Opinion
11-P-392
02-01-2012
JOHN J. SULLIVAN v. LUIS S. SPENCER & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, an inmate at MCI-Norfolk, filed an amended complaint (complaint) in Superior Court alleging violations of his State and Federal constitutional rights and violation of State regulations. His complaint also makes claims under G. L. c. 127, § 3, asserts various intentional torts, and seeks relief pursuant to G. L. c. 249, § 1, and G. L. c. 231A. He now appeals from the allowance of the defendants' motions for summary judgment on all of his claims. We affirm.
In an incident unrelated to the plaintiff, a different MCI-Norfolk inmate lost his prison employment after pleading guilty on a disciplinary charge. The plaintiff wrote a letter to the then superintendent asking that the inmate be rehired. While that letter was being considered, the deputy superintendent learned that the plaintiff, while remonstrating with the plaintiff's shop supervisor in the prison industries building (instructor Wheeler) on behalf of the other inmate, may have threatened that supervisor by saying words to the effect that 'people have killed people over less than this.' On May 18, 2007, the plaintiff was removed from the general population and placed in a special management unit pending an investigation for possible violation of institution rules. As a result of the investigation, a disciplinary report was issued. While removed, and as a result of the allegations set forth in the disciplinary report, the plaintiff lost his job with the prison clothing shop. On June 14, 2007, he was returned to the general population. One factor contributing to his return to the general population was that, because the plaintiff no longer held his prison industries job, the likelihood that he would have any contact with instructor Wheeler was reduced. On July 12, 2007, the disciplinary report was closed administratively and reduced to an incident report because of its lack of timeliness, not because the allegations were deemed unfounded. At the same time, there appears to be no affirmative finding in the record that the plaintiff in fact threatened his supervisor, as alleged. While the plaintiff has been precluded from a prison industries job, he has not been barred from other employment opportunities at MCI-Norfolk, such as main line kitchen, janitorial jobs, food service jobs, grounds, or library. The plaintiff charges that he was impermissibly 'barred' from employment for a three-year period without cause.
The incident in question had occurred about two months before the deputy superintendent learned of it. He was unaware of that chronology at the time the disciplinary report was issued. On July 17, 2007, in response to the plaintiff's allegations of misconduct by Wheeler, an internal investigation was opened. On March 5, 2009, the plaintiff was informed that the investigation was closed.
We affirm the judgments on several bases.
1. The plaintiff does not have a right to or other 'protected interest' in prison employment. See G. L. c. 127, § 48; Jackson v. Hogan, 388 Mass. 376, 379 (1983). See also DuPont v. Saunders, 800 F.2d 8, 10 (1st Cir. 1986). Nor do inmates, such as the plaintiff, have enhanced constitutional rights to provide or to receive legal assistance from another inmate, or to act in a threatening manner or make threatening statements under the guise of advocacy. See Shaw v. Murphy, 532 U.S. 223, 231 (2001).
2. Regarding the plaintiff's contention that he had been treated more harshly than other inmates and that his rights to equal protection and equal treatment were violated, his claims do not survive the threshold 'similarly situated' inquiry. Even assuming that his assertions are true, the alleged incidents involving other inmates do not involve the same level of institutionally threatening behavior as is alleged here. See DuPont v. Commissioner of Correction, 448 Mass. 389, 399-400 (2007).
3. The individual defendants were all acting within the scope of their official capacities and are entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, there is no evidence that any of the prison officials acted with malice. Based on the information that the deputy superintendent received, the steps which he took were neither unreasonable nor exaggerated, given the possible threat to the plaintiff's shop supervisor and the potential for disruption within the prison if the plaintiff were to remain in the general population. See Gomes v. Fair, 738 F.2d 517, 525 (1st Cir. 1984). See generally Pearson v. Callahan, 555 U.S. 223 (2009). Where, as here, the actions of the prison officials were supported by a proper purpose, the plaintiff's retaliation claim fails. See Layne v. Vinzant, 657 F.2d 468, 475 (1st Cir. 1981). Moreover, because the plaintiff's wrongful discharge claim was properly dismissed, the civil conspiracy claim cannot survive. See Johnson v. East Boston Sav. Bank, 290 Mass. 441, 445, 448 (1935).
4. We discern no abuse of discretion in the Superior Court judge's ruling on the renewed motion for summary judgment. Nor has the plaintiff demonstrated actual or material prejudice as a result of any other claimed procedural error.
On August 13, 2010, the defendants filed a motion for leave to file their motion for summary judgment and supporting memorandum outside the tracking order. On August 18, 2010, the plaintiff filed his opposition. On August 24, 2010, 'pursuant to [the] discretion of [the] court,' the judge allowed the defendants' motion for leave to file outside the tracking order. On September 2, 2010, the motion for summary judgment was docketed. The plaintiff's opposition and supporting memorandum, including his additional statement of facts, were also docketed that day. On September 7, 2010, the judge denied the motion for summary judgment without prejudice for failure to conform to Superior Court Rule 9A. On September 23, 2010, the defendants filed 'the Rule 9A package.' The judge denied the motion for summary judgment on the ground that the time for filing a summary judgment motion had expired. In fact, the motion for summary judgment was timely filed, given the allowance by the court of the motion to file outside the tracking order. Moreover, it was timely filed because Rule 9A provides, 'If the party opposing a summary judgment motion serves an additional statement of material facts under Paragraph b(5)(iv), the moving party shall have 21 days to file the Rule 9A package.' Superior Court Rule 9A(b)(2) (2009). The Rule 9A package, which was filed on September 23, 2010 (following the plaintiff's opposition and additional statement of material facts received on September 2), was filed within the twenty-one day period set forth in the rule. In any event, because judgment had not entered, the successor Superior Court judge was within her discretion to consider the defendants' qualified immunity defense and to grant the renewed motion for summary judgment. See Prestige Imports, Inc. v. South Weymouth Sav. Bank, 75 Mass. App. Ct. 773, 776 (2009) ('absent unusual circumstances . . . revisiting another judge's . . . order does not amount to an abuse of discretion').
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Judgments affirmed.
Order denying motion to alter or amend judgments affirmed.
By the Court (Kafker, Cohen & Katzmann, JJ.),