Ivey, et al. v. Commissioner of Correction, et al. (Lawyers Weekly No. 11-110-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-1262                                       Appeals Court   EUGENE M. IVEY & another[1]  vs.  COMMISSIONER OF CORRECTION & others.[2] No. 14-P-1262. Suffolk.     May 4, 2015. – August 13, 2015.   Present:  Grainger, Hanlon, & Carhart, JJ.     Imprisonment, Department disciplinary unit, Enforcement of discipline.  Administrative Law, Regulations.  Due Process of Law, Prison disciplinary proceedings.  Practice, Civil, Declaratory proceeding.     Civil action commenced in the Superior Court Department on January 9, 2012.   The case was heard by Bonnie H. MacLeod, J., on motions for summary judgment.     Bonita Tenneriello for the plaintiffs. C. Raye Poole for the defendants.     CARHART, J.  Plaintiffs Eugene M. Ivey and Francis Lang appeal from a summary judgment in favor of the defendants on the plaintiffs’ complaint for declaratory and injunctive relief.  The defendants are officials of the Department of Correction (hereinafter, collectively, the DOC).  The plaintiffs, who are prisoners at the Massachusetts Correctional Institution at Cedar Junction (MCI-Cedar Junction), sought a declaration that an informal DOC policy regarding segregation in the departmental disciplinary unit (DDU) violates the DOC inmate discipline regulations (103 Code Mass. Regs. §§ 430.00, hereinafter, regulations), and an order enjoining the DOC from enforcing the policy.  Because we conclude that the informal policy was canceled as a matter of law by amendments to the regulations, we vacate the judgment. Background.  The summary judgment record reflects the following undisputed facts.  The DDU is located on the grounds of MCI-Cedar Junction.  All inmates entering the DDU are provided a “DDU Inmate Orientation Manual” (DDU manual), which is updated annually.[3]  Once inmates arrive in the DDU, they become subject to a policy (the policy) in the DDU manual: “The DDU Administrator/designee shall initially review the status of each inmate placed in the DDU within 30 days of placement.  Thereafter, each inmate’s status shall be reviewed every 30 days.  An inmate will lose credit for time served in DDU and loss of all pending and previously earned privileges (i.e., TV, radio, visits, and telephone) if he is found guilty of:   one Category 1 disciplinary report one Category 2 disciplinary report one Category 3 AND one Category 4 disciplinary report two Category 3 disciplinary reports or two Category 4 disciplinary reports   “The loss of credit will occur for the review period in which the report was written.”   The policy previously had been codified at 103 […]

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