Opinion
No. 15–P–263.
07-21-2016
Larry D. INGRAM v. William McBRIDE, Jr., & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Larry D. Ingram is serving a life sentence in the custody of the Department of Correction for aggravated rape, armed assault in a dwelling, and armed robbery. On July 22, 2013, acting pro se, he filed this civil action against the superintendent of North Central Correctional Institution and several members of the correctional staff. The ten-count amended complaint alleges that defendant McBride, a correction officer, improperly confiscated two pens from the plaintiff and then conspired with the codefendants to retaliate against him for administratively challenging those confiscations. According to the plaintiff, these actions violated State regulations, and his Federal civil and constitutional rights. The Superior Court judge allowed the defendants' motion to dismiss and, on appeal, the plaintiff challenges the Superior Court judge's dismissal of his complaint for failure to state a claim. We affirm.
The plaintiff alleges violations of his (1) First Amendment right to free speech, (2) Fourteenth Amendment right to due process, (3) Federal civil rights pursuant to 42 U.S.C. § 1983, (4) Federal civil rights pursuant to 42 U.S.C. § 1985, (5) State statutory rights pursuant to G.L. c. 127, § 38E, (6) State statutory rights pursuant to G.L. c. 127, § 32, (7) State statutory rights pursuant to G.L. c. 127, § 3, (8) State statutory rights pursuant to G.L. c. 268, § 6A, (9) rights under Massachusetts regulations, and (10) rights under Department of Correction regulations.
“We review the allowance of a motion to dismiss de novo,” Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 164 (2014), “accepting as true ‘the factual allegations in [the] complaint, as well as any favorable inferences reasonably drawn from [those allegations].’ “ Lopez v. Commonwealth, 463 Mass. 696, 700 (2012), quoting from Ginther v. Commissioner of Ins ., 427 Mass. 319, 322 (1998). To prevail on appeal, the plaintiff's factual allegations must plausibly suggest his entitlement to relief above the speculative level. See Harrington v. Costello, 467 Mass. 720, 724 (2014).
The proper vehicle for an inmate to challenge the validity of prison disciplinary proceedings under State law is an action in the nature of certiorari pursuant to G.L. c. 249, § 4. See Pidge v. Superintendent, Mass. Correctional Inst., Cedar Junction, 32 Mass.App.Ct. 14, 17 (1992). Certiorari actions must be commenced within sixty days after the conclusion of the proceeding being challenged. See G.L. c. 249, § 4. “Failure to do so is such a ‘serious misstep’ that such an action must be dismissed when not timely filed, even if the defendants fail to plead the statute of limitations as an affirmative defense.” Pidge, supra at 18, quoting from McLellan v. Commissioner of Correction, 29 Mass.App.Ct. 933, 935 (1990). Here, the superintendent decided the plaintiff's administrative appeal on September 24, 2010. The plaintiff did not bring this action until July 22, 2013, well beyond the sixty-day period. Thus, the claims based on State law are time barred.
The plaintiff's Federal claims fare no better. His allegation that the disciplinary charges against him were false does not state a claim under the Fourteenth Amendment, so long as the disciplinary proceedings complied with procedural due process. See Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir.1984). Since the plaintiff did not allege a violation of his procedural due process rights at the hearing or in his brief, that issue is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). Further, the sanction in the plaintiff's disciplinary action, temporary loss of telephone privileges, did not implicate a constitutionally protected liberty interest necessary for a due process claim. See Drayton v. Commissioner of Correction, 52 Mass.App.Ct. 135, 138 (2001) (thirty days in isolation and loss of visitation privileges not the type of atypical, significant deprivation giving rise to liberty interest protected by due process clause).
The plaintiff claims his First Amendment rights were violated when the defendants retaliated against him for filing grievances. The elements of a First Amendment retaliation claim are that (1) the plaintiff engaged in protected activity, (2) the defendants took adverse action against him, and (3) the existence of a causal connection between the first two elements. See Gill v. Pidlypchak, 389 F.3d 379, 380 (2nd Cir.2004). The defendants concede that the complaint alleges that the plaintiff engaged in protected activity when he filed grievances and that his administrative discipline was an adverse action. They argue, however, that the complaint does not sufficiently allege a causal connection between the two. We agree. “Even if the defendants had an impermissible reason for disciplining the plaintiff, they are not liable if they also had an independent, permissible reason for doing so.” Puleio v. Commissioner of Correction, 52 Mass.App.Ct. 302, 310 (2001). Here, the complaint states that, following a disciplinary hearing, the plaintiff was found to have been in possession of contraband in violation of prison rules. As long as there is “some evidence” supporting that finding, a claim of retaliation cannot stand. Earnest v. Courtney, 64 F.3d 365, 367 (8th Cir.1995). The complaint and attached exhibits describe the contraband, seized from his cell on July 20, 2010, as including stolen markers and pens, an altered item of clothing, pieces of a torn State-issued towel, an altered cable wire, and a wire used to bypass thermostats. This is “some evidence” of an independent reason to discipline the plaintiff. Accordingly, the judge did not err in dismissing the retaliation claim.
Finally, because we conclude that the Federal civil claims underlying the alleged conspiracy were properly dismissed, the civil conspiracy claim cannot survive. See Johnson v. East Boston Sav. Bank, 290 Mass. 441, 445 (1935).
Judgment affirmed.