Miller v. Commissioner of Correction

• Decision Date: 26 April 1994
• Docket Number: No. 92-P-665,92-P-665
• Citation: 629 N.E.2d 315,36 Mass.App.Ct. 114
• Court: Appeals Court of Massachusetts
• Parties: Sherman MILLER 1 v. COMMISSIONER OF CORRECTION & others. 2

Page 315

629 N.E.2d 315

36 Mass.App.Ct. 114

Sherman MILLER ¹ v. COMMISSIONER OF CORRECTION & others. ²

No. 92-P-665.

Appeals Court of Massachusetts,

Plymouth.

Argued Sept. 23, 1993.

Decided Feb. 28, 1994.

Further Appellate Review Denied

April 26, 1994.

Sherman Miller, pro se.

Nancy W. Geary, Asst. Atty. Gen., for defendants.

Before: DREBEN, KAPLAN and GILLERMAN, JJ.

DREBEN, Justice.

The issue to be decided is whether the pro se plaintiff who hired and paid for standby counsel to assist him in this civil rights action is entitled to reasonable attorney's fees for such counsel. A judge of the Superior Court concluded that the plaintiff did not sustain his burden of justifying an award of attorney's fees. We reverse and remand for further proceedings.

The claim for attorney's fees is based on 42 U.S.C. § 1988 (1982), which provides that in actions brought under the Civil Rights Act, 42 U.S.C. § 1983 (1982), ³ "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." In order to recover, the plaintiff must show that he was the "prevailing party" and that his complaint alleged a "substantial constitutional claim." Cronin v. Tewksbury, 405 Mass. 74, 76, 538 N.E.2d 22 (1989). The defendants argue that the plaintiff does not satisfy either of these two inquiries and that, in any event, he cannot prevail because he is a pro se litigant. We disagree.

The plaintiff, a patient at the Treatment Center for Sexually Dangerous Persons, brought this action alleging, among other grievances (in amended and supplemental complaints), that his rights were abridged in violation of State and Federal statutory and constitutional provisions. More particularly, he claimed that he was deprived of his right to reasonable telephone access, his right to receive unopened privileged mail, and his right to treatment. His contention with respect to his right to treatment was that although he had been classified as a patient with maximum privileges, including the right to have his room unlocked, his classification status was downgraded to moderate privilege with the result that he was afforded fewer treatment opportunities and benefits and, in addition, was housed with a number of violent and destructive patients. The reason for his changed classification was a policy instituted by the Treatment Center staff that only those patients who volunteered to "double-bunk" (share a room) would have maximum privileges.

Prior to trial (on December 1, 1986) a preliminary injunction issued ordering the defendants to comply immediately with regulations relating to the processing and delivery of the plaintiff's privileged mail and telephone access. On July 7, 1987, the judge also ordered the defendants to take reasonable steps to prevent the plaintiff from becoming a victim of unlawful and violent actions of other patients.

After a six-day trial, a judgment entered ⁴ ordering the defendants to comply with the regulations relating to their processing and delivery of the plaintiff's privileged mail (104 CODE MASS.REGS. § 8.03[A] [1986] )⁵ and telephone access (104 Code Mass.Regs. § 8.03[d] [1986] ) and declaring that the selection of ward assignments (minimum privilege, moderate privilege, and maximum privilege) could not be based on volunteering to double-bunk and that the plaintiff could not be precluded from assignment to maximum privilege status solely on the basis of his refusal to double-bunk. The judge declined to award damages because the plaintiff did not show that he was actually deprived of required treatment, and, presumably for this reason, as there was no further explanation, the judge denied the plaintiff attorney's fees.

1. The plaintiff was a prevailing party under the tests set forth by the United States Supreme Court. "A prevailing party [is] one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation." Texas State Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989). "The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Id. at 792-793, 109 S.Ct. at 1494. Farrar v. Hobby, --- U.S. ----, ----, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). Here the plaintiff obtained interim and permanent injunctions ordering the defendants to comply with their regulations relative to the processing and delivery of the plaintiff's privileged mail and telephone access. ⁶ That no change in the regulations was ordered or that the defendants stipulated to the inclusion of the provisions of the preliminary injunction in a permanent order does not, as the defendants contend, prevent the plaintiff from being a prevailing party. See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980) (settlement or consent judgment does not weaken claim to fees).

The declaration that the plaintiff may not be precluded from assignment to maximum privilege status solely on the basis of his refusal to double-bunk altered materially the relations of the parties. It obviously "affect[ed] the behavior of the defendant[s] toward the plaintiff," Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 203, 102 L.Ed.2d 1 (1988), and produced "the termination of some conduct" on the part of the defendants. Id., quoting from Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987). The plaintiff also obtained an order prior to trial requiring the defendants to take reasonable steps to protect him from unlawful and violent actions of other patients. In view of the interim and final relief accorded, the plaintiff achieved significant benefits by bringing the action. See Cronin v. Tewksbury, 405 Mass. at 76, 538 N.E.2d 22. The defendants' claims to the contrary are frivolous.

2. As to the substantiality of the constitutional claims, a "painstakingly minimal standard" is applicable. Stratos v. Department of Pub. Welfare, 387 Mass. 312, 319, 439 N.E.2d 778 (1982). A claim meets the test unless "it is obviously without merit or ... its unsoundness so clearly results from the previous decisions of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy." Id. at 318, 439 N.E.2d 778, quoting from Hagans v. Lavine, 415 U.S. 528, 537, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974) (internal quotation marks omitted).

The question is "whether [the] claim is 'so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit,' as not to involve an appropriate controversy." Cronin v. Tewksbury, 405 Mass. at 77, 538 N.E.2d 22, quoting from Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974).

As to telephone access, privileged mail, and maximum privileges, the minimal standards have been met. Prisoners have a "liberty interest" in "uncensored communication by letter ... even though qualified of necessity by the circumstances of imprisonment." Champagne v. Commissioner of Correction, 395 Mass. 382, 386-387, 480 N.E.2d 609 (1985), quoting from Procunier v. Martinez, 416 U.S. 396, 418, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974). Civilly committed patients at the Treatment Center may be entitled to greater privileges than prisoners, and, indeed, the regulations, unlike those for prisoners, provide that a patient may be required to open mail in the presence of a staff member only if there is a reason to believe that contraband is enclosed. See 104 Code Mass.Regs. § 8.03(1)(a)(3) (1986). An alleged violation of the regulation meets the requirement of constitutional substance. Similar constitutional considerations apply to telephone access. See Tucker v. Randall, 948 F.2d 388, 390-391 (7th Cir.1991) (unreasonable restrictions on prisoner's telephone access may violate First, Sixth, and Fourteenth Amendments).

"[A] person committed for treatment of mental illness has a due process right to receive treatment ... and the right to receive the least restrictive or least burdensome control necessary to pursue rehabilitation." Commonwealth v. Rosenberg, 410 Mass. 347, 360, 573 N.E.2d 949 (1991). See also Thompson, Petitioner, 394 Mass. 502, 505-506, 476 N.E.2d 216 (1985), discussing the rights of Treatment Center patients. The trial judge ruled that the plaintiff is "entitled to be housed in the least restrictive conditions which are consistent with [his] security needs under existing regulations" and found that "[t]he evidence supports the conclusion that the plaintiff[ ] [is] best suited to be placed on the maximum privilege ward." He concluded that volunteering for double-bunking is not an appropriate criterion and has "no rational relationship" to placement and that the plaintiff [was] entitled to a declaration that this criterion "exceeded the discretion afforded to the Administrator under [104 Code Mass.Regs. § 8.10 (1986) ]." ⁷ The interim order requiring the defendants to take reasonable steps to protect the plaintiff from other inmates also has constitutional overtones. Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982) (involuntarily committed resident of an institution for mentally retarded persons "enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests").

Quite apart from the foregoing bases supporting the "substantiality" of the plaintiff's claims, the Massachusetts regulations which contain " 'explicitly mandatory language in connection with requiring specific substantive predicates' [also may] create [constitutionally protected] liberty interests."...