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SJC-12935

  STEPHEN FOSTER1 & others2 vs. COMMISSIONER OF CORRECTION &
                        others3 (No. 2).


                            June 2, 2020.


Commissioner of Correction. Parole. Commissioner of Public
     Safety. Governor. Imprisonment, Safe environment.
     Constitutional Law, Sentence, Imprisonment, Cruel and
     unusual punishment. Due Process of Law, Sentence,
     Commitment. Practice, Criminal, Sentence, Execution of
     sentence. Practice, Civil, Civil commitment.


     In Foster v. Commissioner of Correction (No. 1), 484 Mass.
,     (2020) (Foster [No. 1]), we denied the plaintiffs' motion
for a preliminary injunction and transferred the case to the
Superior Court for a final adjudication on the merits. In this
opinion, we address the motions brought by the Governor and the
chair of the parole board (parole board) to dismiss the claims
against them. For the reasons that follow, we allow the
Governor's motion and we allow in part and deny in part the
parole board's motion.

     Discussion. 1. Allegations of the complaint. In deciding
the motions to dismiss, we accept as true the factual

     1   On behalf of himself and all others similarly situated.

     2 Michael Gomes, Peter Kyriakides, Richard O'Rourke, Steven
Palladino, Mark Santos, David Sibinich, Michelle Tourigny,
Michael White, Frederick Yeomans, and Hendrick Davis, on behalf
of themselves and all others similarly situated.

     3 Chair of the parole board, Secretary of the Executive
Office of Public Safety and Security, and the Governor.
                                                                   2


allegations of the complaint and the reasonable inferences that
can be drawn from those facts in the plaintiffs' favor. See
Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008).
We do not address, let alone attempt to resolve here, the truth
of those allegations; that is, whether in fact the conditions of
confinement during the COVID-19 pandemic comport with State and
Federal constitutional requirements, and whether the defendants
have in fact "acted or failed to act with deliberate
indifference." Foster (No. 1), 484 Mass. at      . Instead, our
narrow focus is on whether the plaintiffs' complaint adequately
"state[s] a claim upon which relief can be granted" against the
Governor and the parole board,"4 Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974); in other words, whether the allegations, if
true, plausibly suggest an entitlement to any relief against
these defendants. Iannacchino, supra at 635-636.

     The complaint alleges that, by confining the plaintiffs
"under conditions that put them in grave and imminent danger of
contracting the COVID-19 virus, and failing to implement an
effective mechanism to reduce the incarcerated population to a
safe level, [the] [d]defendants are deliberately indifferent to
the substantial risk of serious harm suffered by [the]
[p]laintiffs." They allege that each of the defendants is (1)
violating the plaintiffs' right to be free from cruel or unusual
punishment and their right to substantive due process, as
guaranteed under the Declaration of Rights in the Massachusetts
Constitution, and as secured by G. L. c. 231A (count one); and
(2) violating their right to be free from cruel and unusual
punishment and their right to substantive due process as
guaranteed by the Federal Constitution, and as secured by 42
U.S.C. § 1983 (count two). Additionally, the plaintiffs allege
that confining persons who have been civilly committed under
G. L. c. 123, § 35, in correctional facilities violates those
individuals' rights to substantive due process under the Federal
and State Constitutions, as secured by 42 U.S.C. § 1983 and
G. L. c. 231A, respectively (count three).

     By its terms, the complaint seeks injunctive relief
pursuant to G. L. c. 231A and 42 U.S.C. § 1983. In particular,
it seeks an order requiring the defendants, "their agents,
officials, employees, and all persons acting in concert with
them" to confine prisoners in particular ways; requiring certain

     4 The Governor has also moved to dismiss the complaint for
"[l]ack of jurisdiction over the subject matter." Mass. R. Civ.
P. 12 (b) (1), 365 Mass. 754 (1974). Because of the result
reached, we do not separately address the point.
                                                                   3


medical and health arrangements; prohibiting the ongoing
confinement in correctional facilities of persons civilly
committed under G. L. c. 123, § 35; reducing the number of
persons incarcerated in prisons and jails; and mandating that
the parole board take certain actions. The complaint also seeks
an order "[m]aximizing the use of commutation and clemency" by
the Governor and "[m]aximizing the use of the Governor's
emergency powers and all other available mechanisms to grant
releases to all those who are vulnerable."

     2. Governor's motion to dismiss. Although the complaint
broadly alleges that the defendants have violated the
plaintiffs' State and Federal constitutional rights, the
specific allegations against the Governor are notably few. The
complaint alleges that the "Governor has refused to act on his
near plenary emergency powers when it comes to the health and
safety of prisoners." The plaintiffs seek to compel the
Governor to use his authority to order a reduction in the prison
population, because, absent his exercise of authority, "[t]here
have been no commutations, no furloughs, no increase in earned
good times, no releases by the [Department of Correction] to
home confinement, little if any increase in the use of medical
parole, and no effort by the parole board to streamline the
parole process or modify the criteria for release in light of
COVID-19."

     The plaintiffs are not entitled to relief against the
Governor under the declaratory judgment statute, G. L. c. 231A,
because the statute, by its terms, expressly does "not apply to
the governor and council or the legislative and judicial
departments." G. L. c. 231A, § 2. See Milton v. Commonwealth,
416 Mass. 471, 475 (1993); Alliance, AFSCME/SEIU, AFL-CIO v.
Secretary of Admin., 413 Mass. 377, 377 n.1 (1992), and cases
cited.

     Nor is their position enhanced by invoking, as they do, the
inherent power of this court "to say what the Constitution
requires, when the question is properly presented." Bates v.
Director of the Office of Campaign & Political Fin., 436 Mass.
144, 168 (2002), quoting Horton v. Attorney Gen., 269 Mass. 503,
507 (1929), and citing Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803). Had they alleged that the Governor affirmatively took
action that was unconstitutional, or that anything he has done
actually caused harm to the plaintiffs from alleged
constitutional violations, the situation may well be different.
But they do not challenge anything the Governor has in fact
done; they only complain of what they allege he could have done
                                                                   4


but did not. And they certainly do not contend that the
Governor had any direct, affirmative involvement in causing the
challenged prison conditions. See Hannon v. Beard, 979 F.
Supp. 2d 136, 141-142 (D. Mass. 2013) (no direct connection
between prison conditions and Governor's actions), and cases
cited. See also Brown v. Rhode Island, 511 Fed. Appx. 4, 5 (1st
Cir. 2013) (dismissing claims against Governor where plaintiff
did not challenge any affirmative acts of Governor). Moreover,
the Governor cannot be found liable based on a theory of
respondeat superior or vicarious liability, that is, on the
theory that he is legally responsible for the conduct of those
he appointed to government service or to the agencies they lead.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (vicarious
liability not applicable in such actions); Brown, supra
(respondeat superior theory of liability not available in such
circumstances).

     In short, the complaint claims that the Governor is liable
for things he has not done. First, it alleges that he is
responsible for failing to reduce the prison population by
failing to exercise his executive authority to pardon and grant
clemency. Second, it alleges that he has failed to exercise his
emergency powers to mitigate the situation. These are not
actionable claims. With respect to the first alleged failure to
act, it is well settled that the Governor's authority to grant
pardons and other clemency is exclusively an executive
authority. See Part II, c. 2, § 1, art. 8, of the Massachusetts
Constitution, as amended by art. 73 of the Amendments to the
Massachusetts Constitution ("The power of pardoning offences
. . . shall be in the governor, by and with the advice of
council . . ."). This court cannot compel him to exercise it.
See District Attorney for the Suffolk Dist. v. Watson, 381 Mass.
648, 667 n.10 (1980) (judicial branch cannot control executive
clemency).

     With respect to the second alleged failure to act, viz.,
the Governor's failure to utilize his emergency powers to
mitigate the situation, this court should tread lightly in
telling any Governor when or how to exercise his or her powers.
It is one thing for a court to order a Governor to cease
engaging in action the court has found to be unconstitutional;
it is quite another for a court affirmatively to direct a
Governor how to act. For that reason, among others, this court
historically has been unwilling to order a Governor to act where
the relief sought, if deserved, can be provided by means of a
court order against some defendant other than the Governor. See
Milton, 416 Mass. at 475-476; Rice v. Draper, 207 Mass. 577, 579
                                                               5


(1911). Cf. LIMITS v. President of the Senate, 414 Mass. 31, 34
(1992). If the plaintiffs in this case are indeed entitled to a
remedy at the conclusion of the case, it can be provided by an
appropriate order or orders directed to the other executive
branch officials in the case. See Milton, supra. See also
Barnes v. Secretary of Admin., 411 Mass. 822, 822 n.2 (1992).
As stated, there is no claim that the Governor himself, by any
affirmative act he has taken, has "overstepp[ed] constitutional
bounds." Horton, 269 Mass. at 507. And we are confident, as
this court always has been, that any declaration that we or the
Superior Court may ultimately issue requiring action by any of
the remaining defendants will be met with prompt compliance.
See LaChance v. Commissioner of Correction, 475 Mass. 757, 765
(2016), quoting Massachusetts Coalition for the Homeless v.
Secretary of Human Servs., 400 Mass. 806, 825 (1987) (where
declaratory judgment is directed to public officials, injunctive
order is "generally unnecessary" because Massachusetts courts
"assume that public officials will comply with the law declared
by a court"). The Governor's presence is simply not necessary
to provide any relief that a court may order in this case.

     3. Parole board's motion to dismiss. The plaintiffs
allege in their complaint that the parole board has "fail[ed] to
implement an effective mechanism to reduce the incarcerated
population to a safe level," and that there has been "little if
any increase in the use of medical parole, and no effort by the
parole board to streamline the parole process or modify the
criteria for release in light of COVID-19." The complaint in
essence claims that the parole board is failing to take steps
that it is empowered to take to protect the plaintiffs from
COVID-19, and that its deliberate indifference to the
plaintiffs' plight creates "a substantial risk of serious harm
to [the plaintiffs'] health or safety." Foster (No. 1), 484
Mass. at     . Accordingly, the complaint seeks an order
requiring the parole board to exercise its authority under G. L.
c. 127, §§ 130 et seq., and 120 Code Mass. Regs. § 200.10 (2017)
to make persons serving house of correction sentences eligible
for early parole; to consider the dangers posed by COVID-19 when
evaluating, as the statute requires it to do, whether "release
is not incompatible with the welfare of society"; to
presumptively grant parole to parole eligible individuals; to
expedite the release of individuals who have been granted parole
or medical parole; to ensure no prisoner is held beyond his or
her "release to supervision date," see G. L. c. 127, § 130B; and
to conduct parole hearings for parole eligible prisoners not
                                                                   6


later than sixty days prior to their parole eligibility date, as
required by G. L. c. 127, § 136.5

     Accepting the allegations of the complaint as true, as we
must in considering a motion to dismiss, we conclude that the
plaintiffs have alleged facts which, if proved, are sufficient
to state a constitutional claim that the parole board was
deliberately indifferent to the risk of death and serious
illness to certain prisoners, particularly elderly and medically
vulnerable prisoners. See Iannacchino, 451 Mass. at 636. See
also Good v. Commissioner of Correction, 417 Mass. 329, 334
(1994) (Commissioner of Correction proper party defendant where
he had "ability to prevent harm"). The complaint alleges that
the parole board has authority to implement effective measures
to reduce the incarcerated population by, for example,
expediting parole hearings and releases and, perhaps,
considering the impact of COVID-19 as part of its assessment.
If, as the plaintiffs contend, the parole board has been
deliberately indifferent in its exposure of the prisoners to
"unreasonable risks from the COVID-19 pandemic," Foster (No. 1),
484 Mass. at    , then the parole board's failure to act within,
and to the extent of, its authority may, if such deliberate
indifference is proved, entitle the plaintiffs to relief.

     We recognize that the scope of the parole board's authority
is defined by statute, see G. L. c. 27, § 4, and G. L. c. 127,
§§ 130 et seq., and that "the court's equitable powers may not
be used to provide relief that is contrary to statutory or
constitutional requirements." McCarthy v. Governor, 471 Mass.
1008, 1010-1011 (2015), citing Haverty v. Commissioner of
Correction, 440 Mass. 1, 8 (2003). See Immigration &
Naturalization Serv. v. Pangilinan, 486 U.S. 875, 883 (1988)
("Courts of equity can no more disregard statutory and
constitutional requirements and provisions than can courts of
law" [citation omitted]). Where, however, the parole board has
authority to act and it fails to do so, for example, by failing
to consider early parole in circumstances that are "sufficiently
compelling," see Committee for Pub. Counsel Servs. v. Chief
Justice of the Trial Court, 484 Mass. 431, 452 (2020), quoting
120 Code Mass. Regs. § 200.10, or by failing to hold timely
hearings, this court (and likewise the Superior Court) can
exercise its equitable authority to require the parole board to
exercise its statutory authority to remedy a constitutional

     5 The plaintiffs do not oppose dismissal of the claim
against the parole board relating to individuals civilly
committed under G. L. c. 123, § 35.
                                                                   7


violation, if such a violation were to be found. Indeed, if the
plaintiffs' constitutional claims were to prevail and if this
court (or the Superior Court) were to order the population of
incarcerated inmates to be reduced, the parole board would be a
logical and necessary party to accomplish a reasonable and
sensible remedial process. See Richardson v. Sheriff of
Middlesex County, 407 Mass. 455, 469-470 (1990).

     Conclusion. The Governor's motion to dismiss the complaint
is allowed. The parole board's motion is allowed only with
respect to the claims of the individuals civilly committed under
G. L. c. 123, § 35, and is otherwise denied.

                                   So ordered.


     James R. Pingeon for the plaintiffs.
     Stephen G. Dietrick for Commissioner of Correction &
another.
     Ryan P. McManus, Special Assistant Attorney General, for
the Governor.
     Michael R. Byrne for the parole board.
     The following submitted briefs for amici curiae:
     Tatum A. Pritchard for Disability Law Center, Inc.
     Rachael Rollins, District Attorney for the Suffolk
district, & Hon. Jon Santiago, pro se.
     Matthew R. Segal for American Civil Liberties Union of
Massachusetts & another.
