Moses v. Mitchell, et al. (Lawyers Weekly No. 09-040-17)
1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 16-0823 MOONIE MOSES1 vs. LISA MITCHELL, REBECCA DONAHUE, JOHN P. FREITAS, CHRISTOPHER ANDERSON, ANDREW DEVALLES, AND BRIAN SCHWENK MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS 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. FACTS 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. 2 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 […]