Opinion
10-P-1797
02-13-2012
ROBERT FERREIRA v. KATHLEEN DENNEHY & others.
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 plaintiff, an inmate at MCI-Norfolk, filed an action against the then Commissioner of Correction, Assistant Deputy Commissioner, and MCI-Norfolk Superintendent (the defendants), to enjoin them from 'double bunking' previously existing single-bunk cells in order to increase MCI-Norfolk's inmate population. The defendants prevailed on summary judgment. We affirm.
1. Summary judgment record. The following facts emerge from the summary judgment record. In November, 2006, the defendants planned to increase the inmate population at MCI-Norfolk, in accordance with the State's need for increased bed space at the medium security level. The defendants conducted a tour of the facility to determine which single-occupancy cells were to be converted into double-occupancy cells and began production of additional beds in the facility's metal shop. The plaintiff already occupied a double-occupancy cell and thus would not be directly affected by the population increase. Nevertheless, the plaintiff filed a complaint in Superior Court seeking declaratory relief and alleging that the defendants' plan would violate certain provisions of the State Building Code, 780 Code Mass. Regs. § 3400 (1997), and the minimum health and sanitation standards for correctional facilities, 105 Code Mass. Regs. § 451.320 (1999). The complaint also alleged that the defendants' plan would violate fire safety guidelines and overtax prison resources.
The plaintiff claimed, therefore, that such 'double bunking' would violate his constitutional rights under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. The defendants moved for summary judgment. In his decision granting the defendants summary judgment, the judge found that the plaintiff lacked standing to assert constitutional claims and to enforce administrative agency regulations.
2. Discussion. We agree that the plaintiff lacked standing to assert the subject constitutionally based claims. The plaintiff's cell was already a double-occupancy cell that would be unaffected by the defendants' 'double bunking' plan. Thus, beyond mere speculation that any existing problems at MCI-Norfolk would be exacerbated by an increase in the prison population, the plaintiff was unable to offer any evidence that he would be injured by the defendants' plan to 'double bunk.' See Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998) ('Injuries that are speculative, remote, and indirect are insufficient to confer standing').
We further agree with the judge's determination that the plaintiff lacked standing to assert claims based on alleged violations of public health regulations because such regulations do not create a private right of action for inmates in Massachusetts. Hudson v. Commissioner of Correction, 46 Mass. App. Ct. 538, 548 n.18 (1999). Rather, the procedure to file such grievances against the Department of Correction is outlined in 103 Code Mass. Regs. § 491.00 (2001). See, e.g., Sabree v. Conley, 62 Mass. App. Ct. 901, 903 (2004). As the plaintiff failed to exhaust these available administrative remedies before filing suit in Superior Court, the judge did not err in granting summary judgment to the defendants. ,
On appeal, the plaintiff also argues that an action for declaratory relief is appropriate where an inmate seeks to challenge the facial validity of a regulation or administrative practices involving rights violations that are consistent and repeated in nature. See generally Nelson v. Commissioner of Correction, 390 Mass. 379 (1983). However, where, as here, a plaintiff seeks to enforce regulations he alleges have been violated, the plaintiff must exhaust the available administrative remedies. See Ryan v. Pepe, 65 Mass. App. Ct. 833, 839 (2006).
The plaintiff further argues that the judge abused his discretion by denying the plaintiff's motion to supplement the record on appeal pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979), which he filed three months after filing his notice of appeal. As these documents were never offered in the lower court, they would not have been an appropriate supplementation under the rule. In any event, the grievance appeal offered by the plaintiff is dated February 10, 2007, well after the plaintiff's complaint was filed, in 2006. See Ryan v. Pepe, supra.
Six days after the summary judgment hearing, the plaintiff filed an unopposed motion to accept additional evidence in further support of his opposition. The judge awarded the defendants summary judgment without first ruling on the plaintiff's motion, which the plaintiff also argues was an abuse of discretion. The additional evidence in question was immaterial, however, as it was a letter from the Norfolk fire chief that did not concern the area of the prison in which the plaintiff lived and confirmed that upon an inspection, no fire safety concerns were discovered. Even if considered, this letter would have had no bearing on the summary judgment ruling. Thus, any error in failing to consider it was harmless.
Judgment affirmed.
By the Court (Berry, Brown & Grainger, JJ.),