Opinion
19-P-906
10-29-2020
Mac S. HUDSON v. Thomas TURCO, Third, & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se plaintiff, Mac S. Hudson, is an inmate who was formerly held at the Souza-Baranowski Correctional Facility (SBCC) and is currently incarcerated at MCI-Concord. He appeals from a judgment following a successful motion for summary judgment brought by the defendants, the former Commissioner of Correction and five SBCC officials, on his amended verified complaint. He sought declaratory and equitable relief, pursuant to G. L. c. 231A, in connection with the final decisions on several prison grievances he filed, as well as damages, court costs pursuant to Mass. R. Civ. P. 54 (d), as appearing in 382 Mass. 821 (1980), and attorney's fees under 42 U.S.C. § 1988(b). We affirm.
Background. The defendants responded to Hudson's complaint by moving to dismiss, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), or, alternatively, for summary judgment, under Mass. R. Civ. P. 56, 365 Mass. 824 (1974). Although the judge did not clearly identify which of these rules she relied upon, we conclude that she decided the motion on the basis of summary judgment. Given the range of issues included in this appeal, we reserve recitation of the relevant undisputed facts for each respective discussion.
We agree with the defendants that Hudson's claims for declaratory or injunctive relief (with the exception of his claim for return of confiscated incoming mail still held by the defendants) became moot when he was transferred from SBCC to a different correctional facility. See M.C. v. Commissioner of Correction, 399 Mass. 909, 911 (1987). As Hudson alleged violations under the Federal Civil Rights Act and also claimed monetary damages on each of his claims, however, none of his claims are entirely moot. See Jiles v. Department of Correction, 55 Mass. App. Ct. 658, 661 n.5 (2002).
Discussion. We review the record de novo under the familiar summary judgment standard. See DuPont v. Commissioner of Correction, 448 Mass. 389, 397–398 (2007), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991) ; LaChance v. Commissioner of Corrections, 88 Mass. App. Ct. 507, 508 (2015). See also Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
1. Restrictions on incoming mail. Hudson alleged violations of his rights under the First and Fourteenth Amendments to the United States Constitution, as well as arts. 1, 9, and 16 of the Massachusetts Declaration of Rights based on the defendants' confiscation of (1) two incoming pieces of mail containing banned decorative glitter and (2) the majority of pages in a separate incoming package on the grounds that the documents enclosed exceeded the permissible volume of "publications" permitted in a single mailing. See 103 Code Mass. Regs. § 481.06 (2002) (defining "publication"). We agree with the defendants that they were entitled to summary judgment on these claims based on the undisputed fact that the mail at issue was withheld in accordance with content-neutral policies rooted in concerns about safety and preservation of institutional order.
We cite to the regulations in effect at the time Hudson received the mail in question. See, e.g., Beach v. Commerce Ins. Co., 69 Mass. App. Ct. 720, 723 n.4 (2007).
Restrictions on inmate mail implicate interests protected by the First and Fourteenth Amendments, as well as by the Massachusetts Declaration of Rights. See Champagne v. Commissioner of Correction, 395 Mass. 382, 386-387 (1985). Prisoners retain their constitutional rights notwithstanding incarceration to the extent that those rights are consistent with limitations inherent in "[t]he fact of confinement as well as the legitimate goals and policies of the penal institution." Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 220 (2017), quoting Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 770 n.10 (1996). See Commonwealth v. Jessup, 471 Mass. 121, 129 (2015). Accordingly, to determine whether a particular policy's intrusion on an inmate's rights is permissible, we ask whether the policy is "reasonably related to legitimate penological interests." Id. at 130-131, quoting Turner v. Safley, 482 U.S. 78, 89 (1987). In making that assessment, we consider four factors: (1) whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) whether "ready alternatives" to the regulation exist (quotation omitted). Turner, supra at 89-90.
Other than as to Hudson's claims concerning the free exercise of his religion, which we discuss infra, and to which we apply the Massachusetts standard favorable to Hudson, we review Hudson's State and Federal constitutional claims under the same standard. Hudson does not argue otherwise. See Champagne v. Commissioner of Correction, 395 Mass. 382, 386 (1985) (applying same standard of review to inmate's Federal and State claims).
a. Glitter. SBCC is necessarily alert to the risk that incoming inmate mail may be used to smuggle drugs into the prison. In December, 2016, having become aware through the Department of Corrections (DOC) of the advent of a "very powerful" street drug called "glitter," sold as a liquid mixed with glitter, SBCC announced a policy that glitter in any form was considered contraband and would not be admitted into the facility. Two cards addressed to Hudson including glitter were received at SBCC in December, 2016, and both were confiscated as contraband. Hudson's internal challenge to the contraband determination was unsuccessful.
As to the first Turner factor, the policy prohibiting the introduction of glitter into the facility was connected to the defendants' legitimate interest in preventing drugs from being smuggled in through the mail, and was applied in a content-neutral manner. See Turner, 482 U.S. at 89-90 ; Abdul-Alazim v. Superintendent, Mass. Correctional Inst., Cedar Junction, 56 Mass. App. Ct. 449, 455 n.9 (2002). See also G. L. c. 124, § 1 (b ) (Commissioner of Correction shall "maintain security, safety and order"); LaChance, 88 Mass. App. Ct. at 509 ("Prison officials have the duty and obligation to maintain security in the prison"). Next, the policy did not prohibit the defendant from exercising his rights to expression in any way other than by preventing him from receiving mail including a specific decorative element. See Turner, supra at 90. Third, in light of the undisputed evidence of the potency and concentration of the drug "glitter," accommodating Hudson's assertion of his right to receive mail, which could have been a vehicle for bringing that drug into the prison, would have presented a risk of overdose or accidental exposure to both prison staff and inmates. See id. Lastly, on the record before us, there is no evidence that a ready alternative to confiscation existed. See id.
There is no merit to Hudson's claim that the policy prohibiting glitter from entering the prison was inconsistent with existing prison regulations, or that the defendants engaged in impermissible rule making in violation of G. L. c. 30A. Prison safety and security is entrusted to its administrators through the prison superintendent. See G. L. c. 127, § 33. See also Kenney v. Commissioner of Correction, 393 Mass. 28, 35 (1984), quoting Real v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 399, 406 (1983) (recognizing prison administrators' "broad discretion in the administration of prison affairs" given that "[t]he operation of a correctional institution is at best an extraordinarily difficult undertaking"). As part of that obligation, prison superintendents are authorized to inspect and, where appropriate, disapprove nonprivileged incoming mail, see 103 Code Mass. Regs. § 481.13(1) (2002), and to develop corresponding policies for doing so, see 103 Code Mass. Regs. § 481.07 (2002).
b. "Excessive" legal mail. By contraband notice dated January 18, 2017, Hudson was informed that he had received a delivery of "[e]xcessive [l]egal [mail] [s]ent [f]rom [h]ome," and that it would not be delivered to him. The decision was based on an administrative determination that the mail was from an individual who was not an attorney, included more than five pages of nonprivileged photocopied materials, and, thus, was subject to restriction as a "publication" pursuant to inmate mail regulations and SBCC's mail procedures. See 103 Code Mass. Regs. § 481.06.
The inmate mail regulations defined "publication" to include "any book, booklet, pamphlet, magazine, periodical, newsletter, newspaper, or similar document, including stationery and greeting cards, published by any individual, organization, company, or corporation which is distributed or made available through any means or media for a commercial purpose." 103 Code Mass. Regs. § 481.06. At oral argument, Hudson described the enclosures as legal "research material." SBCC's mail procedures provided that inmates could receive "a maximum of five pages [of publications] per day, except Sundays and Postal holidays." This restriction did not apply to privileged mail.
Hudson's challenge that the photocopies at issue were not "publications" is unavailing. The plain language of the inmate mail regulations relating to "publications" can readily be interpreted, as the defendants do, to include copies of legal research materials. Cf. Morin v. Commissioner of Pub. Welfare, 16 Mass. App. Ct. 20, 24 (1983) (administrative body's interpretation of own regulation "entitled to deference and may be controlling").
We are no more persuaded by Hudson's argument that, even if the documents were "publications," the section "had never been applied to inmates obtaining legal documents ... sent ... from home." Hudson's unsupported, conclusory statement to this effect below was insufficient to raise a genuine issue of material fact. See Borella v. Refro, 96 Mass. App. Ct. 617, 622 (2019).
Applying the Turner factors, we conclude that any limitation on incoming "publications" placed on Hudson's constitutional rights was, again, "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89. We are persuaded that limiting the volume of reproduced printed material that could be received by an inmate on a daily basis neutrally addressed the legitimate governmental interest in reducing the risk that contraband would be introduced into the prison and the burden on prison resources required to conduct careful inspection. See id. at 89-90 ; Abdul-Alazim, 56 Mass. App. Ct. at 455 n.9.
The record established an alternate means of exercising the rights at issue -- inmates like Hudson were permitted to receive "publications," including the legal research materials at issue here, in five-page increments, and had regular access to a law library in their unit. See Turner, supra at 93 (recognizing "the sheer burden on staff resources required" to conduct extensive review and censorship of large quantities of mail).
The effect of permitting inmates to receive "publications" in unlimited volume is apparent. The burden of reviewing those enclosures would present a significant drain on staff time and facility resources, and would increase the risk that contraband would evade notice by overburdened staff. See Cryer v. Clark, U.S. Dist. Ct., No. 09-10238-PBS (D. Mass. July 9, 2009) ("prison's interest in minimizing the drain on resources entailed in screening incoming items has been held to constitute a compelling interest"); Klein v. Tocci, U.S. Dist. Ct., No. 09-11248-GAO (D. Mass. July 1, 2010) ("convenience routinely justf[ies] infringement on constitutional rights under Turner [ ] .... Conserving resources [by limiting review] is a legitimate penological interest for the purposes of the Turner analysis").
Finally, Hudson suggests no ready alternative to the regulation. Summary judgment for the defendants was proper as to Hudson's mail-related claims.
In the summary of facts included in his brief, Hudson refers to a dispute over the February 20, 2017, designation of a card and picture as contraband based on the presence of an "unidentified substance on the card and tape on the picture." Hudson makes no argument about this incident, however, and we do not consider it. See Mass. R. A. P. 16 (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
As we discern no constitutional violation, we conclude that the defendants were also entitled to summary judgment on Hudson's claims pursuant to 42 U.S.C. § 1983, to the extent those claims related to confiscation of Hudson's mail. See Jiles v. Department of Correction, 55 Mass. App. Ct. 658, 664 (2002).
2. Unavailability of adhesive tape. At the times relevant to this action, an SBCC inmate was permitted to decorate a two-by-three foot square on his cell wall. The SBCC canteen did not sell adhesive tape to inmates based on the administration's concerns about inmates' use of tape to make knives and other weapons. Hudson argues that the defendants impinged on his First Amendment right to freedom of expression by "depriving him of any means" of using the permitted wall space.
Applying the Turner factors to this issue, we conclude that the prison's elimination of tape from the canteen bore a "valid, rational connection" to the "legitimate and neutral" interest in maintaining prison safety where the defendants provided uncontroverted evidence that adhesive tape has been used by prisoners to make illegal weapons. Turner, 482 U.S. at 89-90. See Abdul-Alazim, 56 Mass. App. Ct. 455 n.9.
As to the second factor, Hudson concedes that there were alternative means of exercising his rights, even if the other alternatives were not ideal.
Hudson notes that toothpaste could have been used to affix photographs and other items to the wall, but that repeated use of toothpaste as an adhesive sometimes damages the items to which it is applied.
Third, on this record, the effect on corrections staff, other inmates, and the allocation of prison resources generally is stark and potentially severe. Given the evidence of past use of tape in homemade weapons, there was an obvious risk to both personal safety and institutional security. See Rasheed v. Commissioner of Correction, 446 Mass. 463, 473-475 (2006) (DOC's "compelling interest in ensuring the safety of its staff and inmates" includes preventing introduction of weapons into prisons); Jiles, 55 Mass. App. Ct. at 663, quoting Bell v. Wolfish, 441 U.S. 520, 546 (1979) (maintenance of institutional safety and internal order "essential goals" of prison administration).
Last, we perceive no ready alternative to the decision to eliminate inmate access to tape; indeed, Hudson himself suggests none. See Turner, 482 U.S. at 90. We conclude that summary judgment was properly granted in favor of the defendants on each of Hudson's claims rooted in his right to freedom of expression.
From what we can discern, Hudson has not made separate arguments with respect to his claims that his rights under the Fourteenth Amendment to the United States Constitution, or arts. 1, 9, or 16, were violated, and we do not address them separately.
3. Restrictions on worship. Hudson alleged that in failing to provide him access to daily worship when other prisoners had such access, the defendants violated his State and Federal constitutional rights to free exercise of his religion and equal protection, as well as his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc. We are not persuaded.
Hudson also alleges violations of a nonexistent "article 42" of the Massachusetts Declaration of Rights. We understand this to be a reference to art. 46 of the Amendments to the Massachusetts Constitution.
a. Limitations on group worship. For the purposes of summary judgment, Hudson established that he was a practicing member of the Nation of Islam; the tenets of his religion required daily group worship and study; and as SBCC did not have a full-time chaplain, he was not permitted to engage in daily group religious practice, whereas Sunni Muslim inmates had a full-time chaplain and access to daily group worship. He also established that his inability to engage in daily group prayers substantially burdened his sincerely held religious beliefs. See Hudson v. Spencer, 335 F. Supp. 3d 196, 201 (D. Mass. (2018) (noting First Circuit's determination that inmates had shown "lack of daily access to space for congregational worship substantially burdened their religious exercise"). Contrast Rasheed, 446 Mass. at 473 (no substantial interference where prison policy required inmate to stand for count during required time for prayer, as policy did not prohibit inmate from praying at designated time). We nonetheless conclude summary judgment on these claims properly entered for the defendants.
"In determining the constitutionality of department regulations and policies that burden the free exercise of religion by those in custody, we will look to whether those regulations and policies advance compelling State interests, and, if so, are ‘tailored narrowly in pursuit of those interests.’ " Rasheed, 446 Mass. at 465, quoting Attorney Gen. v. Desilets, 418 Mass. 316, 321 n.4 (1994). This standard, derived from the Massachusetts Constitution, is more protective of inmates' rights than is the applicable Federal test. See Rasheed, supra at 467, citing Desilets, supra at 321. We conclude that, as a matter of law, the policies satisfied the above requirements.
Prison administrators' interest in institutional safety and order is well established. See Rasheed, 446 Mass. at 473-474 (recognizing DOC's compelling interest in ensuring safety of staff and inmates). Avoiding situations in which some inmates seek to exercise control over other inmates by leading worship furthers DOC's security interests, as evidenced by DOC's regulations. See 103 Code Mass. Regs. § 430.24 (2006) (inmate's participation in unauthorized group activity inside correctional facility as inmate disciplinary offenses). Accepting Hudson's representation that the Nation of Islam's daily group worship and study requirements exist with the goal of creating community and do not require a leader, we are nonetheless persuaded that in any gathering of like-minded inmates, there will be a very real possibility that some participants may seek to take on a leadership role, creating the risk that a hierarchy will emerge. Where the undisputed record evidence supported the defendants' position that SBCC lacked the resources to provide either a full-time chaplain or corrections staff member to supervise the daily observances Hudson demanded, we are satisfied that, as a matter of law, SBCC's policies on this issue were sufficiently narrowly tailored. See Rasheed, 446 Mass. at 465.
As to Hudson's argument that the institutional restrictions on his ability to practice violated the RLUIPA, we conclude that the claim fails on essentially the same reasoning applicable to Hudson's First Amendment argument. See 42 U.S.C. § 2000cc-1(a) (prohibiting prisons from imposing "substantial burden" on inmate's "religious exercise" except where burden furthers compelling governmental interest through least restrictive means); Adkins v. Kaspar, 393 F.3d 559, 564, 571 (5th Cir. 2004) (no First Amendment or RLUIPA violation where lack of volunteers acceptable to defendants limited inmates' ability to gather). See also Ahmad v. Department of Correction, 446 Mass. 479, 485-486 (2006) (if regulations and policies "are permissible under the Massachusetts Constitution, they will meet the requirements of RLUIPA")
b. Equal protection. Hudson claims that his rights under the equal protection clause were violated because Sunni Muslims were provided with a full-time chaplain at SBCC, but Nation of Islam inmates were not. A violation of equal protection is established where there is "proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) ... such selective treatment was based on impermissible considerations," including, for example, the person's religion. DuPont v. Commissioner of Correction, 448 Mass. 389, 398-399 (2007), quoting Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 376 (2006). "An equal protection claim can only succeed if a plaintiff establishes that government action discriminates against similarly situated persons." Dupont, supra at 399.
We conclude that while Hudson has shown that his religious group was treated differently than another religious group, he has not shown he was treated differently because of his religion. Moreover, his averment that "[t]here [are] equal numbers if not more Nation of Islam inmates" than Sunni Muslim inmates at SBCC is speculative and conclusory, and does not establish that the groups are "similarly situated" for equal protection analysis. See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) ("extent of the demand" a consideration in assessing religion-based equal protection challenge); DuPont, 448 Mass. at 400 (question "[w]hether two groups of persons are similarly situated is not easily ascertained"). Additionally, as we have discussed, the summary judgment record supports the defendants' argument that the reason for any disparate treatment was based on limits on SBCC's budget and challenges in obtaining Nation of Islam volunteers. We conclude summary judgment entered properly for the defendants with respect to Hudson's constitutional and statutory claims based on religious considerations.
In the absence of any constitutional violation, we conclude that the defendants were also entitled to summary judgment on Hudson's claims against them pursuant to 42 U.S.C. § 1983, to the extent those claims related to the limitations on Hudson's ability to participate in religious activities. See Jiles, 55 Mass. App. Ct. at 664.
4. Restrictive housing. Hudson alleged that the defendants violated his rights under the Massachusetts and Federal Constitutions, as well as violated G. L. c. 127, § 32, and 42 U.S.C. § 1983, by housing him in restrictive conditions of confinement without due process and without providing him the same opportunities afforded inmates in two other housing units, L-2 and H-2.
Hudson's constitutional and statutory restrictive confinement claims fail because the record, even read in the light most favorable to Hudson, does not establish that Hudson was subject to restrictive confinement substantially equivalent to that of a disciplinary unit. See Longval v. Commissioner of Correction, 404 Mass. 325, 328-329 (1989) (prison "may not sidestep statutory and regulatory provisions stating the rights of an inmate ... by assigning as a pretext another name to [a disciplinary] unit" and transferring inmates there). To the contrary, the record reflects significant differences between the narrowly restricted privileges enjoyed by inmates in the disciplinary unit (SMU) as compared to those available to inmates in "sectored units" like Hudson's. Hudson's focus on the "split" or "sectored" schedule to which he was subject does not weigh in his favor; all inmates in general population housing units were subject to similar schedules, and the sectored schedule was more generous than the schedule applicable to SMU inmates.
Those additional restrictions on inmates confined to the SMU included limitations on the amount of personal property allowed to them; restrictions on their opportunities to shower, shave, and use the telephone; elimination of contact visits; segregation of SMU inmates from other inmates; and the requirement that SMU inmates be "escorted in restraints" while outside their cells. The fact that Hudson's units, as with approximately half the general population housing units at SBCC, were "feed-in" units and did not participate in communal meals does not, standing alone, change the analysis. Cf. Haverty v. Commissioner of Correction, 437 Mass. 737, 743-744 (2002) (including plaintiff inmates' confinement to cells at mealtimes as one factor indicating plaintiffs' terms of confinement more restrictive than those of other inmates).
The fact that two "specialized" housing units, L-2 (workers' unit) and H-2 (long-term unit), provided "added incentives and privileges" for inmates, including access to microwave ovens and nonboiling hot pots, did not transform the conditions of general population inmates into improperly restrictive confinement, or Hudson's assignment to either of his housing units into an impermissible disciplinary action. See Haverty v. Commissioner of Correction, 437 Mass. 737, 755-756 (2002) ; Longval, 404 Mass. at 328-329. Further, the fact that those units were "specialized" housing for inmates who achieved certain goals undermines Hudson's argument that he was "similarly situated" to L-2 and H-2 inmates for equal protection purposes. Accordingly, we conclude that Hudson's equal protection claim based on prison policy limiting the availability of nonboiling hot pots to the workers' and long-term units also fails. In the absence of any constitutional violations based on restrictive housing, the defendants were entitled to summary judgment on Hudson's related § 1983 claims.
We are unable to identify in Hudson's briefing any discrete discussion about his claims under G. L. c. 127, § 32.
5. Qualified immunity. Our conclusion that the defendants were entitled to judgment as a matter of law on each of Hudson's constitutional claims forecloses Hudson's recovery against the defendants, both in their official capacities and individually, under § 1983. See Pereira v. Commissioner of Social Servs., 432 Mass. 251, 265 (2000) (where none of plaintiff's rights were violated, plaintiff "has no claim under 42 U.S.C. § 1983").
Conclusion. We affirm the judgment in favor of the defendants on each of the plaintiff's claims, and decline to award court costs or attorney's fees.
We have not overlooked other arguments Hudson has made, but conclude that they do not merit explicit analysis and discussion. See Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), citing Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
So ordered.
Affirmed.