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Confinement Held Unjustified

The Supreme Court of Massachusetts held that a prisoner at the
Massachusetts Correctional Institute (M.C.I.) at Walpole was confined in
the Departmental Segregation Unit (D.S.U.) without being afforded the
procedural safeguards required by the regulations of the department and
the federal and state constitutions. The prisoner was accused of beating a
fellow prisoner, but was never identified by the victim as the attacker.
The superintendent of M.C.I. Walpole ordered the prisoner removed from the
general population and placed in a cell in the D.S.U. He was confined to
his cell twenty-four hours a day, with only restricted visitation and
exercise periods, and a minimum of possessions in his cell. At the
disciplinary hearing, the prisoner requested certain witnesses to be
called and submitted affidavits from the victim stating he was not one of
the attackers. The requests were denied by the board, which found the
prisoner guilty on all charges, and recommended thirty days in isolation
while referring him for higher custody status. Later, the prisoner was
officially "placed" in the D. S.U. The Court held that the prisoner's
initial confinement was in violation of the department's own policies
found at 103 Mass. Regs. 5 430.19(1)(1978), which requires the calling of
witnesses. Therefore, the court ordered expongement of any references to
the D.R. from the prisoner's file. See: Kenny v. Commissioner of
Corrections, 393 Mass. 28; 468 N.E. 2d.-616 (1984).

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Related legal case

Kenny v. Commissioner of Corrections



[2] [Editor's note: the court provided no docket number in the original opinion]

[3] 468 N.E.2d 616, 393 Mass. 28

[4] September 13, 1984



[7] Imprisonment. Administrative Law, Regulations. Due Process of Law, Prison disciplinary proceeding.

[8] Norfolk. Civil action commenced in the Superior Court Department on July 2, 1982. The case was heard by Hiller B. Zobel, J. The Supreme Judicial Court granted a request for direct appellate review.

[9] Martin E. Levin, Assistant Attorney General, for Commissioner of Correction & another.

[10] Ann Lambert Greenblatt for the plaintiff.

[11] Hennessey, C.j., Wilkins, Liacos, Lynch, & O'Connor, JJ.

[12] The opinion of the court was delivered by: Liacos

[13] A prisoner's confinement in the segregation unit of a correctional institution, without a hearing before the prison disciplinary board and without a finding that he was guilty on the charges against him, violated regulations of the Department of Correction governing the transfer of prisoners to the segregation unit. [33-34]

[14] Regulations of the Department of Correction authorizing administrative segregation of a prisoner in "awaiting action" status and authorizing the superintendent of a correctional institution to designate "an awaiting action area" did not authorize a prisoner's transfer to an institution's segregation unit while he was awaiting action by the prison disciplinary board on charges that he had committed certain offenses. [34]

[15] A prison disciplinary board violated an inmate's due process rights by denying his request to have certain witnesses appear at the inmate's disciplinary hearing where the board denied the request to call witnesses because the hearing was held in the prison's segregation unit and where the inmate's transfer to the segregation unit violated applicable regulations of the Department of Correction. [34-35]

[16] The plaintiff, Richard A. Kenney, an inmate at the Massachusetts Correctional Institution at Walpole (M.C.I., Walpole), brought this action in the Superior Court seeking damages and declaratory and injunctive relief against certain officials of the Department of Correction (department). In his pro se complaint Kenney claims that he was confined in the Departmental Segregation Unit (D.S.U.) in Block 10 at M.C.I., Walpole, without being afforded the procedural safeguards required by the regulations of the department and the Federal and State Constitutions. He also contends that his right to due process of law was violated by the denial of his request to have certain witnesses appear at his disciplinary hearing.

[17] A Judge in the Superior Court, after a hearing on the merits, vacated the findings of the prison's disciplinary board (board) and ordered entry of judgment for Kenney. The Judge also ordered that Kenney's record be expunged of any reference to the offenses charged. The defendants appealed and we granted their application for direct appellate review. We affirm.

[18] The facts which give rise to this case are as follows. On January 16, 1981, David Larrabee, an inmate at M.C.I., Walpole, was dragged into a cell and beaten. Two days later another inmate, Stephen M. Haynes, was stabbed during the showing of a movie at the prison. At one time, Larrabee accused Kenney of participating in the assault against him, but Haynes refused to identify his attacker. On March 19, 1981, the Superintendent of M.C.I., Walpole (superintendent), ordered Kenney removed from the general prison population and placed him in a cell in the D.S.U. The Judge found that Kenney was confined there under the same conditions as those inmates who had been transferred to the D.S.U. pursuant to a finding by the Commissioner of Correction (Commissioner) that their behavior posed a substantial threat to the residents, property, or operations of the institution. *fn2 The Judge also found that Kenney was usually confined to his cell in the D.S.U. for twenty-four hours a day, his exercise periods and visiting hours were restricted, and he was allowed to keep only a minimum of possessions in his cell. Because of these limitations on Kenney's institutional freedom, the Judge found that his detention in the D.S.U. was punitive. *fn3 See Libby v. Commissioner of Correction, 385 Mass. 421, 423 (1982).

[19] On March 30, 1981, Kenney received two disciplinary reports charging him with assaulting both Larrabee and Haynes. *fn4 The board conducted a disciplinary hearing on the charges on May 28, 1981. *fn5 Kenney requested that Larrabee and Haynes be allowed to appear at the hearing as witnesses but the board denied his request, stating: "Board finds substantial risk. D.S.U. off limits to inmates other than those residing there. Board will accept offers of proof and/or affidavits."

[20] At the disciplinary hearing, a correction officer testified that four reliable informants had told him that Kenney and two other inmates had committed the assaults on Larrabee and Haynes. Kenney submitted affidavits from Larrabee and Haynes stating that Kenney had not participated in the attacks against them. The board found Kenney guilty on all charges and recommended that he serve thirty days in isolation in fifteen-day intervals and referred him to the D.S.U. board for reclassification to a higher custody status. Acting on the referral, the D.S.U. board conducted a hearing and recommended that Kenney be placed in the D.S.U. The Commissioner approved the recommendation on July 10, 1981, and as a result Kenney was officially "placed" in the D.S.U.

[21] On appeal, the defendants contend that the superintendent's initial confinement of Kenney in the D.S.U. was permissible because he was in "awaiting action" status. The defendants assert that as a general rule, as long as the superintendent complies with the procedural requirements of the department's regulations governing awaiting action status, the superintendent may place inmates in the D.S.U. while they await action. With respect to Kenney's claim that his request for witnesses at the disciplinary hearing was improperly denied, the defendants maintain that the board's action was within its discretion.

[22] First we consider whether Kenney's initial confinement in the D.S.U. was in violation of the regulations of the department. *fn6 The department has promulgated detailed regulations governing disciplinary actions in State correctional institutions, the relevant provisions of which are set out in the margin. *fn7 A section of the disciplinary action regulations authorizes placement of an inmate in "awaiting action" status pending " hearing on a disciplinary offense . . . n investigation of a possible disciplinary offense . . . transfer or reclassification of the inmate to higher custody status . . . or mposition of isolation time." 103 Code Mass. Regs. § 430.19(1) (1978).

[23] The department also has adopted a set of regulations governing segregation units. *fn8 A related regulation defines an awaiting action area as "n area or areas designated by a superintendent in which a resident may be confined pending a hearing to determine whether such resident shall be transferred to a departmental segregation unit." 103 Code Mass. Regs. § 421.06 (1) (1978). The segregation unit regulations also provide that an inmate may be transferred to a D.S.U. after the Commissioner has found that "he resident poses a substantial threat to the safety of others; or . . . of damaging or destroying property; or . . . of interrupting the operation of the state correctional facility." 103 Code Mass. Regs. § 421.07(1) (1978). Transfer of an inmate to a departmental segregation unit for commission of a disciplinary offense is specifically prohibited unless the inmate has been found guilty by the board, sanctions have been imposed, and the Commissioner has made an appropriate finding. 103 Code Mass. Regs. § 421.07(2) (1978).

[24] A third set of regulations outlines the procedures involved in reclassifying an inmate to a higher custody status. 103 Code Mass. Regs. § 420.13 (1978). These regulations provide for placement of an inmate in awaiting action status when there is an immediate threat to the health or safety of the inmate or others. 103 Code Mass. Regs. § 420.13(2)(b) (1978). The reclassification regulations do not specifically authorize placement of an inmate in awaiting action status in the D.S.U.

[25] Administrative agency regulations promulgated pursuant to a legislative grant of power generally have the force of law. Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983). "Once an agency has seen fit to promulgate regulations, it must comply with those regulations." Id. Consequently, individuals within the agency may not arbitrarily disregard agency regulations to the prejudice of a party's rights. DaLomba's Case, 352 Mass. 598, 603 (1967).

[26] In this case, in direct contravention of the segregation unit regulations which govern transfers of inmates to the D.S.U., the superintendent placed Kenney in a D.S.U. cell for commission of specific disciplinary offenses before Kenney had been found guilty, before sanctions had been imposed, and before the Commissioner had found that Kenney posed a substantial threat to the institution. See 103 Code Mass. Regs. § 421.07(2) (1978). The attempt to justify this action by claiming that Kenney was in awaiting action status must fail because the regulatory definition of an awaiting action area does not contemplate the use of the D.S.U. for inmates who are awaiting action. That definition limits awaiting action areas to those areas where an inmate "may be confined pending a hearing to determine whether [he should] be transferred to a departmental segregation unit " (emphasis supplied). 103 Code Mass. Regs. § 421.06 (1978). *fn9

[27] Our decision in Royce v. Commissioner of Correction, supra, does not require a different result. In Royce, in order to determine whether the plaintiff had stated a claim (the case came to us on appeal from the dismissal of the complaint), we assumed on a limited record that the plaintiff could have been placed in the D.S.U. while he was awaiting action pursuant to the reclassification regulations. Id. at 429. We specifically stated in Royce that we did not decide whether the regulations provided for "any limitation of the superintendent's discretion to designate 'awaiting action' areas." Id. at 429 n.8. We agree with the Judge's Conclusion that an inmate may be transferred (or placed) in the D.S.U. by the Commissioner only in compliance with the regulations. 103 Code Mass. Regs. § 420.13 (2)(b); § 421.07 (1978). The record of this case indicates that Kenney was placed in the D.S.U. without compliance with the governing regulations and therefore we conclude that his confinement in the D.S.U. in awaiting action status was contrary to law.