ROBERT CANTELL & others [Note 1] vs. COMMISSIONER OF CORRECTION & others. [Note 2]

BOTSFORD, J. The named plaintiffs in this putative class action are inmates serving criminal sentences in various Massachusetts prison facilities. For varying lengths of time, each of them has been placed in a "special management unit" (SMU) in nondisciplinary administrative segregation. In January, 2012, the plaintiffs commenced this action against the Commissioner of Correction (commissioner) and the superintendents of the correctional institutions in which the plaintiffs were housed (collectively, defendants). The plaintiffs allege that their placements in the SMUs, essentially in conditions of solitary confinement, violate their State and Federal constitutional rights to due process as well as regulations of the Department of Correction (department), and they seek to represent a class of similarly situated prisoners confined in SMUs. In early 2013, following the release of this court's decision in LaChance v. Commissioner of Correction, 463 Mass. 767 (2012) (LaChance I), a judge in the Superior Court denied the plaintiffs' motion for class certification and allowed the defendants' motion to dismiss the plaintiffs' amended complaint.

The plaintiffs appealed to the Appeals Court. [Note 4] A divided panel of that court dismissed the appeal as moot because by then it was undisputed that no named plaintiffs remained in SMUs. Cantell v. Commissioner of Correction, 87 Mass. App. Ct. 629 (2015). The dissenting justice concluded that in light of the class action allegations in the plaintiffs' amended complaint, even if the named plaintiffs were no longer confined in SMUs, the case was not

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moot, and the court had a duty to decide the plaintiffs' appeal on its merits. Id. at 635-639 (Rubin, J., dissenting). We allowed the plaintiffs' application for further appellate review. We agree with the dissenting justice of the Appeals Court that the appeal is not moot, and we also agree that LaChance I does not resolve the merits of all the plaintiffs' claims. We reverse the Superior Court's judgment of dismissal and remand the case to that court for further proceedings consistent with this opinion. [Note 5]

Background. The plaintiffs' amended complaint alleges, in summary, the following. The plaintiffs are representatives of "a class composed of all prisoners held in non-disciplinary segregation in an SMU," and the class is so numerous that joinder of all is impracticable. See Mass. R. Civ. P. 23 (a), 365 Mass. 767 (1974). [Note 6] Each of the named plaintiffs has been held in nondisciplinary administrative segregation in an SMU operated under the department's SMU regulations, 103 Code Mass. Regs. §§ 423.00 (1995). [Note 7] While confined in an SMU, prisoners are locked in their individual cells for twenty-three hours per day, with permitted recreation in a small, outdoor cage for one hour per day on weekdays and no permitted recreation on weekends; each prisoner must eat all meals alone in his or her cell; the prisoners are permitted

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to shower and shave no more than three times per week; all visits are noncontact visits, and these are generally limited to two visits per week of no more than one hour's duration; prisoners are not allowed to visit the general prison library, have no access to employment or to rehabilitative, therapeutic, or educational programs and therefore no access to programs from which they might earn "good time" sentence credits or reductions; they may not attend communal religious services; and they are substantially restricted, compared to the general prison population, in terms of what they may purchase and how much money they may spend at the prison canteen. These conditions are far more restrictive than the conditions and level of segregation applicable to general population prisoners in maximum security facilities. The conditions are also at least as restrictive as those applied to units designated as "departmental segregation units" (DSUs) and governed by the DSU regulations appearing as 103 Code Mass. Regs. §§ 421.00 (1994). However, none of the plaintiffs has been provided the procedural protections required by the DSU regulations, or the visitation, canteen, and other privileges included within the DSU regulations. [Note 8]

The amended complaint's legal claims are that by maintaining the plaintiffs in nondisciplinary administrative segregation conditions without holding hearings to determine whether each posed a serious or substantial threat to themselves or others, and by denying other rights included in the DSU regulations, the defendants have violated the plaintiffs' rights under the DSU regulations, the plaintiffs' constitutional rights to due process protected by the United States Constitution and the Massachusetts Declaration of Rights (claims the plaintiffs pursue under 42 U.S.C. § 1983), and the plaintiffs' statutory right to equal "kindness" provided

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by G. L. c. 127, § 32. The plaintiffs seek declaratory and injunctive relief to declare and enforce these rights.

On January 20, 2012, the plaintiffs filed a motion for class certification. [Note 9] Before the motion was heard or ruled on, LaChance I was decided. The plaintiff in LaChance I was, or had been, confined to the SMU in the Souza-Baranowski Correctional Center, and his substantive claims relating to his entitlement to the procedural and other protections incorporated in the DSU regulations are substantially mirrored in the plaintiffs' amended complaint in the present case. The motion judge in this case concluded that the LaChance I decision effectively resolved the plaintiffs' claims by defining the entire scope of procedural protections to which the plaintiffs were entitled as prisoners confined in SMUs. For this reason, and because the department had agreed to provide the plaintiffs with the procedural protections described in LaChance I, the judge ruled that class certification was unnecessary and that dismissal of the plaintiffs' amended complaint was appropriate. The judge ordered the defendants to "extend the benefits" of our opinion in LaChance I to "all prisoners held in administrative segregation on awaiting action status."

At the time of the motion judge's decision, one of the named plaintiffs, Albert Jackson, remained in an SMU. However, as the Appeals Court's decision noted, when the plaintiffs' appeal was before that court, it was uncontested that none of the named plaintiffs was still confined in an SMU. Cantell, 87 Mass. App. Ct. at 630. There is nothing in the record to suggest that any named plaintiff's status has changed since the date of the Appeals Court decision, but there also is nothing before us to suggest that any of the named plaintiffs has completed his sentence and has been released from prison.

Discussion. 1. Legal background. This case concerns the department's policies and practices relating to the conditions of confinement

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for prisoners held in nondisciplinary administrative segregation and apart from the general population. The specific focus here is on SMUs, one type of administrative segregation unit. [Note 10] However, the department historically has had and continues to have a number of different types of and names for such units, including, but not limited to, DSUs. In Hoffer vs. Fair, No. SJ-85-0071 (Mar. 3, 1988), a single justice of this court ordered that the then existing DSU regulations be amended to provide greater procedural protections and some greater privileges to prisoners placed in nondisciplinary administrative segregation -- basically, solitary confinement -- in DSUs. The department promulgated in substance the DSU regulations currently codified at 103 Code Mass. Regs. §§ 421.00 in response; these regulations remain in effect. [Note 11] See Haverty v. Commissioner of Correction, 437 Mass. 737, 740, 744-746, 760 (2002), S.C., 440 Mass. 1 (2003). We made clear in Haverty that under the department's DSU regulations and as a matter of due process, "the procedural protections contained in 103 Code Mass. Regs. §§ 421.00 must be afforded to all prisoners before they are housed in DSU-like conditions," with

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an exception for those whose stay in such a DSU-like unit is expected to be brief -- i.e., days, not weeks. Id. at 760, 763-764 & n.36. See Longval v. Commissioner of Correction, 448 Mass. 412, 413-416 (2007), and cases cited at 416; Hoffer v. Commissioner of Correction, 412 Mass. 450, 455 (1992).

LaChance I was a case brought by a prisoner at the Souza-Baranowski Correctional Center who was held for more than ten months in administrative segregation, on awaiting action status, in that facility's SMU. LaChance I, 463 Mass. at 768-771. He claimed that the conditions of confinement in the SMU were substantively identical to the conditions of a DSU, that he was therefore entitled to the protections set out in the DSU regulations, and that the refusal of the prison authorities to apply those regulations to him violated his rights under the department's regulations as well as his due process rights under the Federal and Massachusetts Constitutions. Id. at 772. A judge of the Superior Court determined that LaChance was entitled to the procedural protections in the DSU regulations, and granted partial summary judgment to LaChance on his claims of constitutional violations. See id. at 772-773. The judge also granted summary judgment to the defendant correction officials on LaChance's claim for damages under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H & 11I, and his claims against two of the defendants in their official capacities. LaChance I, supra at 773. However, the judge denied the defendants' motion for partial summary judgment on LaChance's claims for damages against the defendants in their individual capacities under 42 U.S.C. § 1983 (§ 1983), rejecting the defendants' argument that they were entitled to qualified immunity as a matter of law. LaChance I, supra. Exercising their right to invoke the doctrine of present execution with respect to this denial, [Note 12] the defendants in LaChance I filed an interlocutory appeal in the Appeals Court, and we transferred the appeal to this court on our own motion. Id. at 768.

The issue directly before us in LaChance I was the propriety of the judge's denial of partial summary judgment on the defendants' claim of qualified immunity from liability for damages under § 1983. We concluded that an inmate placed in administrative segregation on awaiting action status in an SMU or other designated unit is entitled as a matter of due process to certain procedural

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safeguards, including notice of the basis on which he or she is so detained, a hearing at which the inmate may challenge that basis, and a written posthearing notice explaining the classification decision; and "that in no circumstances may an inmate be held in segregated confinement on awaiting action status for longer than ninety days without [such] a hearing." Id. at 776-777. However, we also concluded that the plaintiff's claims for damages against the individual defendants under § 1983 were barred by the doctrine of qualified immunity. See id. at 777. We did so because as a matter of constitutional requirement, "the outer limit of what constitutes 'reasonable' segregated confinement on awaiting action status without the safeguards of procedural due process" had not been clearly established as of 2006, the relevant date in LaChance I. See id. at 778. Indeed, as we stated in the opinion, our determination that "segregated confinement on awaiting action status for longer than ninety days gives rise to a liberty interest entitling an inmate to notice and a hearing" was one that we reached "for the first time" in that case. See id. [Note 13] We therefore remanded the case to the Superior Court for entry of an order allowing the defendants' motion for summary judgment on LaChance's claims under § 1983 against them in their individual capacities. [Note 14] See id.

As discussed, the motion judge in this case based her dismissal of the plaintiffs' amended complaint on LaChance I.

2. Mootness. The defendants argue that this appeal is moot because none of the named plaintiffs remains in an SMU, and therefore none is a member of the class the plaintiffs seek to have certified. The Appeals Court reached this same conclusion that the appeal is moot because the named plaintiffs are no longer in SMUs, and further concluded that, in the circumstances presented,

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it would be "improvident" to consider and resolve the plaintiffs' substantive claims on their merits. See Cantell, 87 Mass. App. Ct. at 630-631, 635. [Note 15] However, we agree with the dissenting justice that the appeal is not moot. See id. at 636-637 (Rubin, J., dissenting). It is not moot because the plaintiffs brought this case as a putative class action, and the class action allegations contained in the amended complaint remain operative until a judge has considered and rejected them on their merits. See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 297-298 (1975) (adopting rule followed by number of Federal courts "that a class action is not mooted by the settlement or termination of the named plaintiff's individual claim"). This is particularly true where, as the plaintiffs argue is the case here, it is within the defendants' power voluntarily to cease the allegedly wrongful conduct with respect to any named plaintiff by unilaterally deciding to release him from an SMU. "If the underlying controversy continues, a court will not allow a defendant's voluntary cessation of his allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class." Id. at 299. [Note 16] The statement applies to the present case: the alleged

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wrongs set out in the amended complaint continue to affect the putative class of individuals who remain confined to SMUs. [Note 17] In these circumstances, the plaintiffs' appeal is not subject to dismissal on mootness grounds.

3. Dismissal of the amended complaint on the merits. The motion judge ruled that certification of a plaintiff class was unnecessary, and indeed the named plaintiffs' amended complaint should be dismissed, based on her conclusion that LaChance I in effect fully defined the parameters of the plaintiffs' due process rights, and that the defendants had agreed that they would implement those rights in relation to every prisoner confined to an SMU on awaiting action status. [Note 18] Although her memorandum of decision does not so state, it appears that the judge interpreted LaChance I to overrule, in effect, Haverty and other decisions in which we concluded that the procedural protections contained in the DSU regulations must be provided to all prisoners in nondisciplinary administrative segregation who are subject to conditions similar to those in the DSUs. See Haverty, 437 Mass. at 740, 760, 763-764. In fairness, the scope of this court's decision in LaChance I was not fully explained. The motion judge, however, erred in her interpretation of our decision and in her dismissal of

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the amended complaint based on that interpretation.

As mentioned, LaChance I was an interlocutory appeal of a decision denying the defendants' claim of qualified immunity from liability for damages under § 1983. In considering the defendants' appeal, it was necessary to focus on LaChance's Federal due process claims because LaChance would be entitled to damages under his § 1983 claims only if the defendants knowingly violated LaChance's rights under the United States Constitution. [Note 19] See Cantell, 87 Mass. App. Ct. at 638 (Rubin, J., dissenting) ("the State law issue decided in Haverty was different from the issue the court was addressing in LaChance [I], that of Federal due process in the context of 42 U.S.C. § 1983" [emphasis in original]). [Note 20] At no point in LaChance I did we suggest that we intended to overrule Haverty and related cases; in fact, the opposite is true. See LaChance I, 463 Mass. at 774-775, discussing Haverty with approval, and specifically noting the holding of Haverty that "under [the department's] regulations, indefinite confinement in any unit where conditions are substantially similar to those of a DSU entitles an inmate to the protections afforded by the DSU regulations." Id. at 774.

Haverty and related decisions of this court and the Appeals

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Court confirm the continuing viability of the department's DSU regulations and their application to "all placements of prisoners in segregated confinement for nondisciplinary reasons for an indefinite period of time; in other words, those prisoners whom prison authorities determine will interfere with the management of the prison unless they are segregated from the general prison population." Haverty, 437 Mass. at 760. See id. at 740. See also Longval, 448 Mass. at 416, and cases cited. Because LaChance I did not overrule Haverty, the plaintiffs are entitled to pursue in the Superior Court their motion to certify a class, and, on the merits, their claims that as prisoners confined to SMUs, they are entitled to have the DSU regulations applied to them and entitled to all the procedural protections and other rights included within those regulations. [Note 21]

Conclusion. The judgment of the Superior Court is reversed, and the case remanded to that court for further proceedings consistent with this opinion.

So ordered.