Sullivan v. Superintendent, Mass. Corr. Inst.-Shirley, 19-P-1734
| Docket Number | 19-P-1734 |
| Decision Date | 27 September 2022 |
| Parties | John J. SULLIVAN v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION-SHIRLEY & Others. |
| Court | Appeals Court of Massachusetts |
John J. Sullivan, Winchester, pro se.
Timothy M. Pomarole, for the defendants.
Present: Rubin, Kinder, & Ditkoff, JJ.
The plaintiff, inmate John J. Sullivan, filed a complaint against five employees of the Massachusetts Correctional Institution at Shirley (MCI-Shirley or prison) seeking judicial review of the denial of two prison grievances and asserting additional legal claims, all arising out of the plaintiff's termination as a prison law clerk after a typewriter motor was stolen from the prison library. We conclude that the plaintiff's first grievance, challenging his termination, was improperly denied because the prison failed to follow its own regulatory procedures in investigating it, and that the error may have affected the result. We further conclude that the plaintiff's claim for defamation against a correction officer for implicitly calling him a thief in front of other correction officers and inmates was properly dismissed. Although the plaintiff, a convicted murderer, is not defamation-proof against accusations of theft, the correction officer had a conditional privilege to explain hiring and firing decisions which was not lost by the fact that the statement was incidentally overheard by others. Concluding that the plaintiff's other claims lack merit, we affirm in part and reverse in part.
1. Background.2 a. Prison library job. The plaintiff has been an inmate since he was convicted in New Hampshire of two counts of murder for the shootings, while intoxicated, of a neighbor he once dated and her father. See State v. Sullivan, 131 N.H. 209, 210-212, 551 A.2d 519 (1988). For reasons that are not disclosed on this record, he was transferred to Massachusetts custody in April 1995 and was placed at MCI-Shirley in August 2012. Having obtained a college degree from Boston University while incarcerated, he was assigned to employment as a law clerk in the prison library in 2015. A law clerk's "duties include assisting inmates in locating books and materials, assisting in legal inquiries and documenting typewriter use." The library is located in the same building as the prison school.
Over the course of his employment, the plaintiff repeatedly complained to his supervisors about under-staffing and undersupervision at the library. He complained that two library janitorial positions and four law clerk positions were unfilled. He repeatedly reminded his supervisors that the law clerks were working seven days per week, sometimes taking multiple shifts in a single day, despite Department of Correction (DOC) policy that inmates should work no more than five days per week. Twice, he submitted a proposed work schedule where each law clerk would work six days per week if one additional law clerk was hired. Towards the end of October 2017, Deputy Superintendent for Programming Sheila Kelly told the plaintiff that "she was unhappy with the quantity of his written inquiries."
Somebody stole a typewriter motor from a typewriter in the prison library between November 1 and 2, 2017. The plaintiff did not work the afternoon or evening of November 1. He worked the morning shift on November 2. He reports that he began his shift by vacuuming the library as he had been instructed to do. Meanwhile, another library law clerk used a typewriter without signing it out. Among a law clerk's duties is to "[d]ocument[ ] typewriter use during Law Library calls." The plaintiff signed out two or three typewriters to inmates but not the one that ultimately was found to be missing its motor.
The motor was discovered to be missing around 1 P.M. on November 2. Correction Officer Anthony Salerno investigated the matter and, on November 3, fired the plaintiff, another law clerk (who had worked a different shift), and five school workers. At no point has the plaintiff received a disciplinary report concerning the theft. The plaintiff wrote to the director of security and to Deputy Superintendent Kelly, asking to be reinstated.
On November 7, the plaintiff approached Deputy Superintendent Kelly at "staff access hour" and asked why he had been terminated. In a loud and angry tone, in a room filled with inmates and prison employees, she said, "Things have gone missing from the Library."
That same day, the plaintiff filed an informal complaint about the firing and the Kelly accusation. On November 30, a correction officer ruled that the informal complaint had no merit because "[a] disciplinary report is not required to terminate an inmate from a work assignment."
The plaintiff then filed a formal grievance, stating, "I believe I can document that I had no connection to [the typewriter in question] at any relevant time." The plaintiff requested that he be reinstated to his job as a law clerk with no loss of pay or seniority. The institutional grievance coordinator (IGC) denied the plaintiff's grievance, stating, "a review of the circumstance [of the termination] in this case leads me to conclude [that] the [correction officer] exercised his discretion appropriately." The IGC never interviewed the plaintiff or collected the documents that the plaintiff had mentioned.
The department grievance manager reviewed the grievance and stated, "Staff acted appropriately in removing several inmates from their work assignments after items were missing from the school building," in which the library is located. The plaintiff appealed. On January 24, 2018, the then superintendent of the prison, Raymond Marchilli, denied the appeal, stating,
b. Prison mailing. By February 15, 2018, the plaintiff had prepared a Superior Court complaint related to the termination and told the property lieutenant, Darel Oja, that it needed to be mailed "this week." A property officer accepted the letter the next day (Friday). The following Monday was the Presidents Day holiday. See G. L. c. 4, § 7, Eighteenth.
On Wednesday, February 21, the postage cost was deducted from the plaintiff's account. On Tuesday, February 27, eleven days after the property officer accepted it, the plaintiff's letter was mailed. On March 1, the plaintiff filed an informal complaint, grieving that the letter was not mailed within twenty-four hours and requesting a letter stating that this would not happen again. A correction officer denied the informal complaint as untimely. The plaintiff filed a grievance, and an IGC denied the grievance as untimely. The new superintendent, Steven Kenneway, denied the plaintiff's appeal because the issue was untimely but wrote,
c. Amended and supplemental complaint. The plaintiff's original complaint was received by the Superior Court on March 1, 2018, and he amended the complaint on May 8. The amended complaint sought judicial review of the denial of his grievance regarding his termination (count 1). The plaintiff also raised a host of other counts arising out of the termination. The most notable, for our purposes, is a claim of defamation against Deputy Superintendent Kelly for essentially accusing him of theft (count 8). The plaintiff also raised claims of an equal protection violation (count 2), retaliation in violation of his rights under the First Amendment to the United States Constitution (count 3), denial of procedural due process (count 4), denial of substantive due process (count 5), supervisory liability under 42 U.S.C. § 1983 (count 6), wrongful discharge (count 7), and for a declaratory judgment that "all Massachusetts prisoners have a RIGHT and ENTITLEMENT to a fair and impartial adjudication of their grievances" (count 10).3
In November 2018, a Superior Court judge permitted the plaintiff to supplement his complaint. In the supplemental complaint, the plaintiff sought judicial review of the denial of his grievance regarding the mailing of his original complaint (count 11). He also raised claims of denial of access to the courts (count 12) and supervisory liability under 42 U.S.C. § 1983 for violation of that right (count 13).
Meanwhile, the plaintiff was rehired as a law clerk during or soon after June 2018. The plaintiff stated at oral argument that he nonetheless lost his seniority and his pay was reduced. The prison appropriately makes no argument that the termination grievance is moot. See Ralph v. Civil Serv. Comm'n, 100 Mass. App. Ct. 199, 201 n.4, 177 N.E.3d 530 (2021).
Consistent with Superior Court Standing Order 1-96, the parties filed cross motions for judgment on the pleadings. A Superior Court judge affirmed the agency decisions on the grievances and dismissed the plaintiff's various nonadministrative claims for failure to state a claim on which relief can be granted. This appeal followed.
2. Administrative claims. a. Standard of review. By statute, judicial review of DOC matters differs from ordinary administrative review and also differs by type of subject matter. In the case of review of inmate disciplinary hearings, the administrative procedures in G. L. c. 30A are inapplicable. See G. L. c. 30A, § 1A ; Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 131-133, 981 N.E.2d 730 (2013). These hearings are reviewed by a certiorari action under G. L. c. 249, § 4. See Beryl v. Superintendent, Souza Baranowski Correctional Ctr., 55 Mass. App. Ct. 906, 907, 772 N.E.2d 595 (2002).
Where, as here, an inmate files a grievance against a prison outside the context of an inmate disciplinary hearing, most of the administrative procedures in G. L. c. 30A, including those governing...
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