITH v. Clare B. WHEATLEY & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Thomas Smith, an inmate at Old Colony Correctional Center in Bridgewater (OCCC), appeals from a Superior Court judgment dismissing his complaint under G. L. c. 127, § 38H, and G. L. c. 30A, § 14, against various employees of the Department of Correction (DOC) and affirming the DOC's decision denying his grievance. Concluding that the DOC's decision was arbitrary and capricious, we vacate the judgment and remand the matter for entry of a new judgment and further proceedings.
Background. The administrative record filed by the DOC shows that in or about September of 2017, Smith was transferred to OCCC from MCI-Concord, where he had been permitted to possess a number of "magic cards." The plaintiff described the cards as "a therapeutic/educational/fundamental game" that is "not a threat to security nor a device ... which can be used to gamble nor has there ever been an issue with this game in regards to fights." The record includes a copy of one side of a card; it bears an illustration and the printed notations, "Deathtouch. Other [z]ombie creatures you control get +1/+1. Whenever another [z]ombie you control dies, target opponent loses 1 life. Though its mind has long since rotted away, it wields a sword with deadly skill."
The plaintiff's complaint refers to the cards as "Magic the Gathering Playing Cards."
Upon being transferred to OCCC, Smith's cards were not returned to him. In October of 2017, Smith filed an "informal complaint form" seeking the return of the cards, stating among other things that they had helped him in the mental health treatment he had undergone at MCI-Concord. The complaint form was returned to him with the notation, "Denied," and the explanation that "according to [p]roperty [d]epartment [p]olicy, [m]agic [c]ards are contraband and so you cannot possess them."
Smith then filed a formal grievance seeking the return of the cards. The grievance stated that Smith purchased the cards while at MCI-Concord, had kept the receipts for them, and had possessed them there for over four years. In the space on the grievance form asking inmates to list any action already taken to resolve their grievances, Smith wrote, "I wrote to the superintendent, filed an informal, spoke[ ] to property[.] [E]ach answer I got wasn't consistent with the other[s] [and the] reason wasn't with [ ]merit[.]" Smith further stated, "I find no just reason why I'm unable to have my property seeing how I've come [from] one [l]evel (4) [institution] to another [l]evel (4) [institution] which is also DOC and falls under the same guidelines .... Reasoning isn't just to warrant it to become contraband seeing how it's allowed in MCI Concord, MCI Norfolk, MCI Gardner." The institutional grievance coordinator (IGC) denied the grievance with the explanation, "In accordance with 103 [Code Mass. Regs. §] 403 [(2017)], these items have been deemed contraband."
Smith appealed from the denial to the superintendent of OCCC, whose decision was as follows: "Denied; I concur with IGC." Smith further appealed to the DOC's department grievance manager, who "support[ed] the [s]uperintendent's decision to deny [the] grievance. Magic [c]ards are deemed contraband in accordance with 103 DOC 403, Inmate Property."
Because the DOC has not otherwise identified any rule or policy referred to as "103 DOC 403," we assume that the intended reference was to 103 Code Mass. Regs. § 403, entitled "Inmate Property."
In December of 2017, Smith sought judicial review of the denial of his grievance. When the DOC filed the record of administrative proceedings, it included several pages that Smith claimed he had not seen before. One page consisted of what appeared to be notes typed at the time the IGC was processing the grievance. The notes stated, "checked with property[;] magic cards are not allowed and should not have been sent here[;] they are being held as contraband."
The notes also referred to attachments entitled "Inmate Property Committee Discussion Record Details" and appearing to consist of electronic messages exchanged on the "DOC Intranet" by personnel at various DOC institutions. One of the attachments, from the period from September to October 2016 (a year before the dispute with Smith arose), set forth the inquiry, "Does anyone still allow magic cards to come into the institutions?" One response was, "No, we do not allow cards or games since they are not an approved game." Another was, "They are allowed in Concord.... I believe at the [t]ime Superintendent Russo asked someone regarding this and was told they were allowed. I believe due to Dung[eons] and Dragons hav[ing] been allowed." A third response was, "Wow, I cannot believe that these issues still arise in 2016. Magic cards were never ‘allowed.’ Dungeons and [D]ragons books are permissible because it is a publication and you cannot censor reading materials. Any game pieces inside those books are not allowable."
The final page that Smith claimed he had never seen before was a copy of a September 22, 2014, letter from an assistant deputy commissioner of the DOC to an inmate at MCI-Norfolk. The letter stated that the inmate property committee had considered the inmate's "request to place the card game Magic on the approved property list. After consideration, the [c]ommittee voted to deny [the] request at this time. There is an assortment of games as well as playing cards currently available for inmates to purchase through the commissary."
A Superior Court judge, ruling on cross motions for judgment on the pleadings, upheld the DOC's decision denying Smith's grievance. This appeal followed.
In doing so, the judge rejected Smith's argument that there existed a clause in the DOC's regulations or policies that allowed Smith to retain his cards after being transferred to OCCC because he was permitted to possess them at MCI-Concord. The judge also rejected Smith's due process claim. We see no error in the judge's resolution of those claims. In addition, Smith argues that the DOC's refusal to return the cards violated his rights under the First Amendment to the United States Constitution. This argument was not made either to the DOC or the judge and thus we decline to consider it for the first time on appeal. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983).
Discussion. An appellate court reviewing a Superior Court's ruling under G. L. c. 30A, § 14, "is conducting an analysis of the same agency record, and there is no reason why the view of the Superior Court should be given any special weight. Both in the Superior Court and in [the appellate] court the scope of review is defined by G. L. c. 30A, § 14." Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 377 Mass. 897, 903 (1979) (citations omitted). The statute authorizes the reviewing court, among other things, to "remand the matter for further proceedings before the agency ... if it determines that the substantial rights of any party may have been prejudiced because the agency decision is ... [a]rbitrary or capricious." G. L. c. 30A, § 14 (7). "Arbitrary and capricious action ... is willful and unreasoning action without consideration and in disregard of facts and circumstances." Long v. Commissioner of Pub. Safety, 26 Mass. App. Ct. 61, 65 (1988).
Here, the DOC's failure to provide Smith with any reasoned explanation for denying his grievance was arbitrary and capricious. The most the DOC has told Smith is that his magic cards have been deemed contraband under 103 Code Mass. Regs. § 403, the inmate property regulations. But those regulations do not themselves include any comprehensive list of what property inmates may mor may not possess. Instead, they require that "[a] master list of items approved for retention by general population inmates in accordance with their security level shall be posted and available in each inmate library." 103 Code Mass. Regs. § 403.10(1) (2017). We presume that the DOC consulted this master list, or a document with the same content, in denying Smith's grievance. However, the administrative record filed by the DOC does not contain or refer to any such document. The record does include various statements regarding whether magic cards were or have been permitted at other DOC institutions in prior years, but it does not include any master list of property approved for inmates such as Smith at OCCC.
See James Constr. Co. v. Commissioner of Pub. Health, 336 Mass. 143, 146 (1957) ("Since the actions of public officials are presumed to be regular and lawful, we must assume, in the absence of any allegation to the contrary, that the [agency] followed the procedure prescribed by the Legislature"). See also Nantasket Beachfront Condominiums, LLC v. Hull Redev. Auth., 87 Mass. App. Ct. 455, 464 (2015) ("strong presumption that public officials act in good faith").
Smith's appellate brief includes in its addendum a document entitled "Approved Property for Inmate Retention," dated January 2018, which was after Smith filed this action challenging the DOC's decision. The document appears to indicate that "[g]ames" are permitted at DOC institutions, with the provisos that transient inmates and persons awaiting trial are permitted only one set of playing cards and that maximum security inmates are not permitted to possess Yahtzee or cribbage games. The defendants’ brief appears to acknowledge that this document is genuine and relevant to this case; the defendants cite it for the proposition that the "[s]tandard [o]perating [p]rocedures to 103 [Code Mass. Regs. §] 403, Inmate Property, lists ‘[p]laying [c]ards’ as permitted at medium-security institutions." Assuming arguendo that this is the "master list" of approved inmate property referred to in 103 Code Mass. Regs. § 403.10(1), it does not provide that magic cards are prohibited.
By this reference, the defendants further appear to acknowledge that OCCC, or at least that section of OCCC where Smith is housed, is a medium security institution.
Although the defendants did not reference this list anywhere in their various decisions on Smith's grievance, the defendants argue on appeal that "[m]agic [c]ards are not the same as [p]laying [c]ards" and refer to the printed notations concerning zombies that appear on the single card included in the record. The defendants also argue that the "Inmate Property Committee Discussion Record Details" from the period from September to October 2016 constituted a statement by the committee that "we do not allow [Magic] cards or games since they are not an approved game."
The bracketed word, "[Magic]," was added by the defendants in their appellate brief. The document in the record states, "No, we do not allow cards or games since they are not an approved game."
If this electronic discussion constituted a decision by the committee, the nature of the decision is far from clear from the document in the record, which contains various statements by persons from various institutions with no clear conclusion or explicit agreement reached. Moreover, even if the committee had agreed that magic cards were prohibited at all DOC institutions, the role of the committee is to "review recommendations for inmate property ... for approval by the [c]ommissioner." 103 Code Mass. Regs. § 403.05 (2017) (defining "[p]roperty [c]ommittee"), and nothing in the record shows that the committee's decision, or recommendation, was approved by the commissioner.
More fundamentally, the problem with the defendants’ current arguments is that they do not appear anywhere in the DOC's actual decision, but instead are being articulated for the first time on judicial review. "The basic rule ... is clear: An agency must defend its actions based on the reasons it gave when it acted." Department of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020). "While we can conduct a meaningful review of ‘a decision of less than ideal clarity if the agency's path may reasonably be discerned,’ we will not ‘supply a reasoned basis for the agency's action that the agency itself has not given.’ " Costello v. Department of Pub. Utils., 391 Mass. 527, 535-536 (1984), quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-286 (1974). See Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 576 (2020) (where agency's litigation counsel offered alternative ground for affirmance, court remanded; "[i]t is appropriate for such issues to be resolved in the first instance by the agency in the adjudicatory process, not in judicial review of that process").
In short, the DOC's decision did not provide a reasoned explanation of or basis for its conclusion that magic cards are not permitted to inmates at DOC institutions in general or at OCCC in particular. And the record suggests that the DOC has not adopted a consistent position on the issue over time, let alone having articulated a reasoned basis for any such position. The decision is thus arbitrary and capricious, see Long, 26 Mass. App. Ct. at 65, and cannot stand without additional explanation.
We express no view on what specific explanation might suffice. We recognize that "prison administrators have broad discretion in the administration of prison affairs." Kenney v. Commissioner of Correction, 393 Mass. 28, 35 (1984). The DOC "has a compelling interest in ensuring the safety of its staff and its inmates and the integrity of its institutions," Rasheed v. Commissioner of Correction, 446 Mass. 463, 473 (2006), and "prison officials must be permitted latitude in determining what products can come into the prison and what vendors can provide them," id. at 475. See id. at 474, citing Cutter v. Wilkinson, 544 U.S. 709, 722-723 (2005) (compelling interest standard to be applied with due deference to need to maintain order, security, and discipline in prison).
But, if the master list supplied by Smith remains in force in substantially the form provided to us, and still permits playing cards and games subject to the limitations noted above, the DOC should explain the basis for any determination it has made that magic cards are neither playing cards nor a game. Or, if the DOC's position is that magic cards do fall into one of those categories, the DOC should explain the basis on which they have nevertheless been declared contraband. Simply stating, as the IGC did, that, "[i]n accordance with 103 [Code Mass. Regs. §] 403, these items have been deemed contraband," is not enough. No judicial deference is due an ipse dixit.
Conclusion. The judgment affirming the DOC's decision is vacated, and the matter is remanded for entry of a new judgment vacating that decision and remanding the matter to the DOC for a reasonably prompt explanation of the basis for refusing to return Smith's magic cards to him, or other action on Smith's grievance. The Superior Court shall retain jurisdiction of the matter for such further proceedings as may be necessary in light of the DOC's decision on remand. Unless otherwise agreed by the parties or ordered by the judge, the DOC shall, within thirty days of its decision, file a copy thereof in the Superior Court, and Smith shall, within thirty days thereafter, file an amended complaint if he wishes to obtain judicial review of the decision, assuming that the decision does not permit the return of the cards in question.
Smith has been without his magic cards, and without a reasoned explanation of why he may not possess them, since September or October of 2017.
So ordered.
vacated and remanded