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14-P-1262                                            Appeals Court

  EUGENE M. IVEY & another1      vs. COMMISSIONER OF CORRECTION &
                                others.2


                            No. 14-P-1262.

            Suffolk.      May 4, 2015. - August 13, 2015.

             Present:    Grainger, Hanlon, & Carhart, JJ.


Imprisonment, Department disciplinary unit, Enforcement of
     discipline. Administrative Law, Regulations. Due Process
     of Law, Prison disciplinary proceedings. Practice, Civil,
     Declaratory proceeding.


     Civil action commenced in the Superior Court Department on
January 9, 2012.

     The case was heard by Bonnie H. MacLeod, J., on motions for
summary judgment.


     Bonita Tenneriello for the plaintiffs.
     C. Raye Poole for the defendants.


     CARHART, J.    Plaintiffs Eugene M. Ivey and Francis Lang

appeal from a summary judgment in favor of the defendants on the

     1
         Francis Lang.
     2
       The deputy commissioner of the Department of Correction
and the superintendent of the Massachusetts Correctional
Institution at Cedar Junction.
                                                                   2


plaintiffs' complaint for declaratory and injunctive relief.

The defendants are officials of the Department of Correction

(hereinafter, collectively, the DOC).    The plaintiffs, who are

prisoners at the Massachusetts Correctional Institution at Cedar

Junction (MCI-Cedar Junction), sought a declaration that an

informal DOC policy regarding segregation in the departmental

disciplinary unit (DDU) violates the DOC inmate discipline

regulations (103 Code Mass. Regs. §§ 430.00, hereinafter,

regulations), and an order enjoining the DOC from enforcing the

policy.   Because we conclude that the informal policy was

canceled as a matter of law by amendments to the regulations, we

vacate the judgment.

     Background.   The summary judgment record reflects the

following undisputed facts.    The DDU is located on the grounds

of MCI-Cedar Junction.    All inmates entering the DDU are

provided a "DDU Inmate Orientation Manual" (DDU manual), which

is updated annually.3    Once inmates arrive in the DDU, they

become subject to a policy (the policy) in the DDU manual:

     "The DDU Administrator/designee shall initially review the
     status of each inmate placed in the DDU within 30 days of
     placement. Thereafter, each inmate's status shall be
     reviewed every 30 days. An inmate will lose credit for
     time served in DDU and loss of all pending and previously
     earned privileges (i.e., TV, radio, visits, and telephone)
     if he is found guilty of:


     3
       Every DDU inmate is given a new DDU manual when it is
updated.
                                                                        3


                  one Category   1 disciplinary report
                  one Category   2 disciplinary report
                  one Category   3 AND one Category 4 disciplinary
                   report
                  two Category   3 disciplinary reports or
                  two Category   4 disciplinary reports

    "The loss of credit will occur for the review period in
    which the report was written."

    The policy previously had been codified at 103 Code Mass.

Regs. § 430.25(3)(d) (1993) ("An inmate shall be credited for

time served [in the DDU] on a monthly basis except when an

inmate fails to attend his monthly review or is found guilty of

a disciplinary offense"), and appeared in the 2002 version of

the DDU manual.      However, in 2006, the DOC amended its

regulations in accordance with the Administrative Procedures

Act, G. L. c. 30A, §§ 2-6, and removed the language of the

policy.   The policy nevertheless appeared in the 2008, 2009,

2010, 2011, and 2012 versions of the DDU manual.        The practical

effect of the policy is that "no sanction is recommended when a

DDU inmate is found guilty of a disciplinary report/s as set

forth in the DDU Manual; rather, the sanction in the DDU Manual

is applied."

    Both plaintiffs were sentenced to fixed terms in the DDU.

Following separate hearings before a special hearing officer,

Ivey received DDU sentences of ten years, one year, and six

months.   While serving the ten-year sentence, Ivey had sixteen
                                                                    4


review periods in which he incurred guilty findings on

disciplinary reports.4    For each disciplinary report, Ivey was

given notice of the charges, a hearing, and the chance to appeal

the guilty finding.    Pursuant to the policy, he was denied one

month's credit toward his DDU sentence for each review period in

which he was found guilty of a disciplinary violation.    Ivey's

release date from the DDU thus was extended by sixteen months.

Ivey filed a grievance regarding the denial of credit, arguing

that he was entitled under the regulations to a special hearing

before losing credit toward his DDU sentence.    Ivey's grievance

was denied by the superintendent of MCI-Cedar Junction, whose

written decision stated that "[i]t is a condition of receiving

credit toward an existing DDU sentence that an inmate refrains

from disciplinary violations."

     Lang received a six-year DDU sentence after a hearing

before a special hearing officer.    While serving this sentence,

Lang had fourteen review periods in which he was found or

pleaded guilty to category two, three, and four disciplinary

reports.    Lang had notice of, and an opportunity to participate

in, the hearings on each of these disciplinary reports, and he

was able to appeal the findings of guilt.    Lang was sanctioned

with restitution for two of his disciplinary violations; he

received no sanction for the others.    Instead, Lang was denied

     4
         Two of these resulted in the additional DDU sentences.
                                                                      5


fourteen months of credit toward his DDU sentence, pursuant to

the policy.   Lang did not file a grievance or appeal the denial

of credit.

     In 2012, the plaintiffs filed in Superior Court a complaint

for declaratory and injunctive relief, alleging that the policy

violates the regulations and the plaintiffs' due process rights,

and is invalid because it constitutes a regulation adopted

without notice and comment as required by the Administrative

Procedures Act, G. L. c. 30A, §§ 2-6.    Both parties moved for

summary judgment.   Relying on footnote three of an unpublished

decision issued pursuant to our rule 1:28, Gaskins v. Marshall,

84 Mass. App. Ct. 1134 (2014), a judge allowed the DOC's motion

for summary judgment.5    The plaintiffs appeal "only the dismissal

of their claim that the Policy violates the Inmate Discipline

regulations."

     Discussion.    1.   Statutory framework.   "The department has

promulgated detailed regulations governing disciplinary actions

in State correctional institutions."     Kenney v. Commissioner of


     5
       In footnote three of Gaskins, the panel noted that 103
Code Mass. Regs. § 430.25(3)(d) (1993) was amended in 2006,
"leaving the treatment of DDU time to the discretion of prison
officials." The issue in Gaskins was whether extension of a DDU
sentence pursuant to 103 Code Mass. Regs. § 430.25(3)(d) (2006)
violated the inmate's due process rights. Citing Sandin v.
Conner, 515 U.S. 472, 482 (1995), we declined to consider the
changes to § 430.25(3)(d) "[b]ecause the prison policy was in
the discretion of the prison officials, and . . . the
requirements of due process were also satisfied."
                                                                     6


Correction, 393 Mass. 28, 31 (1984).    These regulations identify

four categories of disciplinary offenses for which inmates may

be sanctioned; category one and category two offenses are

considered the most serious, while category three and category

four offenses are considered minor.    103 Code Mass. Regs.

§ 430.24 (2006).6    "Sanctions for each Category 1 offense"

include "[r]eferral to [the DDU] for a period not to exceed ten

years for all violations arising out of one incident or

substantially related incidents," while sanctions for each

category two offense include referral to the DDU for a period

not to exceed five years.    103 Code Mass. Regs. § 430.25(1)(f)

and (2)(f) (2006).    Inmates convicted of a category three or

category four offense may not be sentenced to DDU.    103 Code

Mass. Regs. § 430.25(3) and (4) (2006).

     The regulations contain a specific procedure for initial

referrals to DDU, see 103 Code Mass. Regs. § 430.08 (2006), and

provide that, except for initial referrals to DDU, "disciplinary

matters which may result in the inmate receiving a sentence to a

[DDU] shall comply with the provisions of 103 CMR 430.00."

Ibid.    Under those provisions, an inmate who has incurred a

disciplinary report is entitled to a copy of the report, a

notice of hearing, and automatic discovery regarding the alleged


     6
       Section 430.24 of 103 Code Mass. Regs. was amended,
effective November 14, 2014, but in a manner not relevant here.
                                                                   7


violation(s).   103 Code Mass. Regs. § 430.11(1) (2006).    A

hearing must be scheduled "within a reasonable time" after the

inmate has received notice of the charges.   Ibid.   A hearing

officer conducts the hearing, and "shall make findings of fact,

determine guilt or innocence, and make sanction

recommendations."   103 Code Mass. Regs. § 430.13(1) and (6)

(2006).   The hearing officer "may recommend one or more of the

sanctions listed in 103 CMR 430.25," 103 Code Mass. Regs.

§ 430.16(2) (2006), but "[n]o more than one sanction shall be

imposed per offense and no more than five sanctions (in addition

to restitution) may be imposed for all offenses arising out of

[any one] or substantially related incidents in which the

highest offense(s) alleged is from Category 1."   103 Code Mass.

Regs. § 430.25(1) (2006).7   "All inmates may appeal the finding

or sanction(s) of the Hearing Officer to the Superintendent"

within fifteen days of receipt of a written decision, and the

deputy superintendent must review the disposition "within ten


     7
       "[N]o more than four sanctions (in addition to
restitution) may be imposed for all offenses arising out of [any
one] or substantially related incidents in which the highest
offense(s) alleged is from Category 2"; "no more than three
sanctions (in addition to restitution) may be imposed for all
offenses arising out of [any one] or substantially related
incidents in which the highest offense(s) alleged is from
Category 3"; and "no more than two sanctions (in addition to
restitution) may be imposed for all offenses arising out of [any
one] or substantially related incidents in which the highest
offense(s) alleged is from Category 4." 103 Code Mass. Regs.
§ 430.25(2)-(4) (2006).
                                                                     8


business days of the conclusion of the appeal process, to ensure

that all procedural guidelines established in accordance with

103 CMR 430.00, have been complied with."    103 Code Mass. Regs.

§§ 430.18(1), 430.19 (2006).

    2.   Standards of review.    Because they allege that the

policy violates DOC regulations, the plaintiffs properly brought

this action under the declaratory judgment act.    See G. L.

c. 231A, § 2; Mass.R.Civ.P. 57, 365 Mass. 826 (1974); Nelson v.

Commissioner of Correction, 390 Mass. 379, 387-388 (1983); Royce

v. Commissioner of Correction, 390 Mass. 425, 426 (1983).       To be

entitled to summary judgment on their challenge to the DOC's

policy, the plaintiffs bore the burden of demonstrating the

absence of a triable issue regarding whether "the [policy] is

'illegal, arbitrary, or capricious.'"    Ciampi v. Commissioner of

Correction, 452 Mass. 162, 166 (2008), quoting from Borden, Inc.

v. Commissioner of Pub. Health, 388 Mass. 707, 722, cert.

denied, 464 U.S. 936 (1983).    The plaintiffs rely on the 1995

regulations, the amended 2006 regulations, their statement of

undisputed facts with the DOC's response thereto, and their

affidavits to support their argument that enforcement of the

policy is (1) arbitrary and capricious in light of its removal

from the regulations; (2) illegal with respect to Ivey because

it has caused him to be held beyond the ten-year maximum

allowable time under the regulations for a single offense, and
                                                                      9


has resulted in new DDU sentences in the form of denial of

credit without a DDU hearing; and (3) illegal with respect to

Lang because it has resulted in Lang receiving new DDU sentences

in the form of denial of credit for offenses that are not

sanctionable by the DDU, and without the special DDU hearing

required by the regulations.

    As the party who would not bear the burden of proof at

trial, the DOC was required to "demonstrate[], by reference to

material described in Mass.R.Civ.P. 56(c), unmet by

countervailing materials, that the [plaintiffs had] no

reasonable expectation of proving an essential element of

[their] case."     Kourouvacilis v. General Motors Corp., 410 Mass.

706, 716 (1991).     The DOC relied on the pleadings, its responses

to the plaintiffs' statement of undisputed facts, the DDU

manual, and an affidavit from a correctional officer assigned to

the DDU to show that prison administrators are not precluded by

the regulations from enforcing the policy.

    The judge allowed the DOC's motion for summary judgment,

and we review her decision de novo.     Miller v. Cotter, 448 Mass.

671, 676 (2007).    We look to the summary judgment record to

determine "whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a
                                                                     10


matter of law."     Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991).

       3.   Analysis.    The dispositive issue is whether the

regulations promulgated in 2006 canceled the policy as a matter

of law.     "The interpretation of a regulation is a question of

law which we review de novo," Commonwealth v. Hourican, 85 Mass.

App. Ct. 408, 410 (2014), applying "the traditional rules of

statutory construction," Young v. Patukonis, 24 Mass. App. Ct.

907, 908 (1987).        "This is so because a properly promulgated

regulation has the force of law . . . and must be accorded all

the deference due to a statute."       Borden, Inc., 388 Mass. at

723.

       As with statutes, regulations "must be interpreted as

promulgated."     Morin v. Commissioner of Pub. Welfare, 16 Mass.

App. Ct. 20, 24 (1983).       "Words are to be accorded their

ordinary meaning and approved usage," Boston Hous. Authy. v.

National Conference of Firemen & Oilers, Local 3, 458 Mass. 155,

162 (2010), when "the language used constitutes the principal

source of insight into regulatory purpose."        Morin, supra.

While "[o]rdinarily the interpretation of an administrative body

gives to its own regulation is entitled to deference and may be

controlling," ibid., the "duty of statutory interpretation rests

ultimately with the courts," Town Fair Tire Centers, Inc. v.

Commissioner of Rev., 454 Mass. 601, 605 (2009).
                                                                       11


       The regulations establish a system "governing disciplinary

proceedings involving inmates of state correctional

institutions."      103 Code Mass. Regs. § 430.01 (2006).    The

regulations apply "to inmates housed at all correctional

institutions within the [DOC]," including those housed in the

DDU.       103 Code Mass. Regs. § 430.04 (2006).   Initial referrals

to the DDU are governed by the procedures set forth at 103 Code

Mass. Regs. § 430.08(1)-(6) (2006), and except for violations

that would result in an initial referral to the DDU,

"disciplinary matters which may result in the inmate receiving a

sentence to a [DDU] shall comply with the provisions of 103 CMR

430.00."8      103 Code Mass. Regs. § 430.08 (2006).   Thus, under the

plain language of the regulations, all disciplinary matters not

involving initial referral to the DDU, including those involving

DDU inmates, must comply with the regulations.

       Under the regulations, sanctions for each category of

offense "are as follows" (emphasis supplied).        103 Code Mass.

Regs. § 430.25 (2006).       Denial of credit is not listed as a

       8
       The parties dispute whether denial of credit pursuant to
the policy constitutes a new DDU sentence. The plaintiffs argue
that it does, because "[a]n additional month in the DDU . . .
feels exactly the same to the prisoner, whether it is called a
'sanction,' an 'extension' or the 'denial of credit.'" The DOC
argues that it does not, because "[i]t is a condition of
receiving credit toward an existing DDU sentence that an inmate
refrains from disciplinary violations." Resolution of this
disputed fact is not required, as it is not material to the
question whether the policy was canceled when the DOC amended
its regulations.
                                                                   12


sanction, yet it is undisputed that none of the sanctions set

forth in the regulations "is recommended when a DDU inmate is

found guilty of a disciplinary report/s as set forth in the DDU

Manual; rather, the sanction in the DDU Manual [of mandatory

denial of credit] is applied."     Thus, DDU inmates like Lang who

have been convicted of category three and four offenses are not

sanctioned pursuant to 103 Code Mass. Regs. § 430.25(3) and (4)

(2006), as required by the regulations, but are denied credit

toward their DDU sentence pursuant to the policy and must stay

in the DDU for one extra month, notwithstanding the fact that

DDU is not a permissible sanction for category three and four

offenses.

    Inmates like Ivey who have received the maximum DDU

sanction allowable under the regulations for a single category

one offense are not sanctioned under the regulations for

committing subsequent disciplinary violations; instead they are

denied credit toward their maximum sentence.    This effects a

sanction longer than that permitted under the regulations

because "[p]enalties for violation of the terms of [confinement

in the DDU], including the penalty of additional [time in the

DDU for subsequent violations], are attributed to the original

[DDU sentence] rather than to the violation."    Commonwealth v.

Cory, 454 Mass. 559, 564 (2009).    Because these undisputed facts

demonstrate that the policy conflicts with the plain language of
                                                                    13


the regulations, the policy was canceled as a matter of law by

the regulations.    103 Code Mass. Regs. § 430.03 (2006)

(regulations effective January 30, 2006, "cancel[] all previous

departmental or institutional policy statement [and] rules or

regulations . . . regarding the conduct of disciplinary

proceedings, to the extent they are inconsistent with 103 CMR

430.00").

    The DOC argues that it is not precluded by the regulations

from enforcing the policy because the "provision regarding

losing credit/not being credited was in the DDU Manual and/or

the DDU Handbook for many years prior to promulgation of the

2006 version of the regulation."    The DOC further points to the

policy's inclusion in the 2008 through 2012 versions of the DDU

manual as evidence that enforcement of the policy is not

precluded.   The motion judge agreed that the DOC could continue

to enforce the policy because it "merely fills in certain

details concerning the handling of disciplinary matters that

occur in the DDU."    See Massachusetts Gen. Hosp. v. Rate Setting

Commn., 371 Mass. 705, 707 (1977) (agencies may issue advisory

or informational guidelines intended "to fill in the details or

clear up an ambiguity of an established policy").

    We recognize that "courts permit prison administrators

considerable discretion in the adoption and implementation of

prison policies."    Royce, 390 Mass. at 427.   "However, the
                                                                    14


limits of such discretion are established by the rules and

regulations promulgated by the Department of Correction."    Ibid.

DOC regulations carry the force of law and are binding, Dougan

v. Commissioner of Correction, 34 Mass. App. Ct. 147, 148

(1993), "and the defendants are required to comply with their

terms," Stokes v. Commissioner of Correction, 26 Mass. App. Ct.

585, 588 (1988).   Agency guidelines are not entitled to

deference if they misapply the law, Metropolitan Prop. & Cas.

Ins. Co. v. Blue Cross & Blue Shield of Mass., Inc., 451 Mass.

389, 397 (2008), and the law in this case creates a detailed

system for handling disciplinary violations by inmates,

including DDU inmates, that does not include denying them credit

toward their DDU sentences.   "Once an agency has seen fit to

promulgate regulations, it must comply with those regulations."

Royce, supra.   The DOC "exercised its discretion and changed its

policy" to remove denial of credit as a permissible sanction for

disciplinary violations by DDU inmates, John Donnelly & Sons,

Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 213 (1975), and

it then was "bound by the mandate of its own regulations," Good

v. Commissioner of Correction, 417 Mass. 329, 332 (1994).    The

DOC must comply with its regulations "not only to make the

process of imposing discipline on prison inmates more fair, but

to assure the inmates and the public of the integrity of the

process."   Stokes, supra at 591.   Only "[w]ith these procedural
                                                                    15


safeguards in place [does] DDU's disciplinary process comport[]

with the requirements of the Fourteenth Amendment."     Torres v.

Commissioner of Correction, 427 Mass. 611, 618, cert. denied,

525 U.S. 1017 (1998).     The DOC's prior approval of the policy

"is of no consequence" in light of the amendments to the

regulations, John Donnelly & Sons, Inc., supra; the regulations

promulgated in 2006, "as the last expression of the [DOC],

control[]."    Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215

(1997).   "[I]ndividuals within the agency may not arbitrarily

disregard agency regulations to the prejudice of a party's

rights," Kenney, 393 Mass. at 33, and the DOC's continued

enforcement of the policy notwithstanding its removal from the

regulations "lead[s] to results which are both arbitrary and

inequitable."    Kszepka's Case, 408 Mass. 843, 847 (1996).

Accordingly, the policy cannot stand.9

     Conclusion.     The declaratory judgment in favor of the DOC

is vacated.     A new judgment shall enter stating that the policy

conflicts with the regulations and was canceled as a matter of

law in 2006.    Furthermore, the judgment shall enjoin the DOC

from violating the regulations by denying a DDU inmate credit

toward his DDU sentence upon conviction of disciplinary

     9
       Gaskins does not require a different result, as the issue
presented in that case was not whether the policy is arbitrary
or illegal in light of the 2006 amendments to the regulations,
but whether 103 Code Mass. Regs. § 430.25(3)(d) (1995), effected
a deprivation of liberty without due process of law.
                                                             16


violations.   The case is remanded for further proceedings

consistent with this opinion.

                                    So ordered.
