Martino v. Hogan

• Citation: 37 Mass.App.Ct. 710,643 N.E.2d 53
• Decision Date: 23 January 1995
• Docket Number: No. 92-P-1804,92-P-1804
• Court: Appeals Court of Massachusetts
• Parties: David MARTINO v. William HOGAN & others. 1

Page 53

643 N.E.2d 53

37 Mass.App.Ct. 710

David MARTINO v. William HOGAN & others. ¹

No. 92-P-1804.

Appeals Court of Massachusetts,

Suffolk.

Argued April 11, 1994.

Decided Dec. 13, 1994.

Further Appellate Review Denied Jan. 23, 1995.

Dennis Shedd, Boston, for plaintiff.

Stephen G. Dietrick, Boston, for defendants.

Before DREBEN, KAPLAN and LAURENCE, JJ.

KAPLAN, Justice.

In this action principally under the Federal civil rights statute, 42 U.S.C. § 1983 (1988), the plaintiff, David Martino, a former prison inmate, sought to charge the defendant Commissioners of Correction with individual liability for damages because of the failure of subordinates in the prison system to accord him hearings in connection with his administrative (as distinguished from disciplinary) transfers. The two notable transfers were, first, in 1980, to an out-of-State prison in Rhode Island, the second, in 1983, to placement in a departmental segregation unit (D.S.U.) in M.C.I., Walpole. On cross motions for summary judgment, a Superior Court judge held for the defendants, and we affirm. As to the 1980 transfer, no pertinent Federal constitutional right was recognized at the time. Regarding the second transfer, although a State-created Federal constitutional "liberty interest" was later recognized in other circumstances in the Pennsylvania prison system, such an interest was not "clearly established" for the instant situation in Massachusetts, and the defendants could properly assert their qualified immunity. At all events, the defendants did not themselves participate in the claimed deprivations so as to be held individually liable for damages (the general doctrine of respondeat superior is not applicable). Claims under § 1983 as to other transfers besides the two mentioned also fail. The plaintiff cannot base a claim directly upon art. 12 of the Massachusetts Declaration of Rights, nor can he read a claim for damages into the departmental regulations themselves.

Facts. The basic facts may be set out in tabular form.

1976

March 28. Martino sentenced to M.C.I., Walpole, for twelve-fifteen year term for robbery; placed in general population.

1980

September 12. Moved to a segregation unit at the Southeastern Correctional Center. (The transfer apparently was part of an effort to rid Walpole of troublemakers; Martino was suspected of being a drug dealer and influential with other inmates.)

September 19. Moved to segregation unit at M.C.I., Concord, called "department nine."

November 3. Moved to Adult Correctional Center (A.C.I.) in Rhode Island, a maximum security prison.

1981

February 24. Placed in new A.C.I. segregation unit, called "High Security Center."

June 10. Apparently returned to general A.C.I. population (record not entirely clear).

1983

August 2. Moved to M.C.I., Walpole, placed in D.S.U. (Martino was moved because he was suspected of being a cause of a major disturbance at A.C.I.)

September 15. Moved to Institutional Disciplinary Unit (I.D.U.), another segregation unit in M.C.I., Walpole.

November 10. Received a D.S.U. classification board hearing, which recommended classification to the D.S.U. Recommendation was approved by the Commissioner on November 18, 1983, with notice to Martino on November 23. This was Martino's only transfer or placement hearing while in custody. Nevertheless Martino remained in I.D.U 1984

January 3. Martino released from custody.

On December 30, 1986, nearly three years after his discharge, Martino commenced the present action in Superior Court against Hogan, Berman, and Fair, who were successively Commissioner of Correction in the period of Martino's incarceration. ² The gravamen of the (amended) complaint was that he was deprived of hearings and related procedures allegedly due him in connection with the transfers. Although the complaint sought declaratory and injunctive relief besides money recovery, only the latter prayer could survive, the trial court having concluded without challenge that the other prayers became moot upon the plaintiff's discharge from custody.

The defendants answered with denials and defenses including the defense of "qualified immunity." The plaintiff moved for summary judgment to establish liability, reserving damages, and the defendants cross-moved for summary judgment dismissing the action. The judge denied the plaintiff's motion and allowed the defendants', and from the judgment for the defendants the plaintiff appeals. ³

A. Rhode Island and D.S.U. transfers. It will be convenient to begin with the administrative transfers to Rhode Island (November 3, 1980) and to placement in Walpole D.S.U. (August 2, 1983), which appear stronger for Martino's case than the other transfers. In both instances the prison personnel failed to comply with departmental regulations that called expressly for pretransfer hearings and connected procedures. The plaintiff contends that he is entitled to compensation for each of these violations; he rests alternatively on § 1983, the Commonwealth's Declaration of Rights, and the regulations proper. ⁴

1. Section 1983. This allows equitable and legal relief against a State official who deprives any person of rights secured by the Federal Constitution. ⁵

a. In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), the Court considered whether Massachusetts inmates who had suffered administrative prison-to-prison transfers to "less favorable institution[s]" (id. at 222, 96 S.Ct. at 2537), e.g., Norfolk to Walpole, without being accorded a pretransfer hearing as provided by the departmental regulations, could claim a deprivation of a Federal constitutional right. The Court said the plaintiff had no right deriving from the due process clause in itself. The thought was expressed thus in a cognate case, Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976): "As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate's misbehavior or may be labeled as disciplinary or punitive." (This remains the law today.) The Court suggested the possibility that a State might create a "liberty interest" in favor of inmates by granting them by law a given kind or level of treatment--whether as to transfers or other matters--amounting to an entitlement (or expectation) deserving protection under the due process clause, and hence under § 1983. Meachum v. Fano, supra at 226, 229, 96 S.Ct. at 2539, 2540. But the Court thought Massachusetts had not done so in the particular case. Id. at 226-228, 96 S.Ct. at 2539-2540.

The Meachum case remained authoritative in 1980 when the prison-to-prison Rhode Island transfer occurred, although the applicable departmental regulations for such transfers had been somewhat revised in 1978. ⁶ The First Circuit Court of Appeals acknowledged this when it wrote in 1984: "[W]e have taken that decision as 'commanding authority' for the proposition that Massachusetts law imposes no substantive standards on the Commissioner's discretion to transfer inmates." Parenti v. Ponte, 727 F.2d 21, 24 (1st Cir.1984) (quoting from Four Certain Unnamed Inmates of M.C.I., Walpole, v. Hall, 550 F.2d 1291, 1292 [1st Cir.1977] [per curiam], and referring also to Daigle v. Hall, 564 F.2d 884, 885-886 [1st Cir.1977] ). The same point, that Meachum was the constitutional measure as to Massachusetts inter-prison transfers, was recognized in Nelson v. Commissioner of Correction, 390 Mass. 379, 397, 456 N.E.2d 1100 (1983). Thus the Rhode Island transfer was clear of § 1983.

b. A definite movement toward realizing the suggestion in Meachum was signalled by the decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (February 22, 1983). ⁷ This was not a prison-to-prison case; rather an inmate of a Pennsylvania prison complaineds removal from the general population and placement in a certain administrative segregation unit and his retention there allegedly without adequate process. Id. at 463-466, 103 S.Ct. at 867-869. The Court said a State through statute, regulation, or rule could create a liberty interest by defining the specific substantive purposes to be achieved by proposed official action, say as to transfers, and mandating--not merely intimating, suggesting, or recommending--a procedure that was "due," leading to decision whether the substantive standards were met on the particular facts. Id. at 469-472, 103 S.Ct. at 870-872. The Court spoke of Pennsylvania's somewhat dubious but adequate satisfaction of the dual requirements: "But on balance we are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest." Id. at 472, 103 S.Ct. at 872. On this understanding the Court examined the pertinent Pennsylvania regulations and found that the State had indeed raised a liberty interest comprising substance and procedure. Id. at 470-472, 103 S.Ct. at 870-872. But the process the inmate had in fact received, although rather informal or rudimentary, was "due." Id. at 472-477, 103 S.Ct. at 871-874. Accordingly the § 1983 action failed in the end.

In Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), the Court found that Hawaii, unlike Pennsylvania, had not gone the distance to create a liberty interest in situations of out-of-State transfer.

Shortly after the Hewitt and Olim decisions, the question of the constitutional validity of an inmate's placement in a Walpole D.S.U. (similar to the placement herein on August 2, 1983) arose in a § 1983 action in the United States District...