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Cox v. Comm'r of Corr.

Appeals Court of Massachusetts.
Jan 22, 2013
83 Mass. App. Ct. 1107 (Mass. App. Ct. 2013)

Opinion

No. 12–P–201.

2013-01-22

William COX v. COMMISSIONER OF CORRECTION, & another.


By the Court (KAFKER, COHEN & TRAINOR, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff is currently in the custody of the Department of Correction, serving a life sentence for second degree murder.

In this action, he challenges the department's use of its objective classification operation Manual (manual) to place him in a maximum security facility for roughly two and one-half years at the inception of his incarceration.

The plaintiff's conviction was affirmed by this court in Commonwealth v. Cox, 74 Mass. 1123 (2009).

The plaintiff emphasizes, inter alia, that he has severe developmental disabilities, and that a remark made by him in 2007, and taken into account when determining his classification in 2008 and 2009, was considered by the clinician who heard and reported it to be “most likely a statement of fantasy rather than a lethal plan .” He also points out (and the record supports) that, after being recommended, in January, 2010, for transfer to a medium security facility, he was sexually assaulted by a group of other prisoners before the recommendation could be approved. The following month, he was transferred to a medium security institution.

The plaintiff's complaint for declaratory and injunctive relief seeks two judicial determinations: (1) that the manual should have been promulgated as a regulation as defined by G.L. c. 30A, §§ 1, 2, & 5, and (2) that the defendants, by applying the manual to assign him points for “history of escape or attempted escape” and “history of prior institutional violence,” acted arbitrarily and capriciously, and in violation of his rights to due process.

A judge of the Superior Court granted the defendants' motion for summary judgment, and this appeal ensued. After de novo review, see, e.g., Miller v. Cotter, 448 Mass. 671, 676 (2007), we affirm.

Although he endeavors to give his second claim a broader interpretation in his reply brief, it is evident from the complaint and the proceedings below that the claim is an “as applied” challenge.

The relevant facts are not in dispute. Accordingly, we decide the issues presented as matter of law.

1. The manual. It is well-established that process or procedure manuals and information bulletins are to be distinguished from regulations that must be promulgated in accordance with chapter 30A. See Massachusetts Gen. Hosp. v. Rate Setting Commn., 371 Mass. 705, 706–708 (1977). Here, the manual is designed to fill in details of existing regulations implementing objective criteria for prisoner classification,

see ibid; it is intended for internal use by department employees in making classification decisions, see Commonwealth v. Trumble, 396 Mass. 81, 88–89 (1985); and, notwithstanding that it contains so-called mandatory overrides, it reserves to the commissioner discretionary authority to reject a prisoner's classification and transfer the prisoner to a different facility. See Hastings v. Commissioner of Corr., 424 Mass. 46, 49–50 (1997); Dougan v. Commissioner of Corr., 34 Mass.App.Ct. 147, 148–149 (1993). Given these characteristics of the manual, and consistent with the relevant criteria discussed in the above-cited cases, we conclude that the manual was not required to be promulgated as a regulation.

2. Plaintiff's classification. Passing whether the plaintiff was required to exhaust his administrative remedies and then challenge his classification in court by means of an action for certiorari, we decline to address the merits of his claim, because it has become moot. The plaintiff was reclassified in January, 2010, and subsequently moved to a medium security facility, in March, 2010. See Pentlarge v. Commonwealth, 445 Mass. 1012, 1012 (2005) (appeal moot where relief requested on appeal has been provided).

The plaintiff argues that the merits nevertheless should be decided, because he is at risk of being classified on the basis of the same facts that previously led the department to assign him points for “history of escape or attempted escape” and “history of prior institutional violence.” We conclude, however, that the department is estopped by representations (made in its brief, at page 23, and at oral argument) that it cannot and will not rely upon those facts when performing subsequent reviews of the plaintiff's classification. Accordingly, this is not a situation where the issue presented is likely to arise in substantially the same form in the future. See generally Lockhart v. Attorney General, 390 Mass. 780, 783 (1984).

Judgment affirmed.


Summaries of

Cox v. Comm'r of Corr.

Appeals Court of Massachusetts.
Jan 22, 2013
83 Mass. App. Ct. 1107 (Mass. App. Ct. 2013)
Case details for

Cox v. Comm'r of Corr.

Case Details

Full title:William COX v. COMMISSIONER OF CORRECTION, & another.

Court:Appeals Court of Massachusetts.

Date published: Jan 22, 2013

Citations

83 Mass. App. Ct. 1107 (Mass. App. Ct. 2013)
981 N.E.2d 233

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