Opinion
No. 04-2034.
September 26, 2006.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The plaintiff, Andrew W. Kilburn (Kilburn), is a prisoner at MCI-Cedar Junction (Cedar Junction). He brings this case against various officials at Cedar Junction: David Nolan, Superintendent; John Luongo, Deputy Director; Sherry Elliott, Director of Programs; and Beverly Veglas, Institutional Librarian (collectively, the defendants). Kilburn alleges that revisions to the rules for photocopying services at the prison library, and other policies concerning library-related materials and services, interfere with his ability to prepare or maintain civil litigation and appeals of his criminal conviction.
Kilburn claims that the new photocopying rules: 1) limit his access to photocopying services; 2) delay completion of photocopy requests; 3) invade his privacy and confidentiality rights; and 4) result in the denial of access to certain legal material. Additionally, Kilburn asserts that the new rules make fewer supplies available to inmates, and in particular, threaten inmate access to envelopes. Kilburn asks this court to declare that the new procedures: 1) were never effective, because they were not approved by the Commissioner of Correction or subject to hearing; 2) violate his due process rights under the Fourteenth Amendment of the Constitution of the United States; 3) violate his civil rights as secured by G.L. c. 12, § 11(I); and 4) violate his right to privacy as secured by G.L. c. 214, § 1(b).
Although the disagreement over envelopes between Kilburn and the Department of Correction (DOC) is less than crystal clear, Kilburn appears to allege that the library staff should address inmate envelopes or allow inmates to have any number of addressed or blank envelopes. Under the new rules, however, the library staff is unwilling to address inmates envelopes and will not issue, or will take back, envelopes that the inmates themselves have not addressed, because the library procedures were revised to reduce labor costs.
The court allows the motion for summary judgment as to all counts fully briefed, finding that the denial of a photocopy of an appellate case does not rise to the level of interference with Kilburn's access to the courts, that allowing librarians to view material to be photocopied does not violate Kilburn's right of privacy or confidentiality and that the regulations were not required to be the subject of public notice, hearing or comment.
These claims were before Judge Connor on Kilburn's motion for a preliminary injunction and the defendants' motion to dismiss, or in the alternative, motion for summary judgment. The court denied the motions and ordered the parties to file supplemental pleadings so that the matter might be heard as defendants' motion for summary judgment. (Connor, J., March 30, 2005).
Kilburn also alleges that inmates in cell blocks A-1, 2, and 3, B-1 and 2, 5, 9, and 10 are not permitted to have photocopied cases in their cells. Kilburn asks the court to declare that these policies are discriminatory and violate his due process rights. The differential treatment of cell blocks claim was not addressed in the summary judgment pleadings. It is not before the court; the matter before the court is defendants' motion for summary judgment on counts I, II, III, V, and VI, but not count IV.
DISCUSSION The Standard
Summary judgment is properly granted when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56(c); Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 202 (1995); Cassesso v. Comm'r of Corr., 390 Mass. 419, 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may meet this burden by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case at trial, or by submitting affirmative evidence that negates an essential element of the opposing party's case. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). In reviewing the summary judgment record, the court "must read the record in the manner most gratifying to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Newport Plaza Assoc. v.Durfee Attleboro Bank, 985 F.2d 640, 643 (1st Cir. 1993).
Analysis
Kilburn's complaints about his access to photocopying services and administrative support from library staff fall into three categories of legal claims: 1) assertions that articulate an access-to-court claim; 2) assertions that articulate privacy and confidentiality claims; and finally 3) assertions that challenge the process of promulgating the rules.
I. Interference with Access to Courts
A party making an access-to-court claim must demonstrate actual injury from the temporary inconvenience of lack of access to legal materials.Puleio v. Comm'r. of Corr., 52 Mass. App. Ct. 302, 311 (2001), relying on Lewis v. Casey, 518 U.S. 343, 354-55 (1996). A plaintiff can show actual injury by demonstrating that the lack of access "prevented or hindered his ability" to pursue a claim that is not frivolous. Seean id. A plaintiff cannot meet his burden by simply showing that he did not succeed in court. See an id. Rather, "the inmate [must] . . . go one step further and demonstrate that the alleged shortcomings in the library . . . program hindered his efforts to pursue a legal claim".Lewis, 518 U.S. at 351.
Kilburn claims that he was inconvenienced by the library's policies of no longer allowing photocopies on demand and requiring addresses for envelopes. Kilburn fails to identify his injury, beyond bare assertions that the federal court "tossed out his case" or that he will probably "die in prison . . . [because] . . . [t]hese defendants directly interfered with Kilburn being able to challenge his conviction." The record is devoid of competent evidence as to why Kilburn might have forfeited significant claims; for example, under count VI, Kilburn does not offer evidence of what actually happened in federal court, and instead, rests on a hollow insistence that he was unsuccessful because he was denied a photocopy of a sixth circuit case. Even at the summary judgment stage, more is needed than the mere claim, without explanation, that failure to obtain a photocopy of a single appellate case caused the forfeiture of an important right. See Lewis, 518 U.S. at 351.
II. Privacy and Confidentiality
Kilburn's arguments concerning privacy and confidentiality fail as a matter of law. Prisoners' privacy rights may be circumscribed in proportion to the state's interest in running safe and orderly prisons. See Bell v. Wolfish, 441 U.S. 520, 557 (1979) (fourth amendment privacy rights do not require inmate to be present during cell searches); Cacicio v. Sec'y. of Pub. Safety, 422 Mass. 764, 772-73 (1996) (privacy rights were not violated by monitoring and recording inmate phone calls). Given limited funding for photocopying, the prison monitors the material inmates submit to ensure that inmates are only submitting legal documents and reference materials. The rules at Cedar Junction are tailored to meet the objectives of the Code of Massachusetts Regulations (CMR) and the realities of a maximum security prison. The regulation states, in relevant part:
A) Photocopying services will be for the purpose of duplicating original legal documents. The superintendent will designate the staff members responsible for photocopying legal documents and legal reference materials.
B) All photocopy requests will be compiled within reasonable amounts at no charge. In order to provide photocopying services to all inmates, the superintendent may establish guidelines and limits, subject to the review of the Commissioner or his/her designee.
103 CMR 478.11(4) (emphasis added).
Notwithstanding any party's view, this is the court's understanding of the current regulation.
The CMR permits, via Cedar Junction's established internal policies, the librarian and her assistant to look at photocopy requests and conduct a cursory review of the material. The regulations do not require that inmates be present when the photocopies are made, nor that inmates receive their photocopies on demand. The minimal invasion of the inmate's privacy is proportionate to the state's interest in preventing photocopy abuses.
The photocopying policies also do not interfere with Kilburn's right to confidential attorney-client communications and attorney work product. Librarians make a superficial review of materials submitted for copying. If Kilburn is suspicious of the nature of the librarian's inspection, he may make handwritten copies of attorney-client communications or ask his attorneys to make copies for him. As to any argument that the materials Kilburn wishes to copy are attorney work product (i.e., when he is representing himself pro se), the material Kilburn seeks to copy is not work product as contemplated by the Rules of Criminal Procedure or the Rules of Civil Procedure. See Mass. R. Crim. P. 14(a)(5) (defining work product as legal research, opinions, theories, or conclusions of the adverse party or his attorney and legal staff, or of statements of a defendant, signed or unsigned, made to the attorney for the defendant or his legal staff); Mass. R. Civ. P. 26(b)(3) (work product as attorney's mental impressions or intellectual work product). Rather, Kilburn mentions court documents and copies of case law, which are readily available to the public and not Kilburn's exclusive conclusions, opinions, or strategies formed in preparation of trial. Cf. Commonwealth v. Bing Sial Liang, 434 Mass 131, 137-140 (2001) (defining work product as attorney's or investigator's notes and impressions); Buster v. Moore, Inc., 438 Mass. 635, 653-54 (2003) (work product as materials made by a party or a party representative in preparation for trial).
III. Promulgation of Rules
Kilburn alleges that the revised procedures are invalid because they were promulgated without the benefit of public notice, hearing or comment as required under the Massachusetts Administrative Procedures Act (APA). See G.L. c. 30A. Kilburn asserts that the revised procedures effectively changed the state regulations regarding library services under 103 Code Mass. Regs. 478.11.
Contrary to Kilburn's assertions, the library procedures at MCI-Cedar Junction do not trigger the procedural requirements of the APA. The term "regulation" is defined under the APA as:
the whole or any part of every rule, regulation, standard or other requirement of general application and future effect, including the amendment or repeal thereof, adopted by an agency to implement or interpret the law enforced or administered by it.
What distinguishes a regulation from some other kind of pronouncement is not always clear. See Mass. General Hosp. v. Rate Setting Comm'n., 371 Mass. 705, 707 (1977). The Supreme Judicial Court has stated that differentiation is best accomplished by considering "the functions or purposes that are furthered by notice and hearing in a given context." Id. Generally, where an "agency is intending to fill in the details or clear up an ambiguity of an established policy, rather than to inaugurate a material change of policy," an internal pronouncement is not considered a "regulation" susceptible to the procedural mandates of the APA. Id. (Emphasis added). See alsoDougan v. Comm'r of Correction, 34 Mass. App. Ct. 147, 148 (1993) (finding that the DOC's internal Standard Movement Chronology classification manual was not a regulation under the APA).
Moreover, the APA affords an individual notice and a hearing only when the proceeding is "adjudicatory" in nature. See G.L. c. 30A, § 1 (1). Only when "the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing" will an individual have a right to a hearing. Id. Adjudicatory proceedings do not include the institutional proceedings of a specific agency. See id.; Rate Setting Comm'n., 371 Mass. at 707;Dougan, 34 Mass. App. Ct. at 148.
Kilburn was not entitled to public notice, hearing or comment regarding Cedar Junction's revised internal library policies. First, these procedures were not "regulations" under the APA, nor "adjudicatory proceedings" which would have entitled Kilburn to notice and a hearing pursuant to the plain meaning of the statute. See G.L. c. 30A, § 1 (1), (5). Also, this case is similar to Dougan. There, certain inmates petitioned for their reclassification to a minimum security prison. 34 Mass. App. Ct. at 148. Pursuant to the DOC's internal classification manual, the prisoners argued that they were entitled to a transfer.Id. The Appeals Court held that the DOC's internal transfer manual was not a regulation under the APA, but rather "only an advisory or informational guideline for the general education of prisoners and prison personnel alike. It does not replace the formal regulations and does not have the legal force of a regulation." Id. at 148-149. The library procedures at Cedar Junction are similar; they are not regulations necessitating the strict procedural requirements of the APA.
The rules Kilburn complains of are operating procedures designed pursuant to regulations set forth in the CMR. As is typically the case with DOC regulations, they grant the department wide discretion in designing specific procedures to achieve the objectives laid out in the regulations. See 103 Code Mass. Regs. 478.11(4)(b) (conferring the superintendent with the authority to establish guidelines and limits, subject to the review of the commissioner or his/her designees);Rasheed v. Comm'r. of Corr., 446 Mass. 463, 476 (2006) ("[w]e ordinarily accord an agency's interpretation of its own regulations considerable deference unless arbitrary, unreasonable, or inconsistent with the plain terms of the regulations themselves") (citations omitted).
The regulations require access to photocopiers for copying legal documents and portions of the legal collection. 103 Code Mass. Regs. 478.11 (4)(b). The regulations require that the superintendent designate staff members responsible for copying and that "requests shall be compiled within reasonable amounts at no charge." Id. at 478.11(4)(a)-(b). The procedures, in turn, identify the staff responsible for copying, the time frame for responding to copying requests, as well as special procedures to accommodate inmates with time sensitive requests. See 103 CMR 478, Library Services Procedural Statement, VIII. These procedures are consistent with the regulation, and they are not arbitrary and unreasonable, particularly in light of the task of balancing the logistical, budgetary, and access-to-court pressures on an institutional library at a maximum security prison.
ORDER
Finding that Kilburn's allegation of a lack of access to a photocopy of a single appellate decision cannot be an interference with his access to the courts, that librarian review of materials to be photocopied is not a violation of any of Kilburn's rights of confidentiality or privacy, and that there was no defect in the promulgation of the rules, the defendants David Nolan, John Luongo, Sherry Elliott, and Beverly Veglas's motion for summary judgment is ALLOWED as to Counts I, II, III, V, and VI.