'Abdullah v. Secretary of Public Safety

• Decision Date: 22 May 1997
• Docket Number: No. 96-P-188,96-P-188
• Court: Appeals Court of Massachusetts
• Parties: 'Omar 'ABDULLAH v. SECRETARY OF PUBLIC SAFETY & others. 1

Page 689

677 N.E.2d 689

42 Mass.App.Ct. 387

'Omar 'ABDULLAH v. SECRETARY OF PUBLIC SAFETY & others. ¹

No. 96-P-188.

Appeals Court of Massachusetts,

Suffolk.

Argued Nov. 18, 1996.

Decided March 28, 1997.

Further Appellate Review Denied May 22, 1997.

Charles M. Wyzanski, Boston, for the Secretary of Public Safety & others.

'Omar 'Abdullah, pro se.

Before BROWN, DREBEN and SMITH, JJ.

DREBEN, Justice.

The plaintiff, 'Abdullah, an inmate in the custody of the Department of Correction (department), brought this action against the defendants following his transfer in 1992 from the Massachusetts Correctional Institution (M.C.I.), Lancaster, a minimum security facility, to M.C.I., Concord, a medium security facility. The primary thrust of 'Abdullah's pro se complaint is that the defendants violated his Federal and State constitutional rights, as well as departmental regulations, by transferring him prior to a reclassification hearing and without informing him either before or after the hearing of the reasons for the transfer. He also claims that the conditions of his confinement at M.C.I., Concord, were in violation of his constitutional rights. 'Abdullah sought declaratory and injunctive relief and damages. A judge of the Superior Court, presented with cross motions for summary judgment, allowed, in part, both parties' motions and awarded 'Abdullah compensatory and punitive damages. Both parties have appealed.

The undisputed facts, gleaned from the summary judgment materials, are as follows. Since 1969, 'Abdullah has been imprisoned as a result of convictions described by the judge as robbery and rape of a child under sixteen years of age. During his confinement, he has been a "model inmate." He has received no disciplinary reports, demonstrated an excellent work record, adjusted to the prison environment and participated in prison rehabilitation programs. From 1983 to 1992, 'Abdullah was housed at a minimum security facility. Prior to 1983 he had held an honor position as trustee at M.C.I., Norfolk, which allowed him to work outside the walls of the facility. He has had 103 furloughs since 1985, all of which have proceeded without incident.

In July, 1991, prison administrators at M.C.I., Lancaster, approved 'Abdullah's request for early parole consideration (one-third of his minimum sentence) based on his exemplary prison record. The parole board, however, denied 'Abdullah's request for early release. In early June, 1992, Lancaster officials (by a four-to-one vote) again recommended early parole consideration for 'Abdullah. Prior to any action by the parole board, and without a reclassification hearing, the Commissioner of Correction (commissioner) ordered 'Abdullah transferred to M.C.I., Concord, as he was deemed a "security" risk.

That he was considered a security risk was not told to 'Abdullah and, in fact, no explanation of any kind for the transfer was given to him. Upon his arrival at Concord, 'Abdullah was forced to sleep for six days on a concrete floor due to overcrowding at the facility. On August 11, 1992, 'Abdullah was given a reclassification hearing, and was subsequently reclassified to medium security status and transferred to the Bay State Correctional Center.

On these facts, and upon review of various regulations pertaining to the reclassification of inmates and the conditions of their confinement, the motion judge concluded that all but three of the defendants had violated 'Abdullah's Federal and State due process rights, as well as regulations binding on the department. ² , ³ He awarded 'Abdullah damages pursuant to 42 U.S.C. § 1983 in the sum of $8,400 for the "unlawful transfer," and $1,500 for the six nights he was forced to sleep on the floor. Finding also that the defendants' actions reflected "a reckless and callous indifference" to 'Abdullah's rights, the judge awarded him punitive damages of $25,000. The defendants' motion for summary judgment was allowed on 'Abdullah's remaining claims under 42 U.S.C. §§ 1983, 1986 & 1988, and G.L. c. 12, §§ 11H & I, c. 127, § 32, and c. 30A.

We first discuss the matters raised in the defendants' appeal.

1. Transfer to higher security status. (a) 'Abdullah's claim for damages under § 1983. Relief under 42 U.S.C. § 1983 requires a showing that the defendants denied the plaintiff a constitutional or Federal statutory right and that such denial was effected under color of State law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Temple v. Marlborough Div. of the District Court Dept., 395 Mass. 117, 122, 479 N.E.2d 137 (1985); Martino v. Hogan, 37 Mass.App.Ct. 710, 714, 643 N.E.2d 53 (1994).

'Abdullah bases his constitutional claim of improper classification on the due process clause of the Fourteenth Amendment to the United States Constitution. ⁴ See O'Malley v. Sheriff of Worcester Cty., 415 Mass. 132, 135, 612 N.E.2d 641 (1993). The judge, while acknowledging that 'Abdullah had no protected liberty interest in a particular security grade or location of confinement derived from the due process clause itself, see Martino v. Hogan, 37 Mass.App.Ct. at 714, 643 N.E.2d 53, citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), concluded that the State, through its reclassification regulations, see section 1(b) of this opinion, infra, had created a liberty interest by mandating a procedure that was "due." This reasoning is now foreclosed by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), as clarified by two cases issued after the judge's decision, Dominique v. Weld, 73 F.3d 1156, 1160-1161 (1st Cir.1996), and Hastings v. Commissioner of Correction, 424 Mass. 46, 50-52, 674 N.E.2d 221 (1997). These cases establish that transfers such as complained of by the plaintiff do not fall within the Federal due process protection which States may still create because such transfers do not impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 51, 674 N.E.2d 221, quoting from Sandin, at ----, 115 S.Ct. at 2300. ⁵ Measured by this standard, 'Abdullah's claim of a liberty interest, the violation of which gives rise to a right to damages under § 1983, must fail.

(b) 'Abdullah's claims that the transfer violated departmental regulations. The regulations pertaining to the transfer of inmates for security reasons to a higher security placement, as set out in 103 Code Mass. Regs. §§ 420.09(3)(a) and 420.08(6)(a) through (I) (1992), and reproduced in the appendix to this opinion, entitle an inmate, who is considered for such a transfer, to a classification hearing. Normally, the hearing should be held prior to an inmate's transfer, although, when security needs dictate, the hearing may be held within twenty working days following the transfer. These time limits are explicitly stated to be directory and may be waived. 103 Code Mass. Regs. § 420.12 (1992).

An inmate is also entitled to written notice of such a hearing containing, among other things, the reasons for the hearing. Any decision made by the classification board to an inmate contesting the transfer to higher security must be explained in a written summary. Hastings v. Commissioner of Correction, 424 Mass. at 50 n. 10, 674 N.E.2d 221. An inmate who is not in agreement with a classification board's recommendation may appeal in writing to the superintendent.

"Once an agency has seen fit to promulgate regulations, it must comply with those regulations.... [They] have the force of law." Royce v. Commissioner of Correction, 390 Mass. 425, 427, 456 N.E.2d 1127 (1983). Good v. Commissioner of Correction, 417 Mass. 329, 332, 629 N.E.2d 1321 (1994). Stokes v. Commissioner of Correction, 26 Mass.App.Ct. 585, 588, 530 N.E.2d 801 (1988). ⁶ 'Abdullah alleged in his verified complaint and affidavit, and it is not disputed by the defendants in verified form, ⁷ that they did not inform him of the reasons for his transfer either before or after the classification hearing. ⁸ These undisputed statements indicate that the department did not comply with its regulations. Without notice that he was being transferred as a security risk, 'Abdullah could not meaningfully appear before the board or submit a written appeal to the superintendent. See 103 Code Mass. Regs. §§ 420.08(6)(d) and (6)(h); 420.09(3)(b). In view of the department's failure, 'Abdullah is entitled to a new classification hearing. Cf. Nelson v. Commissioner of Correction, 390 Mass. 379, 398, 456 N.E.2d 1100 (1983). ⁹

(c) Abdullah's claim that the transfer violated art. 12 of the Massachusetts Declaration of Rights. This State due process claim would appear to be foreclosed by the decision in Hastings v. Commissioner of Correction, 424 Mass. at 52, 674 N.E.2d 221, which holds that the statute and regulations at issue in that case did not limit the broad discretion afforded prison officials by imposing substantive standards governing reclassification to higher security. No additional regulations or statutes imposing substantive standards are cited to us here. In any event, 'Abdullah would be entitled to no greater relief under art. 12 than we have outlined in our discussion of the department's violation of its regulations. See Martino v. Hogan, 37 Mass.App.Ct. at 720-721, 643 N.E.2d 53. Cf. Good v. Commissioner of Correction, 417 Mass. at 332, 629 N.E.2d 1321.

2. Conditions of confinement--sleeping arrangements. The defendants argue that the judge erred in awarding 'Abdullah damages under 42 U.S.C. § 1983 for the six days he was forced to sleep on the floor due to overcrowding at M.C.I., Concord. Although they argue that the conditions imposed upon 'Abdullah do not violate the Eighth Amendment to the United States Constitution or art. 26 of the Massachusetts Declaration of Rights, they also assert that any "reasoned...