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14-P-1648                                             Appeals Court

   EDMUND D. LaCHANCE, JR.       vs. COMMISSIONER OF CORRECTION &
                                 others.1


                              No. 14-P-1648.

            Suffolk.       May 13, 2015. - October 13, 2015.

                Present:    Trainor, Agnes, & Blake, JJ.


Imprisonment, Department disciplinary unit, Enforcement of
     discipline, Grievances. Administrative Law, Prison
     disciplinary proceeding, Agency's authority, Regulations,
     Rulemaking. Practice, Civil, Review of administrative
     action, Summary judgment.



     Civil action commenced in the Superior Court Department on
July 29, 2011.

     The case was heard by Merita A. Hopkins, J., on motions for
summary judgment, and motions for reconsideration were
considered by her.


    David J. Rentsch for the defendants.
    Edmund D. LaChance, Jr., pro se.


    TRAINOR, J.        On cross-motions for summary judgment, the

judge allowed the plaintiff's motion for summary judgment on


    1
        Various officials of the Department of Correction.
                                                                    2


count IV of the complaint and the defendants' motion for summary

judgment on the remaining counts.   In granting summary judgment

on count IV, the judge "declare[d] that [North Central

Correctional Institution's (NCCI)] policy of terminating inmates

from the Garden Program as a result of guilty findings violates

the prohibition against imposing more than one sanction per

offense contained in 103 Code Mass. Regs. § 430.25 [2006]."2      The

defendants appeal from the allowance of summary judgment on

count IV.   We review the allowance of a motion for summary

judgment de novo.    Alicea v. Commonwealth, 466 Mass. 228, 234

(2013).

     The material facts are not in dispute.    The plaintiff, an

inmate in NCCI during all relevant times, was a participant in

NCCI's garden program, which is a leisure program, in the spring

of 2011.    The plaintiff was charged with and pleaded guilty to

at least three different disciplinary offenses that occurred on

different days between April 6 and May 13, 2011.    The plaintiff


     2
       The judge also declared "that the defendants have not
otherwise violated the plaintiff's rights or the Department of
Corrections Regulations." The judge further concluded that
whether the plaintiff could participate in the garden program
was moot because the "growing season ha[d] long passed." The
judge nevertheless reached the merits because the issue whether
a prisoner can be terminated from the garden program after a
guilty finding falls within an exception to the mootness
doctrine as 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).
                                                                     3


received a sanction for each separate disciplinary offense, all

of which were category three offenses.   See 103 Code Mass. Regs.

§ 430.24 (2006).   For the offense that occurred on April 6, the

plaintiff was sanctioned in the disciplinary proceeding with

disciplinary detention.    For the offense that occurred on April

14, the plaintiff was sanctioned in the disciplinary proceeding

with "loss of leisure program" for thirty days.    For the offense

that occurred on May 13, the plaintiff was sanctioned in the

disciplinary proceeding with a disciplinary detention.

     After the plaintiff returned from the disciplinary

detention for the incident on April 6, he was terminated from

his employment in the weight room.    Similarly, after the

plaintiff returned from his disciplinary detention for the

incident on May 13, he was terminated from the garden program.

     In granting summary judgment on count IV, the judge

reasoned that the plaintiff's termination from the garden

program was an impermissible double sanction under 103 Code

Mass. Regs. § 430.25(3) because being suspended from a leisure

program is a possible disciplinary sanction for a category three

offense.3   We disagree.

     Prison officials have the duty and obligation to maintain

security in the prison.    See G. L. c. 124, § 1(b), as amended by

     3
       The judge further reasoned that termination from
employment is not an impermissible double sanction and is
apparently within the discretion of prison officials.
                                                                   4


St. 1996, c. 151, § 283 (Commissioner of Correction shall

"maintain security, safety and order at all state correctional

facilities").   It has also been recognized that "[t]he

department [of correction] need not wait until specific breaches

of safety and security arise to take reasonable measures . . .

based on the exercise of professional judgment, to guard against

the undermining of its unusually important goals."   Rasheed v.

Commissioner of Correction, 446 Mass. 463, 474 (2006).    See

Nelson v. Commissioner of Correction, 390 Mass. 379, 392 (1983),

quoting from Bell v. Wolfish, 441 U.S. 520, 547 (1979) ("In

determining if these regulations are adequate to safeguard the

Federal due process rights of prisoners, we recognize that the

[United States] Supreme Court has held that prison officials

'should be accorded wide-ranging deference in the adoption and

execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to maintain

institutional security'"); Kenney v. Commissioner of Correction,

393 Mass. 28, 35 (1984), quoting from Wolff v. McDonnell, 418

U.S. 539, 566 (1974) (although discretion is not unlimited,

"'[t]he operation of a correctional institution is at best an

extraordinarily difficult undertaking' and, therefore, we have

recognized that prison administrators have broad discretion in

the administration of prison affairs"); DuPont v. Commissioner

of Correction, 448 Mass. 389, 398 (2007), quoting from Turner v.
                                                                   5


Safley, 482 U.S. 78, 86 (1987) ("The commissioner's

determination that the use of a [department of disciplinary

unit] is necessary to the safe, secure, and orderly operation of

some prisons, but not others, is the type of determination

'peculiarly within the province and professional expertise of

corrections officials, and, in the absence of substantial

evidence in the record to indicate that the officials have

exaggerated their response to [security] considerations, courts

should ordinarily defer to their expert judgment in such

matters'"); Matthews v. Rakiey, 38 Mass. App. Ct. 490, 496

(1995) ("[A] prison's internal security is peculiarly a matter

normally left to the discretion of prison administrators.     In

assessing the seriousness of a threat to institutional security,

prison administrators necessarily draw on more than the specific

facts surrounding a particular incident. . . .   The judgment of

prison officials in this context, like that of those making

parole decisions, turns largely on purely subjective evaluations

and on predictions of future behavior" [quotations and citations

omitted]).4


     4
       The dissent is premised on the idea, without either
citation to statute or case law, that prison officials are
granted no discretion beyond their promulgated rules,
regulations, and policies. The dissent's premise, however, is
not based on and is substantially different from our settled
authority that once promulgated, prison officials have no
discretion to violate their regulations. See Ivey v.
Commissioner of Correction, 88 Mass. App. Ct. 18, 25 (2015)
                                                                   6


     The garden program gives inmates access to dangerous

instrumentalities.   Given the potential security risk, prison

officials in their professional judgment created the garden

program rules.   The rules require that an inmate be terminated

from the program after a guilty finding for any disciplinary

report and give the prison administration discretion to

terminate an inmate from the program at any time.5,6   Prison



("However, the limits of such discretion are established by the
rules and regulations promulgated by the Department of
Correction. DOC regulations carry the force of law and are
binding, and the defendants are required to comply with their
terms" [quotations and citations omitted]).
     5
       The Deputy Superintendent for Programs and Treatment
(Deputy Superintendent) of NCCI stated in her affidavit that
security concerns require that "inmates who present management
and/or disciplinary problems may not participate in the garden
program" because such inmates have access to tools and rocks.
     6
       Rule 26 of the 2011 Inmate Garden Rules (rule 26) states:
"Inmates will be terminated from the garden program upon a
guilty finding for any disciplinary report and/or any violation
of garden rules. Participation in the garden program is a
privilege and the Administration may use its discretion to
remove any inmate from the program at any time whether or not a
disciplinary report is issued. Inmates terminated from the
program forfeit their slot and may apply for readmission via the
lottery system for the next season." Under this rule, the
plaintiff should have been terminated from the program after his
first disciplinary guilty finding. The failure of prison
officials to terminate the plaintiff's participation in the
program however created no prejudice against him. This failure
does not deprive the administration of its ability to make a
discretionary determination based on its promulgated policy and
a security analysis of the situation surrounding a specific
inmate. Whether the inmate has disciplinary infractions and
guilty findings is irrelevant if it is a security risk to allow
the inmate to continue in a program or in employment.
                                                               7



     The dissent's assertion that the defendants did not rely on
rule 26 as a basis for terminating the plaintiff from the garden
program is not consistent with the statement of the Deputy
Superintendent. The Deputy Superintendent stated in her
affidavit that after being released from his "disciplinary
detention sanction," the plaintiff "was verbally notified that
he was terminated from the inmate garden program." Her
affidavit further stated that "[t]he garden program at NCCI is
operated in a large, fenced off area of the prison. Inmates who
are selected for the program have access to a variety of
gardening tools. Large rocks separate the garden plots. As
such, due to institutional security concerns, inmates who
present management and/or disciplinary problems may not
participate in the garden program. In this case, [the
plaintiff] received a disciplinary report in April, 2011 for
being verbally abusive to staff and then another disciplinary
report in May, 2011 for being out of place. Through his
misconduct, he exhibited an inability or unwillingness to follow
institutional rules, and it was necessary to terminate him from
the garden program." (Emphasis added). She went on explain
that similar to the garden program, "good behavior is a
condition of employment. Inmates may hold jobs at the
discretion of prison administration. . . . An inmate can be
removed from a work assignment even without receiving a
disciplinary report. . . . In my experience as a corrections
professional, it is imperative that prison administrators have
full authority to terminate an inmate from a work assignment. A
prison job is a position of trust conferred by the prison
administration." It is clear from the totality of her affidavit
that prison administrators do not consider termination from
employment or from the garden program as a punishment and
certainly not as a disciplinary sanction. The Deputy
Superintendent described both discretionary actions as
authorized by promulgated rules and necessary to maintain
institutional security. Contrary to the dissent's
representation, the Deputy Superintendent specifically refers to
both the 2011 Inmate Garden Rules and the Institution Work
Assignments policy in her affidavit. The defendant's appeal
from the judge's declaration that the NCCI "policy of
terminating inmates from the Garden Program because of guilty
findings violates the prohibition against imposing more than one
sanction [per offense] contained in 103 Code Mass. Regs.
§ 430.25." The judge ruled that rule 26 is a violation of 103
Code Mass. Regs. § 430.25. In contrast, we hold that the garden
program rules that allow prison officials to terminate an inmate
from the garden program in their discretion or require them to
                                                                   8


officials may use their professional judgment and decide to

terminate a prisoner from the garden program to ensure the

safety of the prison.   The process created for terminating an

inmate from the garden program is separate from a disciplinary

proceeding in which, once the inmate's guilt is determined, one

sanction may be imposed.   See 103 Code Mass. Regs. § 430.25.

     Sanctions for category three offenses are provided in 103

Code Mass. Regs. § 430.25(3), which states:

     "(3) Sanctions for each Category 3 offense are as follows:
     (a) Disciplinary Detention for up to ten days; (b) Up to 60
     days loss of a privilege, including but not limited to one
     of the following: television, radio, canteen, either
     visits or phone privileges, hot pots, and leisure programs;
     (c) Cell or housing restriction for up to ten days; (d)
     Restitution, including, if applicable, any medical
     treatment assessment under M.G.L. c. 124, § 1(s); (e)
     Prohibition from replacing any altered appliance for up to
     four months; (f) Up to 15 hours of extra duty. No more
     than one sanction shall be imposed per offense and 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."7


terminate the inmate after a guilty finding and the imposition
of a sanction pursuant to § 430.25, is not an impermissible
double sanction. Termination from a leisure program, like
termination from employment, is not a possible sanction under
the regulation. The defendants have discretion to implement
policies "needed to preserve internal order and discipline and
to maintain institutional security." Nelson v. Commissioner of
Correction, 390 Mass. at 392, quoting from Bell v. Wolfish, 441
U.S at 547. The action taken here was pursuant to a promulgated
policy which did not violate any promulgated regulations.
     7
       The regulations relevant here are not a model in drafting
and should be updated for the benefit of clarity and certainty.
The regulations related to disciplinary proceedings should
clearly identify the right of prison officials to take actions
                                                                   9



     We recognize that "[o]nce an agency has seen fit to

promulgate regulations, it must comply with those regulations,"

even if a matter is generally within the agency's discretion.

Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983).

See Haverty v. Commissioner of Correction, 437 Mass. 737, 762

(2002), S.C., 400 Mass 1 (2003); Ivey v. Commissioner of

Correction, 88 Mass. App. Ct. 18, 25-26 (2015).   However, here,

neither termination from employment nor termination from the

garden program are sanctions that can be applied to an inmate

under the disciplinary process.8   As a result, neither of these




outside of the disciplinary process as needed to maintain
security.
     8
       The dissent asserts that the term sanction is not defined
in the regulations. However, its meaning is obvious within the
context of 103 Code Mass. Regs. § 430.25, which specifically
states in each subsection that "Sanctions for each Category [1,
2, 3, or 4] offense are as follows" (emphasis added). After
listing the possible sanctions for each category and within the
same subsection concerning that category of offenses,
§ 430.25 specifies that "[n]o more than one sanction shall be
imposed per offense." It is a reasonable inference from the
plain language of the regulation that a sanction includes only
those that are listed and available to be used as part of the
disciplinary proceeding. See Ten Local Citizen Group v. New
England Wind, LLC, 457 Mass. 222, 228 (2010) ("We ordinarily
accord an agency's interpretation of its own regulation
considerable deference" [quotation and citation omitted]); Ivey
v. Commissioner of Correction, 88 Mass. App. Ct. at 24 ("Under
the regulations, sanctions for each category of offense 'are as
follows' [emphasis supplied]. 103 Code Mass. Regs. § 430.25
[2006]").
                                                                 10


actions is an additional sanction under the regulations.9

Furthermore, it is clear from the Deputy Superintendent's

affidavit that the goal in terminating the plaintiff from the

garden program was not punishment for the offenses to which he

pleaded guilty, but maintaining a secure and safe environment

within the institution.

     Accordingly, the portion of the judgment allowing summary

judgment for the plaintiff on count IV is reversed, and judgment

is to enter allowing summary judgment for the defendants on that

count.   In all other respects, the judgment is affirmed.

                                    So ordered.




     9
       The judge properly concluded that loss of prison
employment or participation in the garden program do not
implicate a liberty or property interest.
     AGNES, J. (dissenting).   This case may seem to be much ado

about nothing in that it involves a prisoner at the North

Central Correctional Institution (NCCI) who was terminated from

a garden program after he was found guilty of three disciplinary

infractions in the two-month period between April and May, 2011.1

The issue is not whether the plaintiff is a suitable candidate

for the garden program or any other privilege.   Instead, my

disagreement with the majority is over an important question of

first impression:   namely, whether prison officials have the

authority to take disciplinary or administrative action against

inmates outside the framework of the regulations adopted by the

Commissioner of Correction (Commissioner).   See G. L. c. 124,

     1
       According to the affidavit of the Deputy Superintendent
for Programs and Treatment (Deputy Superintendent) of NCCI,
which was submitted by the defendants, the garden program is one
of the "leisure" programs made available to inmates at NCCI.
She described it as follows: the garden program "is operated in
a large, fenced off area of the prison. Inmates who are
selected for the program, have access to a variety of gardening
tools. Large rocks separate the garden plots." In 2011, the
garden program operated from April 15 until October 15. There
are written rules governing inmate participation in the garden
program. The plaintiff signed an agreement before he
participated in the garden program in which he acknowledges that
he received a copy of the program's rules. Rule 26 of the
garden program rules (rule 26) states that any participating
inmate who is found guilty of a disciplinary infraction "will be
terminated from the garden program," and further provides that
prison officials have the discretion to remove an inmate from
the garden program at any time. As I read the record,
including, in particular, the affidavit by the Deputy
Superintendent, the defendants do not rely on rule 26 as
authority for the decision to terminate the plaintiff from the
program because that rule, which requires automatic termination
for any disciplinary violation, was not followed in this case.
                                                                    2


§ 1(b), as amended by St. 1996, c. 51, § 283;2 G. L. c. 127,

§ 33, as amended by St. 1979, c. 485, § 22.3   In particular, as

we recently noted in Ivey v. Commissioner of Correction, 88

Mass. App. Ct. 18, 25-26 (2015), in imposing discipline against

an inmate, the Department of Correction is bound to follow the

regulatory framework established by the Commissioner.   See 103

Code Mass. Regs. §§ 430.00 (2006).   The defendants concede there

is no published decision that supports their view that their

authority to discipline inmates extends beyond what is contained

in the regulations adopted by the Commissioner.   The majority

opinion does not cite any appellate decision that endorses such

a view.   For the reasons that follow, I do not believe the

authority asserted by the defendants and confirmed by the


     2
       General Laws c. 124, § 1(b), provides that the
Commissioner has a duty to "maintain security, safety and order
at all state correctional facilities, utilize the resources of
the department to prevent escapes from any such facility, take
all necessary precautions to prevent the occurrence or spread of
any disorder, riot or insurrection at any such facility,
including but not limited to the development, planning, and
coordination of emergency riot procedures with the colonel of
state police, and take suitable measures for the restoration of
order."
     3
       General Laws c. 127, § 33, reads as follows: "The
superintendents of all institutions under the jurisdiction of
the department of correction and the superintendents and keepers
of jails and houses of correction shall cause all necessary
means to be used to maintain order in the institutions under
their supervision, enforce obedience, suppress insurrection and
prevent escapes, and for that purpose they may at all times
require the aid and utmost exertions of all the officers of the
institution except the chaplain and the physician."
                                                                      3


majority exists.    As the Supreme Judicial Court observed in

Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983),

"courts permit prison administrators considerable discretion in

the adoption and implementation of prison policies.     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" (citations omitted).    I believe the

defendants violated this precept.    Accordingly, I respectfully

dissent.

     1.    The regulatory framework for disciplining State

prisoners.    Conduct violations by State prison inmates like the

plaintiff are governed by regulations adopted by the

Commissioner.    See 103 Code Mass. Regs. §§ 430.00.   See

generally Ivey v. Commissioner of Correction, supra at 21-22.

These regulations "establish a fair and impartial system

governing disciplinary proceedings involving inmates of state

correctional institutions."    103 Code Mass. Regs. § 430.01

(2006).    The offenses for which sanctions may be imposed are

divided into four categories, and are set forth in a Code of

Offenses adopted by the Commissioner.4   103 Code Mass. Regs.


     4
       The Code of Offenses is comprehensive in scope. Category
1 offenses are the most serious and include homicide, aggravated
assault, sexual assault, and rioting. Category 2 offenses
include assaults, fighting, and offenses relating to the use of
                                                                     4


§ 430.24 (2006).   The Commissioner has also specified the

sanctions that may be imposed whenever an inmate is found guilty

of an offense in any of the four categories.    See 103 Code Mass.

Regs. § 430.25 (2006) (listing sanctions that may be imposed

against inmate found guilty of category 1 through 4 offense).

Finally, the regulations state that "[n]o more than one sanction

shall be imposed per offense."    103 Code Mass. Regs.

§ 430.25(1), (2), (3), and (4).   The term sanction is not

defined.

    In this case, a judge of the Superior Court ruled, on cross

motions for summary judgment, that the defendants violated 103

Code Mass. Regs. § 430.25 because after they had sanctioned the

plaintiff with "disciplinary detention" for the category 3

offense he committed on May 13, 2011, they imposed a second

sanction in the form of termination from the garden program.

Under 103 Code Mass. Regs. § 430.25(3), the sanctions that may

be imposed for a category 3 violation are as follows:

    "(a) Disciplinary Detention for up to ten days;
    "(b) Up to 60 days loss of a privilege, including but not
    limited to one of the following: television, radio,
    canteen, either visits or phone privileges, hot pots, and
    leisure programs;


banned substances. Category 3 offenses include lying or
providing false information to a staff person, gambling, being
out of place or in an unauthorized area, and disruptive conduct.
Category 4 offenses include possession of contraband, "violating
any departmental rule or regulation, or any other rule,
regulation, or condition of an institution or community based
program." 130 Code Mass. Regs. § 430.24 (2006).
                                                                    5


    "(c) Cell or housing restriction for up to ten days;
    "(d) Restitution, including, if applicable, any medical
    treatment assessment under M.G.L. c. 124, § 1(s);
    "(e) Prohibition from replacing any altered appliance for
    up to four months;
    "(f) Up to 15 hours of extra duty."

The parties agree that the garden program is one of a number of

activities that are within the definition of "leisure programs"

as that phrase appears in 103 Code Mass. Regs. § 430.25(3).

    The defendants argue that terminating the plaintiff from

the garden program after he was found guilty of a disciplinary

offense for the third time in two months was not a sanction.

In effect, the defendants argue that a punishment is not a

sanction so long as it is not one of those sanctions

specifically listed in 103 Code Mass. Regs. § 430.25.   Under

this reasoning, prison officials would be free to punish an

inmate found guilty of a category 3 offense by imposing a

sanction consisting of a sixty-day suspension from the garden

program, and then, on the basis of that guilty finding (or other

guilty findings), impose an additional suspension from the

garden program for more than sixty days because suspensions for

more than sixty days are not specifically listed as sanctions.

I agree with the judge, who rejected this reasoning.

    2.   Waiver.   The defendants argue that the plaintiff waived

any claim he might otherwise have had over his termination from

the garden program because he signed an agreement when he
                                                                   6


entered the program that creates an independent basis for his

termination.    The agreement in question states that the

plaintiff has received a copy of the garden program rules, which

included rule 26.5

     According to the affidavit of the Deputy Superintendent

(see note 1, supra), the plaintiff was informed that he was

terminated from the garden program after he was found guilty of

his third disciplinary infraction in two months on May 16, 2011.

The plaintiff was not terminated from the garden program because

rule 26 required termination.    Rather, in her affidavit, the

Deputy Superintendent states that it was necessary to terminate

the plaintiff from the program because "[t]hrough his

misconduct, he exhibited an inability or unwillingness to follow

institutional rules."    Under these circumstances, it cannot be

said that the plaintiff knowingly and voluntarily waived any

rights he had under the regulations in question by signing the

agreement containing rule 26.

     3.    Statutory authority to maintain security, safety, and

order.    The majority's conclusion that the term sanction as it

     5
       Rule 26 of the garden program rules, in its entirety,
reads as follows: "Inmates will be terminated from the garden
program upon a guilty finding for any disciplinary report and/or
any violation of garden rules. Participation in the garden
program is a privilege and the Administration may use its
discretion to remove any inmate from the program at any time
whether or not a disciplinary report is issued. Inmates
terminated from the program forfeit their slot and may apply for
readmission via the lottery system for the next season."
                                                                    7


appears in 103 Code Mass. Regs. § 430.25 does not include

termination from a leisure program such as the garden program,

is not based on any regulatory definition of the term sanction,

for there is none.    See 103 Code Mass. Regs. § 430.06 (2006)

(Definitions).   In addition, the majority's conclusion is not

based on the fact that termination from a program is contrary to

the common definition of the word sanction, for it is not.6

Instead, the majority reasons that unless prison officials have

discretion to take adverse actions against inmates beyond their

authority under the department's regulations, prison officials

will be unable "to maintain security, safety and order" within

their institutions.    See ante at __, quoting from G. L. c. 124,

§ 1(b).   See also G. L. c. 127, § 33 (duty of superintendents of

penal institutions to "maintain order," and "enforce

obedience").

     I agree with the majority that the plaintiff has no liberty

or property interest in his participation in the garden program.

Ante at __ note 9.    However, in my view, there is no basis for

the defendants' assertion and the majority's conclusion that

prison officials have discretionary authority to maintain

security, safety, and order within their institutions beyond

that which is given to them under the regulatory framework

     6
       The word sanction is defined as "[a] penalty or coercive
measure that results from failure to comply with a law, rule, or
order." Black's Law Dictionary 1458 (9th ed. 2009).
                                                                    8


established by the Commissioner.   In adopting 103 Code Mass.

Regs. § 430.00, and other regulations, the Commissioner

specifically relied on the statutory authority cited by the

defendants and the majority as the basis for recognizing that

prison officials have extra-regulatory discretion.7   Neither the

Supreme Judicial Court nor this court has previously recognized

the existence of any such unregulated, discretionary authority.

None of the decisions cited by the majority stand for the

proposition that prison officials have discretion beyond the

framework of the regulations adopted by the commissioner to

discipline inmates.

     The majority opinion overlooks the breadth and scope of the

regulatory authority currently enjoyed by prison officials to

enable them to maintain security, safety, and order within their

institutions.   First, any time an inmate is alleged to have

committed one of the offenses in categories 1 through 4, such as

the infraction committed by the plaintiff on May 13, 2011, the

regulations give prison officials the authority to immediately

remove the inmate from the general population and place the

inmate in the special management unit, where the inmate will be

held in administrative segregation pending a disciplinary


     7
       103 Code Mass. Regs. § 430.02 (2006) (Statutory
Authorization) states that the regulations regarding discipline
are issued pursuant to G. L. c. 124, § 1(b), (i) and (q), and G.
L. c. 127, § 33.
                                                                     9


hearing.   See 103 Code Mass. Regs. § 423.08(1)(a) (2007)

(permitting inmate's placement in administrative segregation

when inmate "is awaiting a hearing for a violation of

institution rules or regulations").    In fact, this is precisely

what prison officials did to the plaintiff in this case.      Once

this occurs, the inmate is not in the general population and no

longer has privileges such as access to the garden.    Second, the

defendants could have initiated a reclassification procedure

that could have resulted in the plaintiff's ineligibility to

participate in the garden program.    See 103 Code Mass. Regs.

§ 420.09 (2006).   Third, apart from the disciplinary process, if

any inmate is a "substantial threat" to others, to property, or

to "the operation of a state correctional facility," prison

officials may act immediately to place the inmate in "awaiting

action in restrictive confinement," in a "Departmental

Segregation Unit," or transfer the inmate to another

institution.    See 103 Code Mass. Regs. §§ 421.06, 421.07,

421.08, and 421.09 (1994).    See also 103 Code Mass. Regs.

§ 421.24 (1994) (Commissioner may temporarily suspend all or

part of 103 Code Mass. Regs. § 421.00).    And fourth, the

Commissioner has broad authority to transfer "any prisoner

sentenced to state prison" to other institutions within or

outside of Massachusetts.    G. L. c. 127, § 97A, inserted by St.

1968, c. 624.   See Sisbarro v. Warden, Massachusetts State
                                                                  10


Penitentiary, 592 F.2d 1, 4 (1st Cir.), cert. denied, 444 U.S.

489 (1979) (§ 97A "places no restrictions on the making of that

determination by the commissioner"); Harris v. Commissioner of

Correction, 409 Mass. 472, 478 (1991) ("Neither this statute

[§ 97A] nor any other provision of State law guarantees that

prisoners will not be transferred unless they misbehave").

     Conclusion.    The plaintiff has not been a model inmate.

Nevertheless, he is no less entitled to the benefits of the

regulations adopted by the Commissioner, in particular the rule

against the imposition of more than one sanction for a single

offense, see 103 Code Mass. Regs. § 430.25(3), than any other

inmate.   See Drayton v. Commissioner of Correction, 52 Mass.

App. Ct. 135, 140 (2001).   If prison officials believe that a

maximum loss of sixty days in a leisure program such as the

garden program is not sufficient punishment for an inmate found

guilty of a category 3 offense or that an inmate found guilty of

multiple offenses within a specific period of time should

receive additional punishment, the Commissioner has the

authority to amend the regulations.
