Cantell v. Comm'r of Corr.

475 Mass. 745

60 N.E.3d 1149

Robert CANTELL & others¹

v.COMMISSIONER OF CORRECTION & others.²

SJC–12015.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted March 10, 2016.

Decided Oct. 21, 2016.

Bonita Tenneriello for the plaintiffs.

Sheryl F. Grant for the defendants.

The following submitted briefs for amici curiae:

Amy Fettig & Jamelia N. Morgan, of the District of Columbia, Phillip Kassell, Matthew R. Segal, & Jessie J. Rossman for American Civil Liberties Union & others.

Ruth A. Bourquin, Deborah Harris, Boston, Margaret E. Monsell, Boston, & Jamie A. Sabino for Massachusetts Law Reform Institute & others.

Adam Sanders, pro se.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.³

BOTSFORD, J.

The named plaintiffs in this putative class action are inmates serving criminal sentences in various Massachusetts prison facilities. For varying lengths of time, each of them has been placed in a “special management unit” (SMU) in nondisciplinary administrative segregation. In January, 2012, the plaintiffs commenced this action against the Commissioner of Correction (commissioner) and the superintendents of the correctional institutions in which the plaintiffs were housed (collectively, defendants). The plaintiffs allege that their placements in the SMUs, essentially in conditions of solitary confinement, violate their State and Federal constitutional rights to due process as well as regulations of the Department of Correction (department), and they seek to represent a class of similarly situated prisoners confined in SMUs. In early 2013, following the release of this court's decision in LaChance v. Commissioner of Correction, 463 Mass. 767, 978 N.E.2d 1199 (2012) (LaChance I ), a judge in the Superior Court denied the plaintiffs' motion for class certification and allowed the defendants' motion to dismiss the plaintiffs' amended complaint.

The plaintiffs appealed to the Appeals Court.⁴ A divided panel of that court dismissed the appeal as moot because by then it was undisputed that no named plaintiffs remained in SMUs. Cantell v. Commissioner of Correction, 87 Mass.App.Ct. 629, 33 N.E.3d 1255 (2015). The dissenting justice concluded that in light of the class action allegations in the plaintiffs' amended complaint, even if the named plaintiffs were no longer confined in SMUs, the case was not moot, and the court had a duty to decide the plaintiffs' appeal on its merits. Id. at 635–639, 33 N.E.3d 1255 (Rubin, J., dissenting). We allowed the plaintiffs' application for further appellate review. We agree with the dissenting justice of the Appeals Court that the appeal is not moot, and we also agree that LaChance I does not resolve the merits of all the plaintiffs' claims. We reverse the Superior Court's judgment of dismissal and remand the case to that court for further proceedings consistent with this opinion.⁵

Background. The plaintiffs' amended complaint alleges, in summary, the following. The plaintiffs are representatives of “a class composed of all prisoners held in non-disciplinary segregation in an SMU,” and the class is so numerous that joinder of all is impracticable. See Mass. R. Civ. P. 23(a), 365 Mass. 767 (1974).⁶ Each of the named plaintiffs has been held in nondisciplinary administrative segregation in an SMU operated under the department's SMU regulations, 103 Code Mass. Regs. §§ 423.00 (1995).⁷ While confined in an SMU, prisoners are locked in their individual cells for twenty-three hours per day, with permitted recreation in a small, outdoor cage for one hour per day on weekdays and no permitted recreation on weekends; each prisoner must eat all meals alone in his or her cell; the prisoners are permitted to shower and shave no more than three times per week; all visits are noncontact visits, and these are generally limited to two visits per week of no more than one hour's duration; prisoners are not allowed to visit the general prison library, have no access to employment or to rehabilitative, therapeutic, or educational programs and therefore no access to programs from which they might earn “good time” sentence credits or reductions; they may not attend communal religious services; and they are substantially restricted, compared to the general prison population, in terms of what they may purchase and how much money they may spend at the prison canteen. These conditions are far more restrictive than the conditions and level of segregation applicable to general population prisoners in maximum security facilities. The conditions are also at least as restrictive as those applied to units designated as “departmental segregation units” (DSUs) and governed by the DSU regulations appearing as 103 Code Mass. Regs. §§ 421.00 (1994). However, none of the plaintiffs has been provided the procedural protections required by the DSU regulations, or the visitation, canteen, and other privileges included within the DSU regulations.⁸

The amended complaint's legal claims are that by maintaining the plaintiffs in nondisciplinary administrative segregation conditions without holding hearings to determine whether each posed a serious or substantial threat to themselves or others, and by denying other rights included in the DSU regulations, the defendants have violated the plaintiffs' rights under the DSU regulations, the plaintiffs' constitutional rights to due process protected by the United States Constitution and the Massachusetts Declaration of Rights (claims the plaintiffs pursue under 42 U.S.C. § 1983 ), and the plaintiffs' statutory right to equal “kindness” provided by G.L. c. 127, § 32. The plaintiffs seek declaratory and injunctive relief to declare and enforce these rights.

On January 20, 2012, the plaintiffs filed a motion for class certification.⁹ Before the motion was heard or ruled on, LaChance I was decided. The plaintiff in LaChance I was, or had been, confined to the SMU in the Souza–Baranowski Correctional Center, and his substantive claims relating to his entitlement to the procedural and other protections incorporated in the DSU regulations are substantially mirrored in the plaintiffs' amended complaint in the present case. The motion judge in this case concluded that the LaChance I decision effectively resolved the plaintiffs' claims by defining the entire scope of procedural protections to which the plaintiffs were entitled as prisoners confined in SMUs. For this reason, and because the department had agreed to provide the plaintiffs with the procedural protections described in LaChance I, the judge ruled that class certification was unnecessary and that dismissal of the plaintiffs' amended complaint was appropriate. The judge ordered the defendants to “extend the benefits” of our opinion in LaChance I to “all prisoners held in administrative segregation on awaiting action status.”

At the time of the motion judge's decision, one of the named plaintiffs, Albert Jackson, remained in an SMU. However, as the Appeals Court's decision noted, when the plaintiffs' appeal was before that court, it was uncontested that none of the named plaintiffs was still confined in an SMU. Cantell, 87 Mass.App.Ct. at 630, 33 N.E.3d 1255. There is nothing in the record to suggest that any named plaintiff's status has changed since the date of the Appeals Court decision, but there also is nothing before us to suggest that any of the named plaintiffs has completed his sentence and has been released from prison.

Discussion. 1. Legal background. This case concerns the department's policies and practices relating to the conditions of confinement for prisoners held in nondisciplinary administrative segregation and apart from the general population. The specific focus here is on SMUs, one type of administrative segregation unit.¹⁰ However, the department historically has had and continues to have a number of different types of and names for such units, including, but not limited to, DSUs. In Hoffer vs. Fair, No. SJ–85–0071 (Mar. 3, 1988), a single justice of this court ordered that the then existing DSU regulations be amended to provide greater procedural protections and some greater privileges to prisoners placed in nondisciplinary administrative segregation—basically, solitary confinement—in DSUs. The department promulgated in substance the DSU regulations currently codified at 103 Code Mass. Regs. §§ 421.00 in response; these regulations remain in effect.¹¹ See Haverty v. Commissioner of Correction, 437 Mass. 737, 740, 744–746, 760, 776 N.E.2d 973 (2002), S.C., 440 Mass. 1, 792 N.E.2d 989 (2003). We made clear in Haverty that under the department's DSU regulations and as a matter of due process, “the procedural protections contained in 103 Code Mass. Regs. §§ 421.00 must be afforded to all prisoners before they are housed in DSU-like conditions,” with an exception for those whose stay in such a DSU-like unit is expected to be brief—i.e., days, not weeks. Id. at 760, 763–764 & n. 36, 776 N.E.2d 973. See Longval v. Commissioner of Correction, 448 Mass. 412, 413–416, 861 N.E.2d 760 (2007), and cases cited at 416; Hoffer v. Commissioner of Correction, 412 Mass. 450, 455, 589 N.E.2d 1231 (1992).

LaChance I was a case brought by a prisoner at the Souza–Baranowski Correctional Center who was held for more than ten months in administrative segregation, on awaiting action status, in that facility's SMU. LaChance I, 463 Mass. at 768–771, 978 N.E.2d 1199. He claimed that the conditions of confinement in the SMU were substantively identical to the conditions of a DSU, that he was therefore entitled to the protections set out in the DSU regulations, and that the refusal of the prison authorities to apply those regulations to him violated his rights under the department's regulations as well as his due process rights under the Federal and Massachusetts Constitutions. Id. at 772, 978 N.E.2d 1199. A judge of the Superior Court determined that LaChance was entitled to the procedural protections in the DSU regulations, and...