Adrey v. Dep't of Corr.

Decision Date19 June 2020
Docket NumberDocket: 19-3786-H
PartiesJERRY ADREY PLAINTIFF v. DEPARTMENT OF CORRECTION, ET AL. DEFENDANTS
CourtSuperior Court of Massachusetts
Dates: June 19, 2020

Present: /s/ Peter B. Krupp Justice of the Superior Court

County: SUFFOLK ss

Keywords: MEMORANDUM AND ORDER ON MOTION FOR JUDGMENT ON PLEADINGS AS SUPPLEMENTED AFTER REMAND

Plaintiff Jerry Adrey filed this certiorari petition under G.L. c. 249, § 4, for review of a decision by the Commissioner of the Department of Correction ("the Commissioner") denying his June 21, 2019 petition for medical parole under G.L. c. 127, § 119A (eff. Apr. 13, 2018)1. Finding inconsistencies in the Commissioner's decision, the relevant superintendent's failure to prepare a "medical parole plan" as required by statute, and an apparent failure of the Commissioner to decide a later-filed petition for medical parole, I remanded the matter to the Commissioner for reevaluation on an expedited schedule based on plaintiff's current medical condition and with the benefit of a medical parole plan by the superintendent. On remand, the Commissioner again denied plaintiff medical parole. The case is now before me on plaintiff's motion for judgment on the pleadings, as supplemented after remand.2 For the following reasons, I allow the motion and enter an appropriate order for prompt compliance.

BACKGROUND

Plaintiff is almost 71 years old. In 1974, at the age of 25, he was convicted of second degree murder and sentenced in the Essex Superior Court to life in prison with the possibility of parole after 15 years. The Supreme Judicial Court upheld his conviction, Commonwealth v. Adrey, 376 Mass. 747 (1978), and affirmed the denial of his new trial motion. Commonwealth v. Adrey, 391 Mass. 751 (1986).

After serving more than 17 years, plaintiff was paroled on November 13, 1990. He lived in the community for almost 17 years. Although the record indicates he had some violations while on parole, each time he remained on parole despite his problem with drug addiction.

On April 17, 2007, plaintiff was re-incarcerated at the age 57 after he was arrested for drug distribution, and found in possession of a .357 Taurus revolver, two types of ammunition, heroin, and amphetamine. A suppression motion was allowed and all charges against plaintiff were nolle prossed in May 2008. Plaintiff nonetheless has remained in custody for the last 13 years following revocation of his parole. According to the Parole Board, after plaintiff was initially re-incarcerated, he received a number of disciplinary reports. In 2013, the Parole Board denied plaintiff parole, with plaintiff eligible for review in five years. In 2019, plaintiff was housed at MCI-Shirley. On or about June 21, 2019, plaintiff petitioned for medical parole under G.L. c. 127, § 119A, a statute that had taken effect only a year before. Plaintiff's petition and cover letter indicated that plaintiff "is wheelchair-bound[,] suffers from Hepatitis C, . . . [and] requires nursing home care." Plaintiff proposed "as his medical parole plan that he be released to the first available nursing home bed following a grant of release, and that his medical care will then be provided through his nursing home, to be funded by Medicaid."

On July 15, 2019, Colette Goguen, then the Superintendent at MCI-Shirley ("the Superintendent"), responded to the petition by letter to the Commissioner recommending denial of medical parole. The Superintendent indicated that "[c]urrent information indicates that Mr. Adrey resides safely in general population, is independently ambulatory, and does not require assistance with daily living activities." Relying on an "updated medical evaluation" from Dr. Maria Angeles, the medical director at MCI-Shirley,3 the Superintendent stated: "I do not find that Mr. Adrey meets the standard required by G.L. c. 127, § 119A(a) of permanent incapacitation 'such that if the prisoner is released the prisoner will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society.'" The Superintendent also found plaintiff does not have a "terminal illness." The Superintendent did not reference plaintiff's medical records, did not prepare or include a "medical parole plan" for plaintiff, and did not explicitly provide an assessment of the risk for violence that plaintiff poses to society. On August 29, 2019, the Commissioner denied plaintiff's medical parole petition in accordance with the Superintendent's recommendation. The Commissioner characterized the Superintendent's letter as containing "an updated medical assessment and an evaluation of the risk of violence plaintiff poses to society."4 The Commissioner also indicated she reviewed plaintiff's April 1, 2019 classification report,5 personalized program plan,6 and the Parole Board's decisions in 2008 and in 2013, but noted that plaintiff "did not submit medical records in support of the petition" and found the "medical parole plan" that plaintiff proposed to be "insufficient." But see Buckman v. Commissioner of Correction, 484 Mass. 14, 17, 24-25 (2020) (superintendent must prepare medial parole plan).

On December 4, 2019, plaintiff filed this action for certiorari review. Plaintiff argued that he was denied medical parole solely because of the nature of his offense of conviction and because of his prior addiction, which has been managed over the last several years due to methadone prescribed for pain management. Plaintiff argues denial of his petition was an abuse of discretion, was not supported by substantial evidence, and an error of law. After hearing, in early May I remanded the matter to the Commissioner to reconsider her decision based on plaintiff's current medical condition and entire medical record, and after preparation by the Superintendent of a medical parole plan for plaintiff, as required by Buckman. See Order for Remand on Expedited Schedule (May 5, 2020).

On May 15, 2020, the Superintendent of MCI-Shirley again recommended denial of medical parole and the Commissioner agreed. The Commissioner found that lallthough Mr. Adrey's medical condition appears to have deteriorated to a degree from the date of my previous decision on August 29, 2019, 1 do not find him to be terminally ill or permanently incapacitated as defined in G.L. c. 127, §119A(a)." (Emphasis added).

The Commissioner quoted from three medical professionals. The information quoted by the Commissioner is set out in the text chronologically in the following three paragraphs. Additional relevant information from the medical professionals, but not addressed in the Commissioner's letter, is included in footnotes 7, 8, and 10.

First, according to the Commissioner, Nurse Practitioner Cheryl Kurtz conducted an updated medical evaluation of plaintiff on April 29, 2020, describing plaintiff's condition as follows:

Mr. Adrey has a history of hepatitis C, liver cirrhosis, splenomegaly, abdominal distention and ascites, esophageal varices, lower extremity edema, and chronic pain. . . . Mr. Adrey has medical restrictions for bottom bunk and first-tier housing, uses a wheelchair, has an unstated gait, and is a fall risk.7

N.P. Kurtz "concluded that Mr. Adrey 'does not meet the definition of permanent and total incapacitation.' (Emphasis added).

The Commissioner states that on May 7, 2020, Dr. Descoteaux wrote in his updated medical evaluation that "Mr. Adrey has advanced liver disease and 'may decompensate rapidly within the coming 12-18 months.' . . . Mr. Adrey can conduct activities of daily living ("ADL") independently, can walk 25- 50 feet, and can propel himself short distances in his wheelchair."8 According to the Commissioner, "Dr. Descoteaux described Mr. Adrey as having some degree of incapacitation but 'for a person to be described as permanently incapacitated, the usual level of function is very low: bed bound, unable to dress or feed themselves, and totally dependent on others.'"9

The Commissioner states that on May 15, 2020, Drs. Descoteaux and Angeles concluded that "while Mr. Adrey's liver disease is progressing, he is not likely to die within the next 18 months." In their joint updated medical evaluation, Drs. Descoteaux and Angeles "described that Mr. Adrey 'has a degree of incapacitation that requires assistance from someone to push his wheelchair, however, he is not considered totally incapacitated.'" (Emphasis added). The Commissioner does not explain or try to reconcile the significant differences between Dr. Descoteaux's May 7 evaluation and the medical conclusions offered on May 15.10

Based on these medical evaluations, the Superintendent recommended denial of the medical parole petition, concluding that Mr. Adrey "is not statutorily eligible for medical parole" and "resides safely in general population." The Superintendent's evaluation does not contain an assessment of the risk for violence that plaintiff poses to society. In apparent disregard of my remand order, the Superintendent also did not prepare and submit to the Commissioner a "medical parole plan" for plaintiff as required.

After describing this information provided by the Superintendent, the Commissioner concludes: "Mr. Adrey has some degree of incapacitation but maintains the ability to conduct ADL and retains independent mobility. Further, according to Dr. Descoteaux and Dr. Angeles, Mr. Adrey is not likely to die within the next 18 months and is not totally incapacitated."' (Emphasis added). "Accordingly," the Commissioner concludes, "Mr. Adrey's current medical condition does not qualify him for release pursuant to the medical parole statute." The Commissioner does not reference having reviewed, nor does the record reflect, a "medical parole plan" prepared by the Superintendent as required by statute or an assessment of the risk for violence plaintiff poses to society if released.

On this amended record, plaintiff's motion for certiorari review is before me. Plaintiff argues that...

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