Opinion
14-P-600
06-01-2015
ABRAHAM KASPARIAN, JR. v. COMMISSIONER OF CORRECTION & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Abraham Kasparian, Jr., currently an inmate at Old Colony Correctional Center, acting pro se, appeals from the dismissal of his complaint alleging that the defendant Commissioner of Correction (commissioner) failed to timely implement changes to the earned good time (EGT) statute, G. L. c. 127, § 129D. For the reasons that follow, we affirm.
As relevant here, G. L. c. 127, § 129D, pertaining to EGT credit, was amended in 2012 to increase the EGT credits the commissioner might award for a prisoner's successful participation in certain enumerated programs. In particular, the amendment increased the per-program limit on monthly EGT credits an inmate may earn from two and one-half days to five days, and the per-month limit an inmate might earn from seven and one-half days to ten days. See St. 2012, c. 192, §§ 33, 34.
In August, 2012, Governor Deval Patrick signed into law c. 192 of the Acts and Resolves of 2012, which, in §§ 33-35, amended G. L. c. 127, § 129D.
In the plaintiff's complaint, he alleged generally that the commissioner did not promptly implement the aforementioned changes. However, from all that appears, the plaintiff has failed to raise on appeal any issue pertaining to that claim. Instead, the plaintiff focuses entirely on his newly framed contention that he (and other similarly situated inmates) were entitled to more EGT credit than they received while incarcerated at North Central Correctional Institution and while in the residential treatment unit. As the commissioner correctly notes in his brief, the plaintiff did not raise or allege this matter below. Accordingly, the plaintiff's present claim is not properly before this court and is deemed waived. See, e.g., Flynn v. Boston, 59 Mass. App. Ct. 490, 495-496 (2003).
The plaintiff apparently raised this issue for the first time in a proposed amended complaint but, from all that appears, the plaintiff failed to file that amended complaint and the judge below never acted on the motion. Nor does the plaintiff argue on appeal that the judge's implicit denial of his motion to amend was erroneous.
Even if we were to bypass this pleading deficiency, the plaintiff's argument on appeal lacks merit. The plaintiff's interpretation of the requirements of § 129D -- essentially that the explicit statutory grant of discretion to award good time credits constitutes a mandate that those credits be awarded and that, notwithstanding the explicit statutory limitation on good time credits earned, he is entitled to twice that statutory limit -- is in our view dubious. See, e.g., Piggott v. Commissioner of Correction, 40 Mass. App. Ct. 678, 684-685 (1996) ("[General Laws c. 127, § 129D,] unambiguously gives the commissioner discretion whether or not to award earned good time credits for participation in rehabilitative programs such as those in issue here"). The 2012 amendment in no way changed the discretionary award of EGT credits under the statute. See G. L. c. 127, § 129D, as amended by St. 2012, c. 192, §§ 33, 34 ("[T]he commissioner may grant, in addition to the deductions of sentence provided under sections one hundred and twenty-nine and one hundred and twenty-nine C, a further deduction of sentence of not more than 5 days per program or activity . . . ; provided however, that in no event shall said deductions exceed a maximum monthly total of 10 days" [emphasis supplied]).
Judgment affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 1, 2015.