Fitzpatrick v. Department of Correction

• Court: Massachusetts Appeals Court
• Decided: May 18, 2023
• Docket: AC 22-P-301
• Status: Published

Opinion

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22-P-301 Appeals Court

SEAN FITZPATRICK vs. DEPARTMENT OF CORRECTION & others.1

No. 22-P-301.

Middlesex. January 12, 2023. - May 18, 2023.

Present: Meade, Rubin, & Blake, JJ.

Imprisonment, Grievances, Earnings of prisoner. Notice, Timeliness. Jurisdiction, Judicial review of administrative action. Practice, Civil, Amendment of complaint.

Civil action commenced in the Superior Court Department on October 24, 2018.

The case was heard by Kathleen M. McCarthy-Neyman, J., on motions for judgment on the pleadings.

Sean Fitzpatrick, pro se. Veronica E. DeDosantos for the defendants.

1 Thomas Turco, Steven Kenneway, and Sandra Walsh. The defendants were sued individually and in their official capacities. As pertinent here, Turco was the Commissioner of Correction, Kenneway was the superintendent of Massachusetts Correctional Institution, Shirley (MCI-Shirley), and Walsh was the institutional grievance coordinator at MCI-Shirley. 2

MEADE, J. The plaintiff, Sean Fitzpatrick, is an inmate in

the custody of the Department of Correction (DOC) at the

Massachusetts Correctional Institution, Shirley (MCI-Shirley or

institution). The plaintiff sought judicial review of DOC's2

denial of a grievance he filed in 2018, in which he objected to

DOC's refusal of his request to transfer funds externally from

his inmate account. A Superior Court judge granted judgment for

DOC and determined that the plaintiff's claim was time barred,

and that he had failed to comply with DOC's regulations

governing disbursement of inmate funds. We reverse.

1. Background. In 2018, the plaintiff submitted a request

to disburse funds from his inmate account at MCI-Shirley to an

individual outside the institution. The plaintiff requested the

disbursement from funds he held in his inmate account but had

earned and saved for retirement before he was incarcerated. He

had requested similar disbursements in prior years and followed

the same procedure for the 2018 request as he had in the past.3

On this occasion, his request was denied.

The plaintiff filed both an informal and a formal grievance

challenging the denial of his disbursement request. Defendants

2 Unless otherwise noted, we refer to the defendants collectively as DOC.

3 The plaintiff stated during the motion hearing and in a posthearing submission to the judge that he submitted the form required under DOC's regulations for all disbursement requests. 3

Steven Kenneway and Sandra Walsh, as MCI-Shirley's

superintendent and institutional grievance coordinator,

respectively, denied both grievances. The reason stated for the

denials was that no funds would be released without the

superintendent's approval. The denials cited 103 Code Mass.

Regs. § 405 (2017), the section of DOC's regulations governing

inmate funds and the only inmate funds policy in place at that

time. In 2019, DOC issued a new standard operating procedure

(SOP) as an addendum to the regulations governing disbursement

of inmate funds.

The plaintiff appealed the denial of his formal grievance,

and on September 18, 2018, Kenneway denied the appeal. This

time, the denial stated that "[a]ny distribution of funds from

any inmate account will be approved if the request conforms with

policy. . . . Any request that does not conform will be

denied."

The plaintiff filed a complaint for judicial review of the

grievance denial. His complaint was docketed in the Superior

Court on October 24, 2018. However, the complaint was dated

October 10, 2018, and the plaintiff stated during the motion

hearing that he placed the complaint in the prison mail system

on that day. He also submitted an "Inmate Transaction Report"

(transaction report) for the month of October 2018 showing 4

withdrawals from his account of $1.34 for shipping on October

11, 2018, and $275 for the court filing fee on October 15, 2018.4

The parties filed cross motions for judgment on the

pleadings and the judge ruled in DOC's favor, dismissing the

case in February 2020.5 See Mass. R. Civ. P. 12 (c), 365 Mass.

754 (1974).

2. Standard of review. DOC's final decision with respect

to an inmate grievance is subject to judicial review under G. L.

c. 30A, § 14. See G. L. c. 127, § 38H; Grady v. Commissioner of

Correction, 83 Mass. App. Ct. 126, 130-131 (2013). Inmate

grievance appeals therefore differ from disciplinary appeals,

which inmates must file as certiorari actions under G. L.

c. 249, § 4. See Grady, supra at 131. Under G. L. c. 30A,

§ 14 (7), we may set aside or modify DOC's decision if we

determine "that the substantial rights of any party may have

been prejudiced" for any one of a range of reasons, including

that the decision exceeded the statutory authority or

jurisdiction of the agency, was based on an error of law, was

made upon unlawful procedure, was unwarranted by facts found in

the record as submitted or as amplified, or was arbitrary or

4 The plaintiff submitted the transaction report as an exhibit to his motion to reconsider. See note 5, infra.

5 The plaintiff also filed a motion to reconsider, which the judge denied in July 2020. 5

capricious, an abuse of discretion, or otherwise not in

accordance with law. See Sullivan v. Superintendent, Mass.

Correctional Inst., Shirley, 101 Mass. App. Ct. 766, 772 (2022).

3. Discussion. a. Timeliness of the complaint. The

plaintiff claims that the judge erred by dismissing his

complaint as untimely. Under G. L. c. 30A, § 14 (1), an action

for judicial review must "be commenced in the court within

thirty days after receipt of notice of the final decision of the

agency." The superintendent's decision on a grievance appeal is

the "final decision of the agency" for purposes of § 14 (1).

See Grady, 83 Mass. App. Ct. at 135. Here, the superintendent

denied the plaintiff's grievance appeal on September 18, 2018.

The thirty-day limitations period therefore expired on October

18, 2018, and the complaint did not reach the docket of the

Superior Court until October 24, 2018. On this basis, the judge

found the complaint was time-barred.6

6 The plaintiff claims on appeal that the thirty-day filing period began to run on September 30, 2018, because prison authorities did not notify him of the September 18 decision until twelve days later. The plaintiff made this argument for the first time in his motion to reconsider. "We review a decision on a motion for reconsideration for abuse of discretion." Kauders v. Uber Techs., Inc., 486 Mass. 557, 568 (2021). It was within the judge's discretion not to consider a new argument raised in a motion for reconsideration. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 312 (2009). 6

In reaching this conclusion, however, the judge did not

address the plaintiff's claim that his late filing should be

excused because he placed the complaint in the prison mail

system before the thirty-day period expired.7 Generally, G. L.

c. 30A, § 14 (1), "contemplates that the clerk must receive the

complaint (or a document called an appeal) within thirty days of

the receipt of notice of the agency decision." Harper v.

Division of Water Pollution Control, 412 Mass. 464, 467 (1992).

However, under both Massachusetts and Federal law, "a pro se

inmate's notice of appeal is to be considered filed at the

moment it is delivered to the prison authorities." Commonwealth

v. Hartsgrove, 407 Mass. 441, 445 (1990), citing Houston v.

Lack, 487 U.S. 266, 270-272 (1988). See Fallen v. United

States, 378 U.S. 139, 144 (1964) (inmate's notice of appeal in

criminal case filed when mailed). Since 2019, the Massachusetts

rules of appellate procedure have applied the so-called "prison

mailbox rule" to filings in both civil and criminal appeals by a

pro se party confined in an institution. See Mass. R. A. P.

4 (d), as appearing in 481 Mass. 1606 (2019) ("If [a self-

represented, incarcerated] party files a notice of appeal in

either a civil or criminal case, the notice is timely if

7 The plaintiff made this argument during the hearing on the parties' cross motions for judgment on the pleadings. He specifically invoked the "prison mailbox rule" in a posthearing motion and in his motion to reconsider. 7

deposited in the institution's internal mail system on or before

the last day for filing"); Mass. R. A. P. 13 (a) (2), as

appearing in 481 Mass. 1624 (2019) (same for appellate filings

other than notice of appeal). Federal circuit courts have

extended the prison mailbox rule to habeas petitions and filings

in civil suits.8 See, e.g., Houston, supra at 268 (appeal from

denial of habeas petition); Casanova v. Dubois, 304 F.3d 75, 79

(1st Cir. 2002) (complaint under 42 U.S.C. § 1983); Cooper v.

Brookshire, 70 F.3d 377, 380 (5th Cir. 1995) (all civil

complaints). Federal law does not recognize the prison mailbox

rule in cases where the applicable statute or regulation

requires delivery by a specified time. See Fex v. Michigan, 507

U.S. 43, 52 (1993).

Our appellate courts have not previously extended the

prison mailbox rule to complaints for judicial review of a DOC

grievance decision. In Harper, the Supreme Judicial Court held

that, outside the prison context, a G. L. c. 30A, § 14, action

is commenced when the clerk receives the complaint. See Harper,

8 Federal courts vary regarding application of the prison mailbox rule to filings internal to the Bureau of Prisons' grievance procedure. See, e.g., Nigro v. Sullivan, 40 F.3d 990, 996 (9th Cir. 1994) (rule does not apply to filing deadlines during grievance process); Cordoba vs. Shartle, U.S. Dist. Ct., No. 4:09-cv-3015 (N.D. Ohio June 23, 2010) (rule applies during grievance process). The plaintiff here seeks judicial review of a final agency decision, so his complaint is not a filing internal to the grievance process. 8

412 Mass. at 467. The Massachusetts rules of civil procedure,

which apply to G. L. c. 30A, § 14, actions, permit commencement

of an action by mailing the complaint. See Mass. R. Civ. P. 3,

as appearing in 488 Mass. 1401 (2021). However, the court in

Harper reasoned that the phrase "commenced in the court"

(emphasis added) in G. L. c. 30A, § 14, meant that complaints

under that section must be received, not mailed, within the

thirty-day period. See Harper, supra.

The question of when an inmate's G. L. c. 30A, § 14, action

is "commenced" was not before the court in Harper. In the

context of this case, an action for judicial review of a

grievance under § 14 should be considered "commenced" at the

moment the inmate delivers the complaint to the prison

authorities. See Hartsgrove, 407 Mass. at 445. The prison

mailbox rule serves the same purpose in an administrative appeal

as it does in a criminal or civil appeal. As the United States

Supreme Court reasoned in Houston, a "pro se prisoner has no

choice but to entrust the forwarding of his notice of appeal to

prison authorities whom he cannot control or supervise and who

may have every incentive to delay." Houston, 487 U.S. at 271.

See Hartsgrove, supra ("It would be unfair to hold the [inmate]

accountable for the vagaries, if any, of the prison mail

system"). The same logic applies to an inmate's complaint for

judicial review of a grievance. The rule applies only in the 9

narrow context of an incarcerated party who proceeds pro se and

who verifiably delivers a complaint to prison authorities, for

purposes of mailing, within the limitations period. Extending

it to § 14 complaints therefore does not contradict the general

rule in Harper, which concerned unincarcerated plaintiffs. See

Harper, 412 Mass. at 467. Furthermore, although the rules of

civil procedure govern § 14 actions, and the thirty-day deadline

is statutory, applying the prison mailbox rule to those

complaints is consistent with the 2019 amendments to Mass. R. A.

P. 4 and 13.

In this case, according to the plaintiff, he placed the

complaint in the prison mail system on October 10, 2018. His

complaint was dated the same day. The transaction report for

his inmate account showed withdrawals for postage on October 11

and for the court filing fee on October 15. DOC did not dispute

these facts.9 See Hartsgrove, 407 Mass. at 446-447. Because the

record showed he delivered the complaint to the prison mail

system within thirty days after the superintendent's decision on

his grievance, the judge should have accepted it as timely.10

9 If DOC had disputed them, the burden would be on DOC to show that the complaint was not timely placed in the prison mail system. See Hartsgrove, 407 Mass. at 446-447.

10Both parties cite Superior Court cases involving certiorari actions to support their positions. See G. L. c. 249, § 4. These cases are not binding on this court. In any event, because the plaintiff filed for judicial review of a 10

b. DOC's disbursement procedure. The plaintiff asserts

that the funds he sought to disburse were not subject to DOC's

inmate funds regulations because he did not earn them while

incarcerated. He further claims that the judge erred by relying

on DOC's assertions about his noncompliance with the

disbursement procedure and by relying on DOC's SOP on inmate

funds. Although we determine that the plaintiff's funds did not

fall outside the regulations, we also conclude that the judge

erred in finding the plaintiff was noncompliant.

DOC's inmate funds regulations are set out in 103 Code

Mass. Regs. § 405. The purpose of the regulations is to "set

[DOC] policy concerning the proper handling and distribution of

inmate funds." 103 Code Mass. Regs. § 405.01. The regulations

do not define "inmate funds." See 103 Code Mass. Regs. § 405.05

(definitions). And the plaintiff is correct that § 405.07 of

the regulations applies only to "inmate wages and stipends."

See 103 Code Mass. Regs. § 405.07. However, several other

sections indicate that inmate funds may come from various

sources. Specifically, § 405.06 covers "inmate savings bonds

previously purchased," § 405.11 governs the handling of funds

from outside donors or the United States Treasury, and § 405.15

grievance decision under G. L. c. 30A, § 14, and not for review of a disciplinary decision under G. L. c. 249, § 4, those cases are inapposite. We offer no opinion on whether the prison mailbox rule applies to inmates' certiorari actions. 11

covers donations into the inmate's account from outside

individuals or organizations. See 103 Code Mass. Regs. §§

405.06, 405.11, 405.15. Contrary to the plaintiff's claim, any

funds he holds in his inmate account are subject to the inmate

funds regulations.

DOC's procedure for disbursement of inmate funds is set out

in 103 Code Mass. Regs. § 405.12. Section 405.12 applies

"[w]henever an inmate wishes to initiate the withdrawal of funds

from his or her personal account," which includes the

plaintiff's disbursement request. Section 405.12 required the

plaintiff to complete a withdrawal slip form with the following

information: "(a) Date; (b) Amount to be withdrawn (marked cash

or check/payee); (c) Purpose; (d) Inmate's signature; and (e)

Staff verification signature." The plaintiff asserts that the

judge improperly found that he did not comply with that

procedure.11

11Under 103 Code Mass. Regs. § 405.07, certain disbursements may be made only in circumstances of "compelling need." The "compelling need" provision, however, applies only to "earned" funds and therefore is irrelevant to the case before us. See 103 Code Mass. Regs. § 405.07 ("In accordance with [G. L. c.] 127, § 48A, inmates may expend earned savings and earned personal funds for circumstances of compelling need with the approval of the Superintendent. Such requests shall be submitted in writing to the Superintendent"). Before us, DOC has not indicated in what way the plaintiff failed to comply with the regulations, observing only that the administrative record the DOC itself compiled does not contain the withdrawal slip submitted by the plaintiff. In the trial court, DOC did not dispute that the plaintiff had made a request for 12

When reviewing a DOC decision, the judge should determine

whether the decision was warranted by facts found in the record.

See G. L. c. 30A, § 14 (7). Here, the judge determined that

neither the pleadings nor the administrative record showed that

the plaintiff had complied with the disbursement procedure. The

plaintiff's withdrawal slip was not part of the administrative

record before the judge. However, both the grievance and the

complaint stated that the plaintiff requested the disbursement

in the same manner as he had done, successfully, in previous

years. During the motion hearing, the plaintiff stated multiple

times that he followed the relevant procedure and completed the

required form. In fact, DOC did not deny that the plaintiff had

completed the form and complied with § 405.12. Rather, it

merely stated that the form was not in the administrative

record.

Moreover, it was DOC's responsibility, not the plaintiff's,

to file the administrative record of the entire proceedings,

including the withdrawal slip. See G. L. c 30A, § 14 (4). The

record that DOC filed was sparse, consisting of seven pages, and

nowhere in the various decisions denying the plaintiff's

disbursement compliant with 103 Code Mass. Regs. § 405.12. It argued only that the plaintiff failed to comply with the 2019 SOP, discussed infra, which it described as a policy necessary to ensure that the "compelling need" standard under § 405.07 is met. 13

informal complaint and his grievance did any DOC official assert

that the denial was based on the plaintiff's failure to submit

the required form. In these circumstances, the judge should not

have accepted the form's absence from the record, along with

DOC's admission that "we couldn't find" the form, as proof that

the plaintiff had never filed it. On remand, any remaining

dispute about this issue may be resolved, if necessary, under

G. L. c. 30A, § 14 (4) (corrections or additions to record) or

§ 14 (5) (alleged irregularities in agency procedure, not shown

in record).

The judge also stated in her decision that DOC was entitled

to verify the plaintiff's disbursement request with a bill,

invoice, or order form. However, DOC began requiring those

documents only after it issued its SOP on disbursement of inmate

funds in 2019. Section 405.12 was the procedure in place at the

time of the plaintiff's request at issue here, and it did not

require backup documents. Because the SOP took effect months

after the plaintiff's request, it was error for the judge to

rely on DOC's assertions about it.12

12The plaintiff claims, for the first time on appeal, that DOC's June 2019 SOP was subject to the notice and comment requirement under G. L. c. 30A, § 2. "An issue not raised or argued below may not be argued for the first time on appeal." Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). Accordingly, this claim is waived. Moreover, the plaintiff has clarified on appeal that his claims against defendant Thomas Turco, former 14

The plaintiff further claims on appeal that DOC improperly

defended its actions on judicial review for reasons different

from those stated when it originally acted. This claim relates

primarily to DOC's statements about the 2019 SOP, and as we have

already concluded, it was improper for the judge to rely on

those statements. The plaintiff may further develop any other

arguments related to the sufficiency of DOC's explanations on

remand.

c. Amended complaint. Finally, the plaintiff also

challenges the judge's dismissal of the case without considering

his amended complaint. The plaintiff moved to amend in October

2019. It was within the judge's discretion to grant or deny the

motion to amend at that time because the defendants had answered

the complaint in May 2019. See Mass. R. Civ. P. 15 (a), 365

Mass. 761 (1974). In any event, the judge eventually allowed

the amendment in July 2020, months after dismissing the case.

On remand, the judge may decide which is the operative

complaint.13

Commissioner of Correction, relate to the adoption of the SOP without notice and comment. Since the plaintiff did not articulate this claim against Turco in his complaint, the judge correctly concluded that neither the record nor the complaint alleged facts supporting a claim for relief against Turco.

13Perhaps for the first time on appeal, plaintiff has claimed that DOC did not provide a "reasoned explanation" for its decision. DOC did not address this claim in its brief. It also does not appear that the issue was squarely raised in the 15

4. Conclusion. The plaintiff's complaint was timely, and

the grounds for affirming DOC's decision were, on this record,

insufficient. So much of the judgment that dismisses the

plaintiff's complaint as to defendant Thomas Turco is affirmed.

In all other respects, the judgment is reversed, and the case is

remanded for further proceedings consistent with this opinion.

So ordered.

plaintiff's motion for judgment on the pleadings. In any event, because this matter is being remanded, and because the adequacy of DOC's explanations involves questions of fact, the judge should address it on remand. To assist in that determination, DOC shall provide a complete record regarding the reasons given for the denial of the disbursement. See G. L. c. 30A, § 14 (5) (judicial review is "confined to the record").