Opinion
18-P-854
04-12-2019
WILLIAM M. TYREE v. COMMISSIONER OF CORRECTION.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
William Tyree, a prisoner in custody at Souza-Baranowski Correctional Center, challenges Department of Correction (department) regulations that limit his ability to view R/NC-17 rated videos while in custody. A Superior Court judge allowed the defendant's motion for judgment on the pleadings and judgment for the defendant entered on May 11, 2017. This appeal followed. We affirm.
The regulations prohibit R/NC-17 and X-rated films, but permit exceptions for religious or educational programs (upon review by the department), or on a case-by-case basis at the discretion of the department.
Discussion. 1. Timeliness of appeal. Tyree filed a motion to amend or vacate the judgment, which for present purposes we treat as a timely-served motion made under Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974). See Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994). A judge denied the motion on June 19, 2017. Roughly four months later, on October 20, 2017, Tyree filed a motion that functionally appears to be a motion for relief from judgment. See Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974); Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 188 n.4 (1995). A judge denied the second motion on May 9, 2018. Tyree filed a notice of appeal that same day.
We deny Tyree's motions, made in this court in paper numbers 9 and 12, to expand the record to include materials not before the motion judge.
For present purposes we assume that the first motion tolled the time in which Tyree could file a notice of appeal from the judgment; the second motion had no such effect. Id. at 187-188; Muir, 37 Mass. App. Ct. at 41. Accordingly, after the judge denied the first motion on June 19, 2017, Tyree had sixty days to file a notice of appeal. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). Tyree filed his notice on May 9, 2018, nearly nine months late. Tyree did not seek an extension and he has made no genuine attempt to excuse his untimely notice. See id.; Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979). As such, so much of the appeal as pertains to the judgment and the order denying the first postjudgment motion will be dismissed. A rule 60 (b) motion "cannot be used as a substitute for the regular appeal procedure." Piedra, 39 Mass. App. Ct. at 188, citing Muir, 37 Mass. App. Ct. at 41.
Tyree implies, but does not state, that he did not receive notice of the judge's June 19, 2017, order.
To the extent the order denying the second postjudgment motion properly is before us, we conclude the judge did not abuse his discretion. See Piedra, 39 Mass. App. Ct. at 188. For present purposes we need only observe that Tyree raises no argument addressing the order on the second motion. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). See also Hernon v. Hernon, 74 Mass. App. Ct. 492, 494 n.7 (2009). In any event, the judge did not abuse his discretion by denying a motion that simply repeated arguments that Tyree already had made and that the judge already had rejected. Any legal error, if there was any, had to be challenged by filing a timely notice of appeal from the judgment. See Harris v. Sannella, 400 Mass. 392, 396 (1987), quoting Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987) ("rule 60 (b) [motion] does not provide an avenue for challenging supposed legal errors").
2. Constitutional claims. What has been said is sufficient to determine the appeal. However, the result would be the same were we to treat the current appeal as a request for leave to file late under Mass. R. A. P. 14 (b) and reach Tyree's arguments on the merits. "Prison administrators are . . . 'accorded wide-ranging deference' in the 'adoption and execution of policies and practices that in their judgement are needed to preserve internal order and discipline and to maintain institutional security.'" Champagne v. Commissioner of Correction, 395 Mass. 382, 387 (1985), quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979). Applying the four-part test governing the prison regulation at issue, as set forth in Turner v. Safley, 482 U.S. 78, 90-91 (1987), the regulation of violent or sexually explicit material is rationally related to prison order and security. See Commonwealth v. Jessup, 471 Mass. 121, 131-133 (2015). See also Moses v. Dennehy, 523 F. Supp. 2d 57, 59-63 (D. Mass. 2007). A judge of the United States District Court for the District of Massachusetts has reviewed the department's regulation prohibiting the showing to inmates of movies rated R and NC-17, and concluded that legitimate penological interests outweigh the burden on the prisoner's rights under the First Amendment to the United States Constitution. See Gaskins v. Clarke, U.S. Dist. Ct., No. 07-10084-PBS (D. Mass. Jan. 16, 2008), aff'd, U.S. Ct. App., No. 08-1208 (1st Cir. Sept. 18, 2008), cert. denied, 555 U.S. 1119 (2009).
Tyree appears to believe that there has been no appeal in Gaskins because he cannot find it on legal research engines. The decision of the United States Court of Appeals for the First Circuit was not published.
Tyree claims that this case is different from Gaskins, but the challenge he brought was a facial challenge, as was the case in Gaskins. We concur with the reasoning in Gaskins, supra, and the application of Turner to a similar regulation in Jewell v. Gonzales, 420 F. Supp. 2d 406, 418-432 (W.D. Pa. 2006), concluding that regulations limiting prisoner viewing of R/NC-17 movies are facially valid. Accord Downs v. Ludwick, U.S. Dist. Ct., No. 4:13-CV-00498-REL (S.D. Iowa Mar. 9, 2015), aff'd, 632 Fed. Appx. 319 (8th Cir. 2016); Avila v. Cate, U.S. Dist. Ct., No. 1:10-CV-01208-JLT (E.D. Cal. July 8, 2011). The judgment on the pleadings was properly granted because the complaint did not state a plausible claim for relief. See generally Jarosz v. Palmer, 436 Mass. 526, 529 (2002).
Conclusion. So much of the appeal as purports to be from the judgment and the June 19, 2017, order denying Tyree's motion to amend or vacate is dismissed. The May 9, 2018, order denying Tyree's rule 60 (b) motion is affirmed.
So ordered.
By the Court (Hanlon, Agnes, & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 12, 2019.