Opinion
16-P-750
08-01-2017
Tony B. GASKINS v. Bruce GELB & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Tony B. Gaskins, an inmate in the Massachusetts State correctional system, filed a verified complaint against the now former superintendent and deputy superintendent of operations of the Souza Baranowski Correctional Center (SBCC), Bruce Gelb and Osvaldo Vidal, alleging an assortment of constitutional and other violations relative to the conditions of confinement at that maximum security State prison. Acting on the defendants' motion to dismiss or, in the alternative, for summary judgment, a judge concluded that the complaint failed to state a claim upon which relief could be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The plaintiff has now appealed, but only as to the dismissal of certain claims. For the reasons set forth below, the judgment is affirmed.
Four other inmates, Rico Perry, Phillip Rise, Keith Cousins, and William Dinkins, joined Gaskins as plaintiffs, but only Gaskins has pursued an appeal.
The plaintiff also asserted a claim (count V) against Keefe Canteen Corporation, but has not appealed from the dismissal of that claim.
The plaintiff resided at SBCC at the time the complaint was filed. He has subsequently been held at Massachusetts Correctional Institution (MCI)-Concord, MCI-Cedar Junction, and, for another period of time, back at SBCC. As of the time he filed his briefs in this court, he reported his address as MCI-Cedar Junction.
Discussion. The claims in the complaint are wide-ranging and do not arise from a common set of alleged facts. The claims, however, do fall into various categories. We address each category separately. The defendants also moved for dismissal on several alternative grounds, including Mass.R.Civ.P. 12(b)(6) ; Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008); and Mass.R.Civ.P. 56, 365 Mass. 826 (1974). The well-established standards for each rule, therefore, are applied where applicable. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (under rule 12 [b][6], we inquire whether factual allegations of complaint, which are accepted as true, with all reasonable inferences drawn in plaintiff's favor, are adequately detailed and "raise a right to relief above the speculative level"); Pinti v. Emigrant Mort. Co., 472 Mass. 226, 231 (2015) (under rule 56, we "determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law" [quotation omitted] ); Harvard Community Health Plan, Inc. v. Zack, 33 Mass. App. Ct. 649, 652 (1992) (dismissal is appropriate under rule 12 [b][9] "if the parties and issues are identical to those in [a] prior pending action"). In any event, our review is de novo. See Housman v. LBM Financial, LLC, 80 Mass. App. Ct. 213, 216 (2011).
1. "Feed-in" units, "split recreation," etc. In counts I, VIII, and IX of the complaint, the plaintiff raises a number of challenges to certain restrictive conditions that have been implemented at SBCC, the maximum security facility located in Shirley, which houses the most violent and dangerous inmates in the State correctional system. The conditions at issue have been implemented over time and, in particular, in the wake of a series of incidents at the facility. First, on May 11, 2011, approximately thirty to forty inmates held a group demonstration in one of the housing units, refusing orders to disperse and return to their cells. A few weeks later, on June 3, 2011, several correction officers were assaulted by an inmate armed with a weapon. Then, on June 25, 2012, a correction officer was repeatedly stabbed by an inmate wielding a prison-made knife.
The specific conditions the plaintiff challenges include: the use of so-called "feed-in" units, whereby inmates in some housing units at SBCC are required to take meals in their cells, while inmates in other units are permitted to take meals in the "chow hall"; the so-called "split-recreation" policy of requiring some units to take indoor recreation time in "halves," with one-half of the inmates in the unit at a time taking recreation together, while inmates in other units are permitted to take recreation all at the same time; and the practice of allowing only one unit at a time to "recreate" in the prison yard. According to the plaintiff, these restrictions violate the so-called "kindness" statute, G. L. c. 127, § 32, and have the effect of placing general population inmates in a form of segregation for nondisciplinary reasons without affording them the procedural protections set forth in 103 Code Mass. Regs. § 421.00 (1994). See Haverty v. Commissioner of Correction, 437 Mass. 737 (2002).
The statute "has been construed to assure ‘equal treatment, as far as may reasonably be, for prisoners who are not being disciplined.’ " Hastings v. Commissioner of Correction, 424 Mass. 46, 53 (1997), quoting from Blaney v. Commissioner ofCorrection, 374 Mass. 337, 341 (1978).
This is not the first time, however, that the plaintiff has asserted these claims. On July 18, 2011, the plaintiff and two other inmates sued, among others, Gelb's predecessor as superintendent of SBCC, Thomas Dickhaut, and Vidal, asserting a similar array of challenges to the same restrictions (prior case). In the prior case, on October 15, 2014, a different Superior Court judge, acting after a hearing and with the aid of a full summary judgment record, issued an eleven-page memorandum of decision and concluded that there were no genuine issues in dispute and that the claims in that prior action should be dismissed. Subsequently, on February 24, 2017, a panel of this court affirmed the judgment. See Gaskins v. Dickhaut, 91 Mass. App. Ct. 1108 (2017). The plaintiff then filed an application for leave to obtain further appellate review by the Supreme Judicial Court, which remains pending.
One of those inmates was Rico Perry, who was an original plaintiff in this action. See note 2, supra.
Documents from the summary judgment record in the prior action, including Dickhaut's affidavit addressing the subject restrictions, were included in the summary judgment record in the present case.
"Dismissal under [ rule 12(b)(9) ] is proper when the same parties are involved in two actions, one begun before the other, and it is apparent from the face of the present complaint ... that all the operative facts relied on to support the present action had transpired prior to the commencement of the first action." Zora Enterprises, Inc. v. Burnett, 61 Mass. App. Ct. 341, 346 (2004) (quotation omitted). That is the case here. The parties to the prior and present actions are the same, with the only distinction being that the identity of the superintendent of SBCC changed, from Dickhaut to Gelb, between the time the two actions were filed. The operative facts relied on to support the claims in the present complaint also transpired prior to the commencement of the prior action. Accordingly, as a matter of judicial economy and to avoid the potential for inconsistent results in the two actions, see National Lumber Co. v. The Canton Inst. for Savs., 56 Mass. App. Ct. 186, 188 & n.5 (2002) (noting that these are principles underlying rule 12 [b] [9] ), counts I, VIII, and IX should be dismissed.
The third incident at SBCC—the June 25, 2012, stabbing of the correction officer—postdated the filing of the prior action. The incident, however, is not an operative fact in the present action. Still further, the record from the prior action, including that Superior Court judge's memorandum of decision, reflect that the restrictive conditions at issue here in counts I, VIII, and IX were addressed in that action.
The defendants also moved under rule 12(b)(9) to dismiss count IV of the complaint, wherein the plaintiff challenges certain restrictions he was allegedly subjected to while in the orientation unit at SBCC, which temporarily houses inmates for an orientation process. While it is not clear that the same claim was raised in the prior action, it is undisputed that the plaintiff's temporary placement in the orientation unit has long since ended. The claim, therefore, is moot. See Littles v. Commissioner of Correction, 444 Mass. 871, 872 n.3 (2005). Even if the claims are not moot, they are without merit.
2. Deprivation of fingernail clippers and regular toothbrushes. In counts II, III, and VII of the complaint, the plaintiff claims that he has been subjected to cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution, by being deprived of the right to possess and use fingernail clippers and "regular" sized toothbrushes. Citing security concerns regarding the potential alteration of those items for use as, among other things, weapons, correction officials at SBCC replaced them with emery boards and shorter "thumb" or "no-shank" toothbrushes.
The plaintiff asserted similar claims with respect to being deprived of sugar (count XIII), electric fans (count II), and hair brushes (count XII), but he has not challenged the dismissal of those claims on appeal. He also made passing reference in his complaint to the "arbitrary" removal of ice machines from the chow hall, but did not assert a claim relative to that allegation.
"The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation omitted). Correction officials "may not, for example, use excessive physical force against prisoners ..., and must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates." Ibid. (quotation and citation omitted). To prevail in an action alleging cruel and unusual punishment, the plaintiff must satisfy both an objective standard, that the objectionable condition of confinement poses "a substantial risk of serious harm," and a subjective standard, that prison officials acted with "deliberate indifference" to his health or safety. Id. at 834. See Torres v. Commissioner of Correction, 427 Mass. 611, 613-614 (1998). Ultimately, "whether prison conditions are sufficiently harmful to establish an Eighth Amendment violation, is a purely legal determination for the court to make. Torres, 427 Mass. at 614.
While the plaintiff has not alleged a violation of art. 26 of the Massachusetts Declaration of Rights, the analysis would be the same. See Torres, 427 Mass. at 615-616.
The plaintiff has not asserted, nor could he, that inmates have a constitutional right to any particular product for either grooming fingernails or brushing teeth. Nor has he alleged, other than in speculative terms, that the substitution of emery boards and shorter "thumb" or "no-shank" toothbrushes for fingernail clippers and regular sized toothbrushes have either caused him injury or pose an unreasonable risk of serious damage to his future health. Helling v. McKinney, 509 U.S. 25, 36 (1993). We are also mindful that "the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be 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." Bell v. Wolfish, 441 U.S. 520, 547 (1979) (Bell ). The security concerns that have arisen in this facility are undisputed on this record. Security issues associated with the possession of fingernail clippers and regular sized toothbrushes at a maximum security prison like SBCC have been well-documented in prior case law. See, e.g., Bernier v. Goord, 770 N.Y.S.2d 795, 796 (2004) (inmate sharpened nail clipper to point to form weapon); State v. Hill, 227 N.C. App. 371, 373-374 (2013) (inmate dismantled nail clipper for use as weapon in threatened attack on deputy sheriff); State v. Page, 792 A.2d 748, 749 (R.I. 2002) (inmate found with toothbrush with "the end honed to a sharp point, an item more commonly referred to as a ‘shank’ "); State v. Barnes, 42 Wash. App. 56, 57 (1985) (same). All told, therefore, the plaintiff has failed to establish cognizable Eighth Amendment claims, and the defendants are entitled, as a matter of law, to judgment on counts II, III, and VII.
The plaintiff's alternative claim that the defendants are violating the Department of Correction's own regulation by depriving him of fingernail clippers is misplaced. The regulation as in effect during the relevant time period, on its face, provided that while fingernail clippers are approved for use at a facility like SBCC, it is not "required issue." 103 Code Mass. Regs. § 403.10(4) (2001). The regulations further provide that they are "not intended to confer any procedural or substantive rights or any private cause of action." 103 Code Mass. Regs. § 403.01 (2001).
The plaintiff previously, and unsuccessfully, made the same claim when emery boards and shorter "thumb" or "no-shank" toothbrushes were substituted for nail clippers and regular size toothbrushes while he was confined in the departmental disciplinary unit (DDU) at MCI-Cedar Junction. See Carter vs. Marshall, Sup. Ct., No. SUCV2005-4398-E (Mar. 24, 2009).
3. Access to bathrooms during visits. In count X of the complaint, the plaintiff claims that the policy at SBCC that provides for the termination of a visit if an inmate needs to access a bathroom amounts to cruel and unusual punishment in violation of the Eighth Amendment. It is undisputed that the policy was instituted due to concern that inmates will utilize the bathrooms during visits to receive and smuggle drugs, weapons, and other contraband into the facility. The claim is subject to the same Eighth Amendment analysis discussed above.
The plaintiff also challenged the policy at SBCC of limiting the duration of visits to two and one-half hours, but he has not pursued the dismissal of that claim (count XI) on appeal.
As an initial matter, inmates do not have a general constitutional right to visitation. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (due process clause does not guarantee unfettered access to visitation); Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (Overton ) ("freedom of association is among the rights least compatible with incarceration ... [and s]ome curtailment of that freedom must be expected in the prison context"). So too, "in the absence of substantial evidence ... to indicate that the officials have exaggerated their response to [the security concerns underlying a policy], courts should ordinarily defer to their expert judgment in such matters." Bell, 441 U.S. at 548. There is no such evidence in this case. Indeed, the security concerns are, once again, undisputed and historically well-documented. See id. at 559 ("A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence"); Block v. Rutherford, 468 U.S. 576, 586 (1984) ("Contact visits invite a host of security problems. They open the institution to the introduction of drugs, weapons, and other contraband. Visitors can easily conceal guns, knives, drugs, or other contraband in countless ways and pass them to an inmate unnoticed by even the most vigilant observers"). Thus, while the restriction resulting in the termination of visits when an inmate needs to use the bathroom "undoubtedly makes the prisoner's confinement more difficult to bear[,] ... it does not, in the circumstances of this case, fall below the standards mandated by the Eighth Amendment." Overton, 539 U.S. at 136. The defendants are, as a matter of law, entitled to judgment on count X.
The plaintiff further argues that the bathroom visitation restriction violates the Department of Public Health's regulations for correctional facilities. See 105 Code Mass. Regs. § 451.109 (1999) ( "[a]dequate and conveniently located toilet and handwash facilities shall be provided for all inmates and employees"); 105 Code Mass. Regs. § 451.112 (1999) ("[e]ach inmate and each employee shall have access to a toilet and handwash sink at all times"). The policy at issue, however, does not deny inmates access to toilet and handwash facilities. It only provides for the termination of visits if the inmate needs to use those facilities.
4. Access to the courts. In counts VI and XV of the complaint, the plaintiff claims that the defendants have violated his constitutional right of access to the courts by limiting his time at the prison library to once per week, during which time the librarian is not available, and not allowing him to attend the law library at the same time as other inmates with whom he has joined, or plans to join, to pursue litigation. In Bounds v. Smith, 430 U.S. 817, 828 (1977), the United States Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." To make out such a claim, the plaintiff must establish that he suffered "actual injury," meaning that the alleged shortcomings or restrictions frustrated or impeded his efforts to pursue a nonfrivolous legal claim attacking his sentence, directly or collaterally, or challenging the conditions of his confinement. Lewis v. Casey, 518 U.S. 343, 349-356 (1996). The plaintiff has not made out such a claim.
The plaintiff's complaint is devoid of any allegation, adequately detailed or otherwise, to suggest that the alleged library restrictions have, in any manner, impeded his access to the courts. Nor could he, in good faith, make such an allegation. An electronic search of the civil dockets in Middlesex, Norfolk, Suffolk, and Worcester counties reveals that, since 1992, the plaintiff has filed approximately fifty-nine separate actions in those courts alone, nine of which have been filed since the date he filed the complaint in this action. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000) (it is proper for court to consider public records in evaluating motion to dismiss); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008) (among public records properly considered are records of other courts). Counts VI and XV, therefore, were properly dismissed.
5. Suspension of right to file grievances. Under 103 Code Mass. Regs. § 491.17(2) (2001), as in effect at the time the plaintiff filed his complaint, "[a]n inmate who files five or more grievances in a week or twenty or more grievances in any 180 consecutive day period may be determined to be abusing the grievance procedure." During any such suspension, an inmate retained the rights to communicate issues informally to staff, 103 Code Mass. Regs. § 491.07 (2001), and to file emergency grievances. 103 Code Mass. Regs. § 491.17(4)(C) (2001). On May 15, 2013, Gelb suspended the plaintiff's right to file grievances for six months due to his filing of five or more grievances in a week. The plaintiff does not challenge the determination that he abused the grievance procedure. Instead, in count XIV of the complaint, he raises a facial challenge to the policy, arguing that it violates the First Amendment to the United States Constitution.
The regulation now appears at 103 Code Mass. Regs. § 491.21(4) (2017).
Now at 103 Code Mass. Regs. §§ 491.09 and 491.21(6)(c) (2017).
The defendants assert, and the plaintiff has not disputed, that the suspension was lifted after ninety days.
The complaint states that the suspension was imposed for filing five or more grievances in a month, but the notice issued by Gelb states that it was for filing five or more in a week.
The plaintiff has not alleged that the suspension affected him personally, such as by preventing him from filing a specific grievance or otherwise exercising his First Amendment rights.
Inmates "have a right, subject to reasonable limitations of time and place, to petition prison authorities for the redress of grievances." Langton v. Secretary of Pub. Safety, 37 Mass. App. Ct. 15, 19 (1994) (quotation omitted). In analyzing a limitation like the regulation at issue, the relevant question is whether it is "reasonably related to legitimate penological interests." Turner v. Safely, 482 U.S. 78, 89 (1987). To answer that question, we consider four factors: (1) is there a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) whether "ready alternatives" to the regulation exist. Id. at 89-90.
The penological interest put forth to justify the regulation at issue here is that it allows for the appropriate allocation of prison resources and prevents correctional staff from becoming overwhelmed by having to process and respond to potentially unlimited numbers of grievances. The plaintiff does not suggest that this is not a legitimate penological interest or that the regulation is not rationally related to that legitimate interest. Nor could he, as it cannot fairly be disputed. Allowing a single inmate to file an unlimited number of grievances, would have a deleterious effect on the consideration of grievances brought by other inmates. The plaintiff also has alternative means of exercising his First Amendment rights during suspension, including the aforementioned rights under the regulations to communicate issues informally to staff and to file emergency grievances. Finally, no ready alternatives to the regulation have manifested themselves; the plaintiff has not identified any, opting instead to simply argue for outright revocation. In sum, all of the Turner factors point to the reasonableness of the grievance suspension regulation. The defendants, therefore, were entitled to judgment on count XIV.
Given our conclusion that the plaintiff's claims fail on the merits, we need not consider the defendants' claim of qualified immunity.
--------
Judgment affirmed.