FREDERICK I. PIDGE vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, CEDAR JUNCTION, & others. [Note 1]

LAURENCE, J. The plaintiff is a prisoner at the Massachusetts Correctional Institution at Cedar Junction. In October, 1989, he brought suit pro se in the Superior Court against various prison officials following an adverse disciplinary proceeding on April 17, 1989, and his subsequent classification to a segregated unit (DSU). [Note 2]

The diffuse averments of the plaintiff's complaint were far from the "short and plain statement" called for by the rules, see Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974), which apply equally to pro se as to other litigants, see Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985). They did, however, state four identifiable claims. In count 1, the plaintiff sought an adjudication of contempt against the defendants, pursuant to G. L. c. 231A, Section 5, [Note 3] for their purported failure to comply

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with the judgments in Nelson v. Commissioner of Correction, 390 Mass. 379 (1983), Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409 (1983), [Note 4] and Cepulonis v. Fair, 732 F.2d 1 (1st Cir. 1984). [Note 5] In count 2, he sought declaratory relief and damages under 42 U.S.C. Section 1983 (1988) for alleged denial of procedural due process in both his disciplinary and his classification hearings. In count 3, he sought declaratory relief for the supposed failure of prison officials to comply with the regulations of the Department of Public Health and the Department of Correction relating to prison conditions in the "Awaiting Action" (AA) and DSU sections of Cedar Junction, where he was placed during most of 1989 as a result of the disciplinary charges and findings. In count 4, he claimed that he was denied sufficient access to the DSU law library and that the library was inadequately equipped. That, he charged, obstructed his access to the courts in violation of his rights under the State and Federal Constitutions.

On January 30, 1990, the defendants filed a motion to dismiss, or in the alternative for summary judgment, on the grounds that the plaintiff's claims of deficiencies in procedure at his disciplinary and classification hearings were time

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barred and that his remaining claims were moot. [Note 6] The Superior Court judge agreed with the defendants and dismissed the plaintiff's complaint on February 27, 1990, without hearing and without findings or rulings. On the plaintiff's appeal from the judgment of dismissal, we affirm in part and reverse in part.

The judge properly dismissed count 1. Notwithstanding the provisions of G. L. c. 231A, Section 5, the plaintiff was not entitled to enforce by contempt the judgments entered in the Nelson and Lamoureux cases, supra. The defendants had clearly and undoubtedly obeyed those judgments, cf. Nickerson v. Dowd, 342 Mass. 462, 464 (1961), by amending their regulations governing prison disciplinary proceedings precisely as dictated by the Supreme Judicial Court, see Nelson, 390 Mass. at 394-396, 398, and note 4, supra. They had fully purged any past contempt by complete performance of the acts required by the court orders and were therefore no longer subject to a contempt petition with respect to those judgments. See Doe v. Harder, 313 F. Supp. 575 (D. Conn. 1970). Cf. Penfield Co. v. Securities & Exch. Commn., 330 U.S. 585, 590, 593-594 (1947).

Consequently, the plaintiff's actual grievance under count 1 was the defendants' purported failure to comply with the procedures specified in 103 Code Mass. Regs. Section 430.15 (1987) with respect to their reliance upon anonymous informant accusations against him. That claim attacked the defendants' conduct of the disciplinary proceedings against the plaintiff. It was, as the defendants correctly contended, barred by the applicable statute of limitations. Inmates challenging alleged improprieties in prison disciplinary proceedings under State law must proceed by way of an action in the nature of certiorari. Murphy v. Superintendent, Mass. Correctional Inst., Cedar Junction, 396 Mass. 830, 833 (1986). McLellan v. Commissioner of Correction, 29 Mass. App. Ct. 933, 934 (1990). Certiorari actions must be commenced within sixty days after the conclusion of the proceeding being

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challenged. G. L. c. 249, Section 4. [Note 7] Failure to do so is such a "serious misstep" that such an action must be dismissed when not timely filed, even if the defendants fail to plead the statute of limitations as an affirmative defense. McLellan v. Commissioner of Correction, 29 Mass. App. Ct. at 935.

Here, the last administrative action regarding plaintiff's disciplinary sanctions occurred on June 1, 1989, when the superintendent denied the plaintiff's appeal from the disciplinary board's findings against him. The last administrative action resulting in his classification to a segregated unit based on the disciplinary proceedings occurred on June 30, 1989, when the Acting Commissioner of Correction approved the plaintiff's placement in a segregated unit for one year. The plaintiff did not file this action until two months after the expiration of the sixty-day limitations period.

Accordingly, count 1, in so far as it purported to vindicate the plaintiff's rights under State law, was belated and could not be maintained. [Note 8] With respect to the Federal aspect of count 1 based on Cepulonis v. Fair, supra, we have no power to enforce a Federal decree by contempt sanctions as a matter of basic jurisdictional and equitable principle. Cf. Matter of Vincent, 408 Mass. 527, 530 (1990); G. L. c. 231A, Sections 1, 2, 5 (which together limit relief under Section 5 to enforcement of judgments of State courts declaring practices or procedures of State, municipal, or county agencies or officials to be illegal).

We also affirm the dismissal of so much of count 2 as constituted an action in the nature of certiorari for review of administrative actions by the defendants that allegedly denied the plaintiff due process rights. Those actions included the disciplinary board's proceedings and the subsequent classification of the plaintiff by the department review board,

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with the approval of the superintendent and the Commissioner of Correction, to a segregated unit at Cedar Junction. For the reasons set forth in connection with count 1, the defendants were correct in their position that the plaintiff's State law claims in count 2 were time barred.

Count 2 additionally stated a cause of action for damages under the Federal civil rights act, 42 U.S.C. Section 1983 (1988). On this record that claim should not have been dismissed. The three-year State statute of limitations for torts resulting in personal injury, G. L. c. 260, Section 2A, appears applicable to that claim. Although the Supreme Judicial Court has not yet ruled on this issue, we are persuaded that a State cannot apply a shorter time limit, such as the sixty-day period of G. L. c. 249, Section 4, to a substantive Federal right properly asserted in a State court. See Wilson v. Garcia, 471 U.S. 261 (1985); Felder v. Casey, 487 U.S. 131, 152-153 (1988); Duffy v. Massachusetts Dept. of Corrections, 746 F. Supp. 232 (D. Mass. 1990). Cf. Brunson v. Wall, 405 Mass. 446, 449 n.6 (1989). Since, however, the parties did not fully brief or argue the issue to either this court or the Superior Court, we believe that the trial judge should have the initial opportunity to consider it on an appropriate presentation.

Count 3 set forth a claim for declaratory relief under State law arising from the conditions of the plaintiff's confinement in AA and DSU status. [Note 9] He contended that the alleged lack of showers and exercise and the shackling of prisoners without justification violated regulations of the Department of Public Health and Department of Correction, as well as the State and Federal Constitutions. It is undisputed that the plaintiff was released to the general prison population on December 21, 1989. The defendants therefore argued that his claim for declaratory relief under State law was moot. We agree. Courts need decide only actual controversies, not moot

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cases. See, e.g., Boston v. Massachusetts Port Authy., 364 Mass. 639, 645 n.8 (1974); Massachusetts Assn. of Independent Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292-293 (1977); Commissioner of Correction v. McCabe, 410 Mass. 847, 850-851 (1991).

The plaintiff had asserted (for the first time, on appeal) that the violations of his rights attacked in count 3 are "capable of repetition, yet evading review," and therefore present an exception to the principle of mootness, see Karchmar v. Worcester, 364 Mass. 124, 136 (1973), quoting from Southern Pac. Terminal Co. v. Interstate Commerce Commn., 219 U.S. 498, 515 (1911); Puckett v. Commissioner of Correction, 28 Mass. App. Ct. 448, 449 n.2 (1990). Even if we exercised our discretion to address the newly-raised issue, see Pryor v. Holiday Inns, Inc., 401 Mass. 506, 509-510 (1988), it would not profit the plaintiff. The controversy "need not evade review if parties show even minimal resoluteness in carrying on litigation (emphasis added)." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 708 (1976). That exception is consequently inapplicable here. Nor has he established anywhere in this record the "probability" that the same disputes will "recur between the same parties" (emphasis added). Blake v. Massachusetts Parole Bd., 369 Mass. at 707; Matter of Sturtz, 410 Mass. 58, 59-60 (1991).

Nonetheless, we may also read the allegations of count 3 -- generously, as we must in connection with a dismissal under Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), see Spence v. Boston Edison Co., 390 Mass. 604, 615 (1983); cf. Mmoe v. Commonwealth, 393 Mass. at 620 -- to allege deprivation of the plaintiff's Federal constitutional rights by the defendant State officials. Those allegations appear sufficient to state a cognizable claim, for either equitable or declaratory relief, under the Federal civil rights act, 42 U.S.C. Section 1983. That portion of count 3 remains viable for the reasons discussed above under count 2.

In count 4 the plaintiff claimed that the defendants had denied him adequate access to the DSU law library while he

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languished in the more restrictive units of Cedar Junction and that the library available to him for brief periods was inadequately equipped. This, he alleged, obstructed his access to the courts, including his ability to file a timely appeal. The right of access to the courts by prisoners is a recognized aspect of due process, and prisoners are constitutionally entitled to either an adequate library or adequate legal assistance. Procunier v. Martinez, 416 U.S. 396, 419 (1974). Bounds v. Smith, 430 U.S. 817, 821, 828 (1977). It is undisputed that the plaintiff received no legal assistance from the defendants, despite his frequent requests.

The alleged inadequacies in available library resources and in his access to them could not, however, have caused the untimeliness of the plaintiff's complaint under G. L. c. 249, Section 4. He in fact had legal representation throughout and for at least some time after the disciplinary proceeding. In addition, he admittedly had access to the library for at least twelve to seventeen hours during the running of the certiorari limitations period. He was, or reasonably should have been, aware of the procedural significance of an action in the nature of certiorari to a prisoner in his circumstances. His reliance during the disciplinary proceeding upon the opinion of the Supreme Judicial Court in Nelson v. Commissioner of Correction, supra, which explicitly discussed that statutory procedure, demonstrates this. 390 Mass. at 381-382, 388 n.12. The plaintiff has made no contention that the DSU library lacked relevant copies of the General Laws. Research in those volumes, prompted by knowledge of Nelson, would have revealed the applicability of G. L. c. 249, Section 4, and its sixty-day statute of limitations in a matter of minutes, even if the plaintiff's counsel (who otherwise appeared thorough and able) did not advise him of his appellate rights.

Finally, the plaintiff did not aver any injury resulting from the inadequacies alleged in count 4 subsequent to his discharge into the general prison population in December, 1989, nor any likelihood of recurrence of the situation to his detriment. Count 4 thus was moot and subject to dismissal, except

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to the extent it alleged a Federal cause of action under 42 U.S.C. Section 1983, as discussed above under counts 2 and 3.

Accordingly, we vacate the judgment for the defendants on so much of counts 2, 3, and 4 as assert Federal claims under 42 U.S.C. Section 1983 and remand that portion of the case to the Superior Court for further proceedings on those claims. (We, of course, express no opinion on their ultimate legal validity or deficiencies.) In all other respects we affirm the judgment for the defendants.

So ordered.