Foster v. Comm'r of Corr.

484 Mass. 1059

146 N.E.3d 408

Stephen FOSTER ¹ & others²

v.COMMISSIONER OF CORRECTION & others³ (No. 2).

SJC-12935

Supreme Judicial Court of Massachusetts.

June 2, 2020

James R. Pingeon for the plaintiffs.

Stephen G. Dietrick, Boston, for Commissioner of Correction & another.

Ryan P. McManus, Special Assistant Attorney General, for the Governor.

Michael R. Byrne for the parole board.

The following submitted briefs for amici curiae:

Tatum A. Pritchard for Disability Law Center, Inc.

Rachael Rollins, District Attorney for the Suffolk district, & Hon. Jon Santiago, pro se.

Matthew R. Segal for American Civil Liberties Union of Massachusetts & another.

RESCRIPT

In Foster v. Commissioner of Correction (No. 1), 484 Mass. 698, ––––, 146 N.E.3d 372, (2020) ( Foster [No. 1] ), we denied the plaintiffs' motion for a preliminary injunction and transferred the case to the Superior Court for a final adjudication on the merits. In this opinion, we address the motions brought by the Governor and the chair of the parole board (parole board) to dismiss the claims against them. For the reasons that follow, we allow the Governor's motion and we allow in part and deny in part the parole board's motion.

Discussion. 1. Allegations of the complaint. In deciding the motions to dismiss, we accept as true the factual allegations of the complaint and the reasonable inferences that can be drawn from those facts in the plaintiffs' favor. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7, 888 N.E.2d 879 (2008). We do not address, let alone attempt to resolve here, the truth of those allegations; that is, whether in fact the conditions of confinement during the COVID-19 pandemic comport with State and Federal constitutional requirements, and whether the defendants have in fact "acted or failed to act with deliberate indifference." Foster (No. 1), 484 Mass. at 717, 146 N.E.3d 372. Instead, our narrow focus is on whether the plaintiffs' complaint adequately "state[s] a claim upon which relief can be granted" against the Governor and the parole board,"⁴ Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974); in other words, whether the allegations, if true, plausibly suggest an entitlement to any relief against these defendants. Iannacchino, supra at 635-636, 888 N.E.2d 879.

The complaint alleges that, by confining the plaintiffs "under conditions that put them in grave and imminent danger of contracting the COVID-19 virus, and failing to implement an effective mechanism to reduce the incarcerated population to a safe level, [the] [d]efendants are deliberately indifferent to the substantial risk of serious harm suffered by [the] [p]laintiffs." They allege that each of the defendants is (1) violating the plaintiffs' right to be free from cruel or unusual punishment and their right to substantive due process, as guaranteed under the Declaration of Rights in the Massachusetts Constitution, and as secured by G. L. c. 231A (count one); and (2) violating their right to be free from cruel and unusual punishment and their right to substantive due process as guaranteed by the Federal Constitution, and as secured by 42 U.S.C. § 1983 (count two). Additionally, the plaintiffs allege that confining persons who have been civilly committed under G. L. c. 123, § 35, in correctional facilities violates those individuals' rights to substantive due process under the Federal and State Constitutions, as secured by 42 U.S.C. § 1983 and G. L. c. 231A, respectively (count three).

By its terms, the complaint seeks injunctive relief pursuant to G. L. c. 231A and 42 U.S.C. § 1983. In particular, it seeks an order requiring the defendants, "their agents, officials, employees, and all persons acting in concert with them" to confine prisoners in particular ways; requiring certain medical and health arrangements; prohibiting the ongoing confinement in correctional facilities of persons civilly committed under G. L. c. 123, § 35 ; reducing the number of persons incarcerated in prisons and jails; and mandating that the parole board take certain actions. The complaint also seeks an order "[m]aximizing the use of commutation and clemency" by the Governor and "[m]aximizing the use of the Governor's emergency powers and all other available mechanisms to grant releases to all those who are vulnerable."

2. Governor's motion to dismiss. Although the complaint broadly alleges that the defendants have violated the plaintiffs' State and Federal constitutional rights, the specific allegations against the Governor are notably few. The complaint alleges that the "Governor has refused to act on his near plenary emergency powers when it comes to the health and safety of prisoners." The plaintiffs seek to compel the Governor to use his authority to order a reduction in the prison population, because, absent his exercise of authority, "[t]here have been no commutations, no furloughs, no increase in earned good times, no releases by the [Department of Correction] to home confinement, little if any increase in the use of medical parole, and no effort by the parole board to streamline the parole process or modify the criteria for release in light of COVID-19."

The plaintiffs are not entitled to relief against the Governor under the declaratory judgment statute, G. L. c. 231A, because the statute, by its terms, expressly does "not apply to the governor and council or the legislative and judicial departments." G. L. c. 231A, § 2. See Milton v. Commonwealth, 416 Mass. 471, 475, 623 N.E.2d 482 (1993) ; Alliance, AFSCME/SEIU, AFL-CIO v. Secretary of Admin., 413 Mass. 377, 377 n.1, 597 N.E.2d 1012 (1992), and cases cited.

Nor is their position enhanced by invoking, as they do, the inherent power of this court "to say what the Constitution requires, when the question is properly presented." Bates v. Director of the Office of Campaign & Political Fin., 436 Mass. 144, 168, 763 N.E.2d 6 (2002), quoting Horton v. Attorney Gen., 269 Mass. 503, 507, 169 N.E. 552 (1930), and citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Had they alleged that the Governor affirmatively took action that was unconstitutional, or that anything he has done actually caused harm to the plaintiffs from alleged constitutional violations, the situation may well be different. But they do not challenge anything the Governor has in fact done; they only complain of what they allege he could have done but did not. And they certainly do not contend that the Governor had any direct, affirmative involvement in causing the challenged prison conditions. See Hannon v. Beard, 979 F. Supp. 2d 136, 141-142 (D. Mass. 2013) (no direct connection between prison conditions and Governor's actions), and cases cited. See also Brown v. Rhode Island, 511 Fed. Appx. 4, 5 (1st Cir. 2013) (dismissing claims against Governor where plaintiff did not challenge any affirmative acts of Governor). Moreover, the Governor cannot be found liable based on a theory of respondeat superior or vicarious liability, that is, on the theory that he is legally responsible for the conduct of those he appointed to government service or to the agencies they lead. See Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (vicarious liability not applicable in such actions); Brown, supra (respondeat superior theory of liability not available in such circumstances).

In short, the complaint claims that the Governor is liable for things he has not done. First, it alleges that he is responsible for failing to reduce the prison population by failing to exercise his executive authority to pardon and grant clemency. Second, it alleges that he has failed to exercise his emergency powers to mitigate the situation. These are not actionable claims. With respect to the first alleged failure to act, it is well settled that the Governor's authority to grant pardons and other clemency is exclusively an executive authority. See Part II, c. 2, § 1, art. 8, of the Massachusetts Constitution, as amended by art. 73 of the Amendments to the Massachusetts Constitution ("The power of pardoning offences ... shall be in the governor, by and with the advice of council ..."). This court cannot compel him to exercise it. See District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 667 n.10, 411 N.E.2d 1274 (1980) (judicial branch cannot control executive clemency).

With respect to the second alleged failure to act, viz., the Governor's failure to utilize his emergency powers to mitigate the situation, this court should tread lightly in telling any Governor when or how to exercise his or her powers. It is one thing for a court to order a Governor to cease engaging in action the court has found to be unconstitutional; it is quite another for a court affirmatively to direct a Governor how to act. For that reason, among others, this court historically has been unwilling to order a Governor to act where the relief sought, if deserved, can be provided by means of a court order against some defendant other than the Governor. See Milton, 416 Mass. at 475-476, 623 N.E.2d 482 ; Rice v. Draper, 207 Mass. 577, 579, 93 N.E. 821 (1911). Cf. LIMITS v. President of the Senate, 414 Mass. 31, 34, 604 N.E.2d 1307 (1992). If the plaintiffs in this case are indeed entitled to a remedy at the conclusion of the case, it can be provided by an appropriate order or orders directed to the other executive branch officials in the case. See Milton, supra.

See also Barnes v. Secretary of Admin., 411 Mass. 822, 822 n.2, 586 N.E.2d 958 (1992). As stated, there is no claim that the Governor himself, by any affirmative act he has taken, has "overstepp[ed] constitutional bounds." Horton, 269 Mass. at 507, 169 N.E. 552. And we are confident, as this court always has been, that any declaration that we or the Superior Court may ultimately issue requiring action by any of the remaining defendants will be met with prompt compliance. See LaChance v. Commissioner of Correction, 475 Mass. 757, 765, 60...