Heard: February 7, 2017.
action commenced in the Superior Court Department on May 11,
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.
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. We
accordingly affirm the judgment of dismissal.
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) .
observed in the introduction, the plaintiff is an inmate in
the custody of the Department of Correction. 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.
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. 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
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
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, ...