Mello v. Ficco

17 Mass. L. Rptr. 369
CourtMassachusetts Superior Court
DecidedFebruary 27, 2004
DocketNo. 025221
StatusPublished

This text of 17 Mass. L. Rptr. 369 (Mello v. Ficco) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mello v. Ficco, 17 Mass. L. Rptr. 369 (Mass. Ct. App. 2004).

Opinion

Gants, J.

The plaintiff, Manuel Mello (“Mello”), is a prisoner at the Souza-Baranowski Correctional Center, and has been since at least October 2002. He has filed this certiorari action challenging the guilty findings and sanctions imposed against him regarding a disciplinary report issued on September 24, 2002. The relevant parties — Mello and the Department of Correction (“DOC”) — have cross-moved for judgment on the pleadings. After hearing, for the reasons detailed below, the defendant’s motion for judgment on the pleadings is DENIED and the plaintiffs motion for judgment on the pleading is ALLOWED.

BACKGROUND

According to the Administrative Record, at roughly noon on September 24, 2002, Mello was directed to produce a urine sample within a two-hour period, and [370]*370failed to do so.1 Solely as a result of this failure, a Disciplinary Report (“D-Report”), No. 02-1242, was issued against him, and he was placed on awaiting action status. D-Report 02-1242 made four allegations against Mello, all based on his failure timely to provide a urine sample:

Disciplinary Offense No. 2 — "violating any departmental rule or regulation . .
Disciplinary Offense No. 3 — "failure to keep one’s person or one’s quarters in accordance with institutional rules”;
Disciplinary Offense No. 8 — "conduct which disrupts or interferes with the security or orderly running of the institution"; and
Disciplinary Offense No. 12 — "refusal to take a breathalyzer test or provide a urine sample."

The disciplinary hearing was initially scheduled for October 2, 2002, but was rescheduled at the request of the Disciplinary Hearing Officer to October 11 and then to October 17, 2002. Mello’s defense to this allegation was that he was taking a medication— Elavil — that was known to cause urination problems. To support this defense, Mello made a written request for the testimony of two witnesses:

“Mary Ann,” the nurse who provided him with this medication and who would purportedly testify that he had complained for months of urination problems; and
Dr. Smith, who would purportedly testify that Mello had often complained about the urinary side effect of this medication.

Mello also requested his medical records, which he contended would show that he suffered from this side effect of Elavil. The Disciplinary Hearing Officer, R. Kelly, denied Mello’s request for medical records, writing, “Confidential inmate must obtain.” [sic]. He also denied Mello’s request for the testimony of Nurse Mary Ann and Dr. Smith, writing that both were not DOC employees but rather were contract employees “not bound by the disciplinary process.”2

According to the Disciplinary Hearing Report prepared by Hearing Officer Kelly, only one witness furnished evidence at the hearing — Mello. There is nothing to indicate that any DOC employee testified, not even the correctional officer who submitted the Disciplinary Report. Mello testified that he was on Elavil, and provided a document from an internet site — www.healthsquare.com—that declared that the side effects of Elavil “may include . . . difficult or frequent urination . . . [and] fluid retention.” Mello said that he has had a problem urinating since he was at MCI Concord, and told the Superintendent of the problem. According to Mello, the Superintendent directed Officer Hooper to look into it before Mello was told to provide a urine sample. Mello also provided the Hearing Officer with DOC’s policy regarding Inmate Substance Abuse Testing, Sanctioning and Treatment Interventions, 103 DOC 525, including Section 525.03, which provides for “Alternative Testing/Collection Procedures” when “an inmate claims that he/or she is unable to provide a urinalysis sample due to a documented or undocumented medical or mental health condition . . .”

Hearing Officer Kelly found Mello guilty of Disciplinary Offenses 2, 8, and 12. He made no ruling regarding Disciplinary Offense No. 3. Hearing Officer Kelly wrote in support of his decision, “The findings are based on the written report and the fact that inmate Mello admits that he did not provide a urine. He states that it was because of his medication.” The sanctions that Hearing Officer Kelly imposed upon Mello were severe: 30 days in isolation, 26 weeks loss of canteen and visits, and $144 restitution for one year of drug testing.

Mello appealed this D-Report finding to Superintendent Edward Ficco. In his appeal, Mello specifically identified the alternative urine collection procedures in 103 DOC 525.03, and argued that these procedures had not been followed in his case. On October 24, 2002, the Superintendent denied the appeal, writing, “[A]lthough inmate on medication, medical staff indicate inmate should be able to provide within time frame.” There is nothing in the Superintendent’s findings or in the Administrative Record that indicates who from the medical staff he spoke with regarding Mello’s ability to urinate within two hours.

While Mello was awaiting his hearing on D-Report 1242, he was directed again on October 9, 2002 to produce a urine sample within a two-hour period, and again failed to do so. Solely as a result of this failure, a second D-Report, No. 02-1317, was issued against him. The hearing on this D-Report appears to have been consolidated with the October 17, 2002 hearing on 02-1242, and Hearing Officer Kelly’s findings were the same — guilty of refusing to provide a urine sample. The sanctions he imposed for this second violation were even more severe: 30 days in isolation, 52 weeks loss of canteen and visits, and $144 restitution for drug testing.3 Although not reflected in the Administrative Record, Mello and the DOC agree that this D-Report 02-1317 was recently dismissed, albeit after Mello had already served his 30 days in isolation and his year-long loss of canteen and visits. Consequently, the findings and sanctions in D-Report 02-1317 are no longer before this Court on certiorari review. The findings and sanctions in D-Report 02-1242, however, have not been dismissed and remain subject to certiorari review.4

STANDARD OF REVIEW

A prisoner has the right to challenge the guilty findings of his disciplinary hearing through an action in the nature of certiorari under G.L.c. 249, §4. Hill v. Superintendent, Mass. Correctional Inst., Walpole, 392 Mass. 198, 199 n.2 (1984); Jordan v. Superintendent, Massachusetts Correctional Inst, Cedar Junction, 53 [371]*371Mass.App.Ct. 584, 587 (2002). When an inmate challenges the sufficiency of the evidence to justify a hearing officer’s disciplinary decision, the court must determine whether the hearing officer’s findings are supported by substantial evidence. Murphy v. Superintendent Mass. Correctional Inst, Cedar Junction, 396 Mass. 830, 833 (1986); Jordan, 53 Mass.App.Ct. at 587. “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.’ ” Jordan, 53 Mass.App.Ct. at 587, quoting Cepulonis v. Commissioner of Correction, 15 Mass.App.Ct. 292, 296 (1983), which quotes from Trustees of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 568-69 (1981).

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Related

Hill v. Superintendent, Massachusetts Correctional Institution
466 N.E.2d 818 (Massachusetts Supreme Judicial Court, 1984)
Murphy v. Superintendent, Massachusetts Correctional Institution, Cedar Junction
489 N.E.2d 661 (Massachusetts Supreme Judicial Court, 1986)
Cepulonis v. Commissioner of Correction
445 N.E.2d 178 (Massachusetts Appeals Court, 1983)
Trustees of Forbes Library v. Labor Relations Commission
428 N.E.2d 124 (Massachusetts Supreme Judicial Court, 1981)

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Bluebook (online)
17 Mass. L. Rptr. 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mello-v-ficco-masssuperct-2004.