RICHARD A. KENNEY vs. COMMISSIONER OF CORRECTION & others. [Note 1]

LIACOS, J. The plaintiff, Richard A. Kenney, an inmate at the Massachusetts Correctional Institution at Walpole (M.C.I., Walpole), brought this action in the Superior Court seeking damages and declaratory and injunctive relief against certain officials of the Department of Correction (department). In his pro se complaint Kenney claims that he was confined in the Departmental Segregation Unit (D.S.U.) in Block 10 at M.C.I., Walpole, without being afforded the procedural safeguards required by the regulations of the department and the Federal and State Constitutions. He also contends that his right to due process of law was violated by the denial of his request to have certain witnesses appear at his disciplinary hearing.

A judge in the Superior Court, after a hearing on the merits, vacated the findings of the prison's disciplinary board (board) and ordered entry of judgment for Kenney. The judge also ordered that Kenney's record be expunged of any reference to the offenses charged. The defendants appealed and we granted their application for direct appellate review. We affirm.

The facts which give rise to this case are as follows. On January 16, 1981, David Larrabee, an inmate at M.C.I., Walpole, was dragged into a cell and beaten. Two days later another inmate, Stephen M. Haynes, was stabbed during the showing of a movie at the prison. At one time, Larrabee accused Kenney of participating in the assault against him, but Haynes refused to identify his attacker. On March 19, 1981, the Superintendent of M.C.I., Walpole (superintendent), ordered Kenney removed from the general prison population and placed him in a cell in the D.S.U. The judge found that Kenney was confined there under the same conditions as those inmates who had been transferred to the D.S.U. pursuant to a finding by the Commissioner of Correction (Commissioner) that their behavior posed a substantial threat to the residents, property, or operations of the institution. [Note 2] The judge also found that Kenney was usually

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confined to his cell in the D.S.U. for twenty-four hours a day, his exercise periods and visiting hours were restricted, and he was allowed to keep only a minimum of possessions in his cell. Because of these limitations on Kenney's institutional freedom, the judge found that his detention in the D.S.U. was punitive. [Note 3] See Libby v. Commissioner of Correction, 385 Mass. 421, 423 (1982).

On March 30, 1981, Kenney received two disciplinary reports charging him with assaulting both Larrabee and Haynes. [Note 4] The board conducted a disciplinary hearing on the charges on May 28, 1981. [Note 5] Kenney requested that Larrabee and Haynes be allowed to appear at the hearing as witnesses but the board denied his request, stating: "Board finds substantial risk. D.S.U. off limits to inmates other than those residing there. Board will accept offers of proof and/or affidavits."

At the disciplinary hearing, a correction officer testified that four reliable informants had told him that Kenney and two other inmates had committed the assaults on Larrabee and Haynes. Kenney submitted affidavits from Larrabee and Haynes

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stating that Kenney had not participated in the attacks against them. The board found Kenney guilty on all charges and recommended that he serve thirty days in isolation in fifteen-day intervals and referred him to the D.S.U. board for reclassification to a higher custody status. Acting on the referral, the D.S.U. board conducted a hearing and recommended that Kenney be placed in the D.S.U. The Commissioner approved the recommendation on July 10, 1981, and as a result Kenney was officially "placed" in the D.S.U.

On appeal, the defendants contend that the superintendent's initial confinement of Kenney in the D.S.U. was permissible because he was in "awaiting action" status. The defendants assert that as a general rule, as long as the superintendent complies with the procedural requirements of the department's regulations governing awaiting action status, the superintendent may place inmates in the D.S.U. while they await action. With respect to Kenney's claim that his request for witnesses at the disciplinary hearing was improperly denied, the defendants maintain that the board's action was within its discretion.

First we consider whether Kenney's initial confinement in the D.S.U. was in violation of the regulations of the department. [Note 6] The department has promulgated detailed regulations governing disciplinary actions in State correctional institutions, the relevant provisions of which are set out in the margin. [Note 7] A

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section of the disciplinary action regulations authorizes placement of an inmate in "awaiting action" status pending "[a] hearing on a disciplinary offense . . . [a]n investigation of a possible disciplinary offense . . . [a] transfer or reclassification of the inmate to higher custody status . . . or [i]mposition of isolation time." 103 Code Mass. Regs. Section 430.19(1) (1978).

The department also has adopted a set of regulations governing segregation units. [Note 8] A related regulation defines an awaiting

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action area as "[a]n area or areas designated by a superintendent in which a resident may be confined pending a hearing to determine whether such resident shall be transferred to a departmental segregation unit." 103 Code Mass. Regs. Section 421.06 (1) (1978). The segregation unit regulations also provide that an inmate may be transferred to a D.S.U. after the Commissioner has found that "[t]he resident poses a substantial threat to the safety of others; or . . . of damaging or destroying property; or . . . of interrupting the operation of the state correctional facility." 103 Code Mass. Regs. Section 421.07(1) (1978). Transfer of an inmate to a departmental segregation unit for commission of a disciplinary offense is specifically prohibited unless the inmate has been found guilty by the board, sanctions have been imposed, and the Commissioner has made an appropriate finding. 103 Code Mass. Regs. Section 421.07(2) (1978).

A third set of regulations outlines the procedures involved in reclassifying an inmate to a higher custody status. 103 Code Mass. Regs. Section 420.13 (1978). These regulations provide for placement of an inmate in awaiting action status when there is an immediate threat to the health or safety of the inmate or others. 103 Code Mass. Regs. Section 420.13(2)(b) (1978). The reclassification regulations do not specifically authorize placement of an inmate in awaiting action status in the D.S.U.

Administrative agency regulations promulgated pursuant to a legislative grant of power generally have the force of law. Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983). "Once an agency has seen fit to promulgate regulations, it must comply with those regulations." Id. Consequently, individuals within the agency may not arbitrarily disregard agency regulations to the prejudice of a party's rights. DaLomba's Case, 352 Mass. 598, 603 (1967).

In this case, in direct contravention of the segregation unit regulations which govern transfers of inmates to the D.S.U., the superintendent placed Kenney in a D.S.U. cell for commission of specific disciplinary offenses before Kenney had been

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found guilty, before sanctions had been imposed, and before the Commissioner had found that Kenney posed a substantial threat to the institution. See 103 Code Mass. Regs. Section 421.07(2) (1978). The attempt to justify this action by claiming that Kenney was in awaiting action status must fail because the regulatory definition of an awaiting action area does not contemplate the use of the D.S.U. for inmates who are awaiting action. That definition limits awaiting action areas to those areas where an inmate "may be confined pending a hearing to determine whether [he should] be transferred to a departmental segregation unit" (emphasis supplied). 103 Code Mass. Regs. Section 421.06 (1978). [Note 9]

Our decision in Royce v. Commissioner of Correction, supra, does not require a different result. In Royce, in order to determine whether the plaintiff had stated a claim (the case came to us on appeal from the dismissal of the complaint), we assumed on a limited record that the plaintiff could have been placed in the D.S.U. while he was awaiting action pursuant to the reclassification regulations. Id. at 429. We specifically stated in Royce that we did not decide whether the regulations provided for "any limitation of the superintendent's discretion to designate `awaiting action' areas." Id. at 429 n.8. We agree with the judge's conclusion that an inmate may be transferred (or placed) in the D.S.U. by the Commissioner only in compliance with the regulations. 103 Code Mass. Regs. Section 420.13 (2)(b); Section 421.07 (1978). The record of this case indicates that Kenney was placed in the D.S.U. without compliance with the governing regulations and therefore we conclude that his confinement in the D.S.U. in awaiting action status was contrary to law.

We turn next to Kenney's claim that his due process rights were violated by the board's denial of his request to call certain witnesses. Under Federal law, there is a limited right to call witnesses at prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). This right to call witnesses

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and present defenses is also included in the regulations. 103 Code Mass. Regs. Section 430.14(6) (1978). We have held that, in order to render this right meaningful, due process requires that the administrative record contain some support to justify a denial of the right to call witnesses. Real v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 399, 407 (1983). We are aware, however, that "[t]he operation of a correctional institution is at best an extraordinarily difficult undertaking" and, therefore, we have recognized that prison administrators have broad discretion in the administration of prison affairs. Id. at 406, quoting Wolff v. McDonnell, supra at 566. Such discretion, however, is not unlimited. Id.

The record in this case indicates that the board denied the request to call witnesses because the disciplinary hearing was held in the D.S.U. The board found that allowing inmates into the D.S.U. who were not D.S.U. residents created a "substantial risk." We have determined, however, that Kenney's initial placement in the D.S.U. was in violation of the regulations of the department. [Note 10] It is therefore axiomatic that the defendants may not rely on Kenney's illegal incarceration in the D.S.U. as the justification for the denial of his request to call witnesses. Also, the judge found that no applicable regulation barred inmate witnesses from the D.S.U. area, and that the D.S.U. at M.C.I., Walpole had a secure visitation area in which the safety of witnesses could be assured. We hold, therefore, that the judge correctly ruled that the board's denial of Kenney's request to call witnesses violated his due process rights, as well as the regulatory requirements. [Note 11]

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The judge declared the rights of the parties and fashioned a remedy which included an order to expunge Kenney's record of any reference to these disciplinary offenses. We cannot say in the circumstances of this case that this relief was incorrect. Kenney had already been confined to the D.S.U. and served some of his isolation sentence by the time this case was heard by the judge. The remedy, therefore, was not inappropriate.

Judgment affirmed.