ANTHONY BARRY v. DEPARTMENT OF CORRECTION & Others.

• Court: Massachusetts Appeals Court
• Decided: July 30, 2025
• Docket: 24-P-1136
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1136

ANTHONY BARRY

vs.

DEPARTMENT OF CORRECTION & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court judge allowed the defendants' motion to

dismiss the complaint filed by the plaintiff, Anthony Barry.

While no separate judgment entered following the allowance of

the motion, the order resolved all remaining claims, and the

"notice of appeal designating the order resolving all remaining

claims and the rights and liabilities of all remaining parties

[is] treated as having designated a final judgment for purposes

of the appeal." 2023 Reporters' Notes to Mass. R. A. P.

1Executive Office of Public Safety and Security; Carol Mici, individually and as the Commissioner of Correction; and Michael Rodrigues, individually and as Superintendent of MCI- Shirley. 3 (c) (1) (D), as appearing in 491 Mass. 1601 (2023). We

affirm.

In his amended complaint (dated December 31, 2023), Barry

claimed that the defendants violated his State and Federal

constitutional rights, State regulations, and contract rights,

by increasing a fee that had been charged to inmates for

telephone calls made from MCI-Shirley. 2 The judge addressed each

claim and dismissed the complaint. "We review the allowance of

a motion to dismiss de novo, accepting the allegations in the

complaint as true and drawing all reasonable inferences in the

plaintiff's favor." Harrington v. Costello, 467 Mass. 720, 724

(2014).

None of Barry's allegations in his complaint "plausibly

allege an entitlement to relief" under any of the various legal

bases cited (citation omitted). Mackie v. Rouse-Weir, 495 Mass.

252, 259 (2025). Contrary to Barry's claim that the fee

constitutes an unlawful tax because the Commonwealth makes money

from inmate phone calls, "the mere fact that a fee creates some

revenue does not transform the fee into a tax." Easthampton

Sav. Bank v. Springfield, 470 Mass. 284, 298 n.10 (2014). As to

his claim that the fee is an unconstitutional "taking" of his

2 Effective December 1, 2023, pursuant to G. L. c. 127, § 87A, as added by St. 2023, c. 64, § 1, inmates are no longer charged for telephone calls.

2 property, "user fees . . . do not constitute takings."

Fitchburg Gas & Elec. Light Co. v. Department of Pub. Utils.,

467 Mass. 768, 779–780 (2014), quoting Koontz v. St. Johns River

Water Mgt. Dist., 570 U.S. 595, 615 (2013). Due process of law

does not require telephone service to be available at or near

cost. See French v. Butterworth, 614 F.2d 23, 25 (1st Cir.

1980) ("simply no legal basis for a demand that inmates be

offered items for purchase at or near cost"). Barry has not

alleged that the fee increase interfered with his ability to

exercise his right to free expression, especially where

"nontelephonic means" also enabled him to exercise that right.

Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 771 (1996).

To the extent Barry has raised a claim under the Massachusetts

Civil Rights Act, he has not alleged facts constituting the

necessary element of "threats, intimidation, or coercion."

Currier v. National Bd. of Med. Examiners, 462 Mass. 1, 12

(2012). He cannot obtain relief under 103 Code Mass. Regs.

§ 482.01 (2017), which requires "reasonably priced telephone

services," because that regulation also does not "confer any

procedural or substantive rights or any private cause of

action." Finally, as to his breach of contract claim, Barry has

not alleged any facts that indicate the contract between the

Department of Correction and the telephone vendor intended Barry

to be a third-party beneficiary. See Machado v. System4, LLC,

3 471 Mass. 204, 209–210 (2015) (contract must display "clear

intent to make a nonsignatory a third-party beneficiary").

Judgment affirmed.

By the Court (Singh, D'Angelo & Hodgens, JJ. 3),

Clerk Entered: July 30, 2025.

3 The panelists are listed in order of seniority.