Opinion
16-P-319
02-17-2017
John EVANS v. Michael THOMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
John Evans (plaintiff) is an inmate in the custody of the Department of Correction (department). The plaintiff was disciplined by the defendant, the former superintendent of Massachusetts Correctional Institution at Concord, for attempting to bring a substance known as AB-FUBINACA, a synthetic form of marijuana, into a correctional institution. The plaintiff sued the defendant and alleged that the disciplinary action against him was invalid because AB-FUBINACA was not listed on the schedule of controlled substances by the Drug Enforcement Agency (DEA) at the time of his violation. A judge of the Superior Court allowed the defendant's cross-motion for judgment on the pleadings and judgment entered dismissing the plaintiff's complaint. We affirm.
Our review of a prison disciplinary proceeding is limited to whether the record contains substantial evidence to support the hearing officer's decision. Puleio v. Commissioner of Correction , 52 Mass. App. Ct. 302, 305 (2001). Under this test, the issue for us is whether there is evidence in the administrative record that a reasonable person would accept as adequate to support the conclusion that the plaintiff violated the regulation in question. Allen v. Department of Correction , 69 Mass. App. Ct. 682, 684 (2007).
On March 27, 2012, the department's central inmate disciplinary unit published a memorandum stating that there had been "an increase in the number of inmates introducing, attempting to introduce, or possessing synthetic marijuana (also commonly referred to as K2, Spice, Serenity, herbal smoke, etc.)" and that "inmates found introducing, possessing, or using these substances may be charged" with unauthorized use, possession, or the attempt to use or possess "illegal" or "unauthorized" drugs. On March 5, 2014, the plaintiff was charged with a violation of 103 Code Mass. Regs. § 430.24 (2006) based on a disciplinary report that alleged that the plaintiff attempted to possess an illegal or unauthorized drug by means of mail addressed to him which contained a quantity of synthetic marijuana. The contents of the mail were subjected both to a field test at the institution and subsequently a test conducted by the Massachusetts State police crime laboratory (crime lab). Each test was positive for synthetic marijuana, while the crime lab report specifically identified the substance as "AB-FUBINACA," a synthetic cannabinoid.
The plaintiff does not dispute that there is substantial evidence in the record before us to support the hearing officer's determination that he attempted to possess AB-FUBINACA. Instead, he maintains that the determination that he violated the prison regulations in question is erroneous because at the time of his violation the particular form of synthetic marijuana known as AB-FUBINACA had not yet been listed by the Federal Drug Enforcement Administration as a controlled substance.
It appears that AB-FUBINACA, and several other forms of synthetic marijuana were added to the list of scheduled I controlled substances in January, 2014.
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The Commissioner of Correction has broad authority to adopt regulations and policies designed to maintain prison discipline. See Ciampi v. Commissioner of Correction , 452 Mass. 162, 168 (2008). This includes the authority to regulate and prohibit the possession, use and attempt to possess or use, within the correctional system, substances that may not be prohibited under Federal or State criminal or civil law. The department's memorandum of March 27, 2012, put the plaintiff on notice that "synthetic marijuana" was among the substances regarded as "unauthorized" or "illegal" to possess or attempt to possess within a correctional institution. See 103 Code Mass. Regs. § 430.24 (2006). Therefore, there was no error in the hearing officer's determination that the plaintiff was guilty of the disciplinary infractions arising out of the March 15, 2014, incident.
The plaintiff's claim of a due process violation similarly fails. The department complied with the essential requirements of due process by giving the plaintiff advance written notice of the charges, an opportunity to call witnesses and to present evidence, and a written decision by the factfinder of the evidence and the reasons for the action taken. See O'Malley v. Sheriff of Worcester County , 415 Mass. 132, 138 (1993). The plaintiff argues that he was denied notice of the charges against him because the body of the disciplinary report states that he "attempt[ed] to introduce a controlled substance," but instead, he was found guilty of attempting to introduce an unauthorized drug, which he claims is a separate offense. However, both of those terms appear in 103 Code Mass. Regs. § 430.24 (2006) under offense "1-15", which prohibits introduction of "any narcotic, controlled substance, illegal drug, [or] unauthorized drug[.]" Ibid . The plaintiff was charged with, and found guilty of, offense 1-15. The plaintiff has not cited, and we are unaware of, any authority to support his contention that a due process violation occurs simply because the substance he was charged with attempting to possess was referred to as "controlled" instead of "unauthorized" in the body of the disciplinary report, when the actual offense he was charged with is clearly printed at the top of the report.
Judgment affirmed .