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16-P-680                                                Appeals Court

     CHRISTIAN ROSADO   vs.    COMMISSIONER OF CORRECTION & another.1


                                No. 16-P-680.

           Middlesex.         February 7, 2017. - May 22, 2017.

                   Present:   Green, Meade, & Agnes, JJ.


Imprisonment, Safe environment. Constitutional Law,
     Imprisonment. Administrative Law, Judicial review.
     Practice, Civil, Relief in the nature of certiorari, Motion
     to dismiss. Due Process of Law, Prison regulation. Libel
     and Slander.



     Civil action commenced in the Superior Court Department on
May 11, 2015.

       A motion to dismiss was considered by Kenneth J. Fishman,
J.


       Christian Rosado, pro se.
       Katherine W. Briggs for the defendants.


       GREEN, J.    The pro se plaintiff, an inmate in the custody

of the Department of Correction, appeals from a judgment of the


       1
       Chief of the Office of Investigative Services. Both
officials are sued individually and in their official
capacities.
                                                                      2


Superior Court, dismissing his complaint against the defendants,

the Commissioner of Correction and the chief of the office of

investigative services (investigative services chief).    In his

complaint, the plaintiff asserted various claims stemming from

the defendants' designation of him as a member of the "Latin

Kings," a "security threat group" (STG).   The plaintiff denies

that he is a member of the Latin Kings, and that his false

designation as such subjects him to various harms entitling him

to relief.   We agree with the judge that the plaintiff's claim

for certiorari relief, pursuant to G. L. c. 249, § 4, does not

lie because the designation was a discretionary administrative

decision rather than an adjudicatory or quasi adjudicatory one,

and that his due process claim fails because his designation as

a member of an STG does not infringe upon a protected liberty

interest.2   We accordingly affirm the judgment of dismissal.

     Background.   "We review the allowance of a motion to

dismiss de novo, accepting as true all factual allegations in

the complaint and favorable inferences drawn therefrom.      Curtis

v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), and

cases cited.   We may also consider exhibits attached to the


     2
       We also conclude that the plaintiff's claim for defamation
was properly dismissed, if for no reason other than that his
complaint does not allege that the defendants published his
designation as an STG member to "any considerable and
respectable segment of the community." Stone v. Essex County
Newspapers, Inc., 367 Mass. 849, 853 (1975).
                                                                    3


complaint and items appearing in the record.    Melia v. Zenhire,

Inc., 462 Mass. 164, 165-166 (2012), citing Schaer v. Brandeis

Univ., 432 Mass. 474, 477 (2000)."    Lipsitt v. Plaud, 466 Mass.

240, 241 (2013).

     As we observed in the introduction, the plaintiff is an

inmate in the custody of the Department of Correction.3    In

November, 2014, a search of his cell uncovered pictures of a

number of other prisoners the plaintiff had befriended, all of

whom were members of a known STG.    One week later, the

facility's inner perimeter security team informed the plaintiff

that it intended to classify him as a gang member, due to the

discovery of pictures of gang members in his cell.

     In February, 2015, the defendant investigative services

chief met with the plaintiff to allow him to dispute his

identification as a member of the Latin Kings gang.   Following

the meeting (in which the plaintiff denied his membership in the

Latin Kings), the investigative services chief notified the

plaintiff by letter dated February 12, 2015, that his

identification as a member of an STG had been "validated," and

advising him that he could appeal that decision to the

Commissioner within five days of the notice.   By letter dated


     3
       In his complaint, the plaintiff alleged that he was held
at Massachusetts Correctional Institution, Concord. According
to our docket and the plaintiff's brief, the plaintiff currently
resides at the Souza-Baranowski Correctional Center in Shirley.
                                                                   4


February 24, 2015, the plaintiff appealed to the Commissioner,

who rejected his appeal.4   By two subsequent letters, one from

the plaintiff on March 16, 2015, and another from an attorney on

his behalf on March 23, 2015, the plaintiff expressed his

displeasure and disagreement with his designation as an STG

member.

     As a result of his designation as an STG member, the

plaintiff is restricted in his employment opportunities within

the correctional facility where he is housed.   In addition, the

plaintiff alleges that his false designation as an STG member

subjects him to danger from other inmates who are enemies of

that group.

     In his complaint, the plaintiff asserted that his

designation violated the Fourteenth Amendment to the United

States Constitution, art. 12 of the Massachusetts Declaration of

Rights, G. L. c. 231A, G. L. c. 30A, §§ 1-8, and 42 U.S.C.

§ 1983, and also asserted a claim for defamation.

     Discussion.   "A [Mass.R.Civ.P. 12(b)(6), 365 Mass. 754

(1974),] motion may be allowed only when the complaint's factual


     4
       The plaintiff's verified complaint did not describe the
grounds for denial, and did not include a copy of the letter of
denial as an exhibit. We consequently are without any basis to
ascertain the reasons for the denial. We note, however, that
the plaintiff's letter to the Commissioner appealing his
designation as an STG member is dated February 24, 2015, beyond
the appeal period described in the February 12, 2015, letter
advising him of his designation.
                                                                    5


allegations (and reasonable inferences therefrom), accepted as

true, do not plausibly suggest an entitlement to relief.    See

Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008);

Curtis v. Herb Chambers I-95, Inc., [supra].   'Factual

allegations must be enough to raise a right to relief above the

speculative level . . . [based] on the assumption that all the

allegations in the complaint are true (even if doubtful in

fact).'   Iannacchino v. Ford Motor Co., supra at 636, quoting

from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Assertions set out in a motion to dismiss are not part of the

rule 12(b)(6) review equation.   Eigerman v. Putnam Invs., Inc.,

450 Mass. 281, 285 n.6 (2007).   Romano v. Sacknoff, 4 Mass. App.

Ct. 862, 863 (1976)."   Fraelick v. PerkettPR, Inc., 83 Mass.

App. Ct. 698, 699-700 (2013).

     In his complaint and in his arguments in the Superior Court

and on appeal, the plaintiff relied principally on the

certiorari statute, G. L. c. 249, § 4, for jurisdiction.5    "In


     5
       Though the plaintiff's complaint alleged violations of
G. L. c. 231A and G. L. c. 30A, §§ 1-8, he has directed no
argument to either statute, and neither supports a cause of
action for any violation thereof. Any claim that either statute
furnishes a cause of action under the plaintiff's complaint
accordingly is waived. In any event, to the extent c. 231A
supports an action for a declaratory judgment on the plaintiff's
claim of a due process violation, it is subsumed in our
discussion of that issue, infra. We also note that the sections
of the Administrative Procedure Act applicable to the Department
of Correction, G. L. c. 30A, §§ 1-8, see G. L. c. 30A, § 1A, do
not include those sections of the Act that govern procedures
                                                                      6


general, a plaintiff is only entitled to certiorari review of an

administrative decision if [he] can demonstrate the presence of

three elements:   '(1) a judicial or quasi judicial proceeding,

(2) from which there is no other reasonably available remedy,

and (3) a substantial injury or injustice arising from the

proceeding under review.'"     Revere v. Massachusetts Gaming

Commn., 476 Mass. 591, 600 (2017), quoting from Indeck v.

Clients' Sec. Bd., 450 Mass. 379, 385 (2008).     Inmates may bring

an action in the nature of certiorari to challenge the validity

of an adjudication by a disciplinary board.    See Hill v.

Superintendent, Massachusetts Correctional Inst., Walpole, 392

Mass. 198, 199 n.2 (1984).    The present case, however, does not

pertain to disciplinary board action.    While "an action in the

nature of certiorari may be brought to 'correct errors in

proceedings . . . not otherwise reviewable by motion or by

appeal,' that review offers no protection against discretionary

administrative actions."     Emerson College v. Boston, 391 Mass.

415, 422 n.l4 (1984), quoting from G. L. 249, § 4, as appearing

in St. 1973, c. 1114, § 289.

    "When distinguishing a quasi judicial agency proceeding

from a legislative or purely administrative one, we have looked

generally to the form of the proceeding and examined the extent


applicable to adjudicatory administrative proceedings or provide
a right to judicial review of administrative decisions resulting
therefrom. See G. L. c. 30A, §§ 10-14.
                                                                      7


to which it resembles judicial action."     Revere v. Massachusetts

Gaming Commn., supra.   The line of demarcation between a

discretionary administrative decision and one resulting from a

quasi judicial proceeding is often less than clear.     We consider

several factors in deciding the question:    "(1) whether the

proceeding is preceded by specific charges, see School Comm. of

Hudson v. Board of Educ., 448 Mass. 565, 576 (2007); (2) whether

the proceeding involves sworn testimony by witnesses subject to

cross-examination, see id., or a party attesting to certain

facts, see Frawley v. Police Commr. of Cambridge, 473 Mass. 716,

727 (2016), as opposed to unsworn statements by interested

persons advocating for or against a proposed new policy, see

School Comm. of Hudson, 448 Mass. at 576; (3) whether the agency

conducts an investigation into the veracity of attested-to

facts, see Frawley, supra; (4) whether the proceeding culminates

in an individualized determination of a party's entitlement to

some benefit, see id., or an individualized course of

discipline, see Hoffer [v. Board of Registration in Med., 461

Mass. 451, 457 (2012)], as opposed to culminating in the

adoption of a rule of general applicability, see Pronghorn, Inc.

v. Licensing Bd. of Peabody, 13 Mass. App. Ct. 70, 72 (1982);

and (5) whether the proceeding is followed by the adoption of

formal findings of fact, see School Comm. of Hudson, supra."

Id. at 600-601.
                                                                   8


     Applying those factors to the circumstances of the present

case, we observe that the "proceeding" in the present case was

not a proceeding at all, in the usual sense of the term; instead

the prison inner perimeter security team advised the plaintiff

that, based on information of which it had become aware, it had

determined that he was a member of an STG.   Nor was the

subsequent one-on-one meeting with the investigative services

chief a quasi adjudicatory hearing.   There were no "charges"

brought prior to his designation as a member of an STG, no

discovery of information, and no witnesses presented or

testimony taken at the meeting; there was also no formal written

decision with specific findings of fact.   Nor is there any

statute or regulation requiring such an inquiry or procedure.

We conclude that the decision to designate the plaintiff a

member of an STG was a discretionary action taken pursuant to

G. L. c. 124, § 1, to preserve the safety and security of staff

and other inmates.6   The extraordinary difficulties inherent in


     6
       General Laws c. 124, § 1, as amended by St. 1972, c. 777,
§ 5, provides in pertinent part that the Commissioner shall:

     "(a) designate, establish, maintain, and administer such
     state correctional facilities as he deems necessary . . .

     "(b) maintain security, safety, and order at all state
     correctional facilities, . . . take all necessary
     precautions to prevent the occurrence or spread of any
     disorder, riot or insurrection at any such facility, . . .

     ". . .
                                                                   9


the operation of a correctional institution warrant broad

discretion by prison officials in the adoption of policies and

the administration of prison affairs.    See, e.g., Nelson v.

Commissioner of Correction, 390 Mass. 379, 397 (1983) (transfer

decisions, either disciplinary or administrative, are within

Commissioner's discretion); Real v. Superintendent, Mass.

Correctional Inst., Walpole, 390 Mass. 399, 406 (1983) (broad

discretion necessarily given to prison officials in light of

their extraordinarily difficult task).   Accordingly, while the

defendants' designation of the plaintiff as a member of an STG

culminated in an individualized determination of the plaintiff's

entitlement to certain benefits within the prison setting, they

did so within the broad discretionary purview afforded them in

the management of safety and security of the inmate population

generally, and not as the result of an adjudicatory or quasi

adjudicatory proceeding.   We conclude that certiorari is not an

appropriate vehicle to seek to overturn discretionary

administrative action designed to promote legitimate penological

goals.   See Revere v. Massachusetts Gaming Commn., supra.




    "(q) make and promulgate necessary rules and regulations
    incident to the exercise of his powers and the performance
    of his duties including but not limited to rules and
    regulations regarding . . . safety, discipline, . . .
    classification, . . . care, and custody for all persons
    committed to correctional facilities."
                                                                      10


    There likewise is no merit to the plaintiff's claim under

42 U.S.C. § 1983.    As it is undisputed that the defendants acted

under color of law, our inquiry is whether the defendants

deprived the plaintiff of "rights, privileges, or immunities

secured by the Constitution or laws of the United States."        Miga

v. Holyoke, 398 Mass. 343, 349 (1986).

    The gravamen of the plaintiff's § 1983 claim is that by

designating him a member of an STG without a full and proper

hearing, the defendants violated his right to due process.       It

is settled that prisoners may not be deprived of life, liberty,

or property without due process of law.     Wolff v. McDonnell, 418

U.S. 539, 556 (1974).     A liberty interest may arise from the

Constitution itself or from State-conferred privileges.

Wilkinson v. Austin, 545 U.S. 209, 221-222 (2005).     The decision

to designate the plaintiff as a member of an STG does not,

however, implicate a liberty interest arising from the due

process clause.     In Meachum v. Fano, 427 U.S. 215, 224 (1976),

the United States Supreme Court held that transferring prisoners

from a more favorable facility to a less favorable one did not

infringe or implicate a liberty interest within the meaning of

the due process clause:    "We reject at the outset the notion

that any grievous loss visited upon a person by the State is

sufficient to invoke the procedural protections of the Due

Process Clause . . . .     Similarly, we cannot agree that any
                                                                   11


change in the conditions of confinement having a substantial

adverse impact on the prisoner involved is sufficient to invoke

the protections of the Due Process Clause."   The decision to

identify the plaintiff as a member of an STG likewise does not

implicate a liberty interest created by State law.    State-

created liberty interests generally are "limited to freedom from

restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due

Process Clause of its own force . . . nonetheless imposes

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life."    Sandin v. Conner, 515

U.S. 472, 484 (1995).   See id. at 486 (disciplining prisoner for

thirty days "in segregated confinement did not present the type

of atypical, significant deprivation in which a State might

conceivably create a liberty interest").

     The Supreme Judicial Court has held that Sandin forecloses

an inmate's Federal due process claim based upon an

administrative order transferring certain categories of inmates,

without a hearing, from prerelease to higher security facilities

because such an order does not impose "atypical and significant

hardship."   Hastings v. Commissioner of Correction, 424 Mass.

46, 51-52 (1997).7   The mere identification of the plaintiff as a


     7
       The inmates in Hastings claimed that their State-created
liberty interests arose from various statutes and regulations,
                                                                  12


member of an STG, and the concomitant loss of the right to be

considered for certain employment opportunities within the

correctional facility, similarly does not impose atypical and

significant hardship on the plaintiff in relation to the

ordinary incidents of prison life.   Under the standards

announced in Sandin, the plaintiff's loss of the chance to

participate in certain prison employment opportunities does not

affect any State-created liberty interest and thus does not

violate the due process clause.   See Harbin-Bey v. Rutter, 420

F.3d 571, 577 (6th Cir. 2005) (designation as STG member "does

not constitute an atypical and significant hardship in relation

to the ordinary incidents of prison life").   See also Dupont v.

Saunders, 800 F.2d 8, 10 (1st Cir. 1986) ("prisoners have no

vested property or liberty" interest in ability to obtain or

maintain prison employment).

    The plaintiff has not alleged that the defendants

communicated his designation as an STG member to any other

inmates (or that such inmates otherwise have acquired knowledge



including G. L. c. 124, § 1 (powers of Commissioner); 103 Code
Mass. Regs. § 420 (1995) (classification regulations); and 103
Code Mass. Regs. § 464 (1993) (work-release regulations). The
plaintiff in the present case makes a similar argument, claiming
that the defendants violated State-created liberty interests
arising from G. L. c. 127, § 39 (segregated units); 103 Code
Mass. Regs. § 420 (2007) (classification regulations); 103 Code
Mass. Regs. § 421 (1994) (departmental segregation regulations);
and 103 Code Mass. Regs. § 430 (2006) (disciplinary
proceedings).
                                                                   13


of his designation), yet inherent in the plaintiff's assertion

that the designation subjects him to danger from other inmates

is the fact that such other inmates must be aware of the

designation.   Simply put, the plaintiff has alleged no facts to

support his conclusory allegation that his designation as an STG

member has put him in danger.   Accordingly, the allegation does

not implicate a protected liberty interest.    See Iannacchino v.

Ford Motor Co., 451 Mass. at 636 ("[f]actual allegations must be

enough to raise a right to relief above the speculative level"

[quotation omitted]).

     Finally, the judge properly dismissed the plaintiff's claim

for defamation, if for no reason other than that, as we have

observed, see note 2, supra, the plaintiff has not alleged that

the defendants published his designation as an STG member to

"any considerable and respectable segment in the community."

Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853

(1975).    See Phelan v. May Dept. Stores Co., 443 Mass. 52, 56

(2004).8

                                     Judgment affirmed.




     8
       We need not consider the defendants' alternative
contentions that, by reason of the crime for which the plaintiff
is incarcerated, he is libel-proof, see Jackson v. Longcope, 394
Mass. 577, 578-582 (1985), or that the defendants are entitled
to qualified immunity. See Ford v. Bender, 768 F.3d 15, 23 (1st
Cir. 2014).
