MAC S. HUDSON VS. COMMISSIONER OF CORRECTION & others. [Note 1]

LAURENCE, J. Mac S. Hudson, an inmate serving his sentence at the Massachusetts Correctional Institution at Cedar Junction (MCI - Cedar Junction), [Note 2] was subjected to restrictive confinement and a prison disciplinary proceeding in June, 1996, on a charge of fighting with another inmate. The proceeding resulted in a finding that Hudson was guilty of assaulting the other

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inmate and a sanction of loss of television, radio, canteen, and telephone privileges for two weeks, suspended for sixty days. He continued in restrictive confinement until July 23, 1996. On that date, Hudson commenced an action in the nature of certiorari, pursuant to G. L. c. 249, s. 4, against the named defendants in Superior Court challenging his prison disciplinary process. His complaint also sought declaratory relief under G. L. c. 231A, s. 1, damages under 42 U.S.C. s. 1983, and an order for civil contempt (see note 5, infra), all on account of the defendants' alleged deprivation of his rights by virtue of the restrictive confinement and defects in the disciplinary process. After a hearing on cross motions for summary judgment, a Superior Court judge allowed the defendants' motion as to all of Hudson's claims and ordered entry of final judgment for the defendants. In his appeal, Hudson challenges the Superior Court's ruling as erroneous on a number of grounds. We conclude that none of his contentions presents a ground for reversal and affirm.

The essential facts underlying this controversy are undisputed [Note 3]. As of June 1, 1996, Hudson was residing in a cell in a general population unit of the prison called "Essex II." On that date, he and another inmate, Antwine, were placed on "awaiting action" status in Essex II [Note 4] in connection with an investigation of an apparent bloody altercation in or about a stairwell of the unit earlier in the day. Three days later, on June 4, 1996,

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Hudson was transferred to the more restrictive "Essex F unit of the prison and was formally notified that he had been placed on "awaiting action/pending investigation" status in connection with his role in a June 1 assault on Antwine and his suspected involvement in a subsequent assault on Antwine on June 4 [Note 5] by several other imnates in the Essex II unit.

On June 11, 1996, a disciplinary report was issued to Hudson alleging that he had assaulted inmate Antwine on June 1, 1996, and was implicated in the subsequent June 4, 1996, assault on Antwine. Those incidents were stated to constitute offenses contrary to 130 Code Mass. Regs. s. 430.24(2), (8), (18) (1993) (violating prison rules or regulations; interfering with or disrupting the security or the orderly running of the prison; fighting with or assaulting another person). A disciplinary hearing was scheduled for June 19, 1996.

Prior to the hearing, Hudson requested that he receive certain

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documentary evidence and that correction officer Turner, unit manager Devine, unit sergeant Bailer, and inmate Antwine be called as witnesses. Hudson was provided with copies of the relevant incident reports and (at the hearing) a copy of the informant checklist; his request to examine the informant reports themselves was denied because of the risk of exposure of the informant, and his request for Antwine's medical records was denied on the ground of confidentiality. (Hudson did not, apparently, ask Antwine to waive confidentiality). His request to call Antwine was denied on the basis of security concerns, but he was permitted to submit an affidavit from Antwine (which, to the extent the almost illegible copy in the record can be deciphered, exculpated Hudson). Hudson's request for Bailer's testimony was denied because that testimony would have been cumulative of Turner's and Devine's. The hearing officer denied Hudson's request to tape record the hearing (apparently made only at the hearing) because Hudson had not taken the appropriate steps in a timely fashion under the regulations to make funds (which he sufficiently had in his savings account) available for that purpose.

The hearing took place on June 19 and 20, 1996, with Hudson in attendance. On June 20, 1996, the hearing officer issued his written decision, finding Hudson guilty, by a preponderance of the evidence (including physical evidence, observations of correction officers, and reliable and credible information from an informant with personal knowledge), of the 103 Code Mass. Regs. s. 430.24(18) offense, involvement in the June 1, 1996, fight with Antwine. The other charges were dismissed. The hearing officer recommended a sanction of two weeks' loss of television, radio, canteen, and telephone privileges, all sanctions suspended for sixty days [Note 6]. Hudson appealed the decision of the hearing officer to the superintendent, whose deputy denied the appeal. Hudson remained in the Essex I unit for approximately thirty days after the hearing officer issued his decision [Note 7].

Hudson's principal appellate claim is that the Superior Court

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judge erred in not ruling that his placement in the more restrictive confinement of the Essex I unit on June 4, 1996, and his remaining there for a period of approximately six or seven weeks, constituted a violation of 42 U.S.C. s. 1983, in that it denied him his Federal and State guaranteed due process rights. [Note 8] There is no merit to his position for the simple reason that he received all process due him as a regulatory and constitutional matter.

It is clear that his placement and confinement, both before and after his disciplinary hearing, were explicitly authorized by unchallenged applicable regulations. See note 4, supra; 103 Code Mass. Regs. s. 430.21(1) & 430.25(1) (1993). Contrast Royce v. Commissioner of Correction, 390 Mass. 425 , 429-430 (1983); DeLong v. Commissioner of Correction, ante 353, 356358 (1999). Moreover, he received the limited procedural safeguards required to justify the decision to place in administrative segregation an inmate who has (as Hudson asserts he does, but see discussion, infra at 546-548) a liberty interest: notice of the charges and an opportunity to present his position to the appropriate prison official. See Hewitt v. Helms, 459 U.S. 460, 476 (1983); Brown v. Plaut, 131 F.3d 163, 170-171 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 2346 (1998). [Note 9] See also Daigle v. Hall, 564 F.2d 884, 885-886 (1st Cir. 1977); Johnson v. Fair, 697 F. Supp. 567, 570-571 (D. Mass. 1988); Leacock v. DuBois, 937 F. Supp. 81, 83 (D. Mass. 1996); Torres v. Commissioner of Correction, 427 Mass. 611 , 617-619, cert. denied, 119 S. Ct. 543 (1998).

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In short, Hudson could lawfully be deprived of the liberty interest he asserts once the State afforded him the requisite due process. McGuinness v. DuBois, 891 R Supp. 25, 35 (D. Mass. 1995).

Contrary to Hudson's reiterated contention (made without citation to relevant supporting authority) that his due process rights under the Massachusetts Constitution are greater than those available under the Fourteenth Amendment to the United States Constitution, his claims also fail under the State Constitution. The Supreme Judicial Court has never held that the due process provisions of our State Constitution (Part 11, c. 1, s. 1, art. 4; arts. 1, 10, and 12 of the Declaration of Rights) provide inmates with more extensive rights than those available under the Federal Constitution; rather, the court has consistently equated as comparable, both generally and in the prison environment, the due process protections of the two fundamental documents. See Pinnick v. Cleary, 360 Mass. 1 , 14 n.8 (1971); Zeller v. Cantu, 395 Mass. 76 , 83-84 (1985); Boston v. Keene Corp., 406 Mass. 301 , 308 n.8 (1989); Carleton v. Framingham, 418 Mass. 623 , 630 (1994); Hastings v. Commissioner of Correction, 424 Mass. 46 , 51-52 (1997); Torres v. Commissioner of Correction, 427 Mass. at 617-619 & n.11; 'Abdullah v. Secretary of Public Safety, 42 Mass. App. Ct. 387 , 390, 391, 393 (1997).

Indeed, as a matter of State law, our courts have long recognized the broad discretion of the Commissioner of Correction to transfer inmates within the prison system or within a particular institution. See Jackson v. Commissioner of Correction, 388 Mass. 700 , 703 (1983); Hastings v. Commissioner of Correction, 424 Mass. at 49-50. Neither the governing statutes nor our State Constitution impose substantive standards that limit prison officials' discretion to transfer an inmate "to higher security," so long as the exercise of that discretion does "not affect the duration of . . . [his] sentence[] or subject [him] to conditions different from those customarily applied to other inmates . . . " even if the officials' action results in the inmate "suffer[ing] a serious loss." Hastings, 424 Mass. at 52 (upholding against Federal and State constitutional challenge the transfer, from work-release status at pre-release facilities to imprisonment inside a correctional institution, of individuals who had exemplary institutional and work records, a far more severe and less merited deprivation than that complained of by Hudson).

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One of the "conditions . . . customarily applied" to inmates of Massachusetts prisons is, as the judge below accurately noted, the reasonable use of "awaiting action" status by correctional officials in managing their institutions, including its use in the form of administrative segregation as an investigative tool. See Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409 , 411-412 n.7 (1983). Cf. Royce v. Commissioner of Correction, 390 Mass. at 429-430 (holding that placement in "awaiting action" in an administrative segregation area is an acceptable status pending an investigation or a disciplinary hearing, but it is a temporary status and may not be used for an unreasonable or indefinite time, and keeping an inmate in it for two years without a hearing or any review was unreasonable). Being placed in administrative segregation on awaiting action status " 'is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration' and it does not involve an interest independently protected by the due process clause" of either the Federal or the State Constitution. Real v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 399 , 407 (1983), vacated sub nom. Ponte v. Real, 471 U.S. 491, S.C., 396 Mass. 1001 (1985), quoting from Hewitt v. Helms, 459 U.S. 460, 468 (1983).

Under the "rule of reason" by which the duration of an administrative segregation confinement on awaiting action status is tested, see Puckett v. Commissioner of Correction, 28 Mass. App. Ct. 448 , 451 (1990), Hudson's situation (a total of six or seven weeks confinement, with each stage consistent with the regulations and validated by a hearing) easily passes muster. Compare Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. at 411, 413, 417-418 (no due process violation involved in inmate's being held in administrative segregation for at least thirteen and possibly as many as eighteen weeks). Contrast Royce v. Commissioner of Correction 390 Mass. at 427, 429-430 (being held in administrative segregation for a period of over two years without a hearing or status review unreasonable); Puckett v. Commissioner of Correction, 28 Mass. App. Ct. at 451 (restrictive detention on awaiting action status for over five and one-half months without any explanation or justification unreasonable as matter of law).

A final aspect of Hudson's due process attack on his confinement is his contention that he was denied the "fifteen day review" specified by the regulations during the approximately

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thirty days he spent in Essex I following the determination of his guilt. Even assuming that his status during that period was a continuation of "awaiting action" (see note 7, supra) and that he received no reviews [Note 10], his argument is misplaced. As the regulations make clear (see note 10, supra), the time periods for review are made discretionary, not unmistakably mandatory, so that even under the authorities relied on by Hudson, the defendants neither violated their own regulations nor created any constitutionally protected liberty interest. Cf. Royce v. Commissioner of Correction, 390 Mass. at 428-429; Kenney v. Commissioner of Correction, 393 Mass. 28 , 32-34 (1984); Harris v. Commissioner of Correction, 409 Mass. 472 , 476-479 (1991); Watson v. City of New York, 92 F.3d 31, 37-38 (2d Cir. 1996); Johnson v. Fair, 697 F. Supp. at 570.

Moreover, our courts have consistently analyzed the lawfulness of a term of administrative segregation by reference to the reasonableness of its duration and the existence of valid justification for and fair process in its imposition, not merely whether regulations were technically violated or periodic reviews were omitted during the confinement. See Royce v. Commissioner of Correction, 390 Mass. at 430 & n.9; Puckett v. Commissioner of Correction, 28 Mass. App. Ct. at 451. Contrast 'Abdullah v. Secretary of Public Safety, 42 Mass. App. Ct. at 391-392 (prison officials did not comply with regulations requiring notice of the reasons for the inmate's transfer and for the convening of a classification hearing; new hearing ordered not merely because of such noncompliance but rather because it was in fact prejudicial, i.e., it deprived the inmate of a meaningful hearing and opportunity to contest the reasons for transfer and a meaningful opportunity for administrative review of the adverse decision); DeLong v. Commissioner of Correction, supra at 357-358. Cf. Martino v. Hogan, 37 Mass. App. Ct. 710 , 720-721 (1994) (despite prison personnel's failure to comply with regulations calling for pretransfer hearings and other procedures, "[i]t is implausible to imagine that the Legislature,

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in granting the department [of correction] authority to promulgate regulations . . . was empowering the department to create possible civil liability against the officials" who violated the regulations) [Note 11].

In their brief, the defendants maintain that the Superior Court judge's allowance of their summary judgment motion on the due process counts of Hudson's complaint can and should be affirmed on the ground specifically relied on by the judge, namely the revised constitutional standard for evaluating inmates' due process claims set forth in Sandin v. Connor, 515 U.S. 472 (1995). In order to prove a s. 1983 claim for due process violation under that decision, a prisoner must show either that he has been subjected to an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," id. at 484, or that the alleged deprivation "will inevitably affect the duration of his sentence." Id. at 487. See Dominique v. Weld, 73 F.3d 1156, 1163 (1st Cir. 1996); Neal v. District of Columbia, 131 F.3d 172, 174-175 (D.C. Cir. 1997), cert. denied, 119 S. Ct. 46 (1998). In the absence of such a showing, the Supreme Court held, a prisoner has no liberty interest giving rise to due process protections. [Note 12]"

A number of unsettled and difficult questions remain

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regarding how to apply the Sandin analysis, among them (1) what are the criteria for determining whether the restrictive hardships challenged by the prisoner are or are not "atypical and significant" deprivations; and (2) what circumstances or conditions are to be taken as representing "the ordinary incidents of prison life." See, e.g., Wagner v. Hanks, 128 F.3d 1173, 1174 1176 (7th Cir. 1997); Brown v. Plaut, 131 F.3d at 169-170; DeLong v. Commissioner of Correction, supra at 357-358 [Note 13]. See also Sandin, 515 U.S. at 490 n.2, 496-497 (Ginsburg, J., & Breyer, J., dissenting) (criticizing the uncertainty of the new standard); The Supreme Court, 1994 Term - Leading Cases, 109 Harv. L. Rev. 111, 144-150 (1995). In the instant case, however, we do not and need not address such issues or rest our decision upon Sandin [Note 14] because, as the previous discussion demonstrates, to the extent Hudson could claim due process rights [Note 15], they were not violated but were rather recognized and provided. Compare Brown v. Plaut, 131 F.3d at 170-172 [Note 16].

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Hudson's remaining contentions require only brief discussion:

(1) His claim that, at some unspecified point during his challenged confinement, he was denied exercise for seventeen days is contradicted by the record [Note 17]. It is also devoid of factual support for the requisite showings, under the Eighth Amendment to the United States Constitution and art. 26 of the Declaration of Rights (both of which he invoked below), that (even assuming his assertion to be true) the defendants acted in this regard with deliberate indifference to the claimed unlawful conditions and that those conditions constituted extreme deprivation and the unnecessary and wanton infliction of pain grossly disproportionate to the severity of his offense. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Helling v. McKinney, 509 U.S. 25, 36 (1993); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Miga v. Holyoke, 398 Mass. 343 , 349-351 & n.9 (1986); Torres v. Commissioner of Correction, 427 Mass. at 613-616 [Note 18].

(2) Hudson attacks, on unspecific due process grounds, a number of supposed flaws in his disciplinary hearing. His challenges do not, however, undermine the decision below, which rejected them on the basis of the defendants' compliance with all applicable regulations. [Note 19]" His request to tape record the hearing clearly failed to comply with 103 Code Mass. Regs. s. 430.12(3) (1993);

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and the use of a confidential informant's inculpatory statement at his hearing complied with the relevant provisions of 103 Code Mass. Regs. s. 430.15 (1993).

(3) Hudson finally contends that the judge abused his discretion in allowing the defendants' motion for a protective order, pursuant to Mass.R.Civ.P. 26(c), as amended, 423 Mass. 1401 (1996), to stay his discovery pending a ruling on their motion to dismiss or in the alternative for summary judgment. He makes no showing, however, as is necessary, that the judge abused the broad discretion with which he is invested in dealing with protective orders, see Merles v. Lerner, 391 Mass. 221 , 226 (1984); nor that even assumed abuse resulted in prejudicial error. See Solimene v. B. Grauel & Co., KG, 399 Mass. 790 , 799 (1987) [Note 20]. Indeed, his entire argument is premised on the supposed constitutional right of pro se litigants to procedural indulgences - a supposition contrary to the law of this Commonwealth. See Commonwealth v. Barnes, 399 Mass. 385 , 392 (1987); Commonwealth v. Jackson, 419 Mass. 716 , 719-720 (1995); Brown v. Commonwealth, 424 Mass. 1019 (1997). In any event, since the protective order was sought and granted in connection with the defendants' defense of qualified immunity from suit as well as from liability, its allowance in this procedural context was well within the judge's discretion. See Harlow v. Fitzgerald, 457 U.S. 800, 817-819 (1982); Mitchell v. Forsyth, 472 U.S. 511, 526-527 (1985); Siegert v. Gilley, 500 U.S. 226, 231 (1991) [Note 21].

Judgment affirmed.