RUSSELL NELSON & another [Note 1] vs. COMMISSIONER OF CORRECTION.

LIACOS, J. This case, and three accompanying cases presented by other plaintiffs, raise questions as to the constitutionality of procedures prescribed by State regulations for State prison disciplinary hearings. [Note 2] The plaintiffs, Russell Nelson and Frank Goldman, [Note 3] filed a combined pro se petition for a writ of habeas corpus and declaratory relief. The plaintiffs contend that their "constitutional right to due process in a prison disciplinary board hearing" [Note 4] was violated

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in a hearing in which the disciplinary board (board) of the Department of Correction relied solely on informant hearsay information in finding the plaintiffs guilty of offenses committed within a penal institution. Nelson and Goldman sought the removal of the sanctions imposed by the board.

After a hearing on the merits, a Superior Court judge in Norfolk County made findings, rulings, and an order, and entered judgments declaring that the board arbitrarily denied the plaintiffs due process of law. The judgments also set forth standards for the protection of prisoners' minimal due process rights in disciplinary hearings involving informants, and entered judgments ordering the plaintiffs returned to their status prior to the imposition of sanctions by the board and the Commissioner of Correction (Commissioner). [Note 5]

The defendant appealed and sought a stay of the judgments pending appeal, which was denied by the Superior Court judge but granted by a single justice of the Appeals Court. The defendant's appeal from the judgments of the Superior Court is before us on our granting of his application for direct appellate review.

The defendant contends that the trial judge erred in not dismissing the complaint to the extent it constituted a petition for habeas corpus relief. The defendant further claims that, in so far as the complaint sought declaratory relief, his motion to dismiss the action should have been granted because judicial review under G. L. c. 231A is not available with respect to administrative prison proceedings. The defendant argues that the only judicial review available to

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the plaintiffs is an action in the nature of certiorari pursuant to G. L. c. 249, Section 4. Finally, the defendant contends that the procedures followed by the board, in accordance with the prison regulations governing discipline, 103 Code Mass. Regs. Section 430.01 et seq. (1978), are constitutionally valid under the principles set forth in Wolff v. McDonnell, 418 U.S. 539 (1974).

We conclude that the action for declaratory relief was brought properly, and that the due process rights of the plaintiffs guaranteed by the United States Constitution were violated by the failure of the pertinent State regulations to prescribe adequate precautions in the use of informant information by the board.

We uphold that part of the ruling of the judge pertaining to loss of statutory good time credits. However, for reasons we set forth later in this opinion, the judgments entered must be set aside, new judgments declaring the rights of the parties must be entered, and the judge, on motion of the defendant, is to remand the matter to a disciplinary board for further hearings.

The facts are these. The plaintiffs are inmates lawfully committed to the custody and control of the Department of Correction. At the time of the disciplinary actions underlying this appeal, both plaintiffs were inmates of the Massachusetts Correctional Institution at Norfolk (M.C.I., Norfolk), a medium security institution. Both Nelson and Goldman were accused by Deputy Superintendent Terrance Holbrook in disciplinary reports of possession of a firearm in violation of 103 Code Mass. Regs. Section 430.22 (15) (1978), and of "[v]iolating any law of the Commonwealth of Massachusetts or United States," in violation of 103 Code Mass. Regs. Section 430.22 (30) (1978). Nelson was also accused of stealing in violation of 103 Code Mass. Regs. Section 430.22 (26) (1978).

The deputy superintendent made these allegations based on information he had received from a "reliable informant, that inmate Russell Nelson had broken into [an office at M.C.I., Norfolk, on January 22, 1978]. Following this entry, inmate Nelson came into the possession of a firearm

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within the confines of M.C.I. Norfolk." The disciplinary reports further stated that Nelson had sold the firearm to another inmate and that Goldman knew the whereabouts of that weapon. Both reports designated the offenses as major disciplinary matters. See 103 Code Mass. Regs. Section 430.09 (2) (1978).

Each plaintiff received a copy of his respective disciplinary report and notice of an impending disciplinary hearing before the board. The notice to each plaintiff indicated that he could request legal representation at the hearing, request the presence of the reporting officer, or call witnesses. Nelson formally asked for the presence of another inmate, Kenneth Courtney. Goldman did not request any witnesses.

On March 15, 1978, the board heard the charges against the plaintiffs in separate, consecutive hearings. Both plaintiffs were represented by counsel, and both pleaded not guilty. The disciplinary hearing procedures were governed by 103 Code Mass. Regs. Section 430.00 et seq. (1978). [Note 6]

A. Russell Nelson's hearing. After being told that he had a right to remain silent because of the possibility of reference of the matter to the district attorney and after a reading of the disciplinary report, the chairman of the board told Nelson that it would determine in executive session if disclosure of the information would create a substantial risk of harm to the informant or informants (hereinafter, "informants"), to another person, or to institutional security. He was told also that the board would rule on the reliability of the informants and the information. The chairman indicated three factors that would be considered by the board in assessing reliability. The three factors stated were possible corroborating evidence, possible motives of the informants, and previous reliable information that had been provided in the past. The board then went into an executive session.

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No informant appeared in camera before the board, and Deputy Superintendent Holbrook withdrew after presenting the informant information. Upon returning from executive session, the chairman announced that the informant was determined to be reliable and that the information was reliable and independently corroborated. Declaring that disclosure would jeopardize the informants and institutional security, the board summarized the informant information, heard in camera, by repeating the disciplinary report. Although admitting that the informants had a motive for supplying the information, the board, on request of plaintiff's counsel, refused to reveal the number of informants, the type of firearm stolen, whether the information was the personal knowledge of the informants or hearsay, and whether the informants had proved reliable in the past. The board also declined to disclose when Deputy Superintendent Holbrook had received the information from the informants.

No physical evidence, including the allegedly stolen gun, was produced. The only corroboration offered by the board was an incident report and testimony by Correctional Officer Duval that, at an unspecified time, he saw Nelson with another inmate near the office allegedly entered on the day of the break-in. Nelson testified that he left his unit only once that day to deliver his and another inmate's laundry. His testimony was supported by his requested witness.

Based on the informant information, and the incident report and testimony, the disciplinary board found Nelson guilty. The sanctions imposed were thirty days of isolation, forfeiture of 120 days of good time, referral of the matter to the district attorney, and recommendation of reclassification. [Note 7]

Nelson received a written statement by the board summarizing the evidence on which it had relied. Again, the board refused to disclose any information about its executive

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session, contending that disclosure would create a substantial risk of harm to the informants, and would threaten institutional security. [Note 8]

Nelson's appeal to the Commissioner was denied. He served his isolation time and, on May 22, 1978, was reclassified to M.C.I., Walpole, a maximum security institution, where he is presently an inmate.

B. Frank Goldman's hearing. Goldman's disciplinary hearing was conducted in a manner similar to Nelson's hearing. However, there was one difference in that no evidence was offered other than the informant information. The judge found that, in Goldman's hearing, the board did indicate that there was more than one informant and that one informant corroborated the information of the other or others.

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Again, the chairman summarized the executive session by repeating the disciplinary report. The written statement received by Goldman contained the same language the board used in Nelson's statement of the evidence. [Note 9]

Based on Deputy Superintendent Holbrook's report, Goldman was found guilty of the offenses charged. The sanctions imposed were fifteen days in isolation, forfeiture of 100 days of good time, referral to the district attorney, and recommendation of reclassification. Goldman's appeal to the Commissioner was also denied. After serving the isolation time, Goldman was also reclassified and transferred to M.C.I., Walpole. [Note 10]

We turn to the defendant's claims of error. We consider first the procedural issues raised by the defendant.

1. Declaratory relief. A petition for a writ of habeas corpus is appropriate where the petitioner alleges that he is entitled to immediate release. See Beaton, petitioner, 354 Mass. 670, 671-672 (1968); Stearns, petitioner, 343 Mass. 53, 57 (1961). Assuming that the plaintiffs are entitled to

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relief on the substantive issues of their complaint, Nelson and Goldman were not eligible for, nor were they seeking, immediate release from the custody of the Department of Correction.

Where, as here, the plaintiff fails to state a claim for the issuance of a writ of habeas corpus, the trial judge has discretion to dismiss the action. Pina v. Superintendent, Mass. Correctional Inst., Walpole, 376 Mass. 659, 665-666 (1978). The judge, however, is not obligated to do so. In Pina, supra at 666, we stated that where "a controversy exists as to the rights of the parties, the judge may construe a petition for a writ of habeas corpus as a claim for declaratory relief." See Hennessy v. Superintendent, Mass. Correctional Inst., Framingham, 386 Mass. 848, 850-852 (1982). We conclude that the judge properly treated the action as one seeking declaratory relief.

The judge did not err in denying the defendant's motion to dismiss the action for declaratory judgment. The Declaratory Judgment Act, G. L. c. 231A, provides relief in certain circumstances, including the "determination of any question of construction or validity . . ." of an administrative regulation. [Note 11] G. L. c. 231A, Section 2, as amended by

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St. 1974, c. 630, Section 1. See Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 845, 850-851 (1977); Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 296-297 (1975). The purpose of the Declaratory Judgment Act is to afford a plaintiff relief from uncertainty and insecurity with respect to rights, duties, status, and other legal relations. Cf. Hadley v. Amherst, 372 Mass. 46, 52 (1977). The statute "is to be liberally construed and administered." G. L. c. 231A, Section 9. See Jacobson v. Parks & Recreation Comm'n of Boston, 345 Mass. 641, 645 (1963). Furthermore, the Department of Correction is subject to the first eight sections of the State Administrative Procedure Act. See G. L. c. 30A, Section 1A. The Department of Correction is bound, therefore, by G. L. c. 30A, Section 7, which provides that judicial review of any regulation may be had through an action for declaratory judgment. The plaintiffs contend that the regulations of the disciplinary board involving the use of informant information violate the Fourteenth Amendment to the United States Constitution. Declaratory judgment was an appropriate method of relief. [Note 12]

2. Federal due process requirements. Our initial inquiry is whether the disciplinary hearings infringed upon or implicated a liberty interest of the plaintiffs protected by the Federal Constitution. "The Fourteenth Amendment prohibits

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any State from depriving a person of life, liberty or property without due process of law." Meachum v. Fano, 427 U.S. 215, 223 (1976). Where a State has created the right to good time credit and recognizes that its deprivation is a sanction authorized for misconduct, "the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment `liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated. . . . We think a person's liberty is equally protected, even when the liberty itself is a statutory creation of the State." Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). See Hewitt v. Helms, 459 U.S. 460, 466-469 (1983).

Massachusetts provides that every prisoner "whose record of conduct shows that he has faithfully observed all the rules of his place of confinement" has a statutory right to have "the term of his imprisonment reduced by a deduction" of a determined period of time from his sentence. G. L. c. 127, Sections 129, 129C & 129D. Such good time credits may be forfeited "[i]f a prisoner violates any rule of his place of confinement." G. L. c. 127, Section 129, first par. The loss of such statutory good time credits affects a State-created liberty interest protected by the due process guarantees of the United States Constitution. Thus, the judge was correct in ruling that the plaintiffs were entitled to the minimal due process requirements set forth in Wolff v. McDonnell, supra.

We turn next to whether the disciplinary hearings given the plaintiffs pursuant to the regulations of the Commissioner satisfied the due process requirements mandated by the United States Supreme Court. In Wolff v. McDonnell, supra, the Supreme Court held that due process requires that before a prisoner can be deprived of a State-created liberty interest he must be given advance written notice of the alleged violation of the disciplinary rules, he must be accorded an impartial tribunal, and must be given "a written statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken." Wolff,

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supra at 563-564. See Hewitt, supra at 466 n.3. The Court also stated that an inmate should be allowed to call witnesses if to do so will "not be unduly hazardous to institutional safety or correctional goals." A disciplinary board, at its discretion, may refuse to call a witness requested by an inmate on the grounds of "irrelevance, lack of necessity, or the hazards presented in individual cases." Wolff, supra at 566.

The Federal due process clause, as interpreted in Wolff, supra, does not require that an inmate be allowed to test credibility through the confrontation and cross-examination of those furnishing evidence against him. [Note 13] Wolff, supra at 567-569. In fact, the Supreme Court makes a distinction between the right to call witnesses, and confrontation and cross-examination. See Baxter v. Palmigiano, 425 U.S. 308, 321 (1976). Confrontation and cross-examination of adverse witnesses may create a high risk of reprisal in a prison system; hence, the Supreme Court has left the exercise of the right to confrontation and cross-examination in disciplinary hearings to the discretion of prison officials. [Note 14]

Although Wolff left to prison administrators the initial determination of when the balancing of the inmate's interest in avoiding loss of good time against the needs of the prison requires cross-examination, "it did not address what other procedures might be constitutionally necessary as a check on the credibility of informants relied upon by committees making disciplinary decisions." Kyle v. Hanberry,

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677 F.2d 1386, 1389 (11th Cir. 1982). Cf. McLaughlin v. Hall, 520 F.2d 382, 385 (1st Cir. 1975). Wolff indicated that prison administrators should devise regulations to insure that the procedures of a disciplinary board are adequate for it to conclude that any confidential information relied upon by it is reliable. Langton v. Berman, 667 F.2d 231, 235 (1st Cir. 1981). See Wolff, supra at 568.

The regulations adopted by the Commissioner provide that "[a]ll evidence considered by the disciplinary board shall be presented in the presence of the inmate except informant information which may be presented in accordance with the provisions of 103 CMR Section 430.15 [1978]." [Note 15] 103 Code Mass. Regs. Section 430.14 (3) (1978). We reprint in the margin the State regulations on the procedures for the use of informant information and as to the required record of disciplinary proceedings. [Note 16] The plaintiffs challenge the adequacy

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of these particular State regulations to protect their Federal due process rights.

In determining if these regulations are adequate to safeguard the Federal due process rights of prisoners, we recognize that the Supreme Court has held that prison officials "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979). See Hewitt v. Helms, 459 U.S. 460, 472 (1983). Nonetheless, "[t]he touchstone of due process is protection of the individual against arbitrary action . . . ." Wolff, supra at 558. We turn to decisions of other Federal courts for guidance. [Note 17]

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The danger of using information provided by an informant who is protected by a shield of confidentiality, and not subject to challenge by confrontation and cross-examination to support allegations, is that an accuser may easily concoct allegations of wrong-doing. Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir. 1982). The reliance by a disciplinary board on the secondary information of a reporting officer without any primary evidence of guilt being presented to the board, is to compound the prospect for abuse. See Finney v. Mabry, 455 F. Supp. 756, 768-769 (E.D. Ark. 1978). To rely on such secondary information is simply to "rubber-stamp" the disciplinary report and to delegate the decisionmaking to the reporting or investigating officer. Finney, supra at 769.

Wolff intended a disciplinary hearing to be a genuine fact-finding procedure to verify the truth of allegations of wrong-doing. Clearly, a board may harbor valid concerns about the safety of its informants and the institutions, but the task of a disciplinary board is to make a bona fide evaluation of the credibility and reliability of the evidence.

At least one Court of Appeals has held that mere incorporation of the disciplinary report and the investigator's report into the statement of evidence relied upon by the board is insufficient to insure that prison officials act fairly. Hayes v. Walker, 555 F.2d 625, 630, 633 (7th Cir.), cert. denied, 434 U.S. 959 (1977). A Federal judge also concluded that "rote recitation of shorthand phrases" did not fulfil the purposes specified in Wolff, and required the statement of evidence to contain enough information to withstand scrutiny. Finney v. Mabry, 455 F. Supp. 756, 776 (E.D. Ark. 1978). We believe that, where a disciplinary board seeks to impose sanctions as severe as the sanctions in this case on the basis of hearsay information derived

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from an unidentified informant, minimum due process demands that the applicable regulations require more than the broad conclusory findings of possible hazard to potential witnesses and institutional security, stated by this board, under 103 Code Mass. Regs. Section 430.15 (1978), in their summaries of Nelson's and Goldman's hearings. [Note 18] Thus, we agree with the judge that the "disciplinary board must do more than reiterate the boiler plate language when its determination of guilty hinges on the information of unidentified informant(s), otherwise no effective monitoring of its acts is plausible." [Note 19]

The judge held that the board must comply with the standards for the use of informant hearsay set out in Helms v. Hewitt, 655 F.2d 487 (3d Cir. 1981), rev'd on other grounds, 459 U.S. 460 (1983). In Helms, supra at 502, the Third Circuit followed the standard set forth by the First Circuit in Gomes v. Travisono, 510 F.2d 537 (1st Cir. 1974). In Gomes, supra at 540, the First Circuit stated that when a disciplinary board's determination is derived from informant information, "(1) the record must contain some underlying factual information from which the Board can reasonably conclude that the informant was credible or his information reliable; (2) the record must contain the informant's statement in language that is factual rather than conclusionary and must establish by its specificity that the informant spoke with personal knowledge of the matters

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contained in such statement." See Smith v. Rabalais, 659 F.2d 539, 546 (5th Cir. 1981); Finney, supra at 775-776. See generally H. Hoffman, Prisoners' Rights: Treatment of Prisoners and Post-Conviction Remedies at Section 3-33(5) (1976).

The defendant contends that the Helms standard is not constitutionally required because the Supreme Court recently reversed the decision of the Third Circuit. See Hewitt v. Helms, 459 U.S. 460 (1983). In the alternative, the defendant argues that the standard was satisfied because, as directed by the regulations, the board expressly informed the inmates that the board had considered certain incidents of reliability and found both the informants and their information to be reliable.

In Helms, supra, the Third Circuit addressed two separate questions: What process is due an inmate in restrictive custody for administrative reasons when such segregation infringes upon a State-created liberty interest and what process is due an inmate to effect disciplinary detention? See Helms, supra at 498, 501. We note that the Hewitt Court reversed the Third Circuit only on the first issue of Federal due process surrounding administrative segregation. See Hewitt v. Helms, supra at 462. That portion of Helms setting forth the standard for use of informant information in disciplinary hearings was not affected by the Court's decision. Although the discussion of this point by the Court of Appeals in Helms appears to have been dictum, it represents a valid analysis of this aspect of prison disciplinary proceedings consistent with the position taken by other Federal courts. The standard of Helms, supra, and Gomes, supra, as to the treatment of information in a disciplinary hearing appears valid as a statement of the requirements implied in Wolff. The reasoning of the Courts of Appeals for the First and Third Circuits is consistent with that of the Court of Appeals for the Eleventh Circuit in Kyle v. Hanberry, supra. We consider the analysis of these courts persuasive.

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We conclude that the judge was correct in applying this standard. [Note 20]

We do not agree with the defendant that it is sufficient to satisfy the Helms standard if the inmate is told that the board considered the credibility or reliability of the informant and found the information reliable. Both the disciplinary report and the statement of the board indicate that their sources were considered reliable, but neither explains why. See Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir. 1982). For the purposes of judicial review, the record established by the board must contain some facts from which a court can reasonably conclude that the board inquired and found the informants and their information to be reliable. The record here is not sufficient to satisfy the standard we have applied.

We turn now to the question of the appropriate relief for violation of the prisoners' minimal due process rights. It is clear that the forfeiture of good time credits is a liberty interest protected by the Fourteenth Amendment. The judge ordered the restoration of the prisoners' good time credits. However, the judge went further and entered judgments ordering the return of the prisoners to M.C.I., Norfolk. This relief was based on the view of the judge that the plaintiffs' transfers to M.C.I., Walpole, were a direct result of the board's recommendation of reclassification as a punishment for violation of State regulations. As the product of constitutionally invalid disciplinary hearings, the trial judge felt the transfers to M.C.I., Walpole, were tainted by the violations of the plaintiffs' Federal due process rights. Cf. H.B. Kerper & J. Kerper, Legal Rights of the Convicted 447 (1974).

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Although the judge's view of the transfers as the direct consequence of the violation of the prisoners' Federal due process rights at their disciplinary hearings is based on logic, we note that the United States Supreme Court has held that prison regulations dealing with reclassification do not impose substantive standards on the decision to transfer an inmate. Transfers, disciplinary or administrative, are at the discretion of the Commissioner. Meachum v. Fano, 427 U.S. 215, 228 (1976). Montanye v. Haymes, 427 U.S. 236, 243 (1976). Cf. Olim v. Wakinekona, 461 U.S. 238 (1983). Since a prisoner has no right or expectation under State law that he will not be transferred except for misbehavior or the occurrence of some specified event, there is no liberty interest to which due process rights attach and which can be infringed by transfer. See Daigle v. Hall, 564 F.2d 884, 885-886 (1st Cir. 1977); Four Certain Unnamed Inmates of Mass. Correctional Inst. at Walpole v. Hall, 550 F.2d 1291 (1st Cir. 1977). Cf. McDonald v. Hall, 610 F.2d 16, 18-19 (1st Cir. 1979).

We conclude that, as matter of Federal law, the judge erred in ordering the return of the plaintiffs to M.C.I., Norfolk. [Note 21] Even if we were at liberty to hold otherwise, it would be an exercise in futility because an inmate "may be transferred at the whim of the Commissioner." Four Certain Unnamed Inmates of Mass. Correctional Inst. at Walpole v. Hall, supra at 1292. If the plaintiffs were returned to M.C.I., Norfolk, by judicial order, the Commissioner could remove them to M.C.I., Walpole, by administrative order. See G. L. c. 127, Section 97.

To the extent the judge treated the petition as a complaint for declaratory relief, the judge should have declared the rights of the parties and ordered relief. However, in his rulings and findings, the trial judge merely "ordered that judgment

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[be] enter[ed] ordering" relief. We reverse the judgments and remand the cases for entry of judgments declaring the rights of the parties consistent with our opinion.

We note, also, that, while the order of the judge that the good time credits of these plaintiffs be restored is appropriate on this record, it should not be a bar to the Commissioner in ordering a new disciplinary hearing, pursuant to revised regulations in accordance with the requirements of this opinion. [Note 22] Put otherwise, the plaintiffs are entitled, at most, by analogy, to a "new trial," free of error. Hence, on remand, the judge should order, if requested, a new hearing by a disciplinary board. [Note 23]

Judgments reversed.