MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR
JUDGMENT ON THE PLEADINGS
MICHAEL D. RICCIUTI, Justice
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
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.
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.
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.
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]
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.
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.
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
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.
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
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 ...