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SJC-12015

    ROBERT CANTELL & others1 vs. COMMISSIONER OF CORRECTION
                            & others.2



          Suffolk.     March 10, 2016. - October 21, 2016.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                             Hines, JJ.3


Commissioner of Correction. Administrative Law, Regulations.
     Imprisonment, Segregated confinement. Due Process of Law,
     Prison classification proceedings, Prison regulation. Moot
     Question. Practice, Civil, Moot case, Dismissal of appeal,
     Class action.



     Civil action commenced in the Superior Court Department on
January 20, 2012.



     1
         Derrick Maldonado, John T. Fernandes, and Albert Jackson.
     2
       Superintendent, Massachusetts Treatment Center;
Superintendent, Old Colony Correctional Center; Superintendent,
Massachusetts Correctional Institution (MCI), Cedar Junction;
Superintendent, MCI, Shirley; Superintendent, MCI, Norfolk;
Superintendent, MCI, Concord; Acting Superintendent, North
Central Correctional Institution, Gardner; Superintendent, MCI,
Framingham; and Superintendent, Souza-Baranowski Correctional
Center.
     3
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                   2


     Motions to dismiss and for class certification were heard
by Elizabeth M. Fahey, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Bonita Tenneriello for the plaintiffs.
     Sheryl F. Grant for the defendants.
     The following submitted briefs for amici curiae:
     Amy Fettig & Jamelia N. Morgan, of the District of
Columbia, Phillip Kassell, Matthew R. Segal, & Jessie J. Rossman
for American Civil Liberties Union & others.
     Ruth A. Bourquin, Deborah Harris, Margaret E. Monsell, &
Jamie A. Sabino for Massachusetts Law Reform Institute & others.
     Adam Sanders, pro se.


    BOTSFORD, J.    The named plaintiffs in this putative class

action are inmates serving criminal sentences in various

Massachusetts prison facilities.   For varying lengths of time,

each of them has been placed in a "special management unit"

(SMU) in nondisciplinary administrative segregation.    In

January, 2012, the plaintiffs commenced this action against the

Commissioner of Correction (commissioner) and the

superintendents of the correctional institutions in which the

plaintiffs were housed (collectively, defendants).     The

plaintiffs allege that their placements in the SMUs, essentially

in conditions of solitary confinement, violate their State and

Federal constitutional rights to due process as well as

regulations of the Department of Correction (department), and

they seek to represent a class of similarly situated prisoners

confined in SMUs.   In early 2013, following the release of this
                                                                     3


court's decision in LaChance v. Commissioner of Correction, 463

Mass. 767 (2012) (LaChance I), a judge in the Superior Court

denied the plaintiffs' motion for class certification and

allowed the defendants' motion to dismiss the plaintiffs'

amended complaint.

     The plaintiffs appealed to the Appeals Court.4   A divided

panel of that court dismissed the appeal as moot because by then

it was undisputed that no named plaintiffs remained in SMUs.

Cantell v. Commissioner of Correction, 87 Mass. App. Ct. 629

(2015).   The dissenting justice concluded that in light of the

class action allegations in the plaintiffs' amended complaint,

even if the named plaintiffs were no longer confined in SMUs,

the case was not moot, and the court had a duty to decide the

plaintiffs' appeal on its merits.    Id. at 635-639 (Rubin, J.,

dissenting).   We allowed the plaintiffs' application for further

appellate review.    We agree with the dissenting justice of the

Appeals Court that the appeal is not moot, and we also agree

that LaChance I does not resolve the merits of all the

plaintiffs' claims.    We reverse the Superior Court's judgment of




     4
       Two of the plaintiffs named in the amended complaint are
not parties to the appeal.
                                                                   4


dismissal and remand the case to that court for further

proceedings consistent with this opinion.5

     Background.   The plaintiffs' amended complaint alleges, in

summary, the following.    The plaintiffs are representatives of

"a class composed of all prisoners held in non-disciplinary

segregation in an SMU," and the class is so numerous that

joinder of all is impracticable.    See Mass. R. Civ. P. 23 (a),

365 Mass. 767 (1974).6    Each of the named plaintiffs has been

held in nondisciplinary administrative segregation in an SMU

operated under the department's SMU regulations, 103 Code Mass.

Regs. §§ 423.00 (1995).7   While confined in an SMU, prisoners are



     5
       We acknowledge the amicus briefs submitted by the
Massachusetts Law Reform Institute, Center for Public
Representation, National Consumer Law Center, and Justice Center
of Southeastern Massachusetts; the American Civil Liberties
Union, American Civil Liberties Union of Massachusetts, and the
Mental Health Legal Advisors Committee; and Adam Sanders.
     6
       The amended complaint further alleges that the plaintiffs'
claims include common questions of fact and law applicable to
all members of the class and these questions predominate; the
defendants have acted and refused to act on grounds generally
applicable to the class so that the final declaratory and
injunctive relief would be appropriate to the entire class; the
plaintiffs have a strong personal liberty interest in the
outcome of the case, are represented by competent counsel, and
will adequately and fairly protect the interests of the class;
and a class action is superior to any other method to resolving
the controversy. See Mass. R. Civ. P. 23 (a), (b), 365 Mass.
767 (1974).
     7
       "Administrative [s]egregation" is defined in 103 Code
Mass. Regs. § 423.06 (1995) as follows:
                                                                   5


locked in their individual cells for twenty-three hours per day,

with permitted recreation in a small, outdoor cage for one hour

per day on weekdays and no permitted recreation on weekends;

each prisoner must eat all meals alone in his or her cell; the

prisoners are permitted to shower and shave no more than three

times per week; all visits are noncontact visits, and these are

generally limited to two visits per week of no more than one

hour's duration; prisoners are not allowed to visit the general

prison library, have no access to employment or to

rehabilitative, therapeutic, or educational programs and

therefore no access to programs from which they might earn "good

time" sentence credits or reductions; they may not attend

communal religious services; and they are substantially

restricted, compared to the general prison population, in terms

of what they may purchase and how much money they may spend at

the prison canteen.   These conditions are far more restrictive

than the conditions and level of segregation applicable to

general population prisoners in maximum security facilities.

The conditions are also at least as restrictive as those applied



         "A temporary form of separation from general
    population used when the continued presence of the inmate
    in the general population would pose a serious threat to
    life, property, self, staff or other inmates, or to the
    security or orderly running of the institution, e.g.,
    inmates pending investigation for a disciplinary or
    criminal offense or pending transfer may be placed in
    administrative segregation."
                                                                   6


to units designated as "departmental segregation units" (DSUs)

and governed by the DSU regulations appearing as 103 Code Mass.

Regs. §§ 421.00 (1994).   However, none of the plaintiffs has

been provided the procedural protections required by the DSU

regulations, or the visitation, canteen, and other privileges

included within the DSU regulations.8

     The amended complaint's legal claims are that by

maintaining the plaintiffs in nondisciplinary administrative

segregation conditions without holding hearings to determine

whether each posed a serious or substantial threat to themselves

or others, and by denying other rights included in the DSU

regulations, the defendants have violated the plaintiffs' rights

under the DSU regulations, the plaintiffs' constitutional rights

to due process protected by the United States Constitution and

the Massachusetts Declaration of Rights (claims the plaintiffs


     8
       The plaintiffs point to the following procedural
protections contained in the DSU regulations: before being
placed in nondisciplinary segregation, each prisoner must be
afforded a timely hearing to determine whether the prisoner
poses a threat sufficient to justify the segregation, see 103
Code Mass. Regs. § 421.08(3); no prisoner may be held in
segregated, restrictive, nondisciplinary confinement without
receiving a hearing after fifteen days, or thirty days if
awaiting action on a disciplinary charge, and those time limits
may not be extended absent "extraordinary circumstances," see
id.; such prisoners are entitled to receive a conditional
release date and a specified set of conditions that, if met,
could earn them release from restrictive confinement, see 103
Code Mass. Regs. § 421.15(2); prisoners are also entitled to the
visitation rights, canteen purchases, and other privileges and
programs set out in 103 Code Mass. Regs. §§ 421.20 and 421.21.
                                                                    7


pursue under 42 U.S.C. § 1983), and the plaintiffs' statutory

right to equal "kindness" provided by G. L. c. 127, § 32.     The

plaintiffs seek declaratory and injunctive relief to declare and

enforce these rights.

     On January 20, 2012, the plaintiffs filed a motion for

class certification.9   Before the motion was heard or ruled on,

LaChance I was decided.   The plaintiff in LaChance I was, or had

been, confined to the SMU in the Souza-Baranowski Correctional

Center, and his substantive claims relating to his entitlement

to the procedural and other protections incorporated in the DSU

regulations are substantially mirrored in the plaintiffs'

amended complaint in the present case.   The motion judge in this

case concluded that the LaChance I decision effectively resolved

the plaintiffs' claims by defining the entire scope of

procedural protections to which the plaintiffs were entitled as

prisoners confined in SMUs.   For this reason, and because the


     9
       The defendants take issue with the fact that the motion to
certify the class was filed by the original two named
plaintiffs, Robert Cantell and Derrick Maldonado, before the
plaintiffs filed their amended complaint, and by the time the
amended complaint was filed in April, 2012, neither Cantell nor
Maldonado was still confined to a special management unit (SMU).
In light of the amended complaint, which repeated the original
complaint's class action allegations, and in light of the fact
that at the time the amended complaint was filed, one or more of
the named plaintiffs was housed in an SMU, we consider the
motion to certify the class as applicable to the amended
complaint. This was the position implicitly taken by the
Superior Court judge who considered and denied the motion to
certify.
                                                                      8


department had agreed to provide the plaintiffs with the

procedural protections described in LaChance I, the judge ruled

that class certification was unnecessary and that dismissal of

the plaintiffs' amended complaint was appropriate.     The judge

ordered the defendants to "extend the benefits" of our opinion

in LaChance I to "all prisoners held in administrative

segregation on awaiting action status."

    At the time of the motion judge's decision, one of the

named plaintiffs, Albert Jackson, remained in an SMU.     However,

as the Appeals Court's decision noted, when the plaintiffs'

appeal was before that court, it was uncontested that none of

the named plaintiffs was still confined in an SMU.      Cantell, 87

Mass. App. Ct. at 630.    There is nothing in the record to

suggest that any named plaintiff's status has changed since the

date of the Appeals Court decision, but there also is nothing

before us to suggest that any of the named plaintiffs has

completed his sentence and has been released from prison.

    Discussion.   1.     Legal background.   This case concerns the

department's policies and practices relating to the conditions

of confinement for prisoners held in nondisciplinary

administrative segregation and apart from the general

population.   The specific focus here is on SMUs, one type of
                                                                     9


administrative segregation unit.10    However, the department

historically has had and continues to have a number of different

types of and names for such units, including, but not limited

to, DSUs.   In Hoffer vs. Fair, No. SJ-85-0071 (Mar. 3, 1988), a

single justice of this court ordered that the then existing DSU

regulations be amended to provide greater procedural protections

and some greater privileges to prisoners placed in

nondisciplinary administrative segregation -- basically,

solitary confinement -- in DSUs.     The department promulgated in

substance the DSU regulations currently codified at 103 Code

     10
       The SMU regulations provide that "[p]lacement in
administrative segregation/protective custody [in an SMU] may
occur in instances such as, but not limited to, when an inmate:

     "(a) Is awaiting a hearing for a violation of institution
     rules or regulations;

     "(b) Is awaiting an investigation of a serious violation of
     institution rules or regulations;

     "(c) Is pending investigation for disciplinary offenses or
     criminal acts that may have occurred while incarcerated;

     "(d) Requests admission to administrative segregation for
     his/her own protection or staff recommends that placement
     in or continuation of such status is necessary for the
     inmate's own protection and that no reasonable alternatives
     are available;

     "(e) Is pending transfer;

     "(f) Is pending classification; [and]

     "(g) Is placed in administrative segregation following a
     disciplinary hearing."

103 Code Mass. Regs. § 423.08(1).
                                                                       10


Mass. Regs. §§ 421.00 in response; these regulations remain in

effect.11   See Haverty v. Commissioner of Correction, 437 Mass.

737, 740, 744-746, 760 (2002), S.C., 440 Mass. 1 (2003).     We

made clear in Haverty that under the department's DSU

regulations and as a matter of due process, "the procedural

protections contained in 103 Code Mass. Regs. §§ 421.00 must be

afforded to all prisoners before they are housed in DSU-like

conditions," with an exception for those whose stay in such a

DSU-like unit is expected to be brief -- i.e., days, not weeks.

Id. at 760, 763-764 & n.36.   See Longval v. Commissioner of

Correction, 448 Mass. 412, 413-416 (2007), and cases cited at

416; Hoffer v. Commissioner of Correction, 412 Mass. 450, 455

(1992).

     LaChance I was a case brought by a prisoner at the Souza-

Baranowski Correctional Center who was held for more than ten

months in administrative segregation, on awaiting action status,

in that facility's SMU.   LaChance I, 463 Mass. at 768-771.       He

claimed that the conditions of confinement in the SMU were

substantively identical to the conditions of a DSU, that he was

therefore entitled to the protections set out in the DSU


     11
       In 1995, the department filed in the county court a
motion to vacate or amend the single justice's 1988 order in
Hoffer vs. Fair, No. SJ-85-0071 (Mar. 3, 1988). A single
justice of this court denied the motion, and no appeal was
taken. See Haverty v. Commissioner of Correction, 437 Mass.
737, 738-739, 758 & n.27 (2002), S.C., 440 Mass. 1 (2003).
                                                                   11


regulations, and that the refusal of the prison authorities to

apply those regulations to him violated his rights under the

department's regulations as well as his due process rights under

the Federal and Massachusetts Constitutions.    Id. at 772.    A

judge of the Superior Court determined that LaChance was

entitled to the procedural protections in the DSU regulations,

and granted partial summary judgment to LaChance on his claims

of constitutional violations.   See id. at 772-773.    The judge

also granted summary judgment to the defendant correction

officials on LaChance's claim for damages under the

Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H & 11I, and

his claims against two of the defendants in their official

capacities.   LaChance I, supra at 773.   However, the judge

denied the defendants' motion for partial summary judgment on

LaChance's claims for damages against the defendants in their

individual capacities under 42 U.S.C. § 1983 (§ 1983), rejecting

the defendants' argument that they were entitled to qualified

immunity as a matter of law.    LaChance I, supra.   Exercising

their right to invoke the doctrine of present execution with

respect to this denial,12 the defendants in LaChance I filed an

interlocutory appeal in the Appeals Court, and we transferred

the appeal to this court on our own motion.    Id. at 768.

     12
       See, e.g., Maxwell v. AIG Domestic Claims, Inc., 460
Mass. 91, 97-98 (2011); Littles v. Commissioner of Correction,
444 Mass. 871, 875-876 (2005).
                                                                    12


    The issue directly before us in LaChance I was the

propriety of the judge's denial of partial summary judgment on

the defendants' claim of qualified immunity from liability for

damages under § 1983.   We concluded that an inmate placed in

administrative segregation on awaiting action status in an SMU

or other designated unit is entitled as a matter of due process

to certain procedural safeguards, including notice of the basis

on which he or she is so detained, a hearing at which the inmate

may challenge that basis, and a written posthearing notice

explaining the classification decision; and "that in no

circumstances may an inmate be held in segregated confinement on

awaiting action status for longer than ninety days without

[such] a hearing."   Id. at 776-777.   However, we also concluded

that the plaintiff's claims for damages against the individual

defendants under § 1983 were barred by the doctrine of qualified

immunity.   See id. at 777.   We did so because as a matter of

constitutional requirement, "the outer limit of what constitutes

'reasonable' segregated confinement on awaiting action status

without the safeguards of procedural due process" had not been

clearly established as of 2006, the relevant date in LaChance I.

See id. at 778.   Indeed, as we stated in the opinion, our

determination that "segregated confinement on awaiting action

status for longer than ninety days gives rise to a liberty

interest entitling an inmate to notice and a hearing" was one
                                                                   13


that we reached "for the first time" in that case.   See id.13   We

therefore remanded the case to the Superior Court for entry of

an order allowing the defendants' motion for summary judgment on

LaChance's claims under § 1983 against them in their individual

capacities.14   See id.

     As discussed, the motion judge in this case based her

dismissal of the plaintiffs' amended complaint on LaChance I.

     2.   Mootness.   The defendants argue that this appeal is

moot because none of the named plaintiffs remains in an SMU, and

therefore none is a member of the class the plaintiffs seek to

have certified.   The Appeals Court reached this same conclusion

that the appeal is moot because the named plaintiffs are no

longer in SMUs, and further concluded that, in the circumstances

presented, it would be "improvident" to consider and resolve the


     13
       As discussed infra, see notes 19 & 20 and accompanying
text, it was necessary in LaChance I to consider the
requirements of due process under the United States Constitution
in particular, because to be entitled to damages against the
individual defendants under 42 U.S.C. § 1983, LaChance was
required to prove that, as of 2006, it was "clearly established"
as a matter of Federal constitutional law that keeping a
sentenced prisoner in segregated confinement on awaiting action
status for longer than a particular period of time without a
hearing incorporating certain procedural protections violated
the prisoner's due process rights.
     14
       We also affirmed the Superior Court's order allowing (1)
LaChance's motion for partial summary judgment on his
constitutional claims, and (2) the defendants' motions for
summary judgment on the Massachusetts Civil Rights Act claim and
claims against certain defendants in their official capacities.
LaChance I, 463 Mass. at 778.
                                                                  14


plaintiffs' substantive claims on their merits.   See Cantell, 87

Mass. App. Ct. at 630-631, 635.15   However, we agree with the

dissenting justice that the appeal is not moot.   See id. at 636-

637 (Rubin, J., dissenting).   It is not moot because the

plaintiffs brought this case as a putative class action, and the

class action allegations contained in the amended complaint

remain operative until a judge has considered and rejected them

on their merits.   See Wolf v. Commissioner of Pub. Welfare, 367

Mass. 293, 297-298 (1975) (adopting rule followed by number of

Federal courts "that a class action is not mooted by the


     15
       The Appeals Court stated that it reached its
determination of mootness as a matter of discretion, because it
interpreted LaChance I to require the department to promulgate
new regulations, see Cantell, 87 Mass. App. Ct. at 632, 635, and
there was value in waiting for those new regulations to be
issued before assessing the merits of the plaintiffs' due
process claims. Id. at 635.

     To date, the department has not promulgated any such
regulations; the department's response to the LaChance I
decision has been limited to a memorandum from the commissioner,
dated February 5, 2013, amending the "standard operating
procedures" for SMUs "to reflect the additional review
requirements for inmates on awaiting action or protective
custody status for (90) days or more." The amended procedures
provide that (1) within ninety days of an inmate's placement in
an SMU and every ninety days thereafter, a correctional program
officer is to review the placement and conduct a hearing, of
which the inmate is entitled to forty-eight hours' notice and
the right to attend and offer a verbal or written statement (but
not to call witnesses or to have counsel); (2) the program
officer is to make a recommendation within two days of the
hearing as to whether the inmate should continue being confined
in the SMU; (3) the inmate may appeal from that recommendation
to the superintendent of the facility; and (4) the
superintendent's decision is final.
                                                                   15


settlement or termination of the named plaintiff's individual

claim").   This is particularly true where, as the plaintiffs

argue is the case here, it is within the defendants' power

voluntarily to cease the allegedly wrongful conduct with respect

to any named plaintiff by unilaterally deciding to release him

from an SMU.   "If the underlying controversy continues, a court

will not allow a defendant's voluntary cessation of his

allegedly wrongful conduct with respect to named plaintiffs to

moot the case for the entire plaintiff class."   Id. at 299.16

The statement applies to the present case:   the alleged wrongs

set out in the amended complaint continue to affect the putative

    16
       The Appeals Court suggested that our decision in Wolf has
been essentially superseded or at least limited by later
decisions of this court, such that Wolf is presently best
understood as an illustration of the principle that courts may
hear moot cases if there is an important issue capable of
repetition yet evading review, and "not as establishing a
distinct procedural rule applicable to class actions." Cantell,
87 Mass. App. Ct. at 630 n.8. We do not agree that we have
limited Wolf in this manner. The statement in Wolf that,
ordinarily, a judge should not dismiss a putative class action
as moot even though actions taken by the defendant may have
rendered moot the named plaintiff's particular claims is a
principle that remains good law, as does the observation that
"[i]n fact, to establish mootness in such circumstances, a
defendant bears a heavy burden of showing that there is no
reasonable expectation that the wrong will be repeated; and a
defendant's mere assurances on this point may well not be
sufficient." Wolf, 367 Mass. at 299. Our decision in Gonzalez
v. Commissioner of Correction, 407 Mass. 448 (1990), cited by
the Appeals Court, see Cantell, supra, is not to the contrary.
We specifically noted there, citing Wolf, that in a case where
"a defendant's voluntary cessation of allegedly wrongful conduct
toward the named plaintiff, thereby mooting his or her claim,"
has occurred, it may be appropriate to certify the putative
class despite this mootness issue. Gonzalez, supra at 452.
                                                                  16


class of individuals who remain confined to SMUs.17   In these

circumstances, the plaintiffs' appeal is not subject to

dismissal on mootness grounds.

     3.   Dismissal of the amended complaint on the merits.    The

motion judge ruled that certification of a plaintiff class was

unnecessary, and indeed the named plaintiffs' amended complaint

should be dismissed, based on her conclusion that LaChance I in

effect fully defined the parameters of the plaintiffs' due

process rights, and that the defendants had agreed that they

would implement those rights in relation to every prisoner

confined to an SMU on awaiting action status.18   Although her

memorandum of decision does not so state, it appears that the

judge interpreted LaChance I to overrule, in effect, Haverty and

other decisions in which we concluded that the procedural

protections contained in the DSU regulations must be provided to

all prisoners in nondisciplinary administrative segregation who


     17
       It is also true case that because the named plaintiffs in
this case remain incarcerated, they remain subject to being
returned to confinement in an SMU. They continue, therefore, to
have a real stake in the outcome.
     18
       As discussed, the rights described in LaChance I were the
right "to notice of the basis on which [the inmate] is . . .
detained [in administrative segregation]; a hearing at which
[the inmate] may contest the asserted rationale for his
confinement; and a posthearing written notice explaining the
reviewing authority's classification decision. . . . [I]n no
circumstances may an inmate be held in segregated confinement on
awaiting action status for longer than ninety days without a
hearing." LaChance I, 463 Mass. at 776-777.
                                                                  17


are subject to conditions similar to those in the DSUs.   See

Haverty, 437 Mass. at 740, 760, 763-764.   In fairness, the scope

of this court's decision in LaChance I was not fully explained.

The motion judge, however, erred in her interpretation of our

decision and in her dismissal of the amended complaint based on

that interpretation.

     As mentioned, LaChance I was an interlocutory appeal of a

decision denying the defendants' claim of qualified immunity

from liability for damages under § 1983.   In considering the

defendants' appeal, it was necessary to focus on LaChance's

Federal due process claims because LaChance would be entitled to

damages under his § 1983 claims only if the defendants knowingly

violated LaChance's rights under the United States

Constitution.19   See Cantell, 87 Mass. App. Ct. at 638 (Rubin,

J., dissenting) ("the State law issue decided in Haverty was

different from the issue the court was addressing in LaChance

[I], that of Federal due process in the context of 42 U.S.C.




     19
       See, e.g., Parratt v. Taylor, 451 U.S. 527, 535 (1981),
overruled in part on other ground, Daniels v. Williams, 474 U.S.
327, 328 (1986) (two essential elements of action under 42
U.S.C. § 1983 are [1] that challenged conduct be committed by
person acting under color of State law, and [2] "whether this
conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States"
[emphasis added]); Adickes v. S.H. Kress & Co., 398 U.S. 144,
150 (1970) (same).
                                                                  18


§ 1983" [emphasis in original]).20   At no point in LaChance I did

we suggest that we intended to overrule Haverty and related

cases; in fact, the opposite is true.    See LaChance I, 463 Mass.

at 774-775, discussing Haverty with approval, and specifically

noting the holding of Haverty that "under [the department's]

regulations, indefinite confinement in any unit where conditions

are substantially similar to those of a DSU entitles an inmate

to the protections afforded by the DSU regulations."    Id. at

774.

       Haverty and related decisions of this court and the Appeals

Court confirm the continuing viability of the department's DSU

regulations and their application to "all placements of

prisoners in segregated confinement for nondisciplinary reasons

       20
       In LaChance I, we discussed LaChance's "due process
rights" without drawing any distinction between the due process
protections provided by the United States Constitution and the
Massachusetts Constitution. As stated in the text, however, for
purposes of deciding the individual defendants' claim of
qualified immunity from suit under 42 U.S.C. § 1983, it was
essential to focus on LaChance's due process rights protected
under the Federal Constitution. We had no reason to, and did
not, consider in LaChance I whether the extent of due process
protections to which a prisoner in the position of LaChance is
entitled under art. 12 of the Massachusetts Declaration of
Rights is different in scope from the protections provided by
the due process clause in the United States Constitution. (To
the extent that Haverty, 437 Mass. at 762-763, concluded that
the rights of the plaintiffs in that case to have the DSU
regulations applied to them was constitutionally required as a
matter of due process, the conclusion appears to have had its
roots in the decision of the single justice in Hoffer vs. Fair,
No. SJ-85-0071. See Haverty, supra at 738-739, 744-745. Hoffer
vs. Fair itself was based on the requirements of due process
under the Constitution of the Commonwealth.)
                                                                  19


for an indefinite period of time; in other words, those

prisoners whom prison authorities determine will interfere with

the management of the prison unless they are segregated from the

general prison population."   Haverty, 437 Mass. at 760.    See id.

at 740.   See also Longval, 448 Mass. at 416, and cases cited.

Because LaChance I did not overrule Haverty, the plaintiffs are

entitled to pursue in the Superior Court their motion to certify

a class, and, on the merits, their claims that as prisoners

confined to SMUs, they are entitled to have the DSU regulations

applied to them and entitled to all the procedural protections

and other rights included within those regulations.21

     Conclusion.   The judgment of the Superior Court is

reversed, and the case remanded to that court for further

proceedings consistent with this opinion.

                                    So ordered.




     21
       LaChance I was not a class action, and the plaintiffs
here, although raising similar regulatory and constitutional
challenges as LaChance, were not parties to the LaChance I case.
Moreover, LaChance was confined to an SMU on awaiting action
status; the class the plaintiffs seek to represent is broader.
Contrary to a suggestion of the plaintiffs in their brief, it is
also the case that the motion judge in the present case has not
made any findings of fact, but ruled on nonevidentiary motions.
Accordingly, neither LaChance I nor prior proceedings in this
case have resolved the merits of the plaintiffs' claims.
