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Rosado v. Commissioner of Correction

Appeals Court of Massachusetts, Middlesex

May 22, 2017

CHRISTIAN ROSADO
v.
COMMISSIONER OF CORRECTION & another.[1]

          Heard: February 7, 2017.

         Civil action commenced in the Superior Court Department on May 11, 2015.

         A motion to dismiss was considered by Kenneth J. Fishman, J.

          Christian Rosado, pro se.

          Katherine W. Briggs for the defendants.

          Present: Green, Meade, & Agnes, JJ.

          GREEN, J.

         The pro se plaintiff, an inmate in the custody of the Department of Correction, appeals from a judgment of the Superior Court, dismissing his complaint against the defendants, the Commissioner of Correction and the chief of the office of investigative services (investigative services chief). In his complaint, the plaintiff asserted various claims stemming from the defendants' designation of him as a member of the "Latin Kings, " a "security threat group" (STG). The plaintiff denies that he is a member of the Latin Kings, and that his false designation as such subjects him to various harms entitling him to relief. We agree with the judge that the plaintiff's claim for certiorari relief, pursuant to G. L. c. 249, § 4, does not lie because the designation was a discretionary administrative decision rather than an adjudicatory or quasi adjudicatory one, and that his due process claim fails because his designation as a member of an STG does not infringe upon a protected liberty interest.[2] We accordingly affirm the judgment of dismissal.

         Background.

         "We review the allowance of a motion to dismiss de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom. Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011), and cases cited. We may also consider exhibits attached to the complaint and items appearing in the record. Melia v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012), citing Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000)." Lipsitt v. Plaud, 466 Mass. 240, 241 (2013) .

         As we observed in the introduction, the plaintiff is an inmate in the custody of the Department of Correction.[3] In November, 2014, a search of his cell uncovered pictures of a number of other prisoners the plaintiff had befriended, all of whom were members of a known STG. One week later, the facility's inner perimeter security team informed the plaintiff that it intended to classify him as a gang member, due to the discovery of pictures of gang members in his cell.

         In February, 2015, the defendant investigative services chief met with the plaintiff to allow him to dispute his identification as a member of the Latin Kings gang. Following the meeting (in which the plaintiff denied his membership in the Latin Kings), the investigative services chief notified the plaintiff by letter dated February 12, 2015, that his identification as a member of an STG had been "validated, " and advising him that he could appeal that decision to the Commissioner within five days of the notice. By letter dated February 24, 2015, the plaintiff appealed to the Commissioner, who rejected his appeal.[4] By two subsequent letters, one from the plaintiff on March 16, 2015, and another from an attorney on his behalf on March 23, 2015, the plaintiff expressed his displeasure and disagreement with his designation as an STG member.

         As a result of his designation as an STG member, the plaintiff is restricted in his employment opportunities within the correctional facility where he is housed. In addition, the plaintiff alleges that his false designation as an STG member subjects him to danger from other inmates who are enemies of that group.

         In his complaint, the plaintiff asserted that his designation violated the Fourteenth Amendment to the United States Constitution, art. 12 of the Massachusetts Declaration of Rights, G. L. c. 231A, G. L. c. 30A, §§ 1-8, ...


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