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17-P-814                                            Appeals Court
17-P-968

           BRIAN BUTLER vs. THOMAS A. TURCO & others1
                     (and a companion case2).


                       Nos. 17-P-814 & 17-P-968.

 Worcester.      Suffolk.      February 5, 2018. - March 30, 2018.

            Present:   Meade, Sullivan, & Wendlandt, JJ.


Imprisonment, Grievances. Commissioner of Correction.
     Constitutional Law, Imprisonment, Ex post facto law, Double
     jeopardy, Cruel and unusual punishment. Due Process of
     Law, Prison regulation. Practice, Civil, Dismissal.



     Civil 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.


    1  Sean Medeiros and Lynn Lizotte. The defendants were sued
in their official capacities. As pertinent here, Turco was the
Commissioner of Correction, Medeiros was the Superintendent of
Massachusetts Correctional Institution at Norfolk (MCI-Norfolk),
and Lizotte was the Deputy Superintendent for classification and
treatment at MCI-Norfolk.

    2   Owen McCants vs. Superintendent, MCI-Norfolk.
                                                                    2


     A motion to dismiss was heard by Paul D. Wilson, J.


     Brian Butler, pro se.
     Owen McCants, pro se.
     Sheryl F. Grant for the defendants.


     MEADE, J.   The 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 be3 various constitutional

infirmities in the PES program.    We consolidated the cases for

hearing in this court, and now affirm.

     Background.   PES program.   In 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


     3 Butler's complaint advances several specific
constitutional claims. McCants's complaint is less clear. We
read it, however, to include the same arguments as Butler's
complaint.
                                                                    3


attend recommended programs, spending their time in ways that

did not address "the very issues that [would] decrease the

likelihood that they recidivate."4   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.5   Under PES, privileges are awarded as incentives

for inmates who voluntarily participate in programs and are


     4 Butler takes issue with the department's use of the word
"criminogenic" in its description of PES, which provides, in
pertinent part:

     "[T]he inability to mandate program participation for high
     to moderate risk offenders . . . has lead to many offenders
     refusing to address their criminogenic need areas
     increasing the likelihood they will recidivate soon after
     release."

Butler claims the term refers to offenders possessing a
"criminal gene." We note that, besides being insufficient to
rise to the level of appellate argument, see Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975), Butler's claim is
based on a misunderstanding. The term does not relate to genes
or genetics. Rather, "criminogenic" refers to the tendency to
cause crime or criminality, or, something that "contributes to
the occurrence of crime." Coleman v. Schwarzenegger, 922 F.
Supp. 2d 882, 973 n.68 (E.D. Cal. 2009).

     5 The department appears to have modelled PES on a similar
program at the Massachusetts Treatment Center (MTC). At MTC,
rather than mandating program participation, which the
department is apparently unable to do, MTC rewarded offenders
who participated, and "[o]ffenders who refused programming were
assigned to an accountability unit without televisions, hot
pots, microwaves and [with] limited job privileges." As a
result, MTC's program participation increased by thirty percent.
                                                                    4


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.

     Butler.   Butler 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

appellate review.6

     Butler 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.


     6 See Commonwealth v. Butler, 41 Mass. App. Ct. 1101, S.C.,
423 Mass. 1107 (1996).
                                                                     5


     McCants.    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.7        He

later filed a motion for new trial, which was denied.     This

court affirmed that denial.8

     McCants 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

assignment, institutional job, and seniority9 with respect to

housing and job placement.

     Discussion.    1.   Standard of review.   "We review the

allowance of a motion to dismiss de novo. . . .     We accept as

true the facts alleged in the plaintiffs' complaint as well as

any favorable inferences that reasonably can be drawn from

     7 See Commonwealth v. McCants, 65 Mass. App. Ct. 1121, S.C.,
447 Mass. 1102 (2006).

     8   Commonwealth v. McCants, 83 Mass. App. Ct. 1129 (2013).

     9 On March 5, 2014, McCants was assigned a seniority date of
March 5, 2014. On July 25, 2014, without explanation in the
record or in McCants's brief, he was given a new seniority date
of July 22, 2014. This does not affect our analysis.
                                                                      6


them."    Galiastro v. Mortgage Electronic Registration Sys., 467

Mass. 160, 164 (2014).    To survive a motion to dismiss, a

plaintiff must include in the complaint factual allegations that

sufficiently "raise a right to relief above the speculative

level."    Iannacchino v. Ford Motor Co., 451 Mass. 623, 636

(2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007).

    2.     Due process.   We construe some of Butler's claims to be

due process claims, i.e., that PES consequences imposed on him

denied him of liberty for which he should have been afforded due

process.   We disagree.   "The Fourteenth Amendment [to the United

States Constitution] prohibits any State from depriving a person

of life, liberty, or property without due process of law."

Meachum v. Fano, 427 U.S. 215, 223 (1976).     A liberty interest

may arise from the Constitution itself, or it may arise from an

expectation or interest created by State laws or regulations.

See Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974).     See also

Torres v. Commissioner of Correction, 427 Mass. 611, 617, cert.

denied, 525 U.S. 1017 (1998) ("Prison inmates have the

protections of procedural due process only if there is an

existing liberty or property interest at stake").     However, for

prisoners, liberty interests are generally limited to "freedom

from restraint which . . . imposes atypical and significant

hardship . . . in relation to the ordinary incidents of prison
                                                                      7


life."      Sandin v. Conner, 515 U.S. 472, 484 (1995).10   See

Wilkinson v. Austin, 545 U.S. 209, 221-223 (2005).

       Thus, the Sandin standard requires us to determine whether

the PES "imposes atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life."       Sandin

v. Conner, supra.      It does not.   The due process clause itself

does not create a liberty interest in inmates having a room of

their choice, maintaining seniority in their housing

assignments, or keeping an institutional job.      See id. at 484-

485.    See also LaChance v. Commissioner of Correction, 88 Mass.

App. Ct. 507, 512 n.9 (2015) ("[L]oss of prison employment or

participation in the garden program does not implicate a liberty

or property interest").      Furthermore, nothing in the record

suggests that returning to a more "default" housing and

employment status is atypical of ordinary prison life, a

necessary prerequisite for a due process claim under Sandin.

Although Butler's decrease in seniority and loss of the single


       Prior to Sandin, the Court had employed a methodology for
       10

identifying State-created liberty interests that emphasized "the
language of a particular [prison] regulation" instead of "the
nature of the deprivation." Sandin v. Conner, supra at 481.
See Hewitt v. Helms, 459 U.S. 460, 469-472 (1983). In Sandin,
the Court criticized this methodology as creating a disincentive
for States to promulgate procedures for prison management, and
as involving the Federal courts in the day-to-day management of
prisons. Sandin v. Conner, supra at 482-483. As a result, the
Court abrogated the former methodology of parsing the language
of particular regulations in search of mandatory directives from
which a State-created liberty interest may have sprung. Id. at
483 & n.5.
                                                                      8


room may have been a dramatic change in his circumstances, that

does not elevate his conditions to "the type of atypical,

significant deprivation in which a State might conceivably

create a liberty interest."   Sandin v. Conner, supra at 486.

See Murphy v. Cruz, 52 Mass. App. Ct. 314, 319 (2001) ("The

plaintiff's temporary loss of canteen privileges and attendance

at the residents council's meeting are at most losses of

privileges that do not give rise to a liberty interest").     Also,

courts have repeatedly held that no liberty interest exists in

these incentives.   See, e.g., DuPont v. Saunders, 800 F.2d 8, 10

(1st Cir. 1986) (no "property or liberty rights to either obtain

or maintain prison jobs"); Restucci v. Clarke, 669 F. Supp. 2d

150, 157 (D. Mass. 2009) ("There is . . . no constitutionally

protected right to a single-cell").

    Nor does the PES "inevitably affect the duration of

[Butler's] sentence."   Sandin v. Conner, supra at 487.    Butler

has not been impermissibly incarcerated beyond his sentence, nor

was he denied parole solely as a result of PES consequences.     On

the contrary, Butler was denied parole on January 4, 2012 --

roughly two years prior to the PES amendment and its effective

date of January 1, 2014 -- for denying his offenses, refusing to

participate in SOTP, and failing to demonstrate that he was

rehabilitated.   He was again denied parole on January 10, 2014.
                                                                  9


Butler is not scheduled for release until 2019.11    As in

Dominique v. Weld, were we to rule in favor of Butler on his

claims, "we would open the door to finding an 'atypical

restraint' whenever an inmate is moved from one situation to a

significantly harsher one that is, nonetheless, a commonplace

aspect of prison existence."   Dominique v. Weld, 73 F.3d 1156,

1160 (1st Cir. 1996).    We decline to do so.

     To the extent that Butler alleges the department failed to

follow its internal procedures, stated in 103 Code Mass. Regs.

§ 420.09 (2007), in assessing his compliance with the SOTP, we

note that this section merely establishes the rules and

procedures related to classification of inmates "to determine

the status of an inmate's housing, program[,] and work

assignment within a correctional facility."     103 Code Mass.

Regs. § 420.06 (2007).   These procedures must be followed when

an inmate undergoes a periodic internal classification status

review, which must occur regularly at predetermined intervals,

and not, as here, when a PES-initiated removal of certain

privileges occurs.   Put another way, when Butler is

reclassified, these procedures will guide the department in




     11Butler does not enjoy a liberty interest in being granted
parole, and he makes no such claim. See Greenholtz v. Inmates
of the Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979);
Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836 (1996).
                                                                   10


assessing his housing, program compliance, and work assignment,

but were not required under the circumstances presented here.

    3.    Ex post facto.   Butler next claims that PES

consequences are impermissible ex post facto laws.    We disagree.

The United States Constitution prohibits States from passing ex

post facto laws.    United States Constitution, art. I, § 10.

These include "[e]very law that changes the punishment, and

inflicts a greater punishment, than the law annexed to the

crime, when committed."    Miller v. Florida, 482 U.S. 423, 429

(1987), quoting from Calder v. Bull, 3 U.S. (3 Dall.) 386, 390

(1798).   "[T]he proper focus of [the] ex post facto inquiry is

whether the relevant change 'alters the definition of criminal

conduct or increases the penalty by which a crime is

punishable."   Dominique v. Weld, 73 F.3d at 1162, quoting from

California Dept. of Corrections v. Morales, 514 U.S. 499, 506

n.3 (1995).    The prohibition against ex post facto laws

necessarily relates to punishment, and not "remedial" policies,

such as PES.   See Lyman v. Commissioner of Correction, 46 Mass.

App. Ct. 202, 207 (1999).    See also Opinion of the Justices to

the Senate, 423 Mass. 1201, 1220 (1996) ("[L]aws[ that]

rearrange rights so as to effect what is believed to be the

public good[] are described compendiously as regulatory or

remedial").    The stated goal of the PES program was to promote

public safety by incentivizing program compliance, not to punish
                                                                     11


those who do not comply.      PES consequences merely constitute a

change in Butler's conditions, and do not "inflict a greater

punishment than the law imposed for the same crime."12     Lyman v.

Commissioner of Correction, supra at 206, citing Dominique v.

Weld, supra at 1162.

     4.    Double jeopardy.   To the extent that Butler alleges the

PES policy violates his right against double jeopardy, the claim

is without merit.    "The double jeopardy clause of the Fifth

Amendment to the United States Constitution protects against a

second prosecution for the same offense, either after acquittal

or after conviction, and multiple punishments for the same

offense."    Lyman v. Commissioner of Correction, supra at 207.

See Opinion of the Justices to the Senate, 423 Mass. at 1221-

1222.     Butler's circumstances fit none of these categories.   He

was not tried a second time for his offenses, and he did not

receive multiple punishments for the same offenses.     Once

     12Butler also argues that PES should not be applied
"retroactive[ly]" to him, because, he maintains, only the
regulations in place at the time of his sentencing should be
applied to him. Assuming such a principle could be applied to
internal department policies or practices, which seems doubtful,
we note that PES was not applied retroactively to behavior that
occurred prior to the implementation of PES. See Koe v.
Commissioner of Probation, 478 Mass. 12, 16 (2017) (a statute or
regulation is retroactive only when new legal consequences
attach to events completed before enactment). In any event,
were Butler to prevail on this claim, each inmate would be
subject to individualized regulations according to his
incarceration date. We defer to the department's assessment
that such a result would prove unworkable. See Cacicio v.
Secretary of Pub. Safety, 422 Mass. 764, 771-772 (1996).
                                                                    12


convicted and sentenced as a sex offender, Butler was

recommended to participate in SOTP to decrease the likelihood

that he would recidivate.     When he elected not to participate,

certain privileges were rescinded as a result.    This was not

additional punishment for his crimes.     See LaChance v.

Commissioner of Correction, 88 Mass. App. Ct. at 512-513.

Indeed, encouraging program participation by withholding

incentives from inmates who elect not to participate in sex

offender rehabilitation programs does not increase the penalty

for their crimes or extend the length of their overall

sentence.13   See Dominique v. Weld, 73 F.3d at 1162, citing

California Dept. of Corrections v. Morales, 514 U.S. at 506 n.3.

See also 103 Department of Correction regulations (DOC) § 400

(2014) "Program Access."

     5.   Eighth Amendment.   Butler also claims that reassigning

him from a single room to a double, without any screening for


     13To the extent Butler claims that the SOTP requires him to
admit his guilt, and that enforcement of the PES consequences
against him violates his right against self-incrimination under
the Fifth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights, the judge
properly determined that the claim is without merit. See Quegan
v. Massachusetts Parole Bd., 423 Mass. at 837-838, and cases
cited; Lyman v. Commissioner of Correction, 46 Mass. App. Ct. at
205 (requirement that prisoner admit that he is a sex offender
as part of treatment program implicates neither Federal nor
State privilege against self-incrimination). We note further
that in April, 2015, the department revised its policy to
provide that inmates are no longer required to admit guilt as a
condition of participating in the SOTP.
                                                                 13


compatibility (presumably with his new cellmate), violated the

Eighth Amendment to the United States Constitution and art. 26

of the Massachusetts Declaration of Rights, which prohibit cruel

and unusual punishments.   We disagree.

     To prove a violation of the Eighth Amendment, Butler must

satisfy a demanding standard.   "Because routine discomfort is

part of the penalty that criminal offenders pay for their

offenses against society, only those deprivations denying the

minimal civilized measure of life's necessities are sufficiently

grave to form the basis of an Eighth Amendment violation."

Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citation and

quotation omitted).   To prove a "conditions of confinement"

claim under the Eighth Amendment, Butler must show (1)

conditions "sufficiently serious" as to "result in the denial of

the 'minimal civilized measure of life's necessities,'" Farmer

v. Brennan, 511 U.S. 825, 832, 834 (1994), quoting from Rhodes

v. Chapman, 452 U.S. 337, 347 (1981), and (2) that the

department acted with "deliberate indifference" to his health or

safety.14   Farmer v. Brennan, supra at 834.


     14In both Butler's amended complaint and on appeal, he
failed to specify the basis for his otherwise unadorned Eighth
Amendment claim. In dismissing the complaint, the judge
properly determined that Butler insufficiently raised a
deliberate indifference claim. For substantially the same
reasons, we agree with the judge that, if construed as a
deliberate indifference claim, it would nonetheless fail. See
Hudson v. Commissioner of Correction, 46 Mass. App. Ct. 538, 548
                                                                   14


    "No static 'test' can exist by which courts determine

whether conditions of confinement are cruel and unusual."

Rhodes v. Chapman, supra at 346.    Courts interpreting the Eighth

Amendment and art. 26 of our Declaration of Rights take a

flexible approach, deriving their "'meaning from the evolving

standards of decency that mark the progress of a maturing

society[,]' . . . as measured by objective standards."    Michaud

v. Sheriff of Essex County, 390 Mass. 523, 527-528 (1983),

quoting from Libby v. Commissioner of Correction, 385 Mass. 421,

431 (1982).   See Good v. Commissioner of Correction, 417 Mass.

329, 335 (1994).    One such objective standard can be found in

State legislation and regulations governing the department and

its treatment of inmates.    Michaud v. Sheriff of Essex County,

supra at 529-531.

    With respect to Butler's claim, 103 DOC § 400.08 (2014)

addresses inmate housing cell assignments, including the use of

double occupancy cells and rooms.    This regulation permits

double occupancy "where single cells are not . . . appropriate"

and requires the department to consider a series of guidelines,

which prioritize inmate safety, when authorizing such


(1999), S.C., 431 Mass. 1 (2000) (insufficient facts to show
"the defendants acted . . . with deliberate indifference to the
claimed unlawful conditions and that those conditions
constituted extreme deprivation and the unnecessary and wanton
infliction of pain grossly disproportionate to the severity of
his offense"). As addressed infra, we review additional grounds
for rejecting Butler's Eighth Amendment claim.
                                                                    15


assignments.15   In fact, from our reading of the regulation,

double occupancy appears to be the norm, with single occupancy

reserved for inmates who are more vulnerable or who are likely

to present a risk of harm to others.    Measured by this objective

standard, reassigning inmates to double occupancy cells is

acceptable.    However, it is important to note that even if the

guidelines or regulations were violated, or if they ceased to

exist, such a circumstance would not itself constitute a "per

se" Eighth Amendment or art. 26 violation given the flexibility

of the standard to be applied.    See Michaud v. Sheriff of Essex

County, 390 Mass. at 531.

       Here, pursuant to the PES, Butler lost the privilege of

living in a single cell due to his choice not to participate in

the SOTP.   These facts neither demonstrate nor allow an

inference that Butler has been denied "the minimal civilized

measure of life's necessities."    Rhodes v. Chapman, 452 U.S. at

347.    Nor can we infer from his complaint that he faces any

danger in his double cell assignment.16   Simply put, "the



       These guidelines include an inmate's legal status,
       15

whether the inmate is a new arrival and is thus provided
intensive supervision, the potential for predatory behavior
between cellmates, an inmate's own perception of the potential
for danger and conflicts with others, and any language barriers.
103 DOC § 400.08 (2014).

       Assuming Butler's claim could be construed as an argument
       16

that, categorically, sex offenders are more vulnerable than
other offenders, such that they should automatically be assigned
                                                                    16


Constitution does not mandate comfortable prisons."    Id. at 349.

See Wilson v. Seiter, 501 U.S. 294, 298 (1991).     At bottom, as

the United States Supreme Court has held, requiring a prisoner

to share his cell with another inmate or multiple other inmates

does not constitute cruel and unusual punishment.     Rhodes v.

Chapman, 452 U.S. at 349-352.

    Various other arguments the plaintiffs presented on appeal

failed to cite to relevant legal authority or to their basis in

the record and, as such, do not rise to the level of appellate

argument.   See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921

(1975).   They are therefore deemed to be waived.   See Popp v.

Popp, 477 Mass. 1022, 1023 n.1 (2017).

                                    Judgments affirmed.




a single room, that claim would similarly fail. Pursuant to 103
DOC § 400.08 (2014), single occupancy is permitted "when
indicated," as where the department determines it necessary by
its "classification system, medical diagnosis, or other
professional conclusions." The 2008 version of 103 DOC
§ 400.07, addressing "Inmate Protection," included sexual
predators as a category of inmates who "shall be" assigned
single rooms, but again, only "when indicated." This provision
was removed from § 400.07 in 2011. In any event, the department
is duty-bound to consider each inmate's special needs and
circumstances in assigning rooms to inmates. We decline to
strip the department of its ability to, in its discretion,
assess and utilize its resources most efficiently and
effectively.
