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Moses v. Mitchell

Superior Court of Massachusetts, Plymouth

October 23, 2017

Moonie Moses [1]
Lisa Mitchell et al


          MICHAEL D. RICCIUTI, Justice

         Plaintiff Moonie Moses, an inmate at Old Colony Correctional Center (" OCCC" ), brings this case in the nature of certiorari under G.L.c. 249, § 4, against Lisa Mitchell, Rebecca Donahue, John P. Freitas, Christopher Anderson, Andrew DeValles, and Brian Schwenk (" Defendants" ), officials and employees of OCCC, alleging violations of Department of Correction regulations governing discipline he received as the result of a disciplinary report (or D-Report).

         Before the Court is Moses' motion for judgment on the pleadings. The Defendants oppose and cross-move for judgment on the pleadings. After hearing, and in consideration of the parties' memoranda of law and oral arguments, the Court ALLOWS Plaintiff's motion for judgment on the pleadings and DENIES Defendants' motion.


         In D-Report 345786, Correctional Officer John Freitas alleged that on August 24, 2015, Moses insulted and threatened him. Specifically, Freitas alleged that Moses " called this officer 'a piece of shit and then continued to say if you were in my neighborhood in Dorchester I wish you would take a bullet to the head.'" Moses was charged with four offenses--threatening another with bodily harm, in violation of Disciplinary Code Section 3-04; use of obscene, abusive or insolent language or gesture, in violation of Disciplinary Code Section 3-26; conduct which disrupts the normal operation of the facility of unit, in violation of Disciplinary Code Section 3-27; and violation of any departmental rule or regulation, in violation of Disciplinary Code Section 4-11.

         Although the D-Report reads as if Moses' alleged statement was made directly to Freitas, it is undisputed that it was not. Instead, whatever statement Moses made was heard by Correctional Officer Oana T. Farese, who reported it to Freitas. Indeed, the record of the disciplinary hearing reflects Freitas' statement that " [s]he [Farese] told me she heard the statements. I don't recall when she told me . . . I asked Moses did he say it. He said it was misinterpreted. I'm going to go with what the CO tells me." Freitas' statement makes clear that Moses' position was that what he said had been misunderstood, which is his position before this Court.

         Farese's testimony, which Freitas credited, was thus critical in deciding whether any offense had occurred and any discipline was appropriate. Moses thus requested, pursuant to the regulations that governed the proceeding, that Farese be produced as a witness at the disciplinary hearing, proffering that she could testify that Freitas " lied about [the] statement."

         The hearing was originally scheduled for September 9, 2015. Moses asked for a continuance to request Farese be produced and to review the videotapes taken in the cell block at the time, proffering that they, too, " will show that the officer lied in his statement and nothing he said was true." The OCCC continued the hearing at Moses' request, but then continued it five more times at their behest. The hearing was not held until April 1, 2016, a total delay of six months. Two of the extensions reflect that they were occasioned because the reporting officer, Freitas, was unavailable. The other four bear no explanation.

         Moses' request for Farese to be produced was denied by Rebecca Donohue, a Disciplinary Hearing Officer. The record of the disciplinary hearing required that " [i]f any [witness] request is denied, a written explanation of the reasons must be included as part of the record." All that the record reflected as a " written explanation" of Farese's exclusion were three words: " irrelevant testimony expected." No further explanation was provided anywhere in the record as to when, how or why Farese's testimony was deemed to be irrelevant. Moses was also informed that the video tapes he requested were " unavailable," again without explanation. At the hearing, neither Farese nor any videotapes were produced.

         After the hearing, Donohue issued her decision. In it, she concluded that, based on Freitas' report and testimony, the evidence " clearly established that inmate Moonie used obscene, insolent language to staff" and that, even considering Moses' testimony, " it appears more likely than not that the proponent's contention is true." However, despite finding that Freitas' allegations were supported, she dismissed the threatening charge as " not supported by the report." She thus found Moses guilty of offense 3-26, use of obscene, abusive or insolent language or gesture, and imposed 10 days of disciplinary detention. She dismissed charges 3-27 and 4-11 as duplicative.

         Moses appealed, arguing that (1) the hearing was not held within a reasonable time; (2) the testimony did not support a guilty finding; (3) he was denied a witness, Farese, who " would have shown that said words were never said" ; and (4) that he was denied video evidence " that would have shown that any conversation with the reporting staff and this inmate did not occur." On April 29, 2016, the Superintendent Lisa Mitchell denied the appeal.


         The Defendants correctly argue that Moses does not allege a cognizable federal due process claim. " An inmate is entitled to the protection of procedural due process under the Federal and State Constitutions only if there is an existing liberty or property interest at stake. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) . . . Under the Fourteenth Amendment, a liberty interest is 'generally limited to freedom from restraint which . . . imposes atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life.' Sandin v. Conner, 515 U.S. at 484 . . . [S]anctions [such as thirty days in isolation, loss of visitation privileges for one year, and transfer to a higher security prison] did not create a liberty interest and, thus, the defendant was not deprived of the protections of due process to which he was entitled under both the Federal and State Constitutions." Drayton v. Commissioner of Correction, 52 Mass.App.Ct. 135, 138, 751 N.E.2d 917 (2001).

         That federal liberty interests are not at stake does not end the matter, however. Sandin recognized that inmates like Moses " may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available." Sandin, 515 U.S. at 487-88 n.11. In this case, Moses properly invoked judicial review in the nature of certiorari because of the alleged failure of the Defendants to follow Department of Correction regulations. See Ford v. Commissioner of Correction, 27 Mass.App.Ct. 1127, 1129, 537 N.E.2d 1265 (1989). " 'The purpose of the certiorari procedure is to provide a remedy, where none would otherwise exist, if necessary to avoid manifest injustice,' or, as otherwise stated, to correct substantial errors of law on the record that adversely affect material rights. We do not believe that it was the intention of the Supreme Court in Sandin to divest an inmate of the ability to challenge the use of alleged improper procedures in the conduct of a disciplinary proceeding because the sanctions did not ...

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