NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-698
JAMES GAINES
vs.
DEPARTMENT OF CORRECTION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, James Gaines, an inmate at the Massachusetts
Department of Correction (department), challenged an adverse
finding of a disciplinary hearing officer (later sustained by
the facility superintendent) by filing an action pursuant to
G. L. c. 249, § 4. After a hearing, a judge of the Superior
Court issued an order denying the plaintiff's motion for
judgment on the pleadings and allowing the cross motion of the
defendant. The plaintiff, acting pro se, appeals from the
judgment. We affirm.
Background. In September 2021, pursuant to the
department's random drug screening protocol, a correction
officer collected a urine sample from the plaintiff. The plaintiff signed an "inmate signoff sheet" acknowledging that it
was his urine that was taken and tested. An initial in-house
test of the sample yielded a positive result for an unauthorized
substance, buprenorphine. The sample was then secured and
processed as evidence. That same day, following receipt of the
positive test result, the plaintiff was issued a disciplinary
ticket charging him with unauthorized use or possession of
drugs, receiving a positive test for unauthorized drugs, and
several other related disciplinary offenses.
On September 29, 2021, pursuant to departmental policy, the
plaintiff requested that his urine sample be tested by an
outside independent laboratory in what is referred to as a
"confirmation test." A short time later, the plaintiff was
provided with the confirmation test results from the laboratory,
Clinical Science Laboratory (CSL), which confirmed the presence
of norbuprenorphine but did not detect buprenorphine.
At a disciplinary hearing in February 2022, the officer who
obtained the plaintiff's urine sample testified about his
certification and training in conducting drug testing as well as
the facts surrounding the sample taken from the plaintiff.1 The
hearing examiner admitted several exhibits in evidence,
1 The officer also testified, and the hearing examiner credited, that norbuprenorphine is a derivative of buprenorphine.
2 including a photograph, the report of the test results by CSL, a
chain of custody document, and the officer's training
certificate. The hearing officer credited the testimony of the
officer and found that the other evidence including the CSL test
results corroborated the officer's version of events. The
hearing examiner was not persuaded by the plaintiff's argument
that the disciplinary ticket should be dismissed because the CSL
test did not detect buprenorphine. Instead, the hearing
examiner credited the officer's testimony that norbuprenorphine
is a derivative of buprenorphine. The hearing examiner found
sufficient evidence to support a guilty finding as to the charge
of receiving a positive test for use of unauthorized drugs. All
other charges were dismissed. The superintendent affirmed that
decision, as did the judge. The plaintiff appeals.
Discussion. "Our review of a disciplinary proceeding is
based on whether the record contains substantial evidence to
support the hearing officer's decision" (citation omitted).
Shea v. Department of Correction, 103 Mass. App. Ct. 369, 372
(2023). "Substantial evidence is evidence that a reasonable
mind might accept as adequate to support a conclusion, . . .
taking into account whatever in the record fairly detracts from
the weight of the evidence" (quotation and citation omitted).
Id. Weighing the credibility of the witnesses and resolving
3 factual disputes in the testimony are properly within the
province of the hearing examiner. See id. at 372-373.
On appeal, the plaintiff primarily argues that the hearing
examiner erred in considering the CSL test results because the
test results needed to be accompanied by a certificate of drug
analysis pursuant to G. L. c. 22C, § 39. He also argues that,
because the CSL test was a screening test rather than a
confirmatory test, the record was insufficient as a matter of
law to support a finding of guilty. We disagree.
First, the plaintiff's reliance on G. L. c. 22C, § 39, to
support his claim that a drug certificate is required in a
disciplinary hearing is misplaced. This statute applies to the
State police or the University of Massachusetts Medical School
and requires them to conduct a chemical analysis of a narcotic
drug submitted by police authorities, "provided, however, that
neither the [State police] department nor the medical school
shall conduct such analysis unless it is satisfied that the
analysis submitted to it is to be used in connection with the
enforcement of the law." G. L. c. 22C, § 39. See G. L. c. 22C,
§ 1 (defining "department" as "department of state police" for
purposes of G. L. c. 22C). This statute is inapplicable to the
test results obtained by the department in this set of
circumstances.
4 Second, the plaintiff claims that the CSL test was only a
preliminary screening test and the department's substance abuse
monitoring and testing policy requires a confirmatory test when
requested by an inmate accused of being in possession of an
unauthorized substance. The lack of such confirmatory test,
according to the plaintiff, must result in the finding of not
guilty.
While the department is not required to provide a
certificate of analysis by a chemist each time it conducts a
disciplinary hearing charging an inmate with unauthorized drug
use, it must comply with its own departmental policy relating to
substance abuse monitoring and testing.2 In support of his
position that CSL provided only a preliminary screening result
(rather than the required confirmatory test), the plaintiff
points to disclaimer language at the bottom of the CSL test
results form that uses the phrase "screening results are
presumptive."
The complete language on the CSL form is as follows:
"UNLESS OTHERWISE NOTED: NORMAL VALUES ARE FOR ADULT HUMANS,
SCREENING RESULTS ARE PRESUMPTIVE, CUTOFFS ARE IN NG/ML, DRUG
LEVELS LESS THAN CUTOFF ARE REPORTED AS NOT DETECTED, DRUG
LEVELS GREATER THAN THE CUTOFF ARE REPORTED AS PRESENT." While
2 See 103 DOC § 525 (2020), Inmate Substance Abuse Monitoring and Testing.
5 the plaintiff is correct that the term "screening results" does
appear on the bottom of the form in small print, that language
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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
24-P-698
JAMES GAINES
vs.
DEPARTMENT OF CORRECTION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, James Gaines, an inmate at the Massachusetts
Department of Correction (department), challenged an adverse
finding of a disciplinary hearing officer (later sustained by
the facility superintendent) by filing an action pursuant to
G. L. c. 249, § 4. After a hearing, a judge of the Superior
Court issued an order denying the plaintiff's motion for
judgment on the pleadings and allowing the cross motion of the
defendant. The plaintiff, acting pro se, appeals from the
judgment. We affirm.
Background. In September 2021, pursuant to the
department's random drug screening protocol, a correction
officer collected a urine sample from the plaintiff. The plaintiff signed an "inmate signoff sheet" acknowledging that it
was his urine that was taken and tested. An initial in-house
test of the sample yielded a positive result for an unauthorized
substance, buprenorphine. The sample was then secured and
processed as evidence. That same day, following receipt of the
positive test result, the plaintiff was issued a disciplinary
ticket charging him with unauthorized use or possession of
drugs, receiving a positive test for unauthorized drugs, and
several other related disciplinary offenses.
On September 29, 2021, pursuant to departmental policy, the
plaintiff requested that his urine sample be tested by an
outside independent laboratory in what is referred to as a
"confirmation test." A short time later, the plaintiff was
provided with the confirmation test results from the laboratory,
Clinical Science Laboratory (CSL), which confirmed the presence
of norbuprenorphine but did not detect buprenorphine.
At a disciplinary hearing in February 2022, the officer who
obtained the plaintiff's urine sample testified about his
certification and training in conducting drug testing as well as
the facts surrounding the sample taken from the plaintiff.1 The
hearing examiner admitted several exhibits in evidence,
1 The officer also testified, and the hearing examiner credited, that norbuprenorphine is a derivative of buprenorphine.
2 including a photograph, the report of the test results by CSL, a
chain of custody document, and the officer's training
certificate. The hearing officer credited the testimony of the
officer and found that the other evidence including the CSL test
results corroborated the officer's version of events. The
hearing examiner was not persuaded by the plaintiff's argument
that the disciplinary ticket should be dismissed because the CSL
test did not detect buprenorphine. Instead, the hearing
examiner credited the officer's testimony that norbuprenorphine
is a derivative of buprenorphine. The hearing examiner found
sufficient evidence to support a guilty finding as to the charge
of receiving a positive test for use of unauthorized drugs. All
other charges were dismissed. The superintendent affirmed that
decision, as did the judge. The plaintiff appeals.
Discussion. "Our review of a disciplinary proceeding is
based on whether the record contains substantial evidence to
support the hearing officer's decision" (citation omitted).
Shea v. Department of Correction, 103 Mass. App. Ct. 369, 372
(2023). "Substantial evidence is evidence that a reasonable
mind might accept as adequate to support a conclusion, . . .
taking into account whatever in the record fairly detracts from
the weight of the evidence" (quotation and citation omitted).
Id. Weighing the credibility of the witnesses and resolving
3 factual disputes in the testimony are properly within the
province of the hearing examiner. See id. at 372-373.
On appeal, the plaintiff primarily argues that the hearing
examiner erred in considering the CSL test results because the
test results needed to be accompanied by a certificate of drug
analysis pursuant to G. L. c. 22C, § 39. He also argues that,
because the CSL test was a screening test rather than a
confirmatory test, the record was insufficient as a matter of
law to support a finding of guilty. We disagree.
First, the plaintiff's reliance on G. L. c. 22C, § 39, to
support his claim that a drug certificate is required in a
disciplinary hearing is misplaced. This statute applies to the
State police or the University of Massachusetts Medical School
and requires them to conduct a chemical analysis of a narcotic
drug submitted by police authorities, "provided, however, that
neither the [State police] department nor the medical school
shall conduct such analysis unless it is satisfied that the
analysis submitted to it is to be used in connection with the
enforcement of the law." G. L. c. 22C, § 39. See G. L. c. 22C,
§ 1 (defining "department" as "department of state police" for
purposes of G. L. c. 22C). This statute is inapplicable to the
test results obtained by the department in this set of
circumstances.
4 Second, the plaintiff claims that the CSL test was only a
preliminary screening test and the department's substance abuse
monitoring and testing policy requires a confirmatory test when
requested by an inmate accused of being in possession of an
unauthorized substance. The lack of such confirmatory test,
according to the plaintiff, must result in the finding of not
guilty.
While the department is not required to provide a
certificate of analysis by a chemist each time it conducts a
disciplinary hearing charging an inmate with unauthorized drug
use, it must comply with its own departmental policy relating to
substance abuse monitoring and testing.2 In support of his
position that CSL provided only a preliminary screening result
(rather than the required confirmatory test), the plaintiff
points to disclaimer language at the bottom of the CSL test
results form that uses the phrase "screening results are
presumptive."
The complete language on the CSL form is as follows:
"UNLESS OTHERWISE NOTED: NORMAL VALUES ARE FOR ADULT HUMANS,
SCREENING RESULTS ARE PRESUMPTIVE, CUTOFFS ARE IN NG/ML, DRUG
LEVELS LESS THAN CUTOFF ARE REPORTED AS NOT DETECTED, DRUG
LEVELS GREATER THAN THE CUTOFF ARE REPORTED AS PRESENT." While
2 See 103 DOC § 525 (2020), Inmate Substance Abuse Monitoring and Testing.
5 the plaintiff is correct that the term "screening results" does
appear on the bottom of the form in small print, that language
does not automatically reduce the laboratory's confirmatory test
into a screening result. The plaintiff's argument ignores the
fact that the clause in the CSL form that "screening results are
presumptive," is preceded by the words "[u]nless otherwise
noted." Here, CSL "otherwise noted" that the test of the
plaintiff's urine sample was a "BUP CONFIRM" and then confirmed
the presence of an unauthorized drug, norbuprenorphine by
denoting "CONF. NORBUPRENORPH. 10 NG/ML PRESENT." We also note
that other evidence in the record undermines the plaintiff's
contention that the CSL test was merely a screening test. After
the in-house test by the department identified the presence of
an unauthorized substance, the plaintiff requested, as was his
right, that the department send out the urine sample to an
outside laboratory for a confirmation -- not a screening --
test. On November 21, 2021, the plaintiff also signed a form,
acknowledging that he was aware that if he was found guilty of
the disciplinary matter, a possible sanction for requesting a
confirmatory test could be reimbursement to the department for
the cost of the substance abuse monitoring confirmation test.
The hearing officer quite reasonably concluded that the CSL test
was a confirmatory test, and it was appropriate for the hearing
officer to consider it.
6 In conclusion, the results from the laboratory, in
combination with the testimony of the officer and other evidence
before the hearing officer, constituted substantial evidence
supporting the hearing officer's decision. As we have noted,
the substantial evidence standard is highly deferential to the
agency decision maker and is less stringent than the
preponderance of the evidence. See Duggan v. Board of
Registration in Nursing, 456 Mass. 666, 674 (2010). Under the
substantial evidence standard, "an agency's conclusion will fail
judicial scrutiny if the evidence points to no felt or
appreciable probability of the conclusion or points to an
7 overwhelming probability of the contrary" (quotation and
citation omitted).3 Id. That is not the case here.
Judgment affirmed.
By the Court (Sacks, Englander & Walsh, JJ.4),
Clerk
Entered: July 23, 2025.
3 The plaintiff's main argument in his brief is that, due to the inadequacy of the CSL drug screen and the lack of a certificate of drug analysis, the disciplinary ticket was insufficient as a matter of law. In one sentence in his brief, the plaintiff alleges that he was denied due process by the failure of the department to produce a certificate of analysis of the substance. The plaintiff also claims that the decision was insufficient as a matter of law because he received a subsequent negative drug test result. The plaintiff's brief contains no citation to relevant authorities and does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1628 (2019). Moreover, these arguments were not raised below and therefore are not properly before us. See Boss v. Leverett, 484 Mass. 553, 562-563 (2020).
4 The panelists are listed in order of seniority.