Mass. Gen. Laws ch. 12, § 11I. Unlike a section 1983 claim, to establish a claim under the MCRA, the plaintiff must show the "interference with the plaintiff's civil rights by threats, intimidation, or coercion." See Matthews v. Rakiey, 38 Mass. App. Ct. 490, 492 n.5, 649 N.E.2d 770 (1995). Such threats, intimidation, or coercion comprises "the ‘essential element’ of an MCRA violation."

Such interference or attempted interference must, however, be made by threats, intimidation, or coercion. Id. § 11H; Matthews v.Rakiey, 38 Mass. App. Ct. 490, 492 n. 5 (1995). The Supreme Judicial Court has held that the "essential element" of an MCRA violation is threat, intimidation, or coercion.

Kent v. Commonwealth, 437 Mass. 312, 316–317, 771 N.E.2d 770 (2002). See Brum v. Dartmouth, 428 Mass. 684, 688, 704 N.E.2d 1147 (1999), citing Matthews v. Rakiey, 38 Mass.App.Ct. 490, 493, 649 N.E.2d 770 (1995) (right to immunity from suit “would be ‘lost forever’ if an order denying it were not appealable until the close of litigation”).

The doctrine of present execution thus affords the Commonwealth the right to an immediate appeal where the Commonwealth maintains that it is immune from suit, and that to require it to litigate the issue of waiver of sovereign immunity at trial would vitiate such immunity, imposing on it the burden of proceeding to trial from which the doctrine of sovereign immunity affords it protection. See Brum v. Dartmouth, supra, citing Matthews v. Rakiey, 38 Mass.App.Ct. 490, 493, 649 N.E.2d 770 (1995) (right to immunity from suit “would be ‘lost forever’ if an order denying it were not appealable until the close of litigation”). The doctrine of present execution requires that the immunity defense be collateral to the rest of the controversy.

In so holding, we noted the importance of determining immunity issues early to protect government agencies and public officials from unwarranted disruption and harassing litigation, and recognized that the right to immunity from suit is effectively "lost as litigation proceeds past motion practice," id., quoting Puerto Rico Aqueduct Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 145 (1993), and is not adequately vindicated "if an order denying it were not appealable until the close of litigation." Brum v.Dartmouth, supra, citing Matthews v. Rakiey, 38 Mass. App. Ct. 490, 493 (1995). There is nothing in the Brum case that supports limiting interlocutory review to cases where the immunity issue alone would resolve the entire case.

In Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, supra at 31, which dealt with an immunity defense under 42 U.S.C. § 1983, this court distinguished between immunity from liability and immunity from suit, holding that only orders denying immunity from suit enjoy the benefit of the present execution rule. See Hopper v. Callahan, 408 Mass. 621, 624 (1990) (interlocutory appeal of denial of summary judgment motion asserting immunity); Matthews v. Rakiey, 38 Mass. App. Ct. 490, 493 (1995). The right to immunity from suit would be "lost forever" if an order denying it were not appealable until the close of litigation, and, thus, such an order meets the criteria of the rule of present execution.

July 10, 1995Further appellate review denied: Reported below: 38 Mass. App. Ct. 490 (1995).

However, when the motion for summary judgment is based on the defense of qualified immunity, the order denying qualified immunity is treated as a final order and is immediately appealable. See Mitchell v. Forsyth, 472 U.S. 511, 525–526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ; Littles v. Commissioner of Correction, 444 Mass. 871, 876, 832 N.E.2d 651 (2005) ; Matthews v. Rakiey, 38 Mass.App.Ct. 490, 493, 649 N.E.2d 770 (1995). Background.

539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (although discretion is not unlimited, “ ‘[t]he operation of a correctional institution is at best an extraordinarily difficult undertaking’ and, therefore, we have recognized that prison administrators have broad discretion in the administration of prison affairs”); DuPont v. Commissioner of Correction, 448 Mass. 389, 398, 861 N.E.2d 744 (2007), quoting from Turner v. Safley, 482 U.S. 78, 86, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“The commissioner's determination that the use of a [department of disciplinary unit] is necessary to the safe, secure, and orderly operation of some prisons, but not others, is the type of determination ‘peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to [security] considerations, courts should ordinarily defer to their expert judgment in such matters' ”); Matthews v. Rakiey, 38 Mass.App.Ct. 490, 496, 649 N.E.2d 770 (1995) (“[A] prison's internal security is peculiarly a matter normally left to the discretion of prison administrators. In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a particular incident.... The judgment of prison officials in this context, like that of those making parole decisions, turns largely on purely subjective evaluations and on predictions of future behavior” [quotations and

As for his other sanctions, no due process rights under the State constitution are implicated by the transfer of a prisoner from one facility to another, Hastings v.Commissioner of Correction, 424 Mass. 46, 52 (1997); 'Abdullah v.Secretary of Pub. Safety, 42 Mass. App. Ct. 387, 393 (1997), or the curtailment of visitation rights in order to preserve internal order and discipline and to maintain institutional security. Matthews v. Rakiey, 38 Mass. App. Ct. 490, 494-497 (1995). The judge did not err in concluding that the defendants had not violated the plaintiff's rights to due process under the Federal and State Constitutions.