Heard: February 5, 2018.
action commenced in the Superior Court Department on January
5, 2016. A motion to dismiss was heard by David Ricciardone,
J. Civil action commenced in the Superior Court Department on
November 13, 2015.
motion to dismiss was heard by Paul D. Wilson, J.
Butler, pro se.
McCants, pro se.
F. Grant for the defendants.
plaintiffs, Brian Butler and Owen McCants, inmates supervised
by the Massachusetts Department of Correction (department)
and housed at MCI-Norfolk, each brought actions pro se
challenging the consequences imposed on them pursuant to the
department's "Program Engagement Strategy"
(PES). The defendants filed motions to dismiss both
complaints, which were allowed by two different judges. The
plaintiffs appeal, alleging what we construe to
be various constitutional infirmities in
the PES program. We consolidated the cases for hearing in
this court, and now affirm.
accordance with its mission to "promote public safety by
managing offenders, " the department established
"appropriate programming in preparation for
[inmates'] successful reentry into the community, "
such as the Sex Offender Treatment Program (SOTP). However,
the department is unable to mandate participation in such
programs. As a result, by 2012, a high percentage of
offenders declined to attend recommended programs, spending
their time in ways that did not address "the very issues
that [would] decrease the likelihood that they
recidivate." Nevertheless, these inmates enjoyed
the same privileges as "program compliant"
offenders, such as single rooms, housing seniority, and
institutional jobs. In response, in December of 2013, the
department announced it would implement PES, an
incentivization structure for program
participation. Under PES, privileges are awarded as
incentives for inmates who voluntarily participate in
programs and are withdrawn from inmates who refuse. The
department notified inmates about PES by amending its
institutional procedures, hosting informational sessions for
inmates, and creating informational flyers. PES went into
effect on January 1, 2014.
was convicted in 1993 of aggravated rape, assault and battery
by means of a dangerous weapon, and kidnapping. He was
sentenced to twenty-five to thirty years for the aggravated
rape and to concurrent eight to ten year terms on the
remaining convictions. This court affirmed Butler's
convictions and the Supreme Judicial Court denied further
was, at all relevant times, an inmate at MCI-Norfolk. He
became eligible to participate in SOTP classes, and the
department recommended that he do so. In May of 2015, Butler
was informed that his failure to attend SOTP classes would
result in the imposition of PES consequences. Butler began
attending a "preliminary" SOTP phase, but in
September of 2015, he refused to participate further.
Consequently, in accordance with PES protocol, he lost his
seniority with respect to housing. On October 1, 2015, he was
reassigned from the single room he had occupied for nineteen
years to a double room, and his seniority date was changed to
September 24, 2015.
McCants was convicted of rape of a child by force,
kidnapping, assault with intent to rape, drugging for sexual
intercourse, and assault and battery by means of a dangerous
weapon. Commonwealth v. McCants, 83 Mass.App.Ct.
1129 (2013). He was separately convicted of being an habitual
offender. This court affirmed McCants's convictions and
the Supreme Judicial Court denied further appellate
review. He later filed a motion for new trial,
which was denied. This court affirmed that
was, at all relevant times, an inmate at MCI-Norfolk. The
department recommended that McCants participate in SOTP
classes. In February, 2014, McCants refused to attend the
classes and subsequently lost his single cell housing