MARK MACDOUGALL vs. COMMONWEALTH.

CORDY, J. The petitioner, Mark MacDougall, appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. The petitioner is a pretrial detainee, awaiting trial in the Superior Court, who challenges a decision of the Commissioner of Correction (commissioner) to

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transfer him from a county jail to a State correctional facility while he awaits trial. He claims that the commissioner was required to obtain approval for the transfer from a judge in the Superior Court, which was not done; and that his transfer and the conditions of his pretrial confinement violate his rights under the United States and Massachusetts Constitutions. As explained below, G. L. c. 276, § 52A, authorizes such a transfer, without a judicial determination, where a defendant has been "previously incarcerated in a correctional institution of the commonwealth under sentence for a felony." [Note 1] Moreover, the petitioner had adequate alternative avenues for asserting both his statutory and constitutional claims. We therefore affirm the judgment of the single justice denying relief under G. L. c. 211, § 3. [Note 2]

Background. The petitioner was indicted by a Norfolk County grand jury in November, 2002, for the attempted arson of a dwelling house, assault by means of a dangerous weapon, and threatening to commit a crime. He apparently fled and was in default until December 23, 2002, when bail was set at $10,000 cash. Over the next eleven months, bail was posted on his behalf on at least two occasions. He was surrendered on each occasion and his bail eventually increased to $25,000 cash or $250,000 surety bond. In September, 2004, while being held in lieu of bail at the Norfolk County house of correction, he was involved in a violent altercation with a correction officer that led to his

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further indictment on charges of mayhem, assault and battery by means of a dangerous weapon, assault and battery, and assault and battery on a correction officer. [Note 3] After the altercation, the petitioner received a disciplinary report and was awaiting a disciplinary hearing when he was transferred by the commissioner to the Massachusetts Correctional Institution at Cedar Junction (Cedar Junction), [Note 4] where he was held in the disciplinary area of the prison "due to . . . assaultive behavior towards both inmates and staff." [Note 5] The reason for his transfer to Cedar Junction, "assault on staff," and its statutory basis, G. L. c. 276, § 52A, were explained to him in a letter from the superintendent of Cedar Junction dated November 2, 2004. [Note 6]

The petitioner filed a motion in his pending criminal case to "Forthwith Transfer the Defendant to a Jail or Correctional Institution While Awaiting Trial." As grounds, the petitioner argued that his transfer violated the requirements of G. L. c. 276, § 52A, because it was not authorized by an order of a judge in the Superior Court, and because it was a transfer to the "state prison" (see G. L. c. 125, § 1 [o], "state prison" defined as "Cedar Junction"), rather than to a "correctional institution of the commonwealth." He also argued that the conditions of his detention at Cedar Junction violated various State and Federal constitutional rights, including his right not to be subjected to punishment prior to his conviction of any crime.

The petitioner's motion was supported by a memorandum of law, and a copy of the November 2, 2004, letter from the superintendent. No affidavits were filed and the motion did not request an evidentiary hearing. After a nonevidentiary hearing, a judge in the Superior Court denied the motion, ruling that the petitioner's transfer pursuant to G. L. c. 276, § 52A, did not require an "order of the court." The petitioner then filed a petition

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for extraordinary relief under G. L. c. 211, § 3, in the county court, seeking to enjoin the Commonwealth from holding him in the "state prison" or its "functional equivalent," and from transferring him in the future without obtaining an order of a judge of the Superior Court. The petition was denied by the single justice. This appeal followed.

Discussion. 1. G. L. c. 276, § 52A. "General Laws c. 276, § 52A, provides for the transfer of pretrial detainees from the county jails in which they are ordinarily held awaiting trial. In separate sentences, the statute authorizes two different types of detainee transfers. The first is a transfer from one county jail to another. The second is the transfer from a county jail to a State correctional [institution]. To facilitate both, the commissioner is authorized to be the removing agent, responsible for transporting the detainees to the receiving facility and, when requested by the district attorney, for returning them to the jail where they were originally awaiting trial." Commissioner of Correction v. Superior Court Dep't of Trial Court for the County of Worcester, 446 Mass. 123, 125 (2006). The transfer of a pretrial detainee from one county jail to another is authorized in the first sentence of the statute. Such a transfer may be made either with the approval of the district attorney, or by order of a judge in the Superior Court. The transfer of a detainee from a county jail to a State correctional institution is authorized in the next sentence, which similarly provides that it may be made with the approval of the district attorney, but which makes no provision for transfers to be made by order of a Superior Court judge. The second sentence further provides that only pretrial detainees who have previously been incarcerated in a State correctional institution for a felony may be transferred from a jail to a State correctional institution to await trial. Id. [Note 7]

We have previously held that the transfer of an eligible pretrial detainee from a county jail to a State correctional institution, under the provisions of § 52A, requires both the approval of the district attorney and the authorization of the commissioner,

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and that a Superior Court judge has no authority to order it. Id. at 126. The petitioner argues, however, that the third sentence of § 52A, which provides that the "proceedings for such removals [transfers] shall be the same as for the removal of prisoners from one jail or house of correction to another" (emphasis added), suggests that there must be a judicial proceeding in order to effectuate a transfer, presumably even if there is agreement between the commissioner and the district attorney. [Note 8] We disagree.

While § 52A specifically authorizes the transfer of "[p]ersons held in jail for trial" from one county facility to another county facility or to a State correctional institution, its reference to proceedings for the "removal of prisoners" (a term defined in G. L. c. 125, § 1 [m]) "from one jail or house of correction to another," is a reference to the "removal" provisions of G. L. c. 127, which authorize and set forth the administrative procedure for the commissioner's transfer of "sentenced prisoner[s] from any jail or house of correction to any other jail or house of correction." G. L. c. 127, § 97. See G. L. c. 127, §§ 120, 121. [Note 9] No judicial proceeding or determination is statutorily required for the transfer of such prisoners. [Note 10] None is required here.

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The petitioner's argument that Cedar Junction is "the state prison" and therefore not a "correctional institution of the commonwealth" within the meaning of § 52A is also without merit. A "correctional institution" is a "correctional facility." G. L. c. 125, § 1 (e). A "state correctional facility," as differentiated from a "county correctional facility" (see G. L. c. 125, § 1 [f]), is "any correctional facility owned, operated, administered or subject to the control of the department of correction, including but not limited to: Massachusetts Correctional Institution, Cedar Junction." G. L. c. 125, § 1 (n). While Cedar Junction may be the "state prison," it is also clearly a "correctional institution of the commonwealth."

2. Adequate alternative remedies. The supervisory power of this court under G. L. c. 211, § 3, is to be used sparingly, and "should be exercised only in exceptional circumstances and where necessary to protect substantive rights in the absence of an alternative, effective remedy." Soja v. T.P. Sampson Co., 373 Mass. 630, 631 (1977). Here, the petitioner had, and in some respects still has, adequate alternative avenues by which to assert his challenges to his transfer and the conditions of his pretrial confinement.

a. Statutory claim. As explained above, the commissioner was authorized by the statute to transfer the petitioner to a State correctional facility in these circumstances without prior approval from a Superior Court judge. The single justice was correct to deny G. L. c. 211, § 3, relief on the petitioner's statutory claim for that reason alone. The single justice was also correct to deny extraordinary relief pursuant to G. L. c. 211, § 3, because the petitioner had an adequate alternative avenue for asserting this claim. Faced with the commissioner's decision to transfer him, the petitioner, rather than filing a motion challenging the transfer in his underlying criminal case, and subsequently a petition for relief under G. L. c. 211, § 3, could have commenced a separate civil action against the commissioner challenging the transfer. This is the usual route by which a prisoner

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or detainee challenges the conditions of his confinement, see Good v. Commissioner of Correction, 417 Mass. 329 (1994); Hoffer v. Commissioner of Correction, 412 Mass. 450 (1992); Michaud v. Sheriff of Essex County, 390 Mass. 523 (1983), and we see no reason why it would not also suffice as a means of challenging the process by which one is transferred to a particular facility.

b. Constitutional claims. Having undertaken the petitioner's custody, the commissioner is required to afford him every constitutional and statutory right and convenience guaranteed to persons held for trial and presumed innocent. See, e.g., Bell v. Wolfish, 441 U.S. 520, 535 (1979) (under due process clause of United States Constitution, "detainee may not be punished prior to an adjudication of guilt"; proper inquiry is whether conditions of pretrial detention amount to punishment); Cobb v. Aytch, 643 F.2d 946, 957 (3d Cir. 1981) (pretrial detainees have right under the Sixth Amendment to United States Constitution to effective assistance of counsel and speedy trial, and conditions of detention may not unnecessarily interfere with those rights).

To the extent that the petitioner contends that the conditions of his detention (at Cedar Junction or at any other State correctional facility) do not meet constitutional standards for pretrial detainees, his remedy is to bring a civil action against the commissioner, where an appropriate factual record can be developed for judicial review. He has not developed an adequate record here. [Note 11] Should he decide to commence a civil action, he would have available to him the full range of procedural tools

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available to any civil litigant in need of immediate relief. He could, for example, request that the matter be expedited, move for a preliminary injunction, and, if an injunction is denied, seek relief from a single justice of the Appeals Court or from a panel of that court. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 613-614 (1980). Filing a motion seeking relief in the criminal case does not afford a detainee the same opportunity for preliminary relief and appellate review. Moreover, questions of the condition of his confinement or the validity of his transfer from one facility to another are ancillary to the question of his guilt or innocence on the underlying criminal charges, which is the focus of the criminal case. For these reasons we conclude that a civil action, and not a motion filed in the criminal case or a petition for relief under G. L. c. 211, § 3, is the appropriate remedy. [Note 12]

Judgment affirmed.