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
23-P-453
EDWARD G. WRIGHT
vs.
DEPARTMENT OF CORRECTION & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Edward G. Wright, is an inmate in the
custody of the Department of Correction (DOC). In 2016, he
commenced this action against the DOC and certain of its
employees. As amended, his complaint sought declaratory and
injunctive relief and money damages including for violations of
42 U.S.C. § 1983 and his rights under the Eighth Amendment to
the United States Constitution. Central to Wright's claims is
that, while he was held at both the Souza-Baranowski
Correctional Center (SBCC) and the Massachusetts Correctional
1Douglas DeMoura, Michael Hobbs, John Delgiudice, Jose Montanez, Lois Russo, Steven Silva, Matthew Strauss, Thomas Turco, Third, Osvaldo Vidal, and Paul Visconti. The defendants are sued individually and in their official capacities. Institution at Concord (MCI-Concord), the defendants failed to
provide him with meals appropriate for his medical condition. A
Superior Court judge granted summary judgment in favor of the
defendants, and Wright appeals. We affirm.
Background. We set forth the facts based on the summary
judgment record, construing them in the light most favorable to
Wright, the nonmoving party. See Davis v. Commonwealth, 95
Mass. App. Ct. 398, 400 (2019).
Pursuant to DOC policy, meals to all inmates are provided
through the use of a seasonally adjusted menu on a twenty-one
day cycle that is reviewed by a registered dietician to ensure
that the menu meets nutritional standards. 103 DOC §§ 760.01,
760.05 (2013). Each institution's food service director plans
meals at least one week in advance following that menu. 103 DOC
§ 760.06. As to the serving and scheduling of meals,
"Variations may be allowed based on weekend and holiday food
service demands, provided basic nutritional goals are met." 103
DOC § 760.14(2).
As in effect at the time relevant here, DOC regulations
required that medically prescribed therapeutic diets be
consistent with national standards developed by the American
Dietetic Association (ADA). 103 Code Mass. Regs. § 761.06(1)
(2009). Menus for therapeutic diets are developed by dieticians
and "should conform as closely as possible to [DOC]'s cycle
2 menu," consistent with ADA standards. 103 Code Mass. Regs.
§ 761.06(2). The food service director at each institution must
"ensure that the appropriate therapeutic diet is provided to the
inmate and that the meal is of comparable palatability to
regular meals." 103 Code Mass. Regs. § 761.07(3).
As to inmates' complaints about therapeutic diets, DOC
regulations require institutions to develop informal measures
for resolving them, and inmates are encouraged to communicate
any problems with therapeutic diets to DOC staff to minimize the
use of formal complaint procedures.2 103 Code Mass. Regs.
§ 761.09(1). After informal efforts to resolve a complaint have
been exhausted and an inmate remains dissatisfied, the inmate
may file a formal complaint directed to the superintendent of
the institution, to which the superintendent must respond within
five business days. 103 Code Mass. Regs. § 761.09(2)(a)-(b).
If dissatisfied with the superintendent's decision, the inmate
has ten days after receipt of the decision to appeal to the
deputy commissioner of the DOC's administrative services
division. 103 Code Mass. Regs. § 761.09(2)(c).
2 This differs from the process for most inmate grievances, which were governed at the time by 103 Code Mass. Regs. § 491.08(1) (2001); it stated, "recommendations concerning therapeutic diets are not grievable under 103 C[ode] M[ass.] R[egs.] [§] 491.00 as there is an existing complaint procedure pursuant to 103 C[ode] M[ass.] R[egs.] [§] 761.00."
3 In 2015, Wright was diagnosed as prediabetic. He opted not
to take medication, choosing instead to control his blood sugar
by losing weight. Medical staff placed him on a lower-calorie
therapeutic diet. Soon after his diagnosis, Wright asserted
that DOC staff were not providing him with meals compliant with
his therapeutic diet. Wright complained about his meals almost
daily, filing dozens of inmate therapeutic diet complaint forms
with SBCC food services. His many complaints sounded two
consistent themes: that he was served the same food as other
inmates, and that he was served foods that did not match the
foods listed on the preplanned menu. In response, DOC officials
and staff repeatedly told Wright that he was receiving the
correct therapeutic meals.
Between November 2015 and January 2016, Wright wrote four
letters of complaint to the superintendent or deputy
superintendent of SBCC. SBCC staff responded in writing to his
complaints on December 22, 2015, and January 21, 2016. In
addition, on December 2 and 7, 2015, Wright filed grievances
complaining that he was improperly being served "regular meals"
and "substituted food in direct contradiction of the ADA 2200
[calorie] diet meals I am to receive" and instead was served
"the same meal as everyone else just with less food in [the]
tray." On December 16, the institutional grievance coordinator
for SBCC denied those grievances, stating, "According to the
4 approved DOC ADA Cycle menu, you are receiving all aspects of
the approved ADA diet. When a change is made that entire meal
for that day is substituted." The appellate record contains no
documentation of a timely administrative appeal by Wright from
those decisions of the SBCC superintendent's office or the
institutional grievance coordinator. See 103 Code Mass. Regs.
§ 761.09(2)(c) (requiring inmate to file administrative appeal
within ten days of receipt of decision). As discussed below,
Wright asserts that he did file a timely administrative appeal.
On February 1, 2016, Wright filed this action in Superior
Court, alleging in his initial complaint that he had filed a
grievance about his improper meals, and his "grievance was
denied and he appealed[.] His appeal was not answered." During
the remainder of 2016, Wright filed dozens more therapeutic diet
complaints, both at SBCC and MCI-Concord, where he was held
between April 2016 and early January 2017, but he did not pursue
administrative appeals from decisions on those complaints.
Wright amended his Superior Court complaint to add as defendants
several persons employed at MCI-Concord.
In mid-2016, Wright was diagnosed as diabetic.3 After
Wright was transferred back to SBCC in January 2017, he
3 The record before us contains no medical record documenting that diagnosis, but because we take the facts in the light most favorable to Wright, we accept it as true.
5 continued filing therapeutic diet complaints, to which the
superintendent of SBCC responded. For the first time, Wright
pursued an administrative appeal from a decision of the
superintendent, as well as from subsequent adverse decisions in
early 2017. Those administrative appeals were denied.
Wright amended his Superior Court complaint a second time,
to include the period up to the date of the new amended
complaint, August 6, 2017.4 His amended complaint alleged that
he had pursued administrative appeals before filing his initial
complaint and again before filing his amended complaint, but
"[t]he appeals went unanswered."
The defendants moved for summary judgment. See Mass. R.
Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). After
briefing by the parties and a hearing, the judge granted summary
judgment in favor of the defendants, concluding that Wright did
not exhaust his available administrative remedies before filing
suit, his claims for damages failed to raise a genuine issue of
fact as to the defendants' deliberate indifference, and his
4 In July 2019, Wright moved to amend his complaint for a third time to encompass allegations about events that occurred after August 6, 2017, including at the Massachusetts Correctional Institution at Norfolk. That motion to amend was denied. To the extent that Wright includes in his brief, reply brief, and record appendix allegations about events beyond the scope of his complaint as amended, we disregard them.
6 claims for declaratory and injunctive relief were moot. Wright
timely appealed.
Discussion. We review the judge's grant of summary
judgment de novo. See Carey v. Commissioner of Correction, 479
Mass. 367, 369 (2018). As mentioned above, we construe the
facts in the light most favorable to Wright as the nonmoving
party. See Davis, 95 Mass. App. Ct. at 400. Even so, "the
opposing party cannot rest on his or her pleadings and mere
assertions of disputed facts to defeat the motion for summary
judgment" (citation omitted). Cannata v. Berkshire Natural
Resources Council, Inc., 73 Mass. App. Ct. 789, 792 (2009).
"[T]hat some facts are in dispute will not necessarily defeat a
motion for summary judgment. The point is that the disputed
issue of fact must be material" (citation omitted). Hudson v.
Commissioner of Correction, 431 Mass. 1, 5 (2000).
"[P]art[ies] moving for summary judgment in a case in which the opposing party has the burden of proof at trial [are] entitled to summary judgment if [they] demonstrate[], by reference to pleadings, other discovery, or affidavits, unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case" (quotation and citation omitted).
DuPont v. Commissioner of Correction, 448 Mass. 389, 397-398
(2007).
1. Exhaustion of administrative remedies. Wright argues
that the judge erred in ruling that he failed to exhaust his
7 available administrative remedies before filing suit in Superior
Court as required by the Prison Litigation Reform Act (PLRA), 42
U.S.C. § 1997e(a). See Davis, 95 Mass. App. Ct. at 399. See
also Ryan v. Pepe, 65 Mass. App. Ct. 833, 834-835 (2006)
(discussing exhaustion requirement under PLRA and its
Massachusetts counterpart, G. L. c. 127, §§ 38E-38H). We
conclude that Wright did not exhaust his administrative remedies
before filing his complaint on February 1, 2016.5
Wright argues that he exhausted the available
administrative remedies before filing his Superior Court
complaint. He points to 103 Code Mass. Regs. § 491.08(1), which
governs most inmate grievances and provides that
"recommendations concerning therapeutic diets are not grievable
under 103 C[ode] M[ass.] R[egs.] [§] 491.00 as there is an
existing complaint procedure pursuant to 103 C[ode] M[ass.]
R[egs.] [§] 761.00." The argument is unavailing. Simply
because therapeutic diet complaints are "not grievable" under
§ 491.00 does not mean that they are not subject to any
administrative appeal process. The regulation applicable to
5 In her order granting summary judgment, the judge discussed "whether Wright's filing of an amended complaint after attempting to exhaust administrative remedies cures his initial failure to do so." Wright does not raise that issue in either his brief or his reply brief, although the defendants discussed it in their brief. In those circumstances, we "need not pass upon" the issue, Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
8 therapeutic diet complaints plainly outlines the avenue of
administrative appeal available to Wright:
"An inmate dissatisfied with the superintendent's decision may appeal, within ten days of receipt of such decision, to the Deputy Commissioner of the Administrative Services Division, or his/her designee, who may take such action as deemed appropriate, including a referral of the matter to an outside consultant with specialized knowledge of the issues involved in providing access to therapeutic diets."
103 Code Mass. Regs. § 761.09(2)(c).
Indeed, the language of § 761.09(2)(c) outlining the
administrative appeal process for therapeutic diet complaints
underscores the importance of the exhaustion requirement. One
way the DOC deputy commissioner may respond to such an
administrative appeal is by referring the matter to an outside
consultant with expertise in nutrition and the issues that arise
in providing access to therapeutic diets. Unlike the DOC deputy
commissioner, judges do not have access to the expertise
necessary to determine if particular foods are appropriate for
diabetics. See Ivey v. Commissioner of Correction, 88 Mass.
App. Ct. 18, 25 (2015) (DOC has considerable discretion in
adoption and implementation of prison policies). Cf. Dexter v.
Superintendent, Massachusetts Correctional Inst., Concord, 88
Mass. App. Ct. 325, 326 (2015) (judge improperly failed to defer
to DOC's interpretation of regulations about prisoner property).
Wright argues that he should be excused from the
requirement that he exhaust his available administrative
9 remedies prior to filing his lawsuit, asserting that in November
and December 2015 SBCC officials did not respond to his
therapeutic diet complaints within five days as required by 103
Code Mass. Regs. § 761.09(2)(b). See Robinson v. Superintendent
Rockview SCI, 831 F.3d 148, 153-154 (3d Cir. 2016) (prison
officials' failure to timely respond to inmate's complaints
rendered administrative remedies unavailable). We are not
persuaded. The record before us contains a letter to Wright
dated January 21, 2016, from the SBCC superintendent's designee
in response to Wright's complaints. In addition, a letter from
Wright to the SBCC superintendent acknowledged receipt of a
December 22, 2015 letter from the superintendent "advising me
that your Staff is providing all medical diet meals as
prescribed."6 Those letters were decisions of the superintendent
from which Wright could have pursued an administrative appeal
under 103 Code Mass. Regs. § 761.09(2)(c) before filing suit.
He did not. In those circumstances, any dispute about the
timeliness of the SBCC superintendent's responses was not
"material." Hudson, 431 Mass. at 5.
Alternatively, Wright argues that he did pursue an
administrative appeal before filing his initial complaint. In
6 Wright has not included a copy of the superintendent's letter in the record appendix. As appellant, it was his obligation to do so. See Mass. R. A. P. 18 (a) (1) (A) (v), as appearing in 481 Mass. 1637 (2019).
10 support of their motion for summary judgment, the defendants
presented an affidavit of an SBCC employee averring that DOC has
no record of any such administrative appeal. Wright maintains
that he pursued an administrative appeal from the December 16,
2015 denial of his grievance by filing a completed inmate
grievance appeal form. However, that form is dated December 28,
2016, one year and twelve days after his grievance was denied.
Wright asserts that the date was "an inadvertent clerical
error," and in the light most favorable to him we should
conclude that it was in fact timely filed. We note that the
appeal form bears the date "12/28/16" in two places, typewritten
at the top of the page and handwritten next to Wright's
signature. Wright cannot defeat summary judgment with a bald
assertion that the date on the appeal form was a clerical error.
See Cannata, 73 Mass. App. Ct. at 792.
In any event, even if Wright had exhausted his
administrative remedies, as discussed below, his claims would
fail on their merits.
2. Eighth Amendment claims. Wright argues that the judge
erred in allowing summary judgment on his claims against the
individual defendants for damages under 42 U.S.C. § 1983 for
violation of his constitutional rights.7 Specifically, he argues
7 In November 2017, another Superior Court judge dismissed Wright's § 1983 claims against DOC, concluding that "DOC is a
11 that the defendants' failures to provide him with appropriate
therapeutic meals violated his Eighth Amendment right to be free
from cruel and unusual punishment.8
A plaintiff is entitled to damages under 42 U.S.C. § 1983
if defendants (1) acted under color of State law and
(2) deprived the plaintiff of "rights, privileges, or
immunities," including those secured by the United States
Constitution (citation omitted). Rosado v. Commissioner of
Correction, 91 Mass. App. Ct. 547, 552 (2017). To establish a
violation of the Eighth Amendment, an inmate must show that
prison officials acted with "deliberate indifference" to the
inmate's health and safety (citation omitted). Johnson v.
Prentice, 144 S. Ct. 11, 14 (2023) (Jackson, J., dissenting from
denial of cert.). See Lech v. Von Goeler, 92 F.4th 56, 74 (1st
Cir. 2024). This requires a showing that prison officials were
both "aware of facts from which the inference could be drawn
state agency, it is not a 'person' within the meaning of § 1983." Wright does not argue on appeal that the ruling was error, and so we do not consider that issue. See Mass. R. A. P. 16 (a) (9) (A).
8 As amended, Wright's complaint also alleged that the defendants' conduct amounted to intentional infliction of emotional distress, retaliation in violation of the First Amendment, and violation of his rights under the due process clause of the Fourteenth Amendment. On appeal, Wright does not argue that the judge erred in allowing summary judgment for the defendants on those claims, and so we do not consider them. See Mass. R. A. P. 16 (a) (9) (A).
12 that a substantial risk of serious harm exists" and that they
"dr[e]w th[at] inference" (citation omitted). Johnson, supra.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994) ("a prison
official cannot be found liable under the Eighth Amendment . . .
unless the official knows of and disregards an excessive risk to
inmate health"). The substantial risk of serious harm can be a
risk of future harm if prison officials acted with deliberate
indifference, see Jackson v. Commissioner of Correction, 39
Mass. App. Ct. 566, 568-569 (1995), as shown by proof that
prison officials knew about that potential harm and "failed to
take reasonable measures to abate it." Abdullah v. Secretary of
Pub. Safety, 42 Mass. App. Ct. 387, 396 (1997).
The judge concluded that as to Wright's therapeutic meal
complaints, "no reasonable trier of fact could find an Eighth
Amendment violation" by the defendants. See DuPont, 448 Mass.
at 398 ("no reasonable expectation of proving an essential
element of th[e] [plaintiff]'s case" [citation omitted]). We
agree. Contrary to Wright's argument, the defendants' serving
him smaller portions of the "regular" meals did not constitute
cruel and unusual punishment. The defendants presented evidence
that the menu served to all inmates was "heart healthy." DOC
regulations require that the therapeutic diet menus "should
conform as closely as possible to [DOC]'s cycle menu," 103 Code
Mass. Regs. § 761.06(2), and the meals should be "of comparable
13 palatability to regular meals," 103 Code Mass. Regs.
§ 761.07(3). In addition, if required by the type of
therapeutic diet, food services staff "shall weigh or measure
food portions." Id. Thus the regulations plainly anticipate
that an inmate on a therapeutic diet may be served the same food
as on the regular menu but in smaller portions. As the judge
found, Wright "has not argued nor presented evidence that the
relevant DOC regulations or policies are inadequate."
As for Wright's contention that the defendants failed to
serve the meals exactly as set forth on the preplanned menu for
his therapeutic diet, that did not constitute cruel and unusual
punishment. Although the DOC regulations require food services
at each institution to "follow the therapeutic menus developed
by the dietician," they also permit "substitutions," if
"documented and . . . in accordance with the substitution
guidelines approved by the dieticians for therapeutic diets."
103 Code Mass. Regs. § 761.06(3). In support of their motion
for summary judgment, the defendants presented evidence that
they had repeatedly explained to Wright that they followed the
substitution guidelines when any change was made to his
therapeutic diet.9 At the summary judgment stage, the judge
9 The defendants did concede that on July 27, 2016, one of the defendants noticed that Wright had not received the correct therapeutic diet meal, and immediately replaced the meal. Wright alleges that the meal was not replaced, but did not
14 properly concluded that Wright had "no reasonable expectation of
proving" that the defendants' substitution of meals amounted to
cruel and unusual punishment (citation omitted). DuPont, 448
Mass. at 398. Cf. Braley v. Bates, 100 Mass. App. Ct. 259, 264
(2021) (complaint sufficed to survive motion to dismiss, where
it alleged that DOC did not comply with food service policy as
to substitution of meals).
Although Wright alleges that the defendants denied him
therapeutic meals, he has provided no evidence beyond his own
assertions that he received inappropriate meals, that the
defendants acted with deliberate indifference, or that the
defendants' conduct caused his diabetic condition to worsen.
See Baptiste v. Executive Office of Health & Human Servs., 97
Mass. App. Ct. 110, 117 (2020), cert. denied, 141 S. Ct. 2626
(2021). In fact, Wright acknowledged that the defendants
repeatedly assured him that they believed he was receiving the
correct therapeutic meals in compliance with his health needs.
He also acknowledged that he refused to provide the defendants
with documentation as to meals he had received that he alleged
were deficient. And the judge noted that Wright's canteen
records showed that he bought numerous high-fat, high-sugar, and
present documentation of any complaint to the superintendent about that meal.
15 high-sodium foods.10 We discern no error in the judge's
conclusion that Wright's Eighth Amendment claims fail as a
matter of law.
3. Mootness of claims for injunctive and declaratory
relief. Wright argues that the judge erred in ruling that his
claims for declaratory and injunctive relief are moot because
none of the defendants work at the Massachusetts Correctional
Institution at Norfolk (MCI-Norfolk), where he is presently
held. If a controversy is "no longer live or the parties lack a
legally cognizable interest in the outcome," the case is moot
(quotation and citation omitted). LaChance v. Commissioner of
Correction, 475 Mass. 757, 766 (2016). An inmate's claims for
injunctive and declaratory relief concerning prison conditions
are usually rendered moot by transfer or release, unless the
inmate can show that the challenged conditions are "capable of
repetition, while evading review" (quotations and citation
omitted). Id. at 767. See Snell v. Neville, 998 F.3d 474, 485
(1st Cir. 2021).
Wright's claims for injunctive and declaratory relief
against the individual defendants are moot because Wright has
been housed at MCI-Norfolk since 2019 and none of the individual
10Wright did not defeat summary judgment simply by asserting that he did not eat the food he bought. See Cannata, 73 Mass. App. Ct. at 792.
16 defendants work at that facility.11 See Snell, 998 F.3d at 486.
On appeal, Wright does not dispute that conclusion, but argues
that his claims are not moot because the alleged harm is not
only capable of repetition but is continuing where he is
presently held at MCI-Norfolk. As a result of the denial of
Wright's motion to amend his complaint to include allegations
about events after August 2017, see note 4, supra, those claims
are not before us.
In any event, Wright did not show that he was entitled to
declaratory relief because he did not demonstrate that a
particular DOC administrative practice or procedure as to
therapeutic diets violated a law, rule, or regulation. See
G. L. c. 231A, § 2. See also Grady v. Commissioner of
Correction, 83 Mass. App. Ct. 126, 137 n.9 (2013). Nor did
Wright demonstrate that he was entitled to injunctive relief
under the PLRA because, as discussed above, he has not
demonstrated a reasonable expectation of proving a violation of
his Eighth Amendment rights. See Sosa v. Massachusetts Dep't of
Correction, 80 F.4th 15, 25 (1st Cir. 2023).
4. Denial of Mass. R. Civ. P. 56 (f) motion. Wright also
argues that before ruling on the summary judgment motion the
judge should have permitted him additional discovery pursuant to
11The judge found that "[t]here is no indication DOC transferred Wright merely to moot his claims."
17 Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974). By the time the
defendants moved for summary judgment, the case had been pending
in Superior Court for over six years, during which the parties
extensively litigated discovery motions. In response to the
motion for summary judgment, Wright argued that additional
"discovery is necessary to resolve undisputed facts that will
determine the outcome of [s]ummary judgment." The judge denied
the rule 56 (f) motion, ruling that "these discovery disputes
. . . have been fully litigated and decided." Wright has not
demonstrated, either in his rule 56 (f) motion or on appeal,
"even a minimal showing warranting the requested discovery"
(citation omitted). Alphas Co. v. Kilduff, 72 Mass. App. Ct.
104, 108 (2008). We discern no error in the judge's ruling.
Judgment affirmed.
By the Court (Henry, Grant & D'Angelo, JJ.12),
Clerk
Entered: September 13, 2024.
12 The panelists are listed in order of seniority.