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13-P-1844                                               Appeals Court

 MICHAEL DEXTER       vs.   SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL
                            INSTITUTION, CONCORD.


                               No. 13-P-1844.

         Middlesex.         March 9, 2015. - September 11, 2015.

              Present:      Green, Trainor, & Carhart, JJ.

Imprisonment, Enforcement of discipline.        Administrative Law,
     Regulations. Regulation.


     Civil action commenced in the Superior Court Department on
September 10, 2012.

     The case was heard by Peter B. Krupp, J., on motions to
dismiss and for summary judgment, and a motion to reconsider or,
in the alternative, to alter or amend the judgment was
considered by him.


     Joan T. Kennedy for the defendant.


     TRAINOR, J.       The plaintiff, Michael Dexter, was a pretrial

detainee in custody at the Massachusetts Correctional

Institution at Concord (MCI-Concord) for at least part of 2012.1

The plaintiff filed a complaint seeking a declaration concerning


     1
       During the pendency of this litigation the plaintiff was
tried, convicted, sentenced, and moved to another facility.
                                                                      2


the property that pretrial detainees are allowed to possess at

MCI-Concord.    The defendant filed a motion to dismiss and the

plaintiff filed a motion for summary judgment.     A Superior Court

judge denied the defendant's motion to dismiss and granted the

plaintiff's motion for summary judgment, entering a declaratory

judgment stating:     "103 C.M.R. 403, et seq., shall apply to

inmates awaiting trial at MCI-Concord and no such inmate

awaiting trial shall be considered a 'transient inmate' within

the definition of that phrase in 103 C.M.R. 403.06."    The

defendant filed a motion to reconsider, or in the alternative,

to alter or amend the judgment, which was denied.     This appeal

followed.

     On appeal we are asked to determine the proper

interpretation and application of the inmate property regulation

as it applies to pretrial detainees.2

     Prison administrators are permitted "considerable

discretion in the adoption and implementation of prison

policies."     Royce v. Commissioner of Correction, 390 Mass. 425,


     2
       The parties agree that the requested interpretation is
fundamentally a question of law. Both parties also agree that,
despite the plaintiff being subsequently convicted, sentenced,
and incarcerated, this matter falls within an exception to the
mootness doctrine because it is "capable of repetition, yet
evading review." Karchmar v. Worcester, 364 Mass. 124, 136
(1973), quoting from Southern Pac. Terminal Co. v. Interstate
Commerce Commn., 219 U.S. 498, 515 (1911). A significant number
of G. L. c. 276, § 52A, pretrial detainees are held in our State
prison system.
                                                                      3


427 (1983).   "However, the limits of such discretion are

established by the rules and regulations promulgated by the

Department of Correction.   Once an agency has seen fit to

promulgate regulations, it must comply with those regulations.

[A]gency regulations have the force of law."    Ibid. (citations

omitted).   Here, the Department of Correction is bound by its

"inmate property" regulation, as promulgated in 103 Code Mass.

Regs. §§ 403.00 (2001) (the regulation).

    The "Applicability" section of the regulation states that

it is applicable to "all inmates, whether sentenced or awaiting

trial, incarcerated at state correctional institutions."      103

Code Mass. Regs. § 403.04 (2001) (emphasis supplied).       Section

403.04 makes it clear that pretrial detainees awaiting trial are

considered to be inmates within the institution for the purposes

of the inmate property regulation.

    The "Definitions" section of the regulation provides that a

transient inmate is "any inmate whose security classification

has yet to be determined or who has not been assigned to a

permanent housing location."   103 Code Mass. Regs. § 403.06

(2001).   The "Approved Inmate Property by Security Level"

section of the regulation first outlines items to which all

inmates shall be provided access.    103 Code Mass. Regs.

§ 403.10(1) (2001).   Additionally, § 403.10(4) (2001) provides:
                                                                   4


     "a master list of items approved for retention by inmates
     in general population in accordance with their security
     level. This is not required issue and is for property
     purposes only. Please refer to 103 DOC 755 for minimum
     institutional clothing issue. Unless an inmate is
     transient, his security level is the same as the
     institution in which he is housed."3

This description is followed by a chart that details approved

items for transient, boot camp, and inmates with security levels

of one through six.

     The defendant asserts that a pretrial detainee who is held

pursuant to G. L. c. 276, § 52A, is considered a transient

inmate under 103 Code Mass. Regs. §§ 403.00 (2001).4   "We

ordinarily accord an agency's interpretation of its own

regulation[s] considerable deference.   The party challenging an

     3
       In addition, "[t]ransient inmates may retain the clothing
worn during transportation so long as it meets security level
property guidelines of the receiving institution." 103 Code
Mass. Regs. § 403.09(2) (2001) (approved property for inmates
being transported). This does not mean however, that transient
inmates are allowed property generally, according to the
security classification of the receiving institution, and
applies only to clothing worn during transportation.
     4
       The plaintiff asserted below that the interpretation at
issue in this case is not used consistently across the
Department of Correction. Cf. Connery v. Commissioner of
Correction, 414 Mass. 1009, 1010 (1993) ("Because the
interpretation now urged by the defendants was not
contemporaneous with the enactment of the statute and is
inconsistent with the contemporaneous [and long-standing]
interpretation made by the agencies at the time of enactment,
the Appeals Court correctly did not accord 'substantial
deference' to the defendants' current interpretation"). It is
the plaintiff's burden, however, to prove that the agency's
interpretation is arbitrary. As the Superior Court judge
acknowledged, the plaintiff did not provide evidence to support
such an assertion.
                                                                  5


agency's interpretation of its own rules has a 'formidable

burden' of showing that the interpretation is not rational."

Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222,

228 (2010) (citations omitted).   See Manor v. Superintendent,

Mass. Correctional Inst., Cedar Junction, 416 Mass. 820, 824

(1994) ("We agree that agency interpretations of their own

regulations are entitled to deference.   However, 'courts will

not hesitate to overrule agency interpretations of rules when

those interpretations are arbitrary, unreasonable, or

inconsistent with the plain terms of the rule itself'")

(citation omitted); TBI, Inc. v. Board of Health of N. Andover,

431 Mass. 9, 17 (2000), quoting from Brookline v. Commissioner

of the Dept. of Envtl. Quality Engr., 398 Mass. 404, 414 (1986)

("We only disturb an agency's interpretation of its own

regulation if the 'interpretation is patently wrong,

unreasonable, arbitrary, whimsical, or capricious'"); Shelales

v. Director of the Office of Medicaid, 75 Mass. App. Ct. 636,

640 (2009) ("Where ambiguities exist, a reviewing court must

show deference to the experience, technical competence,

specialized knowledge, and discretionary authority conferred

upon the regulatory agency").

    Here, nothing in the plain language of the regulation

specifies that an inmate awaiting trial cannot be considered a

transient inmate.   Pretrial detainees are defined as inmates
                                                                    6


awaiting trial in § 403.04, and § 403.10 specifies property that

inmates are allowed to access as determined by their security

level.

     A transient inmate is defined as an inmate whose "security

classification has yet to be determined" or an inmate "who has

not been assigned to a permanent housing location."5   103 Code

Mass. Regs. § 403.06 (2001).   While classification as a pretrial

detainee versus an inmate might otherwise be an important

distinction to the Department of Correction, the regulation

pertaining to property access rights clearly considers both

categories to be inmates.   In addition, G. L. c. 125, entitled

"Correctional Institutions of the Commonwealth," defines in § 1

"inmate" with respect to "this chapter and elsewhere here in the

general laws, unless the context otherwise requires," as "a

     5
       The Superior Court judge's focus on the word "yet" as
necessarily excluding pretrial detainees is misplaced. The
judge reasoned that because only sentenced inmates can receive a
security classification and only sentenced inmates can receive a
permanent housing location, a transient inmate only can be a
sentenced inmate. The pretrial detainee therefore must be given
property access rights equal to the security level of the
institution in which he or she is being housed.

     This logic, however, ignores the applicability section of
the regulation which includes both individuals sentenced and
those awaiting trial in the term "inmate." To that end, the
term "transient inmate" in this regulation necessarily applies
to both individuals who are sentenced and those awaiting trial
who have not completed one of the two processes identified.
Furthermore, this logic would assign a security level for
property access purposes, as if the institution used for the
purposes of pretrial detention were the inmate's permanent
housing location. This was error.
                                                                        7


committed offender or such other person as is placed in custody

in a correctional facility in accordance with law" (emphasis

supplied).      G. L. c. 125, § 1, as appearing in St. 1972 c. 777,

§ 8.       The property regulation applies equally to all inmates,

whether pretrial and unsentenced, sentenced but not yet

classified, sentenced and classified, assigned to a permanent

housing location, or not yet assigned to a permanent housing

location.

       It is reasonable to conclude that the regulation intended

to have both those sentenced inmates, who have not completed the

process of classification or been assigned a permanent housing

location, and all pretrial detainees, who will not complete

either of these processes unless and until they are found guilty

and sentenced, included as transient inmates.       There is no other

appropriate classification in the regulation for such an inmate:

one who has neither gone through the classification process nor

been assigned a permanent housing location.      All other property

access categories require a security classification.       We defer,

as the motion judge should have, to the defendant's reasonable

interpretation of its own regulation.6      As the regulation states,


       6
       Although the defendant was not required to proffer
evidence that its interpretation was reasonable and based upon
practical administrative and security considerations, the
defendant did submit such evidence as part of its motion to
reconsider or to alter and amend. This evidence suggests it
would be an administrative burden and create security risks to
                                                                   8


103 Code Mass. Regs. §§ 403.00 (2001) applies to inmates

awaiting trial.   An inmate awaiting trial is considered a

transient inmate within the definition of that phrase in 103

Code Mass. Regs. § 403.06 (2001).

    The defendant's motion to dismiss should have been allowed.

The plaintiff's motion for summary judgment should have been

denied.   Accordingly, the judgment is reversed, and the case is

remanded for entry of judgment for the defendant.

                                    So ordered.




implement the plaintiff's interpretation of the regulation in
which pretrial detainees are considered to be "inmates in [the]
general population" whose "security level is the same as the
institution in which he is housed." 103 Code Mass. Regs.
§ 403.10(4) (2001).
