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-740
GLENN HART
vs.
DENNIS W. BUTLER & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Glenn Hart appeals from a Superior Court judgment
entered in favor of the defendants, Dennis W. Butler, Lauren
Vinitsky, and Stephen Kennedy, on cross motions for judgment on
the pleadings. We affirm.
Background. The plaintiff is an inmate in the custody of
the Massachusetts Department of Correction (department) at the
Old Colony Correctional Center (OCCC) in Bridgewater. In
February and March 2019, the department received reports from
three confidential informants (CIs) that counterfeit U.S.
postage stamps were being made in OCCC's print shop and then
1 Lauren Vinitsky and Stephen Kennedy. circulated among the general prison population. After receiving
the first CI report, the department opened an investigation. On
a computer that was assigned to the plaintiff, department staff
found the computer file used to create counterfeit stamps (stamp
file). According to the stamp file's metadata, the stamp file
was created on January 31, 2019.
On March 1, 2019, Kenneth Newby, the print shop supervisor,
filed an incident report stating that the three inmates who had
the "access" and "knowledge" to produce counterfeit stamps in
the print shop were the plaintiff, Jamie Richards, and another
inmate. That same day, department staff interviewed all three
inmates. The plaintiff refused to speak during his interview
and denied permission for his interview to be recorded.
The department held a disciplinary hearing to determine
whether the plaintiff violated departmental regulations by using
a computer in OCCC's print shop to produce counterfeit stamps.
The plaintiff, represented by counsel, appeared before the
hearing officer, defendant Vinitsky. The plaintiff and
defendant Butler, the reporting OCCC sergeant, testified.
During the latter portion of the hearing, plaintiff's counsel
requested that Newby be called as a witness, but that request
was denied as untimely.
The plaintiff also requested that Richards appear as a
witness to testify "[t]hat [Richards] was the sole person and
2 acted alone in this." Instead of testifying at the hearing,
Richards opted to submit a written affidavit (Richards
affidavit). The Richards affidavit stated that "[the plaintiff]
played no part in printing of stamps . . . he never copied or
helped me copy any items there. I used the computer he was
assigned to do all scanning and copying." The Richards
affidavit was admitted at the hearing, and Butler testified that
it was consistent with Richards's statements during his March 1
interview. The hearing officer considered the Richards
affidavit, but ultimately "[did] not find it persuasive in
absolving [the plaintiff's] conduct of accessing the file
containing the stamps, even if it was to simply do a 'save as'
as [the plaintiff's] testimony insinuated."
Documentary evidence was also admitted at the disciplinary
hearing, including copies of the print shop's color copier log,
video footage from the print shop dated January 31, 2019, a
report summarizing information from a CI, and Newby's incident
report. The hearing officer found that the January 31 video
showed the plaintiff "on the computer in question at the time."
The hearing examiner found that the CI's information was
reliable and credible in stating that "the stamps are being made
in the Print Shop off of [the plaintiff]'s computer," and that
3 "[the plaintiff] is going to have inmate Jamie Richards take the
hit for the stamps."2
The plaintiff requested that additional documentary
evidence be introduced, but the request was denied. Among other
things, the plaintiff requested introduction of (1) recordings
of the March 1 interviews of Richards and the other inmate, and
(2) video footage of the shipping area of the print shop on
January 31.3 The plaintiff expected that the shipping area video
would show Richards cutting the stamps or using the scanner, and
would show whether the plaintiff was present with Richards.
Because the Richards affidavit was in evidence, a
department officer excluded the Richards interview, which the
officer found did not contain "anything further exculpatory
beyond what Inmate Richards already provided in his written
affidavit." The department officer denied the plaintiff's
request to introduce the shipping area video because it was
"nonexistent." Butler testified that, though there were
2 On motion by the plaintiff, the hearing officer excluded the reports of the information from the other two CIs because they were unsupported by personal knowledge.
3 The plaintiff also requested introduction of his annual work performance evaluations, the stamp file, and memoranda or notes created by department officers. Because the plaintiff does not raise arguments concerning the denial of his request for these items on appeal, we do not consider them.
4 multiple cameras in the print shop, no camera captured video
footage of the area where the plaintiff requested.
At the conclusion of the disciplinary hearing, the hearing
officer found the plaintiff guilty of offense 2-23,
"counterfeiting, committing forgery, altering or unauthorized
reproduction of any document, article of identification, money,
security, or official paper," 103 Code Mass. Regs. § 430.24
(2019).4 The plaintiff pursued an administrative appeal from the
hearing officer's decision. Defendant Kennedy, superintendent
for OCCC, concurred with the hearing officer and denied the
plaintiff's appeal.
In October 2019, the plaintiff sought judicial review of
his disciplinary determination by filing a Superior Court
complaint against the defendants pursuant to G. L. c. 249, § 4.5
The parties cross-moved for judgment on the pleadings. After a
hearing, a judge allowed the defendants' motion and denied the
plaintiff's motion, concluding "that the hearing officer's
decision was based upon substantial evidence and further that
4 Other charges against the plaintiff were dismissed as duplicative or unsupported by the record.
5 Because this is a disciplinary appeal, this is an action in the nature of certiorari pursuant to G. L. c. 249, § 4, and not an inmate grievance appeal subject to review under G. L. c. 30A, § 14. See Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617, 619 (2023).
5 the plaintiff's claims for due process violations are without
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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-740
GLENN HART
vs.
DENNIS W. BUTLER & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Glenn Hart appeals from a Superior Court judgment
entered in favor of the defendants, Dennis W. Butler, Lauren
Vinitsky, and Stephen Kennedy, on cross motions for judgment on
the pleadings. We affirm.
Background. The plaintiff is an inmate in the custody of
the Massachusetts Department of Correction (department) at the
Old Colony Correctional Center (OCCC) in Bridgewater. In
February and March 2019, the department received reports from
three confidential informants (CIs) that counterfeit U.S.
postage stamps were being made in OCCC's print shop and then
1 Lauren Vinitsky and Stephen Kennedy. circulated among the general prison population. After receiving
the first CI report, the department opened an investigation. On
a computer that was assigned to the plaintiff, department staff
found the computer file used to create counterfeit stamps (stamp
file). According to the stamp file's metadata, the stamp file
was created on January 31, 2019.
On March 1, 2019, Kenneth Newby, the print shop supervisor,
filed an incident report stating that the three inmates who had
the "access" and "knowledge" to produce counterfeit stamps in
the print shop were the plaintiff, Jamie Richards, and another
inmate. That same day, department staff interviewed all three
inmates. The plaintiff refused to speak during his interview
and denied permission for his interview to be recorded.
The department held a disciplinary hearing to determine
whether the plaintiff violated departmental regulations by using
a computer in OCCC's print shop to produce counterfeit stamps.
The plaintiff, represented by counsel, appeared before the
hearing officer, defendant Vinitsky. The plaintiff and
defendant Butler, the reporting OCCC sergeant, testified.
During the latter portion of the hearing, plaintiff's counsel
requested that Newby be called as a witness, but that request
was denied as untimely.
The plaintiff also requested that Richards appear as a
witness to testify "[t]hat [Richards] was the sole person and
2 acted alone in this." Instead of testifying at the hearing,
Richards opted to submit a written affidavit (Richards
affidavit). The Richards affidavit stated that "[the plaintiff]
played no part in printing of stamps . . . he never copied or
helped me copy any items there. I used the computer he was
assigned to do all scanning and copying." The Richards
affidavit was admitted at the hearing, and Butler testified that
it was consistent with Richards's statements during his March 1
interview. The hearing officer considered the Richards
affidavit, but ultimately "[did] not find it persuasive in
absolving [the plaintiff's] conduct of accessing the file
containing the stamps, even if it was to simply do a 'save as'
as [the plaintiff's] testimony insinuated."
Documentary evidence was also admitted at the disciplinary
hearing, including copies of the print shop's color copier log,
video footage from the print shop dated January 31, 2019, a
report summarizing information from a CI, and Newby's incident
report. The hearing officer found that the January 31 video
showed the plaintiff "on the computer in question at the time."
The hearing examiner found that the CI's information was
reliable and credible in stating that "the stamps are being made
in the Print Shop off of [the plaintiff]'s computer," and that
3 "[the plaintiff] is going to have inmate Jamie Richards take the
hit for the stamps."2
The plaintiff requested that additional documentary
evidence be introduced, but the request was denied. Among other
things, the plaintiff requested introduction of (1) recordings
of the March 1 interviews of Richards and the other inmate, and
(2) video footage of the shipping area of the print shop on
January 31.3 The plaintiff expected that the shipping area video
would show Richards cutting the stamps or using the scanner, and
would show whether the plaintiff was present with Richards.
Because the Richards affidavit was in evidence, a
department officer excluded the Richards interview, which the
officer found did not contain "anything further exculpatory
beyond what Inmate Richards already provided in his written
affidavit." The department officer denied the plaintiff's
request to introduce the shipping area video because it was
"nonexistent." Butler testified that, though there were
2 On motion by the plaintiff, the hearing officer excluded the reports of the information from the other two CIs because they were unsupported by personal knowledge.
3 The plaintiff also requested introduction of his annual work performance evaluations, the stamp file, and memoranda or notes created by department officers. Because the plaintiff does not raise arguments concerning the denial of his request for these items on appeal, we do not consider them.
4 multiple cameras in the print shop, no camera captured video
footage of the area where the plaintiff requested.
At the conclusion of the disciplinary hearing, the hearing
officer found the plaintiff guilty of offense 2-23,
"counterfeiting, committing forgery, altering or unauthorized
reproduction of any document, article of identification, money,
security, or official paper," 103 Code Mass. Regs. § 430.24
(2019).4 The plaintiff pursued an administrative appeal from the
hearing officer's decision. Defendant Kennedy, superintendent
for OCCC, concurred with the hearing officer and denied the
plaintiff's appeal.
In October 2019, the plaintiff sought judicial review of
his disciplinary determination by filing a Superior Court
complaint against the defendants pursuant to G. L. c. 249, § 4.5
The parties cross-moved for judgment on the pleadings. After a
hearing, a judge allowed the defendants' motion and denied the
plaintiff's motion, concluding "that the hearing officer's
decision was based upon substantial evidence and further that
4 Other charges against the plaintiff were dismissed as duplicative or unsupported by the record.
5 Because this is a disciplinary appeal, this is an action in the nature of certiorari pursuant to G. L. c. 249, § 4, and not an inmate grievance appeal subject to review under G. L. c. 30A, § 14. See Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617, 619 (2023).
5 the plaintiff's claims for due process violations are without
merit." Final judgment of dismissal entered on May 7, 2021.
The plaintiff appeals.
Discussion. "We review de novo a judge's order allowing a
motion for judgment on the pleadings under Mass. R. Civ. P.
12 (c), 365 Mass. 754 (1974)." UBS Fin. Servs., Inc. v.
Aliberti, 483 Mass. 396, 405 (2019), quoting Champa v. Weston
Pub. Sch., 473 Mass. 86, 90 (2015). In reviewing the
disciplinary decision of the department pursuant to G. L.
c. 249, § 4, we review the administrative record "to correct
substantial errors of law on the record that adversely affect
material rights." Drayton v. Commissioner of Correction, 52
Mass. App. Ct. 135, 140 (2001). "Our review of a disciplinary
proceeding is based on whether the record contains substantial
evidence to support the hearing officer's decision." Puleio v.
Commissioner of Correction, 52 Mass. App. Ct. 302, 305 (2001)).
We defer to the hearing officer's exclusive function of weighing
the credibility of witnesses and resolving factual disputes.
See Jordan v. Superintendent, Mass. Correctional Inst., Cedar
Junction, 53 Mass. App. Ct. 584, 588 (2002).
Due process. During disciplinary proceedings, inmates are
entitled to procedural due process protections under the United
States and the Massachusetts Constitutions. See Torres v.
Commissioner of Correction, 427 Mass. 611, 617-618, cert.
6 denied, 525 U.S. 1017 (1998). The plaintiff argues that the
defendants deprived him of procedural due process by denying him
the opportunity to present witnesses and evidence.
An inmate may call witnesses or present evidence in his or
her defense at a disciplinary hearing. 103 Code Mass. Regs.
§ 430.14(4) (2019). See Torres, 427 Mass. at 618. Requests for
witnesses or evidence may be denied by a department hearing
officer, who must "deny with good cause and in writing." 103
Code Mass. Regs. § 430.11(2) (2019). Pursuant to 103 Code Mass.
Regs. § 430.14(4), "the hearing officer ha[s] discretion to
deny . . . requests for reasons that include[] lack of
relevance . . . or cumulativeness." Santiago v. Russo, 77 Mass.
App. Ct. 612, 617 (2010).
The Richards affidavit was admitted at the disciplinary
hearing in lieu of Richards's live testimony. This satisfied
constitutional due process.6 See Allen v. Department of
Correction, 69 Mass. App. Ct. 682, 685 (2007) (upholding
disciplinary decision where department accepted witness's
affidavit instead of live testimony, where petitioner "found no
6 The defendants assert that this issue is waived. In his administrative appeal and in the Superior Court, the plaintiff did argue that the defendants violated department policy by denying him the opportunity to present witnesses. The plaintiff also argued, in his opposition to the defendant's motion for judgment on the pleadings, that Richards's "several sentence aff[i]davit can only say so much. . . . more evidence should have been allowed to prove [the plaintiff]'s innocence."
7 fault with the contents of his witness's affidavit"). Though we
recognize that "live testimony may often be more persuasive than
evidence in affidavit form," the plaintiff here "fails to
explain why live testimony would have helped his case." Id.
Where the Richards affidavit included the exculpatory
information that the plaintiff sought to elicit -- "[the
plaintiff] played no part in printing of stamps" -- the
plaintiff was not prejudiced by this evidentiary decision.
We also conclude that the hearing officer properly denied
as untimely the plaintiff's request to call Newby as a witness.
When an inmate is represented at a disciplinary hearing, counsel
is "entitled to make one amended written request for
witnesses . . . provided that such amended request is
communicated to the Disciplinary Officer at least three business
days prior to the scheduled time for the hearing." 103 Code
Mass. Regs. § 430.12(1) (2019). Here, plaintiff's counsel did
not request the opportunity to call Newby until during the
hearing, so the request was untimely. Moreover, it is not
evident what Newby's testimony would have been that would be
helpful and relevant.
The hearing officer's decision to exclude the recording of
Richards's March 1 interview and shipping area video was also
8 proper.7 Given the admission of the Richards affidavit and
Butler's testimony that it was consistent with Richards's
interview, the recording would have been cumulative. As for the
video of the shipping area, the plaintiff has failed to provide
any support for his contention that it does in fact exist. The
plaintiff asserts that even if the shipping area video does not
exist, the hearing officer was required to do more to explain
its nonexistence, such as describing how the department searched
for the footage. But that misconstrues what is required. The
defendants satisfied due process and department regulations when
they provided the following reason: "None of the cameras in the
Print Shop on 1-31-19 are focused on the requested area. As
such, this footage cannot be provided as it is non-existent."
See Ponte v. Real, 471 U.S. 491, 497 (1985) (holding that prison
officials may be required "in a limited manner" to give reasons
for denying inmate's witness or evidence request).
The plaintiff also raises an issue that he did not raise in
his administrative appeal, or in his Superior Court motion for
judgment on the pleadings.8 He contends that because the report
7 To the extent that the plaintiff disputes the exclusion of his own March 1 interview, because the plaintiff refused to speak and did not consent to a recording, there was "nothing to document."
8 In his Superior Court motion for judgment on the pleadings, the plaintiff did discuss the report of the CI's information, but did not argue that it was inadmissible.
9 of the information from the CI quoted the CI as stating, "the
word is out," that showed that the CI lacked personal knowledge
and therefore the hearing officer erred in considering the CI's
information. Setting aside the defendants' contention that the
plaintiff waived the issue, we conclude that it lacks merit.
In Nelson v. Commissioner of Correction, 390 Mass. 379, 396
(1983), and Lamoureux v. Superintendent, Mass. Correctional
Inst., Walpole, 390 Mass. 409, 414 (1983), the Supreme Judicial
Court set forth the standards by which prison disciplinary
boards should analyze the reliability of information from
informants. We have summarized the holdings of those cases as
follows:
"[W]here a disciplinary board's determination is based on informant information, the record must contain some underlying factual information from which the board can conclude that the informant was credible and his information reliable, must contain the informant's statement in language that is factual and not conclusory, and must establish that the informant spoke with personal knowledge of the matters contained in [the CI's] statement."
Pidge v. Superintendent, Mass. Correctional Inst., Cedar
Junction, 32 Mass. App. Ct. 14, 16 n.4 (1992). The information
from the CI met that standard. The reliability of the CI's
information was bolstered by the fact that Butler had received
accurate information from the CI on twelve previous occasions.
10 See Commonwealth v. Santos, 94 Mass. App. Ct. 696, 700 (2019)
(informant's credibility established through prior tips).
Moreover, the information from the CI was independently
corroborated by evidence including the stamp file and the
January 31 video depicting the plaintiff at the computer.
We conclude that plaintiff's disciplinary hearing conformed
to the applicable departmental regulations, 103 Code Mass. Regs.
§§ 430.00 (2019), and thus there was no due process violation.
See Torres, 427 Mass. at 618-619.
Sufficiency of the evidence. When an inmate argues there
was insufficient evidence to support a guilty finding of a
disciplinary board, we review using the substantial evidence
test -- "whether evidence exists in the administrative record
that a 'reasonable mind might accept as adequate to support a
conclusion.'" Allen, 69 Mass. App. Ct. at 684, quoting
Cepulonis v. Commissioner of Correction, 15 Mass. App. Ct. 292,
295-296 (1983).
The plaintiff argues that the record lacks substantial
evidence because the Richards affidavit exculpated him. We are
unpersuaded. First, the hearing officer credited the report of
the information from the CI that stated the counterfeit stamps
were being made on the plaintiff's computer and that the
plaintiff was planning to have Richards "take the hit" for
producing the stamps. Second, Newby's incident report
11 identified the plaintiff as a person who possessed the requisite
access, skills, and knowledge to counterfeit stamps. Third, the
hearing officer credited Butler's testimony and the January 31
video showing the plaintiff using the computer on the day the
stamp file was created. Fourth, the hearing officer did not
ignore the exculpatory value of the Richards affidavit; she
considered it, but she was not required to credit it.
The plaintiff also asserts that the record did not show
that he "altered" any stamps, so he could not be found guilty.
In addition to "altering" of stamps, offense 2-23 prohibits
"counterfeiting," "committing forgery," and "unauthorized
reproduction." See 130 Code Mass. Regs. § 430.24. The record
thus adequately supports the hearing officer's decision.
Judgment affirmed.
By the Court (Desmond, Grant & Hodgens, JJ.9),
Clerk
Entered: April 16, 2025.
9 The panelists are listed in order of seniority.