Moses v. Mitchell, et al. (Lawyers Weekly No. 09-040-17)

NO. 16-0823
Plaintiff Moonie Moses, an inmate at Old Colony Correctional Center (“OCCC”), brings this case in the nature of certiorari under G.L. c. 249, §4, against Lisa Mitchell, Rebecca Donahue, John P. Freitas, Christopher Anderson, Andrew DeValles, and Brian Schwenk (“Defendants”), officials and employees of OCCC, alleging violations of Department of Correction regulations governing discipline he received as the result of a disciplinary report (or D-Report).
Before the Court is Moses’ motion for judgment on the pleadings. The Defendants oppose and cross-move for judgment on the pleadings. After hearing, and in consideration of the parties’ memoranda of law and oral arguments, the Court ALLOWS Plaintiff’s motion for judgment on the pleadings and DENIES Defendants’ motion.
In D-Report 345786, Correctional Officer John Freitas alleged that on August 24, 2015, Moses insulted and threatened him. Specifically, Freitas alleged that Moses “called this officer ‘a piece of shit and then continued to say if you were in my neighborhood in Dorchester I wish
1 The case file, identifying plaintiff as “Moses Moonie,” reverses Mr. Moses’ first and last names.
you would take a bullet to the head.’” Moses was charged with four offenses – threatening another with bodily harm, in violation of Disciplinary Code Section 3-04; use of obscene, abusive or insolent language or gesture, in violation of Disciplinary Code Section 3-26; conduct which disrupts the normal operation of the facility of unit, in violation of Disciplinary Code Section 3-27; and violation of any departmental rule or regulation, in violation of Disciplinary Code Section 4-11.
Although the D-Report reads as if Moses’ alleged statement was made directly to Freitas, it is undisputed that it was not. Instead, whatever statement Moses made was heard by Correctional Officer Oana T. Farese, who reported it to Freitas. Indeed, the record of the disciplinary hearing reflects Freitas’ statement that “[s]he [Farese] told me she heard the statements. I don’t recall when she told me. … I asked Moses did he say it. He said it was misinterpreted. I’m going to go with what the CO tells me.” Freitas’ statement makes clear that Moses’ position was that what he said had been misunderstood, which is his position before this Court.
Farese’s testimony, which Freitas credited, was thus critical in deciding whether any offense had occurred and any discipline was appropriate. Moses thus requested, pursuant to the regulations that governed the proceeding, that Farese be produced as a witness at the disciplinary hearing, proffering that she could testify that Freitas “lied about [the] statement.”
The hearing was originally scheduled for September 9, 2015. Moses asked for a continuance to request Farese be produced and to review the videotapes taken in the cell block at the time, proffering that they, too, “will show that the officer lied in his statement and nothing he said was true.” The OCCC continued the hearing at Moses’ request, but then continued it five more times at their behest. The hearing was not held until April 1, 2016, a total delay of six
months. Two of the extensions reflect that they were occasioned because the reporting officer, Freitas, was unavailable. The other four bear no explanation.
Moses’ request for Farese to be produced was denied by Rebecca Donohue, a Disciplinary Hearing Officer. The record of the disciplinary hearing required that “[i]f any [witness] request is denied, a written explanation of the reasons must be included as part of the record.” All that the record reflected as a “written explanation” of Farese’s exclusion were three words: “irrelevant testimony expected.” No further explanation was provided anywhere in the record as to when, how or why Farese’s testimony was deemed to be irrelevant. Moses was also informed that the video tapes he requested were “unavailable,” again without explanation. At the hearing, neither Farese nor any videotapes were produced.
After the hearing, Donohue issued her decision. In it, she concluded that, based on Freitas’ report and testimony, the evidence “clearly established that inmate Moonie used obscene, insolent language to staff” and that, even considering Moses’ testimony, “it appears more likely than not that the proponent’s contention is true.” However, despite finding that Freitas’ allegations were supported, she dismissed the threatening charge as “not supported by the report.” She thus found Moses guilty of offense 3-26, use of obscene, abusive or insolent language or gesture, and imposed 10 days of disciplinary detention. She dismissed charges 3-27 and 4-11 as duplicative.
Moses appealed, arguing that (1) the hearing was not held within a reasonable time; (2) the testimony did not support a guilty finding; (3) he was denied a witness, Farese, who “would have shown that said words were never said”; and (4) that he was denied video evidence “that would have shown that any conversation with the reporting staff and this inmate did not occur.” On April 29, 2016, the Superintendent Lisa Mitchell denied the appeal.
The Defendants correctly argue that Moses does not allege a cognizable federal due process claim. “An inmate is entitled to the protection of procedural due process under the Federal and State Constitutions only if there is an existing liberty or property interest at stake. Sandin v. Conner, 515 U.S. 472, 484 (1995) … Under the Fourteenth Amendment, a liberty interest is ‘generally limited to freedom from restraint which . . . imposes atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life.’ Sandin v. Conner, 515 U.S. at 484. … [S]anctions [such as thirty days in isolation, loss of visitation privileges for one year, and transfer to a higher security prison] did not create a liberty interest and, thus, the defendant was not deprived of the protections of due process to which he was entitled under both the Federal and State Constitutions.” Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 138 (2001).
That federal liberty interests are not at stake does not end the matter, however. Sandin recognized that inmates like Moses “may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available.” Sandin, 515 U.S. at 487-488 n.11. In this case, Moses properly invoked judicial review in the nature of certiorari because of the alleged failure of the Defendants to follow Department of Correction regulations. See Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1129 (1989). “’The purpose of the certiorari procedure is to provide a remedy, where none would otherwise exist, if necessary to avoid manifest injustice,’ or, as otherwise stated, to correct substantial errors of law on the record that adversely affect material rights. We do not believe that it was the intention of the Supreme Court in Sandin to divest an inmate of the ability to challenge the use of alleged improper
procedures in the conduct of a disciplinary proceeding because the sanctions did not implicate a liberty interest. To permit this would allow the department carte blanche to conduct a disciplinary hearing in any manner it saw fit as long as the sanction imposed was minor or did not implicate a liberty interest.” Drayton, 52 Mass. App. Ct. at 140 (citation omitted).
Accordingly, in a certiorari action such as this, an inmate may challenge the validity of the disciplinary proceeding to determine whether there is “substantial evidence” in the record to support the disciplinary action imposed. See Cepulonis v. Commissioner of Correction, 15 Mass. App. Ct. 292, 295 (1983). Disciplinary findings must be supported by a preponderance of the evidence. 103 CMR 430.16(1) (2017). Judicial review of such findings is not de novo. Hill v. Superintendent, Massachusetts Correctional Institution, 392 Mass. 198, 202 (1984), reversed on other grounds, 472 U.S. 445 (1985). Instead, the court may “correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff,” Sheriff of Plymouth County v. Plymouth County Personnel Bd., 440 Mass. 708, 710 (2004) (citation omitted), or a finding that is not supported by substantial evidence in the record. Beryl v. Superintendent, Souza-Baranowski Corr. Cir., 55 Mass. App. Ct. 906, 907 (2002). “Substantial evidence is evidence that ‘a reasonable mind might accept as adequate to support a conclusion … taking into account whatever in the record fairly detracts from the weight of the evidence.’” Jordan v. Superintendent, 53 Mass. App. Ct. 584, 587 (2002), quoting Cepulonis, 15 Mass. App. Ct. at 296. The court may not displace the hearing officer’s “exclusive function to weigh the credibility of the witnesses and to resolve factual disputes” in the testimony. Jordan, 53 Mass. App. Ct. at 588. However, while “great deference” is owed to the hearing officer’s decision, the court need not defer to it “where the evidence is so limited and problematic” that it cannot support the decision. Jordan, 53 Mass. App. Ct. at 589-90.
In this case, the Hearing Officer made a substantial error of law and her decision was not supported by substantial evidence in the record. Moses had a right under the applicable regulations to call witnesses unless doing so would be irrelevant, cumulative, repetitive, or hazardous. See 103 CMR 430.14(4) (2017). Correctional Officer Farese was the sole witness who heard the statement attributed to Moses and on which Freitas relied. Yet the Hearing Officer inexplicably denied Moses request to call this critical witness by baldy stating that her testimony would be irrelevant. Nothing in the record supports the conclusion that this was the case. While prison officials have discretion to keep the disciplinary hearing within reasonable limits consistent with the regulations, “there must be some support in the administrative record to justify a decision not to call witnesses in order to ensure that the hearing is not a charade.” Real v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 399, 404-07 (1983), vacated, Ponte v. Real, 471 U.S. 491 (1985), on remand, 396 Mass. 1001 (1985). Here there is no such support, and the Court rejects the claim that a three-word notation, “irrelevant testimony expected,” suffices, as the Defendants argue.2
In addition to its being unsupported by the record, the Hearing Officer’s conclusion that Farese’s testimony would be irrelevant is illogical. Indeed, the record shows that Farese was the only witness who had any relevant testimony at all; Freitas’ testimony was entirely derivative of what she allegedly told him, and Freitas acknowledged that Moses contested the interpretation of what he allegedly said. The Court thus rejects the Defendants’ argument that they had no obligation to turn over exculpatory evidence, a claim which misses the point. Moses did not
2 The Defendants accorded themselves an overly-long six-month delay in deciding this case, good cause for which was not adequately justified in writing, as required under the regulations. See 103 CMR 430.23 (2017) (“The procedural time limits set forth in 103 CMR 430.00 are directory and may be waived by the Superintendent, Commissioner or their designees for good cause and in writing”). Even leaving this failure aside, the delay shows that the Defendants had more than adequate time to provide appropriate support in the record to justify the decision to exclude Farese’s testimony.
request that the Defendants turn over “exculpatory” evidence. Instead, he simply requested, pursuant to the regulations, that a specific witness be produced. The Defendants’ argument about the disclosure of exculpatory evidence strongly suggests that Farese would have offered testimony in support of Moses’ claims, precisely why her testimony was relevant and hence not excludable as irrelevant under 103 CMR 430.14(4).3
During the argument on this motion, the defendants’ attorney provided a plausible explanation for how Farese’s testimony could have been found irrelevant. But she could provide no explanation in the record for how it was found to be irrelevant. This Court concludes that excluding Farese as a witness constituted a substantial error of law and concludes that there was no substantial evidence to support the disciplinary decision in this case.
For the reasons detailed above, the defendants’ motion for judgment on the pleadings is DENIED and the plaintiff’s motion for judgment on the pleading is ALLOWED. This Court ORDERS that the guilty finding entered against Moses be dismissed and removed from Moses’ prison record.
Justice of the Superior Court
Date: October 23, 2017
3 The Court also concludes that the Defendants did not adequately explain why there was no video available of the encounter; it is unclear whether that was because no video was taken or that the Defendants chose not to produce it because it was deemed to be excludable under the regulation.

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