Opinion
CIVIL ACTION NO. 01-40166-RWZ
November 10, 2003
MEMORANDUM OF DECISION
Plaintiff Keith Phillips was serving a sentence for rape concurrent with a sentence for indecent assault on a person 14 years or older at the Massachusetts Treatment Center ("Center") and at the time in issue, was a participant in the Department of Corrections sex offender treatment program at the Center. He alleges that his cell was unlawfully searched on January 31, 2000, and a manuscript authored by him, illegally seized. The confiscated document concerned a former staff member who had been held hostage and sexually assaulted by an inmate. The next day, defendant Robert Clauss, a correction officer, interviewed plaintiff and then wrote a disciplinary report charging him with conduct that violated a rule or regulation of the department or institution-based program, conduct that interfered with the security and/or orderly running of the Center, and for possession of unauthorized pornography. (Amended Compl. Ex. B). Plaintiff pled guilty to the charges and served some isolation time. He was subsequently reclassified, removed from the sex offender treatment program, and transferred to Old Colony Correctional Center on March 28, 2000. In May 2000, his reserve parole was rescinded.
Plaintiff incorrectly contends that the behavior that he was punished for was not a Department of Correction offense, but merely a violation of the Recovery Code of the sex offender treatment program, which is "just a set of clinical guidelines and nothing more." (PL's Mem. in Supp. of his Opp'n at 7). However, by virtue of being a violation of the treatment program, it is a violation of the Department of Correction Code of Offenses. (PL's Mem. in Supp. of Opp'n Ex. N) (Item two defines one offense as "[v]iolating any departmental rule or regulation, or any other rule, regulation, or condition of an institution or community based program.")
Because the disciplinary report is attached to the Amended Complaint as an exhibit, it is "properly considered part of the pleadings for rule 12(b)(6) purposes." In Re Lane, 937 F.2d 694, 696 (1st Cir. 1991).
On November 26, 2001, plaintiff filed an eight count Complaint (which he subsequently amended) against various defendants at the Center in connection with the search and its sequellae. Defendants have moved to dismiss or in the alternative, for summary judgment, as to the entire complaint. Plaintiff has filed his cross motion for partial summary judgment as to Counts One and Two.
In Count One, plaintiff alleges that his First Amendment rights and his rights under Article 16 of the Massachusetts Declaration of Rights were violated when his writing was seized and he was disciplined. "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objective of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804 (1974). Therefore, a challenge by a prisoner under the First Amendment "must be analyzed in terms of the legitimate policies and goals of the corrections system. . . ."Id. The court must consider four factors in determining whether or not the regulation is reasonable: (1) whether a rational connection between the regulation and the governmental interest exists; (2) whether there remain alternative means of exercising the right; (3) the impact "the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally[;]" and (4) the "absence of ready alternatives is evidence of the reasonableness of a prison regulation." Turner v. Safley, 482 U.S. 78, 79-80, 107 S.Ct. 2254, 2262 (1987). See also Mass. Prisoners Ass'n Political Action Committee v. Acting Governor, 761 N.E.2d 952, 958 (Mass. 2002) (adopting the Turner standard for federal and state constitutional claims).
Plaintiff erroneously asserts that Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) stands for the proposition that "inmates cannot be punished for their written views." (Pl. Mem. in Supp. of his Opp'n at 11). Instead, the Sostre court distinguished between the types of prisoner correspondence that a prison authority could edit, withhold or refuse to mail. The Sostre court noted that "[d]scipline and prison order are sufficient interests to justify such regulation incidental to the content of prisoners' speech."Sostre, 442 F.2d at 200.
As a participant in the intensive sex offender treatment program at the Center, plaintiff was prohibited from having pornography, which is defined as "anything that feeds your deviancy, objectification, or sexualization of another human being." (Amended Compl. Ex. C). First, this prohibition is rationally related to a governmental interest, namely, the goal of treating sex offenders. There are also security concerns, which are clear in this case where the plaintiff's writing was based on an actual sexual assault of a former staff member by an inmate. Second, plaintiff may exercise his First Amendment rights by writing about anything that is not pornographic. Third, defendants admit that a blanket rule against possession of pornography may be overly broad because some participants in the sex offender treatment program may have the ability to possess pornographic materials without detriment to their treatment. However, the determination as to which participants could harmlessly have pornography would require special review and the prison is insufficiently staffed to conduct those reviews. Given the legitimate policies and goals of the sex offender treatment program, the confiscation of plaintiff's writing as prohibited pornography did not violate either his First Amendment rights or his rights under Article 16 of the Massachusetts Declaration of Rights.
Count Two states that plaintiff's Due Process rights under the Fourteenth Amendment and under Article 12 of the Massachusetts Declaration of Rights were violated when he was removed from the sex offender treatment program without an opportunity to defend himself. Inquiry into whether plaintiff had an adequate hearing is triggered only if a liberty interest is found. See Lanier v. Fair, 876 F.2d 243, 246 (1st Cir. 1989). A prisoner has a liberty interest in his reserve parole date, i.e., an early release date. Id. at 253.
Here, plaintiff has a liberty interest since he was given reserve parole without a date contingent on his completion of Phase IV of the sex offender treatment program. (Amended Compl. Ex. A). Although the Amended Complaint does not clearly state whether or not he was afforded a hearing before his reserve parole was rescinded, plaintiff cannot argue that he did not. He admitted in his original Complaint that he had a hearing before the parole board to determine its final decision as to its earlier provisional rescission of his reserve parole. (Compl. ¶ 64). See Wiseman v. Reposa, 463 F.2d 226, 227 (1st Cir. 1972) ("As a matter of pleading, the original complaint had disappeared [but] [a]s an admission against interest, it had not.") The parole hearing unquestionably afforded him an opportunity to defend his removal from the treatment program because his retention of reserve parole was inextricably intertwined with his completion of Phase IV of the treatment program. Therefore, plaintiff's due process claims are dismissed.
Likewise, Counts Three and Four, which allege that the cell search and the seizure of plaintiff's writing violated his Fourth Amendment rights and his rights under Article 12 rights of the Massachusetts Declaration of Rights, cannot be maintained. "[S]ociety is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and . . . accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." Hudson v. Palmer, 468 U.S. 517, 525-526, 104 S.Ct. 3194, 3200 (1984). A prisoner's Article 14 rights are severely curtailed as well. See Commonwealth v. McCollins, 503 N.E.2d 55, 57 (Mass.App.Ct. 1987) ("In determining whether a search in a prison setting is reasonable or unreasonable we are enjoined to accord substantial deference to the judgment of the prison authorities as to what is necessary to preserve internal order and discipline."). Although "there may be instances in which art. 14 of the Declaration of Rights will call for greater protection of individual rights than that which is afforded by the Fourth Amendment to the United States Constitution[,]" the facts of the present case do not present one of those occasions given that there is no indication that the search was anything but routine. Id. See Commonwealth v. Ford, 476 N.E.2d 560, 564-565 (Mass. 1985) (holding "that art. 14 of the [Massachusetts] Declaration of Rights requires the exclusion of evidence seized during a storage search not conducted pursuant to standard police procedures."); Commonwealth v. Upton, 476 N.E.2d 548, 556 (Mass. 1985) (concluding "that art. 14 provides more substantive protection to criminal defendants than does the Fourth Amendment in the determination of probable cause.").
By opinion dated March 31, 2003, this Court allowed Motions to Dismiss by defendants Roger Anyone and Rick Potter on the same grounds.
In Count Five, plaintiff asserts that defendant Robert Murphy violated the federal Privacy Act, 5 U.S.C. § 552a(e)(7), by maintaining records describing plaintiffs exercise of his First Amendment rights. However, the Privacy Act applies only to federal agencies.See Hurley v. Bureau of Prisons, No. 95-1690, 1995 U.S. App. LEXIS 30148 (1st Cir. Oct. 24, 1995). Therefore, plaintiff cannot sustain his claim against defendant Murphy, who is Superintendent of the Massachusetts Treatment Center, a state agency.
Count Six alleges that defendants "violated plaintiff's civil rights by persecuting him for exercising and enjoying his free speech guarantees" and that they conspired to deprive him of his rights under 42 U.S.C. § 1983. Section 1983 provides a federal cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and [federal] laws. . . ." 42 U.S.C. § 1983. As stated above, plaintiff's First Amendment rights were not violated; hence, plaintiff cannot maintain his civil rights and conspiracy claim under Section 1983.
In Count Seven, plaintiff appears to assert a negligent infliction of emotional distress claim against defendant Murphy. He claims that defendant Murphy was "responsible for the plaintiff's well being . . . and allowing the plaintiff the same psychological considerations extended to every other phase IV patient before abruptly and violently ripping him out of a[n] intense psycho-therapy program. . . ." (Amended Compl. at 12). The Prison Litigation Reform Act states that:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.42 U.S.C. § 1997e(e). Because plaintiff has not alleged any physical harm, this claim fails.
Finally, plaintiff brings a claim of malicious abuse of process, stating that defendant Robert Murphy, in attempt to cover the "illicit cell search[,]" arbitrarily and maliciously prosecuted plaintiff resulting in a loss of his parole permit and 59 days in a restraint cell. To maintain his abuse of process claim, plaintiff must show that defendant misused the legal process — not administrative or disciplinary process as he alleges here. See Silvia v. Building Inspector of West Bridaewater, 621 N.E.2d 686, 687 (Mass.App. 1993) ("Abuse of process presupposes the use of legal action for an ulterior purpose i.e., to achieve some end other than the apparent end of the litigation process which has been launched.").
Accordingly, defendants' Motion to Dismiss is ALLOWED and plaintiff's Motion for Partial Summary Judgment is DENIED.