Opinion
19-P-558
03-13-2020
Tony B. GASKINS v. Lois RUSSO & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Tony B. Gaskins, an inmate serving a sentence at the Massachusetts Correctional Institution at Concord (MCI-Concord), brought an action in the Superior Court claiming that the defendants confiscated his property in violation of 103 Code Mass. Regs. § 403.10 (2017), art. 12 of the Massachusetts Declaration of Rights of the Massachusetts Constitution (art. 12), and the Fourteenth Amendment to the United States Constitution (Fourteenth Amendment). A judge allowed the defendant's motion to dismiss the complaint under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). On appeal, the plaintiff contends that the judge erred because the defendants did not comply with G. L. c. 127, § 3, and 103 Code Mass. Regs. § 403, which govern the disposal of inmate property. We affirm.
Background. On December 2, 2014, the plaintiff was transferred to the "Special Management Unit" at MCI-Concord, pending investigation. On January 11, 2015, the plaintiff received a "contraband notice that his red, white and blue Top Ten Adidas were being [confiscated] due to its colors." The notice provided three options for the plaintiff to choose from for his property's disposal: (1) have it retrieved by a visitor; (2) have it mailed to a specific destination; and (3) have it disposed as seen fit by the institution. The plaintiff did not select any of the options, but filed a grievance, which "was denied." After receiving no response from the plaintiff to the notice or to a further notice, the institution disposed of the sneakers in or about May of 2015.
Discussion. "We review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In so doing, we accept as true the facts alleged in the plaintiff's complaint as well as any favorable inferences that reasonably can be drawn from them. See Lopez v. Commonwealth, 463 Mass. 696, 700 (2012). "What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Iannachino, supra, quoting Bell Atl. Corp., supra at 555.
The plaintiff argues that the defendants' conduct violated G. L. c. 127, § 3, and 103 Code Mass. Regs. § 403. The claims fail as a matter of law because G. L. c. 127, § 3, and 103 Code Mass. Regs. § 403 do not furnish a private right of action, and the plaintiff has cited no case or authority to the contrary. See generally Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 546 (1998) ("a private cause of action cannot be inferred solely from an agency regulation").
General Laws c. 127, § 3, provides, in relevant part, that correctional institutions "shall keep a record of all money or other property found in possession of prisoners committed to such institutions, and shall be responsible to the commonwealth for the safe keeping and delivery of said property to said prisoners or their order on their discharge or at any time before." Furthermore, 103 Code Mass. Regs. § 403.01 (2017) itself provides that it is "not intended to confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law."
To the extent that the plaintiff attempts to allege a constitutional violation, he fares no better. MCI-Concord provided notice and options for the retention or disposal of the plaintiff's property. Having had the opportunity to retain control over the property, and opting not to do so, the plaintiff cannot demonstrate a deprivation of ownership of his sneakers within the meaning of art. 12 or the Fourteenth Amendment. See, e.g., Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) ("The court correctly dismissed plaintiff's claims for deprivation of property without due process since the administrative grievance documents incorporated by plaintiff into his complaint showed that the ring and postage stamps seized by prison officials were sent to an address of plaintiff's choosing. Although plaintiff no longer has possession of the property, he still retains control over it and, therefore, has not been ‘deprived’ of the property"). The plaintiff asserts that "[t]his is not a case about what due process rights were afforded or not." His brief, however, does not discuss any other alternative constitutional theory. It is therefore unclear what constitutional violation, if any, the plaintiff is alleging. Indeed, the plaintiff proffers no controlling or persuasive authority in support of his constitutional claims. Thus, his argument is unavailing.
We note, in this regard, that we give considerable deference to the Department of Correction's interpretations of its own regulations. See Hastings v. Commissioner of Correction, 424 Mass. 46, 50 n.10 (1997). See also Boston Police Superior Officers Fed'n v. Boston, 414 Mass. 458, 462 (1993), quoting Northbridge v. Natick, 394 Mass. 70, 74 (1985) ("An agency's construction of its own rules and regulations ‘is one to which considerable deference is due’ ").
Judgment affirmed.