No. 90-6049Commonwealth of Massachusetts Superior Court CIVIL ACTION SUFFOLK, ss.
November 26, 1996
MEMORANDUM OF DECISION AND ORDER ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT
FREMONT-SMITH, JUSTICE.
The plaintiff, Donald B. Adams (“Adams”),[1] acting pro se,[2] brought this action against the defendants, George Vose (“Vose”), Michael T. Maloney (“Maloney”), Linda Washburn (“Washburn”),[3] Paul Rakiey (“Rakiey”) and John Marshall (“Marshall”), alleging due process violations pursuant to the United States Constitution, Massachusetts Declaration of Rights, 42 U.S.C. § 1983, M.G.L.c. 12, § 11I, and assorted state laws and regulations arising out of treatment he received when he refused, on at least two separate occasions, to transfer to different units within the prison system. Plaintiff has moved, pursuant to Mass.R.Civ.P. 56, for summary judgment as to Counts Four through Eight of his Complaint. The defendants have filed a cross-motion for summary judgment as to all of Adams’ claims. After hearing and the Court’s consideration of the submissions of the parties, the court ALLOWS the defendants’ motion for summary judgment as to all of plaintiff’s claims.
BACKGROUND
On or about November 9, 1987, the plaintiff, Adams, was sentenced to twelve (12) to fifteen (15) years at MCI Cedar Junction for a crime he committed while on parole. Adams was prematurely released on or about November 14, 1987, due to a mistake made by institutional records staff and remained at large until March 16, 1988, at which time he was caught and returned to custody. In April, 1998, as they had assisted him while a fugitive from justice, Adam’s girlfriend, father and a cousin were barred from visiting Adams for a period of one (1) year. Their visiting privileges were restored in February, 1989, June, 1989, and May, 1990, respectively. The plaintiff’s mother was barred intermittently during this one (1) year period.
On or about December 8, 1988, Adams received a disciplinary report for disobedience[4] and was placed on awaiting action status pending a disciplinary hearing. On December 9, 1988, after receiving a second disciplinary report for his refusal to transfer from the Bristol I to the Bristol II housing unit, Adams locked himself in a shower stall.
It is undisputed that Adams refused to leave the locked shower stall from the afternoon of December 9, 1988 to the morning of December 11, 1988, at which time he agreed to transfer to the Awaiting Action (“AA”) unit. Adams admits that he objected to the transfer from Bristol I to Bristol II because: (1) the conditions in Bristol II were less comfortable; and (2) he feared the other inmates in Bristol II. Although Adams was not provided with food, water, bedding or hygiene items while locked in the shower stall, Adams admits that he was told that he would be fed as soon as he decided to leave the shower.
While in the shower, Adams was charged with tampering with the shower area lock and was placed on awaiting action status in the AA unit pending a disciplinary hearing. On or about December 16, 1988, after serving time in isolation for the shower lock incident, Adams was ordered to transfer to a unit in the general housing population. When he refused, another disciplinary report was issued against him. In late December 1988, Adams agreed to transfer to the Bristol II housing unit, but was moved to the West Wing Segregation Unit a few days later after encouraging a work stoppage among the inmates of Bristol II. On or about January 5, 1989, Adams was moved to the AA unit.
In June 1989, Adams was ordered to move from the AA unit to the general population. After refusing, Adams was not permitted to visit the law library, participate in outside exercise, or participate in prison educational programs so long as he refused. Adams asserts that he refused to move as: (1) he feared for his life; and (2) visits with his girlfriend had not been restored. Adams admits, however, that he was told that he could have access to prison programs and privileges were he to return to the general population. Following his refusal to enter the general population, Adams received a letter from Superintendent Rakiey which stated:
Please be advised that you are not on DSU status. You are in the AA unit because you chose to be. Be assured that I want you out of the AA unit and into the general population where you can productively serve your time. I strongly urge you to contact your Unit Manager, Tony Silva, to make arrangements for your placement in the general population.
Adams served the remainder of his criminal sentence in the AA Unit and was released on January 10, 1991.
On or about October 10, 1990, Adams brought this action against the defendants alleging violations of his civil rights pursuant to the United States Constitution, Massachusetts Declaration of Rights, 42 U.S.C. § 1983, M.G.L.c. 12, § 11I, and assorted state laws and regulations, seeking declaratory and injunctive relief as well as money damages from each defendant. Adams now moves, pursuant to Mass.R.Civ.P. 56, for summary judgment as to Counts 4 through 8 of his Complaint. The defendants have filed a cross-motion for summary judgment as to all of the plaintiff’s claims.
DISCUSSION
This Court should grant summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 202 (1995); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party’s case or by showing that the nonmoving party is unlikely to submit proof of that element at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The nonmoving party cannot defeat the motion for summary judgment by resting on its pleadings and move assertions of disputed facts . . .” LaLonde v. Eissner, 405 Mass. 207, 209 (1989). The nonmoving party’s failure to prove an essential element of its case “renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). vague and general allegations of expected proof are not enough to defeat a summary judgment motion. Cherella v. Phoenix Technologies, Ltd., 32 Mass. App. Ct. 919, 920 (1992).
Adams asserts that he is entitled to money damages from each of the defendants pursuant to 42 U.S.C. § 1983 and M.G.L.c. 12, § 11I. Pursuant to 42 U.S.C. § 1983, Adams must allege that (1) a person acting under color of state law committed the conduct complained of; and (2) the conduct deprived him of a right, privilege, or immunity secured by the Constitution of the United States. Johnson v. Summers, 411 Mass. 82, 86 (1991) (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1985) (holding, inter alia, that mere lack of due care does not deprive an individual of life, liberty, or property under the 14th Amendment). Adams fails to allege any conduct on the part of former Commissioner of Correction Vose which deprived him of a federal right, privilege or immunity. It is well settled, moreover, that liability for civil rights violations pursuant to 42 U.S.C. § 1983 cannot be imposed solely on the basis of respondeat superior. Monell v. Dep’t of Social Services, 436 U.S. 658, 694 and n. 58 (1978). In order to maintain his claim against defendant Vose, Adams must do more than show authority by Vose over others who might have violated his rights. Clark v. People of the State of Michigan, 498 F. Supp. 159, 161 (E.D. Mich. 1960). Specifically, Adams’ complaint must show an “affirmative link” between Vose’s conduct and that of the employees who allegedly caused the violation of his civil rights. Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985), cert. denied sub. nom. Town of Saugus v. Voutour, 474 U.S. 110
(1986) (quoting Fernandez v. Chardon, 681 F.2d 42, 55-56 (1st Cir. 1982)); Rizzo v. Goode, 423 U.S. 362, 371 (1976). The record in this case contains no evidence of an affirmative link between the conduct of former Commissioner Vose and that of his employees.
The remaining defendants, Maloney, Rakiey and Marshall, argue that they have qualified immunity from 42 U.S.C. § 1983 liability, citing Harlow v. Fitzgerald, 457 U.S. 800 (1982), which is available to a defendant unless the defendant’s conduct “(1) violate[s] rights which are so clearly established under federal law or the United States Constitution [that] . . . (2) a reasonable person would be expected to realize at the time that their actions violate those rights.” Id.; see also Cookish v. Powell, 945 F.2d 441, 442-443 (1st Cir. 1991). As more fully described below, the record shows that the conduct of Maloney, Rakiey and Marshall in no way violated plaintiff’s federal or Constitutional rights.
Additionally, pursuant to M.G.L.c. 12, § 11I, the defendants again argue that they are entitled to qualified immunity from liability. The Supreme Judicial Court has held that remedies under M.G.L.c. 12, § 11I are “coextensive with 42 U.S.C. § 1983
except that the federal statute demands a finding of state action while the state statute does not.” Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-223 (1985). Moreover, to recover under M.G.L.c. 12, § 11I, Adams must show that the defendant[s] [were] or might be liable for the interference or attempted interference of rights secured by the constitution or laws of the United States, or of Massachusetts, “by means of threats, intimidation or coercion.” Layne v. Superintendent, MCI Cedar Junction, 406 Mass. 156, 158 (1989). Adams argues that the defendants forced him into accepting a housing assignment he did not want. The Supreme Judicial Court has held, however, that there is “no coercion, within the meaning of the State Civil Rights Act, simply from the use of force by prison officials, authorized to use force, in order to compel a prisoner to do something he would not willingly do, even if it turns out that the official had no lawful right to compel the prisoner to take that action.” Longval v. Commissioner of Correction, 404 Mass. 325, 333 (1989). Here, where the defendants elected not to use force to remove Adams from the shower stall, there is no evidence that the defendants used threats, intimidation or coercion to force Adams to move.
In Counts IV, V, VI and VIII of his Complaint, Adams asserts that the defendants, by denying him access to: (1) exercise and recreation facilities; (2) the law library; (3) the canteen where he could purchase hygiene items; and (4) prison education programs, respectively, have violated his due process rights pursuant to the United States Constitution, Massachusetts Declaration of Rights, 42 U.S.C. § 1983, M.G.L.c. 12, § 11I and assorted state laws and regulations. As stated by the Supreme Court, however:
Admittedly, prisoners do not shed all constitutional rights at the prison gate, Wolff v. McDonnell, 418 U.S. at 555, but `[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ Jones, 433 U.S. at 125, quoting Prince v. Johnston, 334 U.S. 266, 285 (1948). Discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law.
Sandin v. Conner, 115 S.Ct. 2293, 2301 (1995). The United States Supreme Court has held, moreover, that a prisoner’s liberty interests “will be generally 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.” Id. at 2300. Here, Adams was told by prison officials that his prison privileges would be restored when he agreed to move to a general housing unit. In effect, by refusing to move, Adams imposed his own sanctions.
In Count VII of his Complaint, Adams further alleges that the defendants locked him in a shower stall and deprived him of food, water, bedding and hygiene items, exposed him to cold temperatures, and thereby violated his due process rights pursuant to the United States Constitution, Massachusetts Declaration of Rights, 42 U.S.C. § 1983, M.G.L.c. 12, § 11I. It is undisputed, however, that Adams refused to leave the locked shower stall. Adams admitted, moreover, that he was told that he would be fed as soon as he decided to leave the shower. Prison officials have consistently been afforded a “deference and flexibility” in matters involving internal order, discipline, and institutional security, Bell v. Wolfish, 441 U.S. 520, 547 (1979), as decisions made by prison officials involving institutional operations and security are “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 these considerations, courts should ordinarily defer their expert judgment in such matters.” Pell v. Procunier, 417 U.S. 817, 827 (1974).
The plaintiff contends that he was “denied” access to prison programs and privileges. It is settled law, however, that a prisoner has no liberty interest in remaining in a particular cell with all prison programs and privileges available to him. See Meachum v. Fano, 427 U.S. 215, 228 (1976) (transfer of prisoner to a maximum security facility within normal limits or range of custody which the conviction has authorized the state to impose); see also Harris v. Commissioner of Correction, 409 Mass. 472, 476-478 (1991). “[A] prisoner has no right or expectation under State law that he will not be transferred except for misbehavior or the occurrence of some specified event, there is no liberty interest to which due process rights attach and which can be infringed by transfer . . . an inmate `may be transferred at the whim of the Commissioner.'” Nelson v. Commissioner of Correction, 390 Mass. 379, 397 (1983) (citations omitted).
Adams admits, moreover, that these programs and privileges were readily available to him should he have decided to leave the shower, but asserts that prison officials should have insisted on forcibly removing him. But no state law requires prison officials to exercise force to move a prisoner who refuses to move of his own accord. State regulations merely authorize correctional employees to use force to move an inmate when necessary. See 103 CMR 505.07(1)(f) (1987 ed.).
Moreover, in Count I of his Complaint, the plaintiff asserts that the defendants, by placing him on awaiting action status, deprived him of due process rights under the United States Constitution, the Massachusetts Declaration of Rights, 42 U.S.C. § 1983, M.G.L.c. 12, § 11I, and various state laws and regulations. The Supreme Judicial Court, however, has approved the reasonable use of “awaiting action” status as an investigatory tool. Lamoreaux v. Superintendent, MCI Walpole, 390 Mass. 409, 417-418
(1983) (emphasis added). Compare Royce v. Commissioner of Correction, 390 Mass. 425, 429 (1983) (two year stay in awaiting action status unreasonable). In addition, state regulations permit prison officials to hold a prisoner on awaiting action status pending an investigation and possible disciplinary action. Here, Adams was on “awaiting action” status for five days upon his return to prison in March, 1988. As Adams was a fugitive from justice for nearly five months prior to his capture and return to prison, the resultant five day stay in awaiting action status was reasonable under the circumstances. In addition, in Count II of his Complaint, Adams alleges that his due process rights were violated when his girlfriend, father, mother and cousin were not permitted to visit him. The United States Supreme Court has held, however, that “denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence.” Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 461 (1989). Moreover, pursuant to M.G.L.c. 127, § 36, prison visitation privileges are discretionary, and the Commissioner of Correction or Superintendent of the institution “may refuse admission to a person having a permit if in his opinion such admission would be injurious to the institution.” M.G.L.c. 127, § 37; see also 103 CMR 483.16(10) (1986 ed.).[5]
Finally, as the plaintiff is no longer incarcerated, his request for injunctive relief is moot. Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). Moreover, in the absence of an “actual controversy,” a declaratory judgment action cannot be maintained. Id. Accordingly, as there is no actual controversy and as the plaintiff’s request for an injunction is moot, summary judgment is ALLOWED in favor of the defendants as to the declaratory and injunctive relief sought by the plaintiff.
ORDER
For the foregoing reasons, the Court hereby ALLOWS the defendants’ cross motion for summary judgment as to all of plaintiff’s claims and final judgment shall enter for the defendants.
_______________________ Thayer Fremont-Smith Justice of the Superior Court
DATED: November 26, 1996