STACEY HARRIS vs. COMMISSIONER OF CORRECTION.

ABRAMS, J. The plaintiff, an inmate at the Massachusetts Correctional Institution at Bridgewater, was transferred after a classification hearing to a Federal prison in Memphis, Tennessee. This case concerns the sufficiency of that hearing under both the Federal due process clause and State regulations.

Page 473

In addition, the plaintiff asserts that the transfer denied him access to the courts because the Federal facility does not contain adequate Massachusetts legal materials. The judge granted the plaintiff injunctive relief and entered a judgment ordering that within thirty days the plaintiff be returned from Tennessee to any correctional institution within the Commonwealth. The defendant, the Commissioner of Correction (commissioner), appeals. We reverse the judgment.

After the plaintiff was transferred to Tennessee, he filed a complaint against the commissioner in the Superior Court asking for declaratory and injunctive relief. The judge held a hearing, but it is not clear whether that hearing was a hearing on a motion for preliminary injunctive relief or a hearing on the request for a permanent injunction and on the merits of the controversy. The hearing was not stenographically or electronically recorded, nor is there a statement of agreed facts. On May 31, 1989, the judge entered a judgment ordering the commissioner to return the plaintiff to Massachusetts within thirty days. [Note 1] The judgment does not bear any sign that the court approved its form as required by Mass. R. Civ. P. 58 (a) (2), as amended, 371 Mass. 908 (1977). [Note 2] Accompanying the judgment is the judge's "memorandum and order on plaintiff's motion for injunctive relief." The memorandum adopts nearly verbatim the facts alleged in the plaintiff's complaint and does not address or acknowledge any of the legal arguments put forth in the commissioner's opposition memorandum. Neither the judgment nor the

Page 474

memorandum states whether the relief granted was a preliminary or permanent injunction. [Note 3]

We assume that the judgment was a final judgment for a permanent injunction, even though it is not so designated. Nowhere in his memorandum does the judge consider or balance the factors to be considered before issuing a preliminary injunction. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980) (when asked to grant a preliminary injunction, a judge must balance the risk of irreparable harm to the moving party, and the likelihood that the moving party will succeed on the merits against the risk of irreparable harm to the opposing party). See also Commonwealth v. Mass. CRINC, 392 Mass. 79, 89-90 (1984) (Commonwealth is not required to demonstrate irreparable harm where opposing party's activities may adversely affect the public interest); Brookline v. Goldstein, 388 Mass. 443, 447 (1983) (in cases in which a town is a party, a judge also may weigh the risk of harm to the public interest in considering a preliminary injunction motion). The judge did not do an analysis consistent with any of the foregoing factors.

A judgment ordering a permanent injunction might not necessarily have been inappropriate at this stage of the proceedings. Massachusetts Rule of Civil Procedure 65 (b) (2), 365 Mass. 832 (1974), allows a judge to consolidate a trial of the action on the merits with a hearing on an application for a preliminary injunction. It is reversible error, however, "to order consolidation in such a manner as to deprive a party of

Page 475

`clear and unambiguous notice' and `a full opportunity' to present its case." Cheney, supra at 616-617 n.10, quoting Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972). The state of the record does not let us know whether the commissioner received these protections. See Metropolitan Dist. Comm'n v. Codex Corp., 395 Mass. 522, 524 (1985). Moreover, even assuming sufficient notice and opportunity to be heard, a hearing resulting in a final judgment "should be conducted in circumstances that can produce a clear indication of the factual basis for the judge's decision. Written stipulations of fact or uncontroverted affidavits (assuming adequate notice) could provide that factual basis, thus making the hearing on the merits substantially similar to a hearing on a motion for summary judgment, but, generally speaking, we would expect the proceeding [on the merits] to be transcribed by a stenographer or recorded electronically." Id. at 524-525. Without a transcript of the hearing or some record of the proceedings, we have no way of knowing the evidence on which the judge based his findings of fact and rulings of law. Therefore, we must vacate his judgment unless the facts conceded by the commissioner and the uncontroverted documentary evidence establish the correctness of the rulings. Cf. id. at 525. The correctness of the judgment is not so established.

The facts conceded by the commissioner and the uncontroverted documentary evidence are as follows. The plaintiff was convicted of murder in the second degree on December 18, 1987, and sentenced to life imprisonment. [Note 4] The defendant was committed to the Massachusetts Correctional Institution at Cedar Junction (MCI-Cedar Junction), and later transferred to the segregation unit at the Old Colony Correction Center in Bridgewater. On January 23, 1989, the deputy superintendent sent the plaintiff a notice of classification hearing which stated that "[a]s a result of an investigation, it has

Page 476

been determined that you were second in command of a group which was involved in the introduction and distribution of narcotics, racial conflict and planned violence against other inmates at MCI-Cedar Junction."

At the subsequent hearing before a classification board, Sergeant Edward McGonagle of MCI-Cedar Junction testified about information received from two informants regarding the plaintiff's participation in a narcotics distribution operation within the prison. The board found the informants to be reliable and their information credible. Although the plaintiff's attorney represented him at the hearing, McGonagle presented this information while the board was in executive session, out of the presence of both the attorney and the plaintiff. The board provided them with a summary of the testimony afterward. The plaintiff's attorney then cross-examined McGonagle. The cross-examination revealed that the informants provided their information to another officer, not to McGonagle, and that McGonagle had never personally received any information from these informants.

The plaintiff was allowed to make a presentation to the board denying the allegations. He then asked for permission to present testimony from his own witnesses. The board denied the request. After the hearing, the board advised the plaintiff of its decision to recommend to the commissioner that the plaintiff be transferred to a Federal facility. The plaintiff appealed pursuant to 103 Code Mass. Regs. Section 420.10 (c) (1987). The commissioner approved the board's recommendation on March 22, 1989, and thereafter transferred the plaintiff in accordance with the decision.

On appeal, the commissioner claims that the judge erred in ruling that the Federal due process clause accords the plaintiff greater procedural protections than he was granted. He also asserts that the hearing complied with the State regulations, and that the transfer did not deprive the plaintiff of access to the courts.

1. Due process. It is well settled that the procedural protections of the Federal due process clause do not attach unless there is an identifiable interest in life, liberty, or property

Page 477

as contemplated by the language of the Fourteenth Amendment. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972). With regard to intrastate prison transfers, the Supreme Court has held that convicted inmates possess no liberty interest in remaining in any particular State prison facility. Meachum v. Fano, 427 U.S. 215 (1976). See Nelson v. Commissioner of Correction, 390 Mass. 379, 397 (1983). "The conviction has sufficiently extinguished the [plaintiff's] liberty interest to empower the State to confine him in any of its prisons." Meachum, supra at 224. Therefore, in Meachum no due process claim arose out of a transfer of prisoners to a maximum security facility without an adequate fact-finding hearing. See Nelson, supra at 397. The result was no different when the transfer was to a prison in another State, see Olim v. Wakinekona, 461 U.S. 238 (1983), or when the transfer was for disciplinary, rather than administrative, purposes, see Montanye v. Haymes, 427 U.S. 236 (1976); Nelson, supra at 397. There is no basis for a distinction between transfers to another State's prisons and transfers, such as the one at issue here, from a State to an out-of-State Federal facility. See Sisbarro v. Warden, Mass. State Penitentiary, 592 F.2d 1 (1st Cir.), cert. denied, 444 U.S. 489 (1979).

A different result, however, may obtain where State law confers an entitlement on a prisoner that is not defeasible unless the prisoner engages in misconduct. For example, in Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court held that a prisoner was entitled to procedural protection against the deprivation of good time credits which State law guaranteed him unless he was found guilty of serious misbehavior. The statute at issue in the case at bar, G. L. c. 127, Section 97A, does not confer any such entitlement on Massachusetts prisoners. [Note 5] It merely authorizes the commissioner

Page 478

to transfer prisoners to Federal facilities, and ensures that the terms of a prisoner's sentence and the discharge and parole provisions will not be affected by the transfer. Neither this statute nor any other provision of State law guarantees that prisoners will not be transferred unless they misbehave. [Note 6]

Because the transfer to an out-of-state Federal prison did not implicate any liberty interest either under the Federal Constitution [Note 7] or as created by State statute or regulation, the hearing accorded the plaintiff did not violate his Federal due process or his statutory rights.

2. The Massachusetts regulations. The regulations under which the board conducted the classification hearing do not provide the plaintiff with the procedural protections he claims. The regulations give the inmate only the right to forty-eight hours' advance notice of the hearing, the right to be represented by an attorney, the right to make a presentation to the board, and the right to appeal. See 103 Code Mass. Regs. Section 420.08 (6) and Section 420.09 (3) (1987). The plaintiff does not deny that he was granted these rights.

The plaintiff nevertheless contends that the commissioner was required to comply with the standards governing the admission of informant information set forth in 103 Code Mass. Regs. Section 430.15 (1987). However, those standards only apply to disciplinary hearings under 103 Code Mass. Regs. Sections 430.00 (1987). The plaintiff's hearing was a classification

Page 479

hearing under 103 Code Mass. Regs. Sections 420.00 (1987). Although, as the plaintiff points out, both kinds of hearings may result from disciplinary infractions, the regulations are clear on their face that adherence to the informant information standards is required in disciplinary hearings only. [Note 8] There is no basis on the record before us to conclude that the classification proceeding was a pretext. The judge did not so find or rule. Therefore, the commissioner was not required to meet the standards for informant information set forth in 103 Code Mass. Regs. Section 430.15 (1987).

The plaintiff also objects to the board's denial of his request to call witnesses. Again, however, although the regulations provide inmates subject to a disciplinary hearing with a qualified right to call witnesses, see 103 Code Mass. Regs. Section 430.14 (4) (1987), no corresponding right is accorded to inmates in classification hearings. Therefore, the regulations at issue do not provide a basis for the injunctive relief granted.

3. Access to the courts. Finally, the judge found that "[t]he plaintiff will be in a significantly better position to assist his lawyer in the preparation of his appeal, if he is returned to Massachusetts," and therefore ruled that the transfer to Tennessee denied the plaintiff his constitutional right of access to the courts. Even if this finding is supported by the evidence before the judge, it does not adequately address the legal issue raised by a claim of denial of access to the courts.

In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court set forth the nature of the right of access to the courts. Prison authorities, according to the Court, are required "to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law" (emphasis added). Id. at 828. Therefore, even assuming that the plaintiff had no access to a law library with Massachusetts

Page 480

legal materials, he still may not have suffered any constitutional deprivation. Bounds establishes that adequate legal assistance is an alternative means of fulfilling the obligation to provide prisoners with access to the courts. Neither the judge's findings nor the plaintiff's allegations assert that the plaintiff was or will be denied legal assistance from persons trained in the law. In fact, the plaintiff is represented by counsel both in this action and in his appeal of the conviction which we reversed. See Commonwealth v. Harris, supra.

Moreover, although the burden of proof is ultimately on the commissioner to show that the plaintiff did have adequate access to the courts, see Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir. 1981); Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975), cert. denied sub nom. Andrade v. Hauck, 424 U.S. 917 (1976); Blake v. Berman, 625 F. Supp. 1523, 1525 (D. Mass. 1986), the plaintiff must at least make a prima facie showing of a lack of access, see Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir. 1986); Rich v. Zitnay, supra at 43; Hossman v. Spradlin, 812 F.2d 1019, 1021 n.2 (7th Cir. 1987). Due to the posture in which this case was presented to us, see supra, we have no way of knowing whether the plaintiff made a prima facie showing that he was denied adequate legal assistance. Certainly no such showing is apparent from the documentary evidence or facts conceded by the commissioner.

Because the record presented us does not support the judgment, the judgment is reversed. The matter is remanded to the Superior Court for proceedings consistent with this opinion, should further proceedings be needed. If further proceedings are not needed, then the complaint should be dismissed.

So ordered.