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22-P-435 Appeals Court
GORDON HAAS & others1 vs. COMMISSIONER OF CORRECTION & others.2
No. 22-P-435.
Worcester. March 7, 2023. – July 17, 2023.
Present: Sullivan, Sacks, & Ditkoff, JJ.
Imprisonment, Earnings of prisoner. Commissioner of Correction. Administrative Law, Regulations. Due Process of Law, Prison regulation. Regulation. Practice, Civil, Dismissal.
Civil action commenced in the Superior Court Department on July 24, 2019.
A motion to dismiss was heard by David M. Hodge, J., and a motion for reconsideration was considered by him.
Gordon Haas, pro se. Heidi D. Handler for the defendants.
1 Daniel Holland, Ricky Alford, James Keown, and Martin Lovato.
2 Director of Classification for the Department of Correction, Superintendent of the Massachusetts Correctional Institution, Norfolk (MCI-Norfolk), and Deputy Superintendent of Reentry at MCI-Norfolk. 2
SACKS, J. The plaintiffs, all of whom are serving life
sentences in the custody of the Department of Correction (DOC),
brought this action for declaratory and injunctive relief
against DOC officials to challenge the validity of a newly
issued DOC "standard operating procedure" (SOP) that restricts
the disbursement of funds from inmates' institutional accounts.
The SOP's stated purpose is to prevent disbursements "related to
any illicit or improper activity." SOP § I.3 Its core
provisions essentially prohibit inmates (1) from sending funds
directly to private individuals outside prison walls; and (2)
from sending funds to businesses or organizations unless the
inmate's disbursement request is accompanied by an invoice from,
or an order form issued by, the business or organization. On
the defendants' motion, a Superior Court judge dismissed the
verified complaint for failure to state a claim on which relief
could be granted. We conclude that the verified complaint
states claims, sufficient to withstand a motion to dismiss, that
the SOP (a) conflicts with a preexisting DOC regulation
governing disbursements of inmate funds; and (b) was itself
required to be promulgated as a regulation pursuant to G. L.
c. 30A procedures. We also conclude that it was premature to
dismiss the plaintiffs' due process claim. We therefore reverse
3 The same SOP was at issue in Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617, 618, 624 (2023). 3
the judgment as to those claims and remand for further
proceedings.
Background. We summarize the factual allegations of the
verified complaint, accepting them as true at this motion to
dismiss stage and drawing all reasonable inferences in the
plaintiffs' favor. See Curtis v. Herb Chambers I-95, Inc., 458
Mass. 674, 676 (2011).
1. Factual allegations. The five plaintiffs are serving
life sentences at Massachusetts Correctional Institution,
Norfolk (MCI-Norfolk or institution), three of them without the
possibility of parole. None of the plaintiffs has been subject
to any disciplinary action at times relevant to this case.4
The defendant Commissioner of Correction (commissioner)
approved the SOP on January 24, 2019, for the stated purpose of
"amend[ing]" the "policy" with respect to 103 Code Mass. Regs.
§§ 405.00 (2017) governing inmate funds. Thereafter, two of the
other defendant DOC officials issued a memorandum, addressed to
all inmates and staff at MCI-Norfolk, summarizing the SOP's new
process for disbursements to recipients outside the institution.
That memorandum summarized the SOP as follows:
"[A]ny request for disbursement from account funds for a monetary 'gift' shall be deemed invalid.
4 We acknowledge the allegation of good behavior by all of the plaintiffs but note that their statement regarding "times relevant" to the case is a legal conclusion. 4
"The inmate may[,] however, order a gift from an outside company/business. This request must be accompanied by an order form the inmate has obtained from the specific company/business. The name and address of the intended recipient of the gift shall be listed on the order form.
"If the request for disbursement from funds is to pay a bill, a copy of that bill must be submitted at the time of the request."
The SOP applies to disbursements from an inmate's "personal
account."5 SOP §§ I, II.
The plaintiff Gordon Haas then wrote several letters to the
commissioner, on behalf of the "Lifer's Group Inc." (lifers'
group), listing various concerns that prisoners serving life
sentences and other "long-termers" had about the SOP's
restrictions.6 He received responses from other DOC officials
that, inferably, did not substantively address the issues he had
raised. One of the responses stated that "all charge slips
5 The verified complaint alleges that DOC "maintains for every prisoner two accounts -- a [p]ersonal [a]ccount for funds to be accessed by a prisoner and a [s]avings [a]ccount for funds to be set aside for when a prisoner leaves the DOC to return to society." This structure is also reflected in G. L. c. 127, § 48A, and in, e.g., 103 Code Mass. Regs. § 405.07.
6 A letter from Haas to the commissioner, inferably one of those referenced in the verified complaint, is appended to the plaintiffs' brief. The letter states that "[l]ifers comprise over 40% of the population at MCI-Norfolk" and that Haas's lifers' group "estimates that over one-third of our members have been regularly sending funds to family members for birthdays and other occasions or just to help out with daily finances." As it is unclear whether this letter was before the judge, we do not consider it in our analysis. 5
[i.e., the forms inmates must submit to request disbursements]
are reviewed upon receipt. Exceptions may be deemed necessary."
Each of the five plaintiff inmates then requested
disbursements from their accounts, in some cases mirroring
disbursements made without difficulty in the past, but each of
the new requests was denied based on the SOP. Each plaintiff
then pursued some form of complaint or grievance, but none
obtained any relief.
Haas, for example, submitted two charge slips, requesting
that twenty-five dollars from his account be sent to each of two
different named individuals in Detroit, Michigan. A DOC
employee declined to process the slips. He told Haas that the
DOC official responsible for implementing the SOP had instructed
that no charge slips for disbursement to individuals should be
submitted, because they "would obviously be denied." Haas
submitted a complaint form, which was returned to him with the
notation that "[p]er [the SOP], you are no longer allowed to
send out money to outside individuals. This is DOC wide."
The plaintiff Daniel Holland submitted a charge slip "to
send [twenty dollars] to Mellon to be invested in stocks
designated for his son upon . . . Holland's death."7 The request
7 The judge described Mellon as a bank in his decision. 6
was denied, as was his informal complaint about the denial.
Holland submitted a grievance but received no response.
The plaintiff Ricky Alford, on twenty-nine occasions dating
back to 2012, had sent funds to his son, who is incarcerated in
Louisiana, "to assist his son to purchase hygienic necessities
and other items." After the SOP was issued, Alford requested
another such disbursement, in the same manner as before, but
this request was denied based on the SOP. Alford's informal
complaint, formal grievance, and internal grievance appeal were
likewise denied. Alford also wrote to the commissioner and
received a response stating that "exceptions to [the SOP] are
unable to be made."
The plaintiff James Keown submitted a charge slip to send
twenty-five dollars to his sister to help pay for his mother to
travel from Missouri to visit him. Keown submitted a second
charge slip to send ten dollars to a named Massachusetts State
representative "as a donation to his reelection campaign."
After waiting five days without receiving a written denial,
Keown submitted an informal complaint. That complaint was
denied with the notation, "Per [the SOP] this type of financial
transaction is no longer allowed. MCI-Norfolk is adhering to
the policy."
Finally, the plaintiff Martin Lovato had previously been
sending funds monthly "to invest in Allete, Inc. to provide a 7
legacy of stocks for his niece upon . . . Lovato's death."8
After the SOP was issued, however, Lovato was informed that a
charge slip to send funds to Allete, Inc. was denied. He filed
an informal complaint, which was denied with a citation to the
SOP and the regulation governing inmate funds. Lovato filed a
formal grievance, which was denied, and he filed an internal
appeal of the denial but received no response. Lovato also
wrote to the superintendent of MCI-Norfolk, stating, "unless you
possess documentation that implicates Allete, Inc. and myself in
some sort of illicit or improper activity, I am respectfully
requesting that I be allowed to continue the transactions I
engaged in." The superintendent responded that Lovato's request
did not comply with the SOP.
In addition to these details about the individual
plaintiffs' disbursement requests, the verified complaint
alleged that the impetus for the SOP was DOC's "belief that drug
transactions within [DOC] are funded through money sent from
inmates' personal accounts." Before the SOP was implemented,
"any and all charge slips involving a possible misuse of funds
were flagged and investigated by correctional staff before said
charge slips were processed and funds sent from a prisoner's
8 An Internet search shows that there is an energy company, "Allete, Inc.," that is traded on the New York Stock Exchange. See https://www.allete.com [https://perma.cc/9CR4-A33U]. 8
personal account, including, but not limited to, the
[p]laintiffs['] personal accounts." None of the plaintiffs was
ever found to have misused personal funds while in DOC custody,
and, prior to the SOP's implementation, none of them was ever
denied the use of his personal funds. None of the plaintiffs
has ever tested positive for substance use while incarcerated.
2. Legal claims. We briefly review the plaintiffs' legal
claims, mindful that "there is no requirement that a complaint
state the correct substantive theory of the case," and that "[a]
complaint is not subject to dismissal if it would support relief
on any theory of law" (citation omitted). Gallant v. Worcester,
383 Mass. 707, 709-710 (1981). See Goodwin v. Lee Pub. Sch.,
475 Mass. 280, 286 (2016); Gutierrez v. Board of Managers of
Flagship Wharf Condominium, 100 Mass. App. Ct. 678, 683 n.10
(2022). See also Lamoureux v. Superintendent, Massachusetts
Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983) (pro
se filings interpreted liberally where complaint presents
cognizable legal theory); Braley v. Bates, 100 Mass. App. Ct.
259, 262, 263 n.4 (2021) (same, in prisoner's G. L. c. 231A
action against State prison official). 9
The plaintiffs' complaint advanced five claims, only three
of which they press on appeal.9 First, they claim that the SOP
violates 103 Code Mass. Regs. § 405.12, which imposes only a few
limited prerequisites that inmates must meet in order to obtain
disbursements of their funds. Second, they claim that the SOP
was issued and implemented without legislative authority -- a
claim that, as developed in the proceedings on the motion to
dismiss, encompassed the argument that the SOP is a "regulation"
as defined in G. L. c. 30A, requiring a public hearing before
its implementation, and is not within an exemption to that
definition. See Braley, 100 Mass. App. Ct. at 263 n.4. Third,
the plaintiffs claim that the SOP arbitrarily restricts the use
of their property, in violation of their due process rights
under the United States Constitution's Fourteenth Amendment,
enforceable under 42 U.S.C. § 1983.
A judge granted DOC's motion to dismiss the complaint for
failure to state a claim upon which relief could be granted. A
9 The verified complaint also claimed that the SOP (1) violated Haas's and Keown's rights under the First Amendment to the United States Constitution to donate their money to persons, causes, and political campaigns which they support, and (2) violated G. L. c. 127, § 32 (providing that superintendents of DOC institutions "shall treat the prisoners with the kindness which their obedience, industry and good conduct merit"). On appeal, the plaintiffs have not argued either claim. 10
subsequent motion for reconsideration was denied, and the
plaintiffs appealed from both decisions.
Discussion. 1. Propriety of declaratory relief. We
reject DOC's threshold argument that, because the plaintiffs (in
DOC's view) challenge the individual denials of their requests
for disbursements of funds, they may not seek declaratory
relief. An otherwise proper request for declaratory relief is
not barred merely because a plaintiff also seeks review of an
individualized administrative decision.10 See Grady v.
Commissioner of Correction, 83 Mass. App. Ct. 126, 137 n.9
(2013). And here, the plaintiffs' pursuit of declaratory relief
is proper because they challenge the validity of the SOP itself,
which they allege DOC has consistently and repeatedly relied
upon to deny their requests to transfer their money to outside
individuals and entities for lawful purposes. "[A] complaint
for declaratory relief is an appropriate way of testing the
validity of regulations or the propriety of practices involving
violations of rights, which are consistent and repeated in
nature." Id. at 135, quoting Nelson v. Commissioner of
Correction, 390 Mass. 379, 388 n.12 (1983). Nor is an inmate
with a grievance required to exhaust the administrative
10We therefore need not decide whether the plaintiffs actually do seek review of individualized decisions. Their appellate brief, at least, focuses instead on the validity of the SOP. 11
grievance process before seeking declaratory relief. See Grady,
supra at 137 n.9. citing G. L. c. 127, §§ 38F, 38H. Finally,
although Grady focused on declaratory judgment actions asserting
constitutional claims, declaratory relief may also be sought, as
the plaintiffs do here, based on alleged violations of statutes
or regulations. See Braley, 100 Mass. App. Ct. at 261-262.
2. Conflict between SOP and regulations. The DOC has
promulgated regulations governing inmate funds. See 103 Code
Mass. Regs. §§ 405.00. These properly promulgated regulations
"ha[ve] the force of law . . . and must be accorded all the
deference due to a statute." Borden, Inc. v. Commissioner of
Pub. Health, 388 Mass. 707, 723, cert. denied sub nom.
Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983).
Of course, "courts permit prison administrators
considerable discretion in the adoption and implementation of
prison policies. . . . However, the limits of such discretion
are established by the rules and regulations promulgated by the
Department of Correction. Once an agency has seen fit to
promulgate regulations, it must comply with those regulations."
Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983).
See Dexter v. Superintendent, Massachusetts Correctional Inst.,
Concord, 88 Mass. App. Ct. 325, 326 (2015) (same; accordingly,
DOC "is bound by its 'inmate property' regulation, as
promulgated in 103 Code Mass. Regs."). As the Supreme Judicial 12
Court has recently reiterated in the medical parole context, a
court "cannot acquiesce" to DOC's failure to do what is
"required by the regulation." McCauley v. Superintendent,
Massachusetts Correctional Inst., Norfolk, 491 Mass. 571, 598
(2023). "The regulations must be complied with." Haverty v.
Commissioner of Correction, 437 Mass. 737, 763 (2002), S.C., 440
Mass. 1 (2003). See Northbridge v. Natick, 394 Mass. 70, 76
(1985) (State "agency must follow its own regulations even in
the face of inconsistent internal guidelines"); Dougan v.
Commissioner of Correction, 34 Mass. App. Ct. 147, 148 (1993).
And, "[b]ecause they allege that the policy violates DOC
regulations, the plaintiffs properly brought this action under
the declaratory judgment act." Ivey v. Commissioner of
Correction, 88 Mass. App. Ct. 18, 22 (2015).
The particular regulation most relevant here is 103 Code
Mass. Regs. § 405.12, which sets forth the relatively simple
procedure by which inmates may obtain disbursements of funds
from their personal accounts. The inmate need only fill out a
"withdrawal/issue slip" -- what the plaintiffs refer to as a
"charge slip" -- that includes five items: the date, amount to
be withdrawn, purpose, inmate's signature, and staff
verification signature. 103 Code Mass. Regs. § 405.12(1). The
superintendent of each DOC institution designates an employee
responsible for verifying, through the employee's signed 13
approval, that the request came from the inmate; the employee
then submits the slip to the institution's treasurer's office.
See 103 Code Mass. Regs. § 405.12(2). Once the slip is there,
the procedure is as follows:
"The Accounting Clerk/Cashier shall take the withdrawal/issue slip and:
(a) Ensure that inmate has signed the request;
(b) Ensure that the staff member[']s verification signature is present;
(c) Check the inmate account to ascertain there are sufficient funds for withdrawal;
(d) Disburse the funds from the inmate[']s account in accordance with the request." (Emphasis added.)
Id. The plain language of this regulation appears to require
the accounting clerk, upon receipt of the completed slip and
verification of the signatures and the inmate's account balance,
to "[d]isburse the funds from the inmate[']s account in
accordance with the request." Id. The regulation does not
restrict the purpose for which a disbursement may be made or the
person or entity to whom or which it may be made.
The SOP, in contrast, restricts both. The SOP states that
"[a]n inmate's request for disbursement of his/her inmate
account funds for a monetary 'gift' shall be deemed invalid as
such monetary disbursements are frequently used for illegitimate
purposes." SOP § II.A.2. The DOC appears to interpret the
SOP's term "gift" broadly, to encompass any transfer of money to 14
a natural person. As a DOC official informed Haas, inmates "are
no longer allowed to send out money to outside individuals.
This is DOC wide." And as a DOC official informed Keown when he
sought a twenty-five dollar disbursement to his sister to help
pay for his mother to visit him from Missouri, and a ten dollar
disbursement to a State representative for his reelection
campaign, "this type of financial transaction is no longer
allowed" under the SOP, and "MCI-Norfolk is adhering to the
policy."
Does the SOP prohibit all "gifts"? No. The SOP states,
"Instead, the inmate may submit an order form to purchase a gift
for the intended recipient through an outside company/business
using funds from the inmate's personal account. The inmate may
submit an order form he/she has obtained from any outside
company/business." SOP § II.A.2. The SOP also permits an
inmate to pay a bill on behalf of an outside person, provided
the inmate furnishes DOC a physical copy of the company's or
business's bill to that outside person. SOP § II.A.3. In
either case, DOC then disburses the inmate's funds directly to
the company or business.
But the ability to purchase an in-kind gift for a person,
or to pay a bill on that person's behalf, is not the same as the
ability to transfer money to that person to spend, or save, or
invest, or donate, as and when that person wishes. Under the 15
regulation, an inmate may request such a direct transfer, and
the DOC accounting clerk is required to make it. Under the SOP,
a request for such a transfer "shall be deemed invalid" and, at
least as the SOP allegedly has been implemented so far, the DOC
accounting clerk may not make the transfer. The SOP, far from
merely interpreting and implementing the regulation, appears to
directly contradict it.
Of course, we do not assume that DOC has heretofore applied
the regulation so literally that disbursement requests were
approved even where their stated purpose was unlawful or
improper.11 Indeed, the plaintiffs themselves allege that, even
before the SOP, "charge slips involving a possible misuse of
funds were flagged and investigated by correctional staff before
said charge slips were processed and funds sent." We also
assume that, even under the SOP, gifts through company order
forms -- allowed by the SOP -- are not permitted when used as
payment for contraband.
We further recognize that the SOP contains hints that
exceptions might be possible. For example, the SOP states that
11See Commonwealth v. Buccella, 434 Mass. 473, 481 (2001), cert. denied, 534 U.S. 1079 (2002) (court will reject literal interpretation of regulation that would be "utterly absurd" and "clearly not what the [agency] intended"); Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 411 (2014) (same). Cf. Springfield Preservation Trust, Inc. v. Springfield Library & Museums Ass'n, Inc., 447 Mass. 408, 423 (2006) (same, for statute or municipal bylaw). 16
an institution's deputy superintendent of reentry or her
designee is to review all disbursement requests and decide if
the request, "whether for purchase of a gift, payment of a bill,
or for any other reason, should be approved or denied" (emphasis
added). SOP § II.B.1. Also, "[r]equests for disbursements for
special matters, such as paying child support obligations,
returning bail funds, one-time requests for back-to-school
supplies, and expenses related to establishing housing and
transportation for release or parole, require additional
verification to ensure the legitimacy of the request" (emphasis
added). SOP § II.B.5.
So far, however, according to the verified complaint, the
plaintiffs have not benefited from these possible exceptions.
Their requests have been denied, without any indication that the
relevant DOC officials reviewed whether a "special matter" may
include contributing to a State representative's reelection
campaign, or purchasing an investment to benefit the inmate's
family member upon the inmate's death, or assisting the inmate's
son incarcerated in another State with the purchase of
necessaries, or helping a family member to travel from out of
State to visit the inmate. Instead, inmates are informed that
"exceptions . . . are unable to be made."
The DOC argues that the SOP is "explicitly authorized" by
another provision of the inmate funds regulations that, in DOC's 17
view, places strict limits on disbursements from inmate
accounts. Under that regulation,
"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" (emphasis added).
103 Code Mass. Regs. § 405.07(3). Without expressing any
further view concerning the correctness of DOC's current
position about the meaning and applicability of this regulation,
which we recently observed "applies only to 'earned' funds,"
Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617,
623 n.11 (2023), the short answer to this argument is that the
SOP on its face applies not just to "earned" inmate personal
funds but to all inmate personal funds, including those an
inmate receives from outside sources. See, e.g., 103 Code Mass.
Regs. § 405.15 ("Individuals and/or organizations may make
donations to an inmate by check for deposit in the inmate's
personal account"). Neither the regulation DOC relies upon, 103
Code Mass. Regs. § 405.07(3), nor the statute the regulation
cites, G. L. c. 127, § 48A, subjects inmates' use of such donated
funds to any "compelling need" determination by the
institution's superintendent.
More important, nowhere in the ordinary process for
disbursement of inmate funds, set forth in 103 Code Mass. Regs.
§ 405.12 and discussed in detail supra, is there any provision 18
for a superintendent or any other DOC official or employee to
find a compelling need -- or any need at all -- before an
inmate's personal funds may be disbursed to outside persons or
entities at the inmate's request. The scope and meaning of the
"compelling need" provisions in the regulation and the statute
are thus unclear. And at this early stage of the litigation, we
are skeptical that they authorize what the SOP purports to
require.
Nothing we have said calls into question the importance of
the SOP's stated purpose, to prevent disbursements "related to
any illicit or improper activity." SOP § I. That plainly
encompasses the use of inmate funds to facilitate the
introduction of unlawful substances or other contraband into
prisons. Nor do we doubt that DOC's commissioner has the
authority, under G. L. c. 124, § 1 (q), to promulgate
regulations for that purpose.12 Here, however, as in Braley, 100
Mass. App. Ct. at 265, "[f]urther development of the issues
12 Under G. L. c. 124, § 1 (q), the commissioner may
"make and promulgate necessary rules and regulations incident to the exercise of [her] powers and the performance of [her] duties including but not limited to rules and regulations regarding nutrition, sanitation, safety, discipline, recreation, religious services, communication and visiting privileges, classification, education, training, employment, care, and custody for all persons committed to correctional facilities." 19
discussed is necessary in order to decide the merits of the
claim[;] at this stage in the proceeding, the plaintiff[s']
complaint should not have been dismissed." The plaintiffs have
stated a claim that the SOP conflicts with 103 Code Mass. Regs.
§ 405.12 and to that extent should be declared unenforceable.13
3. SOP as a "regulation" under G. L. c. 30A. The
plaintiffs also claim that the SOP is a "regulation" within the
meaning of G. L. c. 30A and therefore must be promulgated under
chapter 30A procedures in order to be enforceable.14 A
regulation "depends for its validity upon compliance with the
provisions of law (G. L. c. 30A, §§ 2, 3 and 5) relative to the
promulgation of regulations." Robinson v. Secretary of Admin.,
12 Mass. App. Ct. 441, 444 n.6 (1981), and cases cited. See
G. L. c. 30A, § 6.
a. Definition of regulation; internal management
exemption. Chapter 30A generally defines the term "regulation"
and then creates several exemptions. The general definition is:
13The verified complaint appears to allege that the SOP conflicts with the regulation on its face, and that the plaintiffs have been injured by the SOP's implementation. It is for the parties to address, on remand, whether the SOP conflicts with the regulation on its face, as implemented, or both.
14Whether the applicable procedures would be those of G. L. c. 30A, § 2 (regulations requiring public hearings), or G. L. c. 30A, § 3 (regulations not requiring public hearings), has not been briefed and need not now be addressed. 20
"'Regulation' includes the whole or any part of every rule, regulation, standard or other requirement of general application and future effect, including the amendment or repeal thereof, adopted by an agency to implement or interpret the law enforced or administered by it, but does not include [certain exempted items]."
G. L. c. 30A, § 1 (5).15 We are to "interpret [the] definition
of regulation broadly," Carey v. Commissioner of Correction, 479
Mass. 367, 371 (2018), while recognizing that "[a]gencies
intending to fill in the details or clear up an ambiguity of an
established policy may issue interpretation or informational
pronouncements without going through the procedures required for
the promulgation of a regulation" (quotation and citation
omitted). Id. at 373.
Here, there is no dispute that the SOP falls within the
general definition of "regulation." And, although the SOP is
labeled a procedure, "the substance, not the name, [is] to
control." Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371
Mass. 705, 708 n.9 (1977) (agency "letter" or "bulletin" might
also qualify as regulation). Rather, the principal dispute here
concerns whether the SOP falls within one of the exemptions of
15This definition, depending in part as it does on the term "agency," must be read together with c. 30A's definition of "agency," as well as related provisions. See G. L. c. 30A, § 1 (2) (defining "agency" and excluding DOC, among others, therefrom); G. L. c. 30A, § 1A (notwithstanding DOC's exclusion from G. L. c. 30A, § 1, definition, DOC remains subject to provisions of G. L. c. 30A, §§ 1-8, including those concerning regulations). 21
G. L. c. 30A, § 1 (5), that is, clause (b), which exempts from
the general definition any "regulations concerning only the
internal management or discipline of the adopting agency or any
other agency, and not substantially affecting the rights of or
the procedures available to the public or that portion of the
public affected by the agency’s activities." For convenience,
we refer to this as the internal management exemption.
The case law construing this exemption is sparse. In
Commonwealth v. Trumble, 396 Mass. 81, 88-89 (1985), the court
held that guidelines promulgated by the Secretary of Public
Safety to govern the State police department's conduct of
roadside sobriety checkpoints or roadblocks fell within the
internal management exemption. The court reasoned that because
"[t]he guidelines are directed solely toward troopers, and
instruct them as to the manner in which they are to fulfil their
duties," they "concern the internal management of th[e] agency."
Id. at 89. Moreover, the guidelines did not substantially
affect the rights of or the procedures available to the public.
Rather, they described the roadblocks' "purpose and operational
philosophy," set forth "important procedural and safety
considerations," and attempted to ensure compliance with
governing constitutional principles. Id. "They do not purport
directly to regulate public conduct. The guidelines are simply 22
an accurate reflection of the rights of the public as set forth
in [governing case law]." Id.
More recently, in Carey, 479 Mass. at 367-368, 371-373, the
court held that a new DOC policy subjecting prison visitors to
searches by drug-detecting dogs did not fall within the internal
management exemption. "Simply put, the introduction of the new
policy substantially affected the procedures available to the
public because, prior to the implementation of the policy,
visitors to correctional facilities were not subject to dog
sniff searches, but now they are." Id. at 372. "This change
could have a potentially significant impact on the visiting
public's experience." Id. The court distinguished Trumble on
the ground that "it concerned how [the] State police should
conduct roadblocks already taking place." Id. Moreover, "[t]he
fact that [DOC] publicized the new policy" well before its
"implementation date is a strong indicator that [DOC] was well
aware that implementing canine searches would be of substantial
concern to those affected" and did not "concern[] only internal
management issues." Id.
The Carey court also rejected DOC's argument that the
policy was merely "intend[ed] to fill in the details or clear up
an ambiguity of the regulation governing searches of visitors,
rather than to initiate a material change, and that thus the
policy is not subject to [G. L. c. 30A]" (quotation and citation 23
omitted). Id. at 372-373. The court acknowledged its prior
decisions stating the general principle regarding subregulatory
guidance. See id., citing Arthurs v. Board of Registration in
Med., 383 Mass. 299, 313 n.26 (1981); Massachusetts Gen. Hosp.,
371 Mass. at 707. See also G.A. McDonough, Administrative Law
and Practice § 12:3 (2d ed. 2016). But the Carey court
recognized that there are limits to that principle, and DOC's
dog sniff search policy went beyond those limits. See Carey,
supra at 373. The court thus concluded: "An agency's
interpretation of its own regulations may trigger [G. L. c. 30A]
if that interpretation leads to a rule or policy that meets the
[c. 30A] definition of a regulation."16 Id.
b. Application to SOP. Here, the SOP, although largely
phrased as a series of procedures that DOC staff must follow,
16The Carey court explained that "the purpose of [the administrative procedure act] would be disserved if an agency with a broad statutory command . . . could avoid notice-and- comment rulemaking simply by . . . invoking its power to interpret that statute and regulation in binding the public to a strict and specific set of obligations." 479 Mass. at 373, quoting Electronic Privacy Info. Ctr. v. United States Dep't of Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011). Compare Atlas Distrib. Co. v. Alcoholic Beverages Control Comm'n, 354 Mass. 408, 414 (1968), where the court held that a particular agency's decision could "reasonably be characterized as a reinterpretation of the reasoning behind the application of existing rules," rather than as itself a regulation requiring promulgation under G. L. c. 30A. At the same time, the court acknowledged that "it is often difficult to draw a clear and objective line between a regulation and the reasoning behind it." Atlas Distrib. Co., supra. 24
imposes new substantive limitations on what inmates may do with
their own money. The SOP thus appears to "substantially
affect[] the rights of" all DOC inmates, who are certainly a
"portion of the public affected by the agency's activities."
G. L. c. 30A, § 1 (5) (b). The SOP classifies inmate requests
for disbursements of money to outside individuals as "invalid,"
meaning inmates can no longer make such transfers, as they did
before the SOP was issued. Also, among those who can no longer
receive such transfers are inmates' family members, another
portion of the public affected by DOC's activities. Cf. Carey,
479 Mass. at 372 (dog sniff search policy "substantially
affect[ed] the procedures available to visitors to correctional
facilities"; visitors are portion of public affected by DOC's
activities).
In addition, the SOP appears to substantially affect "the
procedures available" to inmates. G. L. c. 30A, § 1 (5) (b).
The SOP does so by limiting inmates, in the case of gifts, to
submitting an order form to purchase a gift for the intended
recipient through an outside company or business, using "an
order form [the inmate] has obtained from [that]
company/business";17 or, in the case of bills, to paying a bill
17Although unclear from the SOP itself, the summary memorandum issued to all inmates and staff at MCI-Norfolk states that inmates must use "an order form the inmate has obtained 25
on behalf of an outside person only if the inmate can furnish a
physical copy of the bill. SOP § II.A.2, 3. The SOP's
procedures thus make it more cumbersome, at a minimum, for
inmates to obtain disbursements to provide in-kind assistance to
outside persons. In an era of Internet commerce, it is not
self-evident that inmates have access to physical order forms,
or access to the Internet to print order forms. The plaintiffs
also plausibly question whether, for example, a transportation
company in Missouri will send Keown a bill for advance payment
of his mother's travel expenses, or whether a prison canteen in
Louisiana will send Alford a bill for his incarcerated son's
hygienic necessities.
These are not mere quibbles with minor implementation
details. Rather, the extent of the new procedural burdens the
SOP imposes is a factor that may bear on whether the SOP is a
regulation. See Massachusetts Gen. Hosp., 371 Mass. at 707
(agency pronouncement more likely to be viewed as regulation
where it "is seen to involve difficulties of compliance"). And
from the specific company or business." There apparently is no room for an inmate to write a letter to the business that gives the information necessary to fulfill the order. 26
here, as in Massachusetts Gen. Hosp., the extent of the burdens
may present questions of fact.18 See id. at 712-713.
Imposition of these new limits on inmates' transfer of
their money, and of these new requirements for what they must do
to exercise the options they still have, support a claim that
the SOP substantially affects inmates' rights and the procedures
they must follow, and thus that the internal management
exemption does not apply. Cf. Carey, 479 Mass. at 372
(substantial effect shown where "prior to the implementation of
the policy, visitors to correctional facilities were not subject
to dog sniff searches, but now they are").
Another factor suggesting that the internal management
exemption does not apply is that an MCI-Norfolk official
assertedly issued a memorandum explaining the SOP, not merely to
staff, but to all inmates. Although this was not a "coordinated
multimedia campaign" as in Carey, 479 Mass. at 372, it plainly
suggests that the SOP "concern[s] [more than] the internal
management or discipline of" DOC. G. L. c. 30A, § 1 (5) (b).
18In Massachusetts Gen. Hospital, 371 Mass. at 712-713, a hospital claimed that obtaining the data and documentation required by an agency "bulletin" would "seriously burden" it, but the trial testimony did not support that claim. Moreover, some of the harder-to-obtain data was required only when the agency requested it -- a request "which, we should assume, would not be made lightly or unreasonably." Id. at 713. Whether a similar assumption should apply here is an open question. 27
Finally, the SOP on its face does not merely "fill in the
details or clear up an ambiguity of" an established policy
(citation omitted). Carey, 479 Mass. at 372-373. Instead, the
SOP appears to establish new rules, which contradict the
regulations already in effect, and which prohibit disbursements
that the plaintiffs allege were routinely permitted under those
regulations. We conclude that the verified complaint states a
claim, sufficient to survive a motion to dismiss, that the SOP
is a regulation and, not having been promulgated as such through
G. L. c. 30A procedures, is unenforceable.19
4. Constitutional claim. The plaintiffs' complaint also
claims that the SOP arbitrarily restricts the use of their
property in violation of their due process rights.20 See Ciampi
v. Commissioner of Correction, 452 Mass. 162, 170 (2008)
(assuming without deciding that "prisoners have a statutorily
19We add that this case is unusual; in most instances, it will be clear, without any factual dispute, whether an agency's guidance document merely fills in details or clears up ambiguities in established policies, as opposed to substantially affecting the rights of or the procedures available to that part of the public the agency serves. And it is desirable that agencies be able to readily determine, without extensive factual inquiries, when a guidance document rises to the level requiring promulgation as a regulation.
20Although on appeal the plaintiffs have made no separate First Amendment argument, we recognize that among the various purposes for which they seek to make disbursements to individuals are purposes that may further their speech and associational rights. 28
protected property interest in the funds in their prison
accounts entitling them to due process protection").21 "[W]hen a
prison regulation impinges on inmates' constitutional rights,
the regulation is valid if it is reasonably related to
legitimate penological interests." Turner v. Safley, 482 U.S.
78, 89 (1987). See Massachusetts Prisoners Ass'n Political
Action Comm. v. Acting Governor, 435 Mass. 811, 819-820 (2002)
(MPAPAC) (adopting Turner test for prison regulations and
policies); Gaskins v. Silva, 101 Mass. App. Ct. 555, 563 (2022).
"Acknowledging the difficulty that prison officials face in the
operation of prisons, [the Supreme Judicial Court has] expressly
adopted Turner's deferential standard of review for
constitutional challenges to prison regulations and policies."
MPAPAC, supra at 819-820, citing Cacicio v. Secretary of Pub.
Safety, 422 Mass. 764, 769–770 (1996).
The court has "also adopted Turner's four-factor inquiry to
determine whether a prison regulation is reasonably related to a
legitimate penological interest." MPAPAC, 435 Mass. at 820.
The Turner test asks:
"(1) Is there a valid, rational connection between the regulation and the governmental interest put forward to
21See also Massachusetts Prisoners Ass'n Political Action Comm. v. Acting Governor, 435 Mass. 811, 819, 822 (2002) (recognizing that inmates' ability to "contribute their personal funds to candidates and outside organizations," subject to neutral limitations imposed by 103 Code Mass. Regs. §§ 405.00, were means of exercising free speech and associational rights). 29
justify it, and is the governmental interest legitimate and neutral; (2) do alternative means of exercising the [asserted] right remain open to inmates; (3) will accommodating the [asserted] right have a significant 'ripple effect' on guards, other inmates, and the allocation of prison resources in general; and (4) does an alternative to the regulation exist which would fully accommodate the inmates' rights at de minimis cost to valid penological interests?"
Cacicio, 422 Mass. at 770, citing Turner, 482 U.S. at 89-91.22
Importantly, application of the Turner factors sometimes
requires factual inquiries. Turner itself was resolved only
after a trial, and the Court, in holding the challenged prison
regulation invalid, repeatedly referred to the factual record in
applying its four-factor test. See Turner, 482 U.S. at 82, 97-
99. See also Gaskins, 101 Mass. App. Ct. at 562-564 (affirming
invalidation of regulation based on Turner factors as
illuminated by summary judgment record); Abdul-Alazim v.
Superintendent, Mass. Correctional Inst., Cedar Junction, 56
Mass. App. Ct. 449, 456-458 (2002) (vacating summary judgment
for prison officials and ordering summary judgment invalidating
We note that Cacicio and subsequent Massachusetts cases, 22
in describing the second and third Turner factors, have referred to "exercising the challenged right" and "accommodating the challenged right" (emphasis added). Cacicio, 422 Mass. at 770. See, e.g., MPAPAC, 435 Mass. at 820; Commonwealth v. Jessup, 471 Mass. 121, 131 (2015); Gaskins, 101 Mass. App. Ct. at 563-564. Turner itself, however, referred to the exercise and accommodation of "the asserted right" (emphasis added), i.e., the right asserted by the inmate, with which the challenged prison regulation was claimed to interfere. Turner, 482 U.S. at 90. See Jessup, supra. We use the clearer phrase "asserted right" herein. 30
policy, where record evidence did not show policy furthered
claimed penological interest, or any adverse impact from
accommodating asserted right); Lovell v. Superintendent, N.
Cent. Correctional Inst., 26 Mass. App. Ct. 35, 40 (1988)
(reversing summary judgment upholding prison directive and
remanding for further proceedings where first and fourth Turner
factors could not be evaluated solely as matter of law).
The Turner test does not focus solely on the challenged
prison regulation or policy. Inmates' proposed alternatives to
the regulation or policy must also be considered, both for their
efficacy and for the degree of any adverse impact on valid
penological interests. See Turner, 482 U.S. at 90-91; MPAPAC,
435 Mass. at 820, 822. Significantly, however, the Turner test
"is not a 'least restrictive alternative' test." Turner, 482
U.S. at 90. See MPAPAC, 435 Mass. at 820 n.9. It is a test
that is "deferential" to prison administrators. Commonwealth v.
Jessup, 471 Mass. 121, 130 (2015).
Against this backdrop, we conclude that sufficient
questions remain, about the implementation both of the
preexisting regulation and of the SOP, that extended discussion
of the Turner factors here would be premature and unwise.
Courts "do not . . . decide constitutional questions
unnecessarily or prematurely." Massachusetts Gen. Hosp. v.
C.R., 484 Mass. 472, 488 (2020). Moreover, DOC has sought to 31
recharacterize the right the plaintiffs are asserting, and the
parties have not briefed the question of how we should go about
characterizing that right. In these circumstances, attempting
to apply the Turner test would be an exercise in hypotheticals,
and courts "prefer not to pass on [a] constitutional question on
a hypothetical basis." Boston Gas Co. v. Department of Pub.
Utils., 387 Mass. 531, 540 (1982). Without implying any view on
the merits of the constitutional claim, we determine only that
its dismissal at this stage of the litigation was not warranted.
As should be obvious, a decision in the plaintiffs' favor on
either of their other remaining claims would make resolution of
the constitutional issue unnecessary.
Conclusion. Insofar as the judgment dismissed the claims
that the SOP conflicts with 103 Code Mass. Regs. § 405.12, is
invalid because it was not promulgated as a regulation under
G. L. c. 30A, and violates the plaintiffs' due process rights,
it is reversed and the matter is remanded for further
proceedings. The judgment is otherwise affirmed.
So ordered.