Henderson v. Comm'n of Barnstable Cnty.

• Citation: 730 N.E.2d 362,49 Mass. App. Ct. 455
• Decision Date: 14 January 2000
• Docket Number: P-1513,P-1512
• Parties: (Mass.App.Ct. 2000) ERNEST HENDERSON, v. COMMISSIONERS OF BARNSTABLE COUNTY & others <A HREF="#fr1-1" name="fn1-1">1 (and a companion case <A HREF="#fr1-2" name="fn1-2">2 ). No.: 98-& 98- Argued:
• Court: Appeals Court of Massachusetts

Page 362

730 N.E.2d 362 (Mass.App.Ct. 2000)

ERNEST HENDERSON, v. COMMISSIONERS OF BARNSTABLE COUNTY & others¹ (and a companion case²).

No.: 98-P-1512 & 98-P-1513.

Massachusetts Court of Appeals, Suffolk

Argued: January 14, 2000.

Decided: June 20, 2000.

[Copyrighted Material Omitted] Robert S. Troy (Lisa M. Sheehan with him) for the defendants.

Barry Barkow for Ernest Henderson & another.

Laurence, Dreben, & Gelinas, JJ.

DREBEN, J.

After their loss of good time credits, accrued under G. L. c. 127, § 129, Ernest Henderson and plaintiff Evelyn Murphy's decedent, William Murphy,³ each of whom had been incarcerated in the Barnstable County jail and house of correction, brought separate actions challenging the procedure by which the defendant county officials had revoked these credits. They sought declaratory relief and damages under 42 U.S.C. § 1983. A judge of the Superior Court, on cross motions for summary judgment, entered a partial final judgment for each plaintiff under Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), declaring that the county defendants' actions in forfeiting the plaintiffs' good conduct deductions were unlawful and unconstitutional, allowing plaintiffs' motions for summary judgment as to the liability of the county defendants under 42 U.S.C. § 1983, and denying the latters' claims of qualified immunity. We affirm the ruling that the county defendants' actions were contrary to State law, but reverse the ruling that the plaintiffs' rights under the Due Process Clause of the United States Constitution were violated.

Before us are appeals by the county defendants. Although the Commissioner of Correction (commissioner) was originally a defendant in each action, he is not a party to this appeal as he settled with Henderson,⁴ and the judge dismissed the claims against him in the Murphy action. As many of the issues are common to both appeals, our discussion will apply to both the Henderson and Murphy cases unless otherwise indicated.⁵

The facts are undisputed. Murphy and Henderson, while incarcerated in the Barnstable County jail and house of correction, were tested for the presence of illegal drugs. Their respective urine samples "tested positive," and both plaintiffs were charged with violating the Inmate Handbook of the Barnstable County Jail & House of Correction promulgated by the Barnstable County sheriff's department which included as an enumerated disciplinary offense "possession . . . of any unauthorized controlled substance, [or] alcoholic beverage." Both Murphy and Henderson waived their rights to a three-member disciplinary board. Henderson appeared before a hearing officer, but apparently offered no defense or any evidence in mitigation.⁶ The complaint in Murphy's case and the attachments suggest that Murphy may have waived his right to a hearing. His disciplinary report states that he admitted that he became intoxicated while on furlough.

After their disciplinary hearings, each was found guilty and sentenced to a period of solitary confinement.⁷ No other sanction was imposed by the disciplinary officer and neither Henderson nor Murphy took an administrative appeal. Shortly after their respective disciplinary hearings, upon the recommendation of the superintendent of the Barnstable County jail and house of correction,⁸ and without prior notice to the plaintiffs, the Barnstable County commissioners met and voted to revoke substantial portions of the plaintiffs' statutory good time (127 days in the case of Henderson and sixty days in the case of Murphy), and to restore those days to their sentences.⁹ Although each plaintiff was released somewhat earlier than the forfeiture of deductions would indicate, both remained incarcerated for a longer period than they would otherwise have been if their statutory good time credits had not been revoked.

1. Declaratory relief. Before discussing the statutory and constitutional violations found by the motion judge and challenged by the defendants, we consider and reject the defendants' claim that the plaintiffs' actions for declaratory relief should have been dismissed on the ground that their only recourse was an action in the nature of certiorari. Unlike the counts that were dismissed in the case of Pidge v. Superintendent, Mass. Correctional Inst., Cedar Junction, 32 Mass. App. Ct. 14, 17-18 (1992), the complaints here challenge the defendants' interpretation of G. L. c. 127, § 129, their practice of acting under that interpretation,¹⁰ and their construction of the regulations and handbook. Such claims are appropriately brought under the Declaratory Judgment Act, G. L. c. 231A, § 2.¹¹ Nelson v. Commissioner of Correction, 390 Mass. 379, 387-388 (1983).

As to Henderson, the defendants also assert that, since he was incarcerated at the time he brought the action (Murphy had been released at the time of his complaint), Henderson's only remedy was a writ of habeas corpus.¹² The judge properly treated each action as one seeking declaratory relief. See Pina v. Superintendent, Mass. Correctional Inst., Walpole, 376 Mass. 659, 665-666 (1978); Nelson v. Commissioner of Correction, 390 Mass. at 387 2. Statutory and regulatory violations. The defendants listed five issues in the statements of issues in their original briefs, none of which related to the motion judge's ruling that the statutory and regulatory scheme had been violated when the county commissioners revoked the plaintiffs' statutory good time credits. Only after the plaintiffs, in their briefs, argued the correctness of the ruling did the defendants claim that the judge was in error. That the plaintiffs argued the point does not broaden the issues presented to the court by the defendants. Issues raised for the first time in a reply brief are not properly before us. See Knipe v. Skinner, 999 F.2d 708, 710-711 (2d Cir. 1993); United States v. Shortman, 91 F.3d 80, 82 n.1 (9th Cir. 1996); Hall v. Coram Healthcare Corp., 157 F.3d 1286, 1290 (11th Cir. 1998), cert. denied, 119 S. Ct. 1760 (1999). See also Commissioner of Rev. v. Plymouth Home Natl. Bank, 394 Mass. 66, 67 n.3 (1985).

Nevertheless, because of the importance of the issue to prison officials and our reluctance to restrict public officials in the performance of their duties if not required by statute or regulation -- see also the settlement agreement with the commissioner, note 4, supra -- as a discretionary matter, see Commissioner of Rev. v. Plymouth Home Natl. Bank, supra, we consider the issue and conclude that the judge did not err in ruling that the revocation of the plaintiffs' good time credits was improper under 103 Code Mass. Regs. §§ 943.00 et seq. (1992).

Our discussion requires an analysis of the relevant statutes and regulations. General Laws c. 127, § 129, repealed by St. 1993, c. 432, § 10, but still in effect as to the plaintiffs and others whose offenses were committed prior to July 1, 1994,¹³ provides for automatic sentence reductions for prisoners who have "faithfully observed all the rules" of the place of confinement. However:

"If a prisoner violates any rule of his place of confinement, the . . . county commissioners . . . upon the recommendation and evidence submitted to them . . . , in writing by the principal officer, or officer in charge, shall decide what part, if any, of such good conduct deduction from sentence or sentences shall be forfeited by such violation. . . ."

Section 129 cannot be read in isolation. Section 1A of the same chapter, c. 127, as inserted by St. 1972, c. 777, § 11, provides that, after consulting with and receiving the recommendations of the sheriffs of the several counties, the commissioner "shall establish, and shall from time to time revise, minimum standards for the care and custody of all persons committed to county correctional facilities."¹⁴ Section (q) of c. 124, § 1, as appearing in St. 1972, c. 777, § 5, authorizes the commissioner to "make and promulgate necessary rules and regulations incident to the exercise of his powers . . . including . . . regulations regarding . . . discipline . . . for all persons committed to correctional facilities."

Pursuant to the foregoing statutory authority, the commissioner issued regulations, 103 Code Mass. Regs. §§ 943.00-943.09 (1992) entitled "county correctional facilities -- inmate rules and discipline." These regulations in relevant part provide that "[t]he facility shall develop and implement a written plan for inmate discipline" which shall include, inter alia, "rules of inmate conduct and penalties for violation," "disciplinary procedures and hearing," "sanctions," and "appeal process" (emphasis supplied). 103 Code Mass. Regs. § 943.01(1). The written discipline plan is to provide for major rule infractions and shall contain, inter alia, specified notice and hearing requirements, "policy and procedure specifying that the hearing officer's decision be based solely upon information obtained in the hearing process," and "policy and procedure that specifies that a written record is made of the disciplinary hearing decision, the disposition and sanctions, and the reason for the action(s) imposed. A copy of the hearing decision shall be given to the inmate within 48 hours of the hearing." (Emphasis supplied.) 103 Code Mass. Regs. § 943.06(5), (6).

The regulations also contain a specific section on sanctions, § 943.08(2), which, after providing that the facility "shall ensure that sanctions imposed for rule violations are reasonably related to the severity of the offense," states that "[a]cceptable forms of discipline shall include, but not be limited to, the following: (a) loss of privileges for a specified period of time; (b) reprimand; (c) removal from work detail; (d) extra work duty for a specified period of time; (e) recommended forfeiture of good time credit earned in accordance with M.G.L. c. 127, § 129; (f) disciplinary detention for a specified period of time" (emphasis supplied).

The term "recommended" is...