SEAN FITZPATRICK vs. DEPARTMENT OF CORRECTION & others. [Note 1]

MEADE, J. The plaintiff, Sean Fitzpatrick, is an inmate in the

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custody of the Department of Correction (DOC) at the Massachusetts Correctional Institution, Shirley (MCI-Shirley or institution). The plaintiff sought judicial review of DOC's [Note 2] denial of a grievance he filed in 2018, in which he objected to DOC's refusal of his request to transfer funds externally from his inmate account. A Superior Court judge granted judgment for DOC and determined that the plaintiff's claim was time barred, and that he had failed to comply with DOC's regulations governing disbursement of inmate funds. We reverse.

1. Background. In 2018, the plaintiff submitted a request to disburse funds from his inmate account at MCI-Shirley to an individual outside the institution. The plaintiff requested the disbursement from funds he held in his inmate account but had earned and saved for retirement before he was incarcerated. He had requested similar disbursements in prior years and followed the same procedure for the 2018 request as he had in the past. [Note 3] On this occasion, his request was denied.

The plaintiff filed both an informal and a formal grievance challenging the denial of his disbursement request. Defendants Steven Kenneway and Sandra Walsh, as MCI-Shirley's superintendent and institutional grievance coordinator, respectively, denied both grievances. The reason stated for the denials was that no funds would be released without the superintendent's approval. The denials cited 103 Code Mass. Regs. § 405 (2017), the section of DOC's regulations governing inmate funds and the only inmate funds policy in place at that time. In 2019, DOC issued a new standard operating procedure (SOP) as an addendum to the regulations governing disbursement of inmate funds.

The plaintiff appealed the denial of his formal grievance, and on September 18, 2018, Kenneway denied the appeal. This time, the denial stated that "[a]ny distribution of funds from any inmate account will be approved if the request conforms with policy. . . . Any request that does not conform will be denied."

The plaintiff filed a complaint for judicial review of the grievance denial. His complaint was docketed in the Superior Court on October 24, 2018. However, the complaint was dated October 10, 2018, and the plaintiff stated during the motion hearing that he placed the complaint in the prison mail system on that day. He

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also submitted an "Inmate Transaction Report" (transaction report) for the month of October 2018 showing withdrawals from his account of $1.34 for shipping on October 11, 2018, and $275 for the court filing fee on October 15, 2018. [Note 4]

The parties filed cross motions for judgment on the pleadings and the judge ruled in DOC's favor, dismissing the case in February 2020. [Note 5] See Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974).

2. Standard of review. DOC's final decision with respect to an inmate grievance is subject to judicial review under G. L. c. 30A, § 14. See G. L. c. 127, § 38H; Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 130-131 (2013). Inmate grievance appeals therefore differ from disciplinary appeals, which inmates must file as certiorari actions under G. L. c. 249, § 4. See Grady, supra at 131. Under G. L. c. 30A, § 14 (7), we may set aside or modify DOC's decision if we determine "that the substantial rights of any party may have been prejudiced" for any one of a range of reasons, including that the decision exceeded the statutory authority or jurisdiction of the agency, was based on an error of law, was made upon unlawful procedure, was unwarranted by facts found in the record as submitted or as amplified, or was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. See Sullivan v. Superintendent, Mass. Correctional Inst., Shirley, 101 Mass. App. Ct. 766, 772 (2022).

3. Discussion. a. Timeliness of the complaint. The plaintiff claims that the judge erred by dismissing his complaint as untimely. Under G. L. c. 30A, § 14 (1), an action for judicial review must "be commenced in the court within thirty days after receipt of notice of the final decision of the agency." The superintendent's decision on a grievance appeal is the "final decision of the agency" for purposes of § 14 (1). See Grady, 83 Mass. App. Ct. at 135. Here, the superintendent denied the plaintiff's grievance appeal on September 18, 2018. The thirty-day limitations period therefore expired on October 18, 2018, and the complaint did not reach the docket of the Superior Court until October 24, 2018. On this basis, the judge found the complaint was time-barred. [Note 6]

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In reaching this conclusion, however, the judge did not address the plaintiff's claim that his late filing should be excused because he placed the complaint in the prison mail system before the thirty-day period expired. [Note 7] Generally, G. L. c. 30A, § 14 (1), "contemplates that the clerk must receive the complaint (or a document called an appeal) within thirty days of the receipt of notice of the agency decision." Harper v. Division of Water Pollution Control, 412 Mass. 464, 467 (1992). However, under both Massachusetts and Federal law, "a pro se inmate's notice of appeal is to be considered filed at the moment it is delivered to the prison authorities." Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), citing Houston v. Lack, 487 U.S. 266, 270-272 (1988). See Fallen v. United States, 378 U.S. 139, 144 (1964) (inmate's notice of appeal in criminal case filed when mailed). Since 2019, the Massachusetts rules of appellate procedure have applied the so-called "prison mailbox rule" to filings in both civil and criminal appeals by a pro se party confined in an institution. See Mass. R. A. P. 4 (d), as appearing in 481 Mass. 1606 (2019) ("If [a self-represented, incarcerated] party files a notice of appeal in either a civil or criminal case, the notice is timely if deposited in the institution's internal mail system on or before the last day for filing"); Mass. R. A. P. 13 (a) (2), as appearing in 481 Mass. 1624 (2019) (same for appellate filings other than notice of appeal). Federal circuit courts have extended the prison mailbox rule to habeas petitions and filings in civil suits. [Note 8] See, e.g., Houston, supra at 268 (appeal from denial of habeas petition); Casanova v. Dubois, 304 F.3d 75, 79 (1st Cir. 2002) (complaint under 42 U.S.C. § 1983); Cooper v. Brookshire, 70 F.3d 377, 380 (5th Cir. 1995) (all civil complaints). Federal law does not

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recognize the prison mailbox rule in cases where the applicable statute or regulation requires delivery by a specified time. See Fex v. Michigan, 507 U.S. 43, 52 (1993).

Our appellate courts have not previously extended the prison mailbox rule to complaints for judicial review of a DOC grievance decision. In Harper, the Supreme Judicial Court held that, outside the prison context, a G. L. c. 30A, § 14, action is commenced when the clerk receives the complaint. See Harper, 412 Mass. at 467. The Massachusetts rules of civil procedure, which apply to G. L. c. 30A, § 14, actions, permit commencement of an action by mailing the complaint. See Mass. R. Civ. P. 3, as appearing in 488 Mass. 1401 (2021). However, the court in Harper reasoned that the phrase "commenced in the court" (emphasis added) in G. L. c. 30A, § 14, meant that complaints under that section must be received, not mailed, within the thirty-day period. See Harper, supra.

The question of when an inmate's G. L. c. 30A, § 14, action is "commenced" was not before the court in Harper. In the context of this case, an action for judicial review of a grievance under § 14 should be considered "commenced" at the moment the inmate delivers the complaint to the prison authorities. See Hartsgrove, 407 Mass. at 445. The prison mailbox rule serves the same purpose in an administrative appeal as it does in a criminal or civil appeal. As the United States Supreme Court reasoned in Houston, a "pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay." Houston, 487 U.S. at 271. See Hartsgrove, supra ("It would be unfair to hold the [inmate] accountable for the vagaries, if any, of the prison mail system"). The same logic applies to an inmate's complaint for judicial review of a grievance. The rule applies only in the narrow context of an incarcerated party who proceeds pro se and who verifiably delivers a complaint to prison authorities, for purposes of mailing, within the limitations period. Extending it to § 14 complaints therefore does not contradict the general rule in Harper, which concerned unincarcerated plaintiffs. See Harper, 412 Mass. at 467. Furthermore, although the rules of civil procedure govern § 14 actions, and the thirty-day deadline is statutory, applying the prison mailbox rule to those complaints is consistent with the 2019 amendments to Mass. R. A. P. 4 and 13.

In this case, according to the plaintiff, he placed the complaint in the prison mail system on October 10, 2018. His complaint was

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dated the same day. The transaction report for his inmate account showed withdrawals for postage on October 11 and for the court filing fee on October 15. DOC did not dispute these facts. [Note 9] See Hartsgrove, 407 Mass. at 446-447. Because the record showed he delivered the complaint to the prison mail system within thirty days after the superintendent's decision on his grievance, the judge should have accepted it as timely. [Note 10]

b. DOC's disbursement procedure. The plaintiff asserts that the funds he sought to disburse were not subject to DOC's inmate funds regulations because he did not earn them while incarcerated. He further claims that the judge erred by relying on DOC's assertions about his noncompliance with the disbursement procedure and by relying on DOC's SOP on inmate funds. Although we determine that the plaintiff's funds did not fall outside the regulations, we also conclude that the judge erred in finding the plaintiff was noncompliant.

DOC's inmate funds regulations are set out in 103 Code Mass. Regs. § 405. The purpose of the regulations is to "set [DOC] policy concerning the proper handling and distribution of inmate funds." 103 Code Mass. Regs. § 405.01. The regulations do not define "inmate funds." See 103 Code Mass. Regs. § 405.05 (definitions). And the plaintiff is correct that § 405.07 of the regulations applies only to "inmate wages and stipends." See 103 Code Mass. Regs. § 405.07. However, several other sections indicate that inmate funds may come from various sources. Specifically, § 405.06 covers "inmate savings bonds previously purchased," § 405.11 governs the handling of funds from outside donors or the United States Treasury, and § 405.15 covers donations into the inmate's account from outside individuals or organizations. See 103 Code Mass. Regs. §§ 405.06, 405.11, 405.15. Contrary to the plaintiff's claim, any funds he holds in his inmate account are subject to the inmate funds regulations.

DOC's procedure for disbursement of inmate funds is set out in 103 Code Mass. Regs. § 405.12. Section 405.12 applies "[w]henever

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an inmate wishes to initiate the withdrawal of funds from his or her personal account," which includes the plaintiff's disbursement request. Section 405.12 required the plaintiff to complete a withdrawal slip form with the following information: "(a) Date; (b) Amount to be withdrawn (marked cash or check/payee); (c) Purpose; (d) Inmate's signature; and (e) Staff verification signature." The plaintiff asserts that the judge improperly found that he did not comply with that procedure. [Note 11]

When reviewing a DOC decision, the judge should determine whether the decision was warranted by facts found in the record. See G. L. c. 30A, § 14 (7). Here, the judge determined that neither the pleadings nor the administrative record showed that the plaintiff had complied with the disbursement procedure. The plaintiff's withdrawal slip was not part of the administrative record before the judge. However, both the grievance and the complaint stated that the plaintiff requested the disbursement in the same manner as he had done, successfully, in previous years. During the motion hearing, the plaintiff stated multiple times that he followed the relevant procedure and completed the required form. In fact, DOC did not deny that the plaintiff had completed the form and complied with § 405.12. Rather, it merely stated that the form was not in the administrative record.

Moreover, it was DOC's responsibility, not the plaintiff's, to file the administrative record of the entire proceedings, including the withdrawal slip. See G. L. c 30A, § 14 (4). The record that DOC filed was sparse, consisting of seven pages, and nowhere in the various decisions denying the plaintiff's informal complaint and his grievance did any DOC official assert that the denial was based on the plaintiff's failure to submit the required form. In these circumstances, the judge should not have accepted the form's

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absence from the record, along with DOC's admission that "we couldn't find" the form, as proof that the plaintiff had never filed it. On remand, any remaining dispute about this issue may be resolved, if necessary, under G. L. c. 30A, § 14 (4) (corrections or additions to record) or § 14 (5) (alleged irregularities in agency procedure, not shown in record).

The judge also stated in her decision that DOC was entitled to verify the plaintiff's disbursement request with a bill, invoice, or order form. However, DOC began requiring those documents only after it issued its SOP on disbursement of inmate funds in 2019. Section 405.12 was the procedure in place at the time of the plaintiff's request at issue here, and it did not require backup documents. Because the SOP took effect months after the plaintiff's request, it was error for the judge to rely on DOC's assertions about it. [Note 12]

The plaintiff further claims on appeal that DOC improperly defended its actions on judicial review for reasons different from those stated when it originally acted. This claim relates primarily to DOC's statements about the 2019 SOP, and as we have already concluded, it was improper for the judge to rely on those statements. The plaintiff may further develop any other arguments related to the sufficiency of DOC's explanations on remand.

c. Amended complaint. Finally, the plaintiff also challenges the judge's dismissal of the case without considering his amended complaint. The plaintiff moved to amend in October 2019. It was within the judge's discretion to grant or deny the motion to amend at that time because the defendants had answered the complaint in May 2019. See Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). In any event, the judge eventually allowed the amendment in July 2020, months after dismissing the case. On remand, the judge may decide which is the operative complaint. [Note 13]

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4. Conclusion. The plaintiff's complaint was timely, and the grounds for affirming DOC's decision were, on this record, insufficient. So much of the judgment that dismisses the plaintiff's complaint as to defendant Thomas Turco is affirmed. In all other respects, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.