Rise v. Comm'r of Corr.

97 Mass.App.Ct. 1109

144 N.E.3d 307 (Table)

Tshombe RISE

v.COMMISSIONER OF CORRECTION & others.¹

19-P-639

Appeals Court of Massachusetts.

Entered: April 3, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Tshombe Rise is an inmate in the custody of the Department of Correction incarcerated at Old Colony Correctional Center (OCCC). Following a disciplinary hearing, he was found to have violated a policy of the facility.³ This appeal follows entry of judgment on the pleadings on his action in the nature of certiorari in Superior Court. See G. L. c. 249, § 4. We affirm.

Discussion. The proper route of appeal from prison disciplinary proceedings is an action in the nature of certiorari. See G. L. c. 249, § 4.⁴ See also Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 131 (2013) ; Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1128 (1989). Certiorari review is limited, intended "to correct substantial errors of law on the record that adversely affect material rights." Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 140 (2001). Rise claims that the hearing officer's decision was deficient as a matter of fact and law. The Superior Court judge concluded that his action was untimely, and, alternatively, that the evidence was sufficient to support the charges. We agree for similar reasons.

1. Statute of limitations. A certiorari action must be commenced within sixty days "after the proceeding complained of." G. L. c. 249, § 4. "Failure to do so is a ‘serious misstep’ that is grounds for dismissal of the action." Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 730 n.8 (2016), citing Pidge v. Superintendent, Mass. Correctional Inst., Cedar Junction, 32 Mass. App. Ct. 14, 17-18 (1992). "The term ‘proceeding complained of’ refers to ‘the last administrative action’ taken by an agency." Committee for Pub. Counsel Servs. v. Lookner, 47 Mass. App. Ct. 833, 835 (1999), citing Pidge, supra. Rise's appeal of the disciplinary hearing decision was denied by the OCCC superintendent on March 2, 2016, and was served on March 7, 2016. As in Lookner, we need not decide whether the critical date is the date of decision or the date Rise received notice of the denial, because Rise did not file his complaint in Superior Court until May 31, 2016, more than sixty days after both the denial of his appeal and his receipt of the notice of the denial. Accordingly, the motion judge properly determined that Rise's complaint was time barred.

2. Substantial evidence. Even if the merits of the case were properly before us, the disciplinary action was supported by substantial evidence that Rise committed the charged offense.⁵ "Judicial review is to be limited to the legal sufficiency of the evidence to support the disciplinary board's findings." Hill v. Superintendent, Mass. Correctional Inst., Walpole, 392 Mass. 198, 202 (1984). We review the administrative record to determine if there is substantial evidence of the infraction to meet the preponderance of the evidence standard, and to correct only substantial errors of law. Santiago v. Russo, 77 Mass. App. Ct. 612, 613-614 (2010), citing Sheriff of Plymouth County v. Plymouth County Personnel Bd., 440 Mass. 708, 710 (2004). "The hearing officer's findings and determinations of credibility are final and may not be set aside by the reviewing court unless there appears no basis for them in the record." Santiago, supra at 614.

On January 14, 2016, a program teacher reported that she heard music from Rise's digital music player while she was conducting class. An OCCC sergeant entered the classroom and saw Rise listening to his music player in class. The classroom rules state "[o]nly program related material should be utilized during group" and that "[n]o disruptive behavior will be tolerated, i.e. idle chatter, whispering, cross talk, or any type of distraction." Rise does not dispute the fact that he had the headphones with him in the classroom, despite the policy's rule barring the use of nonprogram-related materials.

Rise stated at the hearing that his headphones were around his neck. Rise did not ask to have the sergeant or teacher at the hearing, however, and the hearing officer therefore was entitled to consider the written disciplinary report for the truth of statements within the sergeant's personal knowledge.⁶ See 103 Code Mass. Regs. § 430.14(5) (2014) ("If the inmate does not request the presence of the reporting staff person at the disciplinary hearing, the [h]earing [o]fficer may accept the reporting staff person's statement in the report as true, provided that the report is based on the staff person's eyewitness account or other personal knowledge and is otherwise credible"). The hearing officer credited the report and found that Rise was listening to music in the classroom in violation of the classroom rules barring the use of nonprogram-related materials. This much of the hearing officer's findings fell within the personal knowledge of the sergeant.⁷ "[A] court may not displace ... [a hearing officer's] choice between two fairly conflicting views" (citation omitted). Jordan v. Superintendent, Mass. Correctional Inst., Cedar Junction, 53 Mass. App. Ct. 584, 589 (2002). The decision was supported by substantial evidence and was free of legal error.⁸

Judgment affirmed.

1 Lisa Mitchell, in her official capacity as Superintendent of Old Colony Correctional Center (OCCC); and Rebecca McDonald, in her official capacity as disciplinary hearing officer at OCCC. In conformity with our custom we spell the party names as they appear in the complaint.

3 The hearing officer found that Rise committed Offense 4-11: "violating any departmental rule, regulation, or condition of an institution or community based program" by violating classroom rules barring nonprogram-related material in the classroom and disruptive conduct in the classroom.

4 Rise also sought declaratory and injunctive...