DuPont v. Wyzanski, 18 Mass. L. Rptr. No. 18, 395 (MA 8/16/2004)

• Decision Date: 16 August 2004
• Docket Number: No. 965187C.,965187C.
• Citation: 18 Mass. L. Rptr. No. 18, 395
• Parties: Michael Kevin DuPont v. Charles Wyzanski, Jr. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 395

18 Mass. L. Rptr. No. 18, 395

Michael Kevin DuPont v. Charles Wyzanski, Jr. et al.¹

No. 965187C.

Commonwealth of Massachusetts Superior Court.

Suffolk, Ss.

Memorandum Dated August 16, 2004.

Civil Rights — Equal Protection Clause — In General — Opinion Discusses Whether the Commonwealth Should Adopt the Federal Rule that Equal Protection Claims by Prison Inmates Are Subjected to the Lesser "Heightened Scrutiny" Scope of Review, Rather than the Higher "Strict Scrutiny" Scope of Review Now Followed by Massachusetts Constitutional Law for All Equal Protection Claims.

Correctional Institutions — Inmate Claims — In General — Opinion Discusses Whether the Commonwealth Should Adopt the Federal Rule that Equal Protection Claims by Prison Inmates Are Subjected to the Lesser "Heightened Scrutiny" Scope of Review, Rather than the Higher "Strict Scrutiny" Scope of Review Now Followed by Massachusetts Constitutional Law for All Equal Protection Claims.

This opinion questions whether state equal protection claims brought by inmates challenging the internal management of a prison should be subjected the higher "strict scrutiny" scope of review generally applicable to equal protection claims under the state constitution, or to the lesser "heightened scrutiny" scope of review applied by the federal courts to inmate equal protection claims under the federal constitution. The court concludes that it is bound by prior state precedents to apply the higher standard but reports its decision for expedited review by the Appellate Court, because of the court's concern that such review will improperly involve the courts in the micromanagement of prisons. This opinion denies the Department's motion for summary judgment on a claim by a male inmate that the Department's use of assignment to a disciplinary unit as punishment for violent conduct by male employees only, even though there is no compelling evidence that male inmates are involved in more frequent or more violent assaults than female inmates, violates the equal protection clause of the state constitution.

FAHEY, J.

INTRODUCTION

The plaintiff, Michael Kevin DuPont ("DuPont"), is a prisoner currently incarcerated at MCI-Cedar Junction in Walpole. In 1993, the Department of Corrections ("DOC")² sentenced DuPont to an 18-month term in the Departmental Disciplinary Unit ("DDU") after DuPont committed a serious violation of prison rules.³ DuPont then filed this suit for declaratory and monetary relief, claiming that his confinement violated various portions of state and federal law. Specifically, DuPont claims that because the DDU is used as a sanction for male inmates only, the DOC's actions violated the Code of Massachusetts Regulations as well as DuPont's liberty interests guaranteed under Massachusetts law and his due process and his equal protection rights guaranteed under the Fourteenth Amendment to the United States Constitution and Articles 1, 10, and 12 of the Massachusetts Declaration of Rights.

On December 23, 1997, this court (Hinkle, J.) allowed a motion by the defendants for summary judgment on all counts. DuPont appealed, and, on March 25, 2002, the Appeals Court affirmed the decision to grant summary judgment on all counts except the equal protection claim. The Appeals Court concluded the evidence in the record was insufficient to determine as a matter of law that the DDU could be applied to male prisoners only. The Appeals Court then vacated judgment on the equal protection count and remanded the case for further proceedings. On March 24, 2004, the defendants filed this renewed motion to dismiss or, alternatively, for summary judgment. For the reasons stated below, the motion is DENIED.

Because this court is concerned about the correctness of this decision, as well as its impact on the court's "micromanagement" of prisons and the floodgate potential for suits to be brought by current and former inmates of the DDU claiming a denial of equal protection under the Massachusetts Declaration of Rights, this court exercises its discretion to report its decision to the Appeals Court. See MASS. GEN. LAWS c. 231, 111, para. 2 (2002); Mass.R.Civ.P. 64(a). Precedent in Massachusetts suggests that prison regulations as promulgated by the DOC should not be subject to strict scrutiny but rather should be regarded with deference, lest the courts begin to micromanage the prison system. See Cacicio v. Sec'y of Pub. Safety, 422 Mass. 764, 769-70 (1996); Kenney v. Comm'r of Corr., 393 Mass. 28, 35 (1984). In the interest of judicial economy, this court finds it appropriate to report to the Appeals Court the correctness of this court's decision, as well as the following question:

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Should prison regulations, contested on an "as applied" basis by individual inmates as violating equal protection rights based on a suspect classification such as gender, be considered through the lens of rational basis scrutiny or by the more rigorous strict scrutiny analysis?

DISCUSSION

Where parties provide affidavits in connection with a motion to dismiss, the presiding judge may properly, with notice to the parties, treat the motion as one for summary judgment. Taplin v. Town of Chatham, 390 Mass. 1, 2 (1983); Mass.R.Civ.P. 12(b)(6). Summary judgment is appropriate where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Cassesso v. Comm'r of Corr., 390 Mass. 419, 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case, or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

An essential inquiry in an equal protection claim is whether a claimant is similarly situated to those who allegedly receive more favorable treatment. Matter of Corliss, 424 Mass. 1005, 1006 (1997); Murphy v. Comm'r of the Dep't of Indus. Accs., 415 Mass. 218, 226 (1993); see Sinn v. Selectmen of Acton, 357 Mass. 606, 611 (1970). I accept that the Appeals Court implicitly found valid DuPont's argument that male and female prisoners are similarly situated; otherwise the court likely would not have returned the case to the Superior Court for further consideration only of DuPont's equal protection claim. See Todd v. Comm'r of Corr., 54 Mass.App.Ct. 31, 37-40 (2002) (vacating lower court's order granting of summary judgment to the defendant on claim identical to that of the present case).

In the present case, neither party specifically contends that the regulations controlling the DDU are discriminatory on their face. While DuPont asserts that "statutory classifications that distinguish between males and females are `subject to scrutiny under the Equal Protection Clause,'" citing Reed v. Reed, 404 U.S. 71, 75 (1971), he has pointed to no statute that on its face engages in gender-based discrimination; in fact, he cites a United States Supreme Court case discussing a facially neutral statute. See Pl.'s Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") at 14-15. DuPont compares his circumstances to those in Craig v. Boren, where the Court invalidated a state statute that explicitly contained distinct provisions for males and females. See 429 U.S. 190, 191-92, 191 n.1, 208-10 (1976); Pl.'s Opp'n at 10-11. In the case at bar, however, the regulations governing the DOC's operations, including those of the DDU, have been found to apply universally to all inmates regardless of gender; thus, this court considers DuPont's claim as an "as applied" challenge, rather than also as a facial challenge. See 103 MASS. REGS. CODE, 430.04 (1993) ("103 CMR 430.00 [regarding the DOC's operations] is applicable to all employees and to inmates housed at all correctional institutions within the Department of Corrections"); Torres v. Comm'r of Corr., 427 Mass. 611, 612-13, 619 (1998), cert. denied, 525 U.S. 1017 (1998) (discussing DDU regulations in gender-neutral terms; upholding the lower court's implicit factual determination that DOC regulations apply to all inmates); Todd, 54 Mass.App.Ct. at 32-33 ("the uncontroverted facts show that the regulations apply to all prisoners . . .") The central question before this court, therefore, is whether the regulations concerning the DDU as applied to DuPont violate his equal protection rights; in other words, whether the absence of an identical DDU for women is unconstitutional.

An "as applied" challenge on the basis of equal protection is a "challenge to the unequal enforcement of an otherwise valid statute against a protected class of persons." Commonwealth v. Chou, 433 Mass. 229, 238 (2000); see 103 MASS. REGS. CODE, 430.09 and 430.25(d)(3) (1993) (discussing the DDU). The federal courts have determined that gender-based class distinctions merit heightened scrutiny, but Massachusetts, with the additional provisions stated in Art. 106 (the Equal Rights Amendment) of the Declaration of Rights, requires the application of strict scrutiny principles. Chou, 433 Mass. at 237 n.6; Attorney Gen. v. Massachusetts Interscholastic Athletic Ass'n, Inc., 378 Mass. 342, 354 (1979); Commonwealth v. King, 374 Mass. 5, 21 (1977). A regulation or statute facing a strict scrutiny analysis must be held unconstitutional unless the suspect classification "further[s] a demonstrably compelling interest and limit[s] [its] impact as narrowly as possible consistent with [its] legitimate purpose." King, 374 Mass. at 28.

The DOC, in...