Opinion
No. 15–P–1448.
07-05-2016
Jo'Tan COOPER v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, Norfolk, & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff Jo'Tan Cooper, an inmate currently incarcerated at the Souza–Baranowski Correctional Center (SBCC) and formerly an inmate of the Massachusetts Correctional Institution at Norfolk (MCI–Norfolk), appeals from a judgment of the Superior Court affirming a guilty finding against him in a prison disciplinary proceeding for unauthorized possession of an item likely to be used in an escape in violation of Department of Correction (DOC) regulations based on his possession of a cellular telephone (cell phone). We affirm.
Background. 1. DOC regulations. The DOC “ ‘has promulgated detailed regulations governing disciplinary actions in State correctional institutions.’ These regulations identify four categories of disciplinary offenses for which inmates may be sanctioned; category one and category two offenses are considered the most serious, while category three and category four offenses are considered minor. 103 Code Mass. Regs. § 430.24 (2006).” Ivey v. Commissioner of Correction, 88 Mass.App.Ct. 18, 21 (2015), quoting from Kenney v. Commissioner of Correction, 393 Mass. 28, 31 (1984). Among the category 2 offenses is offense 2–1: “Unauthorized possession of items or material likely to be used in an escape.” 103 Code Mass. Regs. 430.24.
On March 21, 2011, Cynthia M. Sumner, the deputy superintendent of MCI–Norfolk, distributed a memorandum to all inmates at MCI–Norfolk entitled “Cell Phones and Discipline” (Sumner memorandum). In relevant part, the Sumner memorandum states:
“Cell phones represent a significant threat to the safety and security of a correctional institution. Such threats include, but are not limited to, the ability to circumvent the inmate phone system, to quickly organize concerted action, to arrange for the receipt of contraband.
“Accordingly, any inmate in a minimum or pre-release institution found to be in possession of a cell phone or any related paraphernalia (chargers, sim or data cards, etc.) should be charged in a disciplinary report with Offense 2–24—conduct which interferes with the security of the institution. Additional charges as appropriate from the facts of the disciplinary report should also be included.
“Any inmate in a maximum and medium security institution found to be in possession of a cell phone or any related paraphernalia should be charged with Offense 2–24—conduct which interferes with the security of the institution or Offense 2–1—possession of an item likely to be used in an escape or both as appropriate to the circumstances.”
2. Disciplinary action against the plaintiff. On March 24, 2013, correctional officers searched the plaintiff's cell at MCI–Norfolk and located an LG brand cell phone under his pillow. The cell phone was connected to an LG brand cell phone charger that was plugged into an electrical outlet. The officers also found a hardcover book that had been partially hollowed out to create a space the same dimensions as the recovered cell phone. The plaintiff told prison investigators that another inmate had given him the cell phone for safekeeping because of increased efforts to detect contraband cell phones and that he had downloaded several pornographic movies on the cell phone and used it to call a friend (subsequently deleting the call information), but that he had not used it to text or take pictures or videos and that he had no intention of using the cell phone to escape from prison. Despite repeated questioning by investigators, the plaintiff consistently refused to divulge the name of the inmate who had given him the cell phone.
As a result of the discovery of the cell phone and charger, the plaintiff was charged in a disciplinary report with offenses 2–1 and 2–24 as well as numerous other charges based on less serious offense code violations. On May 10, 2013, a hearing officer conducted a disciplinary hearing after which she found the plaintiff guilty of offense 2–1 and dismissed all remaining charges as duplicative. The hearing officer concluded that “a cellular phone within a medium security facility, even in the absence of further escape attempt evidence, represents an item which can undoubtedly be used in an escape attempt.” After the superintendent of MCI–Norfolk denied the plaintiff's appeal, the plaintiff, who had been unrepresented by counsel in the prison proceedings and was continuing to act pro se, commenced an action in the nature of certiorari in the Superior Court under G.L. c. 249, § 4. The parties filed cross motions for judgment on the pleadings, and a judge of the Superior Court denied the plaintiff's motion and allowed the defendants' motion. Now represented by counsel, the plaintiff appeals.
Discussion. 1. Standard of review. Prisoners may challenge the adverse findings of a disciplinary board through an action in the nature of certiorari under G.L. c. 249, § 4. The responsibility of the reviewing court is to examine the administrative record and determine if there was “substantial evidence” to support the hearing officer's conclusion. See Murphy v. Superintendent, Mass. Correctional Inst., Cedar Junction, 396 Mass. 830, 833 (1986) ; Puleio v. Commissioner of Correction, 52 Mass.App.Ct. 302, 305 (2001) ; Jordan v. Superintendent, Mass. Correctional Inst., Cedar Junction, 53 Mass.App.Ct. 584, 587 (2002).
We need not dwell on the standards governing the substantiality of evidence here, however, as there is no dispute that the plaintiff possessed an operable cell phone. The only dispute concerns whether possession of an operable cell phone, without more, constitutes possession of an item likely to be used in an escape as prohibited by offense 2–1. The resolution of this question turns on the proper interpretation of offense 2–1, in particular whether it includes a specific intent as a required element. “The interpretation of a regulation is a question of law which we review de novo.... As with statutes, regulations must be interpreted as promulgated. Words are to be accorded their ordinary meaning and approved usage when the language used constitutes the principal source of insight into regulatory purpose. While ordinarily the interpretation ... an administrative body gives to its own regulation is entitled to deference and may be controlling, the duty of statutory interpretation rests ultimately with the courts.” Ivey, 88 Mass.App.Ct. at 23–24 (quotations and citations omitted).
2. Likely to be used in an escape. The plaintiff contends that where the undisputed evidence at the disciplinary hearing established that he used the cell phone for recreational purposes and not to facilitate an escape, there is insufficient evidence of his intent to use the cell phone for an escape to sustain the guilty finding.
We, however, agree with the defendants that the plain language of the regulation, prohibiting possession of “items or material likely to be used in an escape,” refers to the characteristics of the item or materials and not the intent of the possessor and, consequently, that no specific intent need be proved. Furthermore, as we read the regulation, the question is whether it is likely that prisoners planning or executing an escape will use the item and not whether the item is more often used in escape-related activity than for other nonescape purposes. We therefore need not focus on the many uses of an item outside of escapes so much as the value of that item in planning and executing an escape. So interpreted, we are persuaded that, because of the likely need of escaping prisoners to communicate with third parties within and outside of the prison without being monitored by prison authorities, cell phones are likely to be used in an escape and so, as signaled by the Sumner memorandum and consistent with the hearing officer's conclusion, are prohibited under offense 2–1, at least in medium and maximum security facilities.
We are not persuaded by the plaintiff's argument that this interpretation of the regulation would include everyday items such as running sneakers and spectacles. This argument ignores the very first words of the regulation, which specify that the possession in question must be “unauthorized.” Reading offense 2–1 as a whole, therefore, it is clear that the intent is to target items that should not be in the prisoner's possession in the first place but that also merit increased attention by prison authorities because of their potential utility in escapes. Viewed in this context, the irrelevance of the possessor's intent is even more understandable as the security concerns underlying the regulation are prompted by the presence of the item in the flow of goods in what is supposed to be the closed loop of the prison system irrespective of the subjective intent of any one prisoner who happens to be in possession of the item when found.
Our reading of offense 2–1 is bolstered by our review of the code of offenses as a whole. There are a number of other offenses that prohibit possession of certain items based on their potential use that are phrased in such a way as to suggest that no additional evidence of intent on the part of the possessor is required. See, e .g., offenses 1–7, 1–8 (prohibiting, inter alia, possession of components of explosive devices, ammunition, firearms, and poison); offense 2–19 (prohibiting, inter alia, “possession of ingredients, equipment, formula, or instructions that are used in making intoxicants and alcohol”); offense 3–18 (prohibiting possession of gambling paraphernalia). The regulatory scheme also demonstrates why we need not be detained by the plaintiff's suggestion that ignoring a prisoner's intent would allow inmates to escape punishment for possession of an item that ordinarily would not be likely to be used in an escape even where the evidence established that it was an essential component of his escape plan, as the evidence so hypothesized would likely bring the prisoner under the scope of offenses 1–6 (“Escape or attempted escape”) and 1–19 (“Attempting to commit any of the above offenses, making plans to commit any of the above offenses or aiding another person to commit any of the above offenses shall be considered the same as the commission of the offense itself”).
The conclusion that the regulation focuses on the manner in which an item could potentially be used (irrespective of how it was being used when found in the inmate's possession) and the recognition that cell phones are likely to be used in the planning and execution of escape attempts are consistent with both Cepulonis v. Commissioner of Correction, 15 Mass.App.Ct. 292 (1983), and Federal cases that arise under a similar regulation (code 108) of the Federal Bureau of Prisons (BOP). Although the meaning of the regulation prohibiting possession of “escape equipment” was not explicitly addressed in Cepulonis, the court's treatment of the materials at issue there reflects a focus on the potential use of the materials in the prison environment as opposed to the intended use of the possessing prisoner. The Cepulonis court reasoned that the members of the disciplinary hearing board in that case “were not required to determine the intended use of each item on an ad hoc basis” and instead “could look at the entire situation, in the context of the prison environment, to decide whether materials were being amassed which might aid an escape.” Id. at 294.
Despite the plaintiff's claim of conflict, the Superior Court cases cited by the plaintiff are not to the contrary. The cell phones in question in those cases were inoperable. The convictions in those cases were thus properly overturned where the “item” in question, an inoperable cell phone, could not be used to communicate with others to facilitate an escape attempt.
Offense 2–1 has language similar to code 108 in the Federal system. Although the Federal regulation covers a broader range of concerns than offense 2–1, its treatment by the courts shows that the inherent properties of the item, not the intent of the possessor, controls and that a cell phone is fairly considered an item likely to be used in an escape or escape attempt. “It is evident that a cellular telephone could constitute a hazardous tool as it would permit inmates, whose telephone conversations are normally monitored, to communicate with individuals outside the prison without being monitored. Obviously it would be easier to plan an escape or attempt to have contraband brought into the institution if an inmate could communicate with people outside the institution without fear of being monitored.” Barnes v. Warden, FCI Texarkana, 2008 WL 3481942, at *2 (E.D.Tex. Aug. 7, 2008).
“The Bureau of Prisons' Program Statement 5270.07 defines a Code 108 offense as follows: [']Possession, manufacture, or introduction of a hazardous tool (Tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g. hack-saw blade).[']” Barnes v. Warden, FCI Texarkana, 2008 WL 3481942, at *2 (E.D.Tex. Aug. 7, 2008).
There is no merit to the plaintiff's argument that all Federal cases arising under the due process clause are inapposite because the standard of review is more favorable to the defendants than the “substantial evidence” standard applicable here. We refer to Federal cases to aid our resolution of a question of law—the interpretation of a regulation—not a determination of the sufficiency of the evidence.
“BOP's definition of a hazardous tool to include a cell phone is not plainly erroneous or inconsistent with BOP regulations.” Curry v. Zych, 2010 WL 864486, at *4 (E.D.Mich. Mar. 9, 2010). The Curry court described Barnes, supra, as rejecting the “prisoner's challenge to Code 108 violation for possession of a cell phone; the ‘some evidence’ required under [Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445 (1985) ] is that the prisoner possessed a ‘tool’ which the BOP could reasonably conclude was ‘most likely’ to be used in an escape attempt, as a weapon, or as a threat to institutional security, not that the prisoner was using it to commit criminal conduct.” Ibid.
The plaintiff's reliance on Sheriff, Pershing County v. Andrews, 286 P.3d 262 (Nev.2012), is misplaced. The statute at issue in Andrews, unlike the regulation here, prohibited, inter alia, possession of “any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or any other tool or item adapted, designed or commonly used for the purpose of escaping from custody.” Id. at 263 (quotation omitted). It is true that the court rejected the State's contention that cell phones fell under the scope of the relevant statute, but its reasoning was specific to the particular language of that statute restricting the prohibited items to those that could be used “to either forcibly manipulate the confines of a jail cell—keys, picklocks, bolt cutters, wire cutters, saws, and digging tools—or physically exit from a jail cell—ropes, ladders, and hooks.” Id. at 264. The court reasoned that “[i]n stark contrast to the items enumerated in [the statute], it would be virtually impossible to use a cell phone to forcibly break out of, or physically flee from, a jail cell.” Ibid. Nothing in the language of offense 2–1 limits its scope in such a way as to exclude cell phones.
3. Compliance with DOC policy. The plaintiff further contends that the Sumner memorandum makes clear that DOC does not automatically consider a cell phone to be an “item likely to be used in an escape,” and that the Sumner memorandum established a policy requiring disciplinary staff to consider the circumstances before making an individualized determination that possession of a cell phone warranted a charge under offense 2–1, as opposed to the more general charge under offense 2–24, based on evidence that the cell phone was possessed for some escape-related purpose. The plaintiff argues with specificity that the Sumner memorandum required the hearing officer to consider whether the overall circumstances made it more probable than not that he intended to use the cell phone to plan an escape.
This argument finds no support in either the plain meaning of the regulation as discussed above or the extremely brief text of the Sumner memorandum. The Sumner memorandum does not dictate the circumstances that must be considered in deciding which offense(s) to charge. It does not make any reference to the intent of the possessing inmate and does not expressly require any connection between the item and a plan or attempt to escape by the possessing inmate. Under the Sumner memorandum, the appropriateness of the charge is left to the discretion of the charging officer. Given the increased collateral consequences that follow a conviction of offense 2–1 as opposed to offense 2–24, discussed briefly below, we are persuaded by the defendants that at least one of the considerations officers are entitled to consider in choosing between the two offenses would be the level of the inmate's cooperation. In this regard, we note that the plaintiff repeatedly refused to divulge his source of the cell phone.
In fact, the distinction made in the Sumner memorandum between minimum security and prerelease facilities, on the one hand, and medium and maximum security prisons on the other, supports the interpretation that the controlling factor under offense 2–1 is the nature of the item in the specific context in which it is found. Thus, cell phones are treated differently in lower security facilities where, as the plaintiff himself concedes, a cell phone is not necessary to facilitate an escape.
4. Reclassification consequences after conviction. The plaintiff contends that the collateral consequences in terms of inmate classification that flow from a conviction of offense 2–1 support his theory that some evidence of intent to utilize the cell phone in connection with an escape is required under the regulation and the Sumner memorandum, as prisoners found guilty of possessing an item likely to be used in an escape are assigned risk-factor points for having a history of escape or attempted escape. The plaintiff contends that as a result of the offense 2–1 conviction, he received so many points that he was reclassified from medium security at MCI–Norfolk to maximum security at SBCC and branded with a security status designation reserved for high-risk prisoners, which resulted in a decrease in access to programs and educational opportunities.
Given these consequences, the plaintiff contends that the DOC should want to limit the assignment of escape points to prisoners who have actually engaged in escape planning and that his interpretation of offense 2–1 and the Sumner memorandum are consistent with such a sound policy. To support his argument that the classification consequences of offense 2–1 are indicative of a specific intent element, the plaintiff has submitted for our consideration the DOC's Male Objective Point Base Classification Manual (effective January 27, 2014) (manual).
The defendants have moved to strike the manual. Since we have considered the plaintiff's arguments based on this material and rejected them, the motion is denied.
Where the language of offense 2–1 is plain and unambiguous and its application here was consistent with the Sumner memorandum and the regulatory scheme of the code of offenses, we need not work backwards from the asserted classification consequences arising from a violation to decipher the regulation's meaning. However, were we to consider the manual, it would not aid the plaintiff's case. In presenting the various conduct that constitutes “Escapes or attempted escapes” for classification purposes, the manual lists four separate categories of behavior. These categories appear to be listed in descending order of severity despite having the same classification consequences: “Any documented escape/or aiding of an escape”; “Attempted escape/or aiding of an escape”; “Conspiring or making plans to escape/or aiding in escape plans”; and “Unauthorized possession of items or material likely to be used in an escape.” Under this last category, the manual specifically includes “Cell phone/paraphernalia in maximum and medium custody” as an example. The manual is therefore fully consistent with the conclusion that a cell phone is an item likely to be used in an escape in medium or maximum custody.
The breakdown of escape conduct in the manual also demonstrates that no specific intent is required in connection with the unauthorized possession of items likely to be used in an escape. If such an intent could be proved, the inmate would qualify under the immediately preceding and separate category of “making plans to escape.” Moreover, the manual also clearly tolerates the assignment of escape-history points for inmates who have not even attempted an escape.
We are not presented with a separate claim that the classification board's decision to treat the plaintiff as having a history of escape was arbitrary or capricious, and the plaintiff conceded at oral argument that there is an independent remedy available to him for challenging that classification. See 103 Code Mass. Regs. 420.09(3) (2007) (inmate appeal from reclassification). In any event, that issue is not before us and we therefore express no opinion about it.
In his reply brief, the plaintiff states that he “does not contend that ... there were any defects in the classification proceedings that followed the Offense 2–1 guilty finding.” We note in this regard that the manual contemplates discretionary departures “from the scored custody level when appropriate.” See 103 Code Mass. Regs. 420.06 (2007) (defining “Discretionary Override”).
5. Notice. The plaintiff's final contention is that the Sumner memorandum did not provide prisoners adequate notice that mere possession of a cell phone would result in a charge of possession of escape items. However, the plaintiff concedes that he did not raise this issue in the Superior Court. It has accordingly been waived. See Green v. Brookline, 53 Mass.App.Ct. 120, 128 (2001), quoting from Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674 (2000) (“ ‘Objections, issues, or claims—however meritorious—that have not been raised’ below are waived on appeal”). Moreover, were we to consider this issue, we would quickly conclude that the plaintiff's argument is without merit. As we read it, the Sumner memorandum plainly put prisoners on notice that they could be charged with possession of escape items based solely on possession of a cell phone. Whether they would be so charged, far less relevant for notice purposes, was clearly left to the determination of the charging officer based on the circumstances.
Judgment affirmed.