Ferreira v. Dubois, Civil Action No. 95-10665-PBS.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtBowler
Citation963 F.Supp. 1244
PartiesManuel FERREIRA, Plaintiff, v. Larry E. DUBOIS, Paul B. Murphy and Andrew Rego, Defendants.
Docket NumberCivil Action No. 95-10665-PBS.
Decision Date18 September 1996
963 F.Supp. 1244
Manuel FERREIRA, Plaintiff,
Larry E. DUBOIS, Paul B. Murphy and Andrew Rego, Defendants.
Civil Action No. 95-10665-PBS.
United States District Court, D. Massachusetts.
September 18, 1996.

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Manuel Ferreria, Lawrence, MA, pro se.

Nancy Akers White, Special Assistant Attorney General, Michael H. Cohen, Senior Litigation Counsel, Department of Corrections, Boston, MA, Michael H. Cohen, Supervising Counsel, Bridgewater State Hospital, Bridgewater, MA, for Defendant.


BOWLER, United States Magistrate Judge.

Plaintiff Manuel Ferreira ("Ferreira") filed this civil rights action pro se seeking damages and certain equitable relief resulting from an April 1992 disciplinary hearing at the Old Colony Correctional Center ("OCCC") in Bridgewater, Massachusetts. Ferreira, a former inmate at OCCC, maintains that defendants Larry E. DuBois ("DuBois"), Commissioner of the Massachusetts Department of Correction, Paul B. Murphy ("Murphy"), Superintendent of OCCC, and Andrew Rego ("Rego"), a hearing and disciplinary officer at OCCC, violated his due process and Fifth Amendment rights in contravention of 42 U.S.C. § 1983 ("section 1983").

The parties consented to trial before this court in accordance with 28 U.S.C. § 636(c). Pending before this court are cross motions for summary judgment (Docket Entry # # 25 & 31). After conducting a hearing, this court took the summary judgment motions (Docket Entry # # 25 & 31) under advisement.


In seeking summary judgment, Ferreira submits that DuBois, Murphy and Rego (collectively: "defendants") violated his due process rights at the disciplinary hearing because: (1) Rego, the hearing officer, denied Ferreira the ability to present the live testimony of inmate Steven L. Johnson ("Johnson") and, instead, accepted an affidavit from Johnson which Rego then failed to consider; (2) Rego improperly and solely relied on the testimony of Mark Leary ("Leary"), the reporting officer, and his written disciplinary report which evidence was insufficient to establish Ferreira's guilt;1 and (3) Rego denied Ferreira's request for an interpreter for one of Ferreira's witnesses, inmate Florentino Castro ("Castro"). Ferreira also disputes that defendants, sued in both their official and individual capacities, are entitled to qualified immunity. (Docket Entry # # 26 & 34).

Defendants contend they are entitled to summary judgment insofar as Ferreira received sufficient due process at the disciplinary hearing with respect to his presentation of witnesses, his request for an interpreter and the existence of sufficient evidence to support the finding of guilt. Defendants also maintain that Ferreira's state law claim for violation of regulation 430.12 of the regulations of the Department of Correction ("DOC"), 103 C.M.R. § 430.12 ("regulation 430.12"), does not give rise to a viable cause of action under state law. Alternatively, defendants move to dismiss the pendent state

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law claim given the inadequacy of the federal claim. Defendants also argue that the equitable claims are moot2 and assert a qualified immunity defense.

The verified complaint raises four causes of action. The first and third causes of action, respectively, under the Fourteenth Amendment and for the violation of Ferreira's due process rights, are synonymous inasmuch as the Due Process Clause of the Fourteenth Amendment prescribes the unconstitutional taking of a liberty interest without due process of law. Zinermon v. Burch, 494 U.S. 113, 125-126, 110 S.Ct. 975, 983-984, 108 L.Ed.2d 100 (1990) (explaining the different claims available under the Due Process Clause in a section 1983 action). The second and fourth causes of action are, respectively, for defendants' alleged violation of the Fifth Amendment and regulation 430.00.3 (Docket Entry # # 31 & 33).

Having reviewed the entire record and listened to the tape recording of the disciplinary hearing, this court finds the following facts for purposes of summary judgment.4


On April 15, 1992, disciplinary report numbers 92-861 and 92-862 issued against Ferreira. Although the reports evolved from the same incident, disciplinary report 92-861 is the report at issue in this case. Leary is the charging officer.

Disciplinary report 92-861 cites Ferreira for the following offenses: "(1) disobeying an order of, lying to, or insolence toward staff member; (8) conduct which disrupts with the orderly running of the instit[ution]; (18) assaulting another person with any offense against his person or property; (19) use of abusive language toward staff; [and] (33) attempting any of the above offenses, making plans to commit the above offenses or aiding another person in the above offenses shall be considered the same as commission of the offense itself." The language of these charges mirrors the disciplinary offenses listed in regulation 430.24(1), 430.24(8), 430.24(18), 430.24(19) and 430.24(33), 103 C.M.R. § 430.24.

Disciplinary report 92-861 designates the offenses as major and notes the referral of the report to the district attorney. The body of the report reads that:

On 4/15/92, at approximately 5:40 p.m., I, C.O. Leary, was assaulted by inmate Manuel Ferreira. I ordered Ferreira into the new man section following a fight in the upper program corridor. After being ordered, Ferreira became verbally abusive towards myself and officer Mark Tucker. Ferreira made the following statements, "[expletive] you, I ain't doing nothing to you guys." He further stated, "You don't know who you [two expletives] think you're dealing with." At this time, I ordered Ferreira to give me his I.D. card. Ferreira refused. I then took his I.D. which was clipped to his shirt. At this time, I again ordered Ferreira to enter the new man section. This time Ferreira lunged at me with his arms and hands swinging, yelling, "You mother [expletive]." When Ferreira's hands came in the area of my face and head, assistance was called, and he was forcibly placed in restraints. Throughout the incident, Ferreira resisted

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violently, causing injury to three staff members.

Shift commander was notified. Ferreira was placed in segregation.

(Docket Entry # 27, Ex. A-1).5

After proper notice, the disciplinary hearing convened on April 28, 1992, with Rego as the presiding officer. At Ferreira's request, the hearing was tape recorded.

At the outset of the hearing, Ferreira avers that he presented a list of questions to Rego that he intended to propound to Johnson and Castro. In contrast to Ferreira's averment, Rego attests that, to the best of his recollection, Ferreira did not present him with a list of prepared questions for any witness.

Ferreira also provided Rego with an affidavit authored by Johnson. The transcript of the disciplinary hearing reflects Rego's statements that: "I noticed you presented an affidavit, Stephen L. Johnson. Accepted into the record and I also made a copy and provide you with a copy of it."

Ferreira attests that he advised Rego that Johnson should testify in person because "there was supporting evidence, not found in the affidavit." Ferreira further attests that, after reading the affidavit, Rego stated that he would not require Johnson's live testimony "because [Ferreira] produced an affidavit from this witness."6 In contrast, Rego attests that Ferreira never indicated that he wished to have live testimony from Johnson. The transcript of the disciplinary hearing also fails to contain Ferreira's request.

In order to assess the need for Johnson's live testimony in lieu of the affidavit, it is helpful to compare the proposed questions and thus the proposed subject matter of the live testimony to the substantive content of the affidavit.7 In addition to certain preliminary questions, the list of proposed questions asks Johnson: (1) what took place on the lower ramp heading back to the orientation unit; (2) whether Ferreira used any abusive language toward the officers; (3) what took place on the upper ramp; (4) how many times Ferreira was asked to enter the new man section; (5) whether Ferreira refused to enter the new man section or acted in a hostile manner; (6) whether a guard held the door open for Ferreira when he entered the new man section; (7) whether Johnson had a clear view of the interior of the new man section and what took place therein; and (8) whether Ferreira swung at the officer after the officer hit Ferreira in the face.

In the affidavit, Johnson states that he and a group of inmates were returning from the evening meal when he observed two inmates engaging in a fight for a brief period of time. A number of correction officers arrived and the alarm sounded. Johnson then heard a voice shouting, "Hey, get the [expletive] back here now." According to Johnson, Ferreira asked one of the correction officers why he was addressing the inmates in such a disrespectful manner. The correction officer then walked toward Ferreira, "snatched his identification card" and ordered him to come into a room. As Ferreira walked into the room, the correction officer punched Ferreira in the face, according to Johnson's affidavit.

Johnson's affidavit additionally details that Ferreira then asked the correction officer what was happening and that Ferreira had not done anything wrong. Johnson attests that, "I did not hear inmate Ferreira say anything or see him do anything to provoke the officer into taking such assaultive actions." Johnson then relates the following:

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Inmate Ferreira put his hands up to his face to prevent getting hit in the face again while trying to back out of the doorway. Moments later, another correctional officer appeared, grabbing the inmate from behind, and threw him to...

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