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-1390
WILLIAM M. SHIPPS
vs.
DEPARTMENT OF CORRECTION & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, William Shipps, filed a petition for
contempt in the Superior Court against the defendant Department
of Correction (department) and its agents for their alleged
violation of directives of the Supreme Judicial Court (SJC).
Acting on cross motions for judgment on the pleadings, a
Superior Court judge declined to hold the defendants in contempt
and entered judgment in their favor. The plaintiff timely filed
a notice of appeal. We affirm.
Background. The plaintiff is a "juvenile homicide
offender." Deal v. Commissioner of Correction, 475 Mass. 307,
1Carol A. Mici, as Commissioner of Correction, and Abbe E. Nelligan, as the commissioner's designee for classification. 308 n.4 (2016) (Deal I), S.C., 478 Mass. 332 (2017) (Deal II).
At his annual classification review in January 2022, his
objective classification score made him eligible for placement
in a minimum security facility, and the departmental review
board voted two-to-one to recommend transfer to minimum
security. The minority recommended that Shipps remain at MCI-
Norfolk for further programming and rehabilitation. In May
2022, the commissioner's designee, defendant Nelligan, adopted
the minority view and utilized two discretionary override codes
(codes R and U) to deny the transfer.
The plaintiff argues that Nelligan's written explanation
for using codes R and U violated the SJC's directives in Deal
II, 478 Mass. at 342-343, discussed infra.
Discussion. 1. Mootness. While this appeal was pending,
after the plaintiff's classification review in 2024, the
plaintiff was recommended for transfer, and then transferred, to
a minimum security facility. Because the department and its
agents are no longer impeding the plaintiff's transfer, they
argue that his appeal from the denial of his petition for
contempt should be dismissed as moot. Given that the issue
underlying the contempt claim is not the plaintiff's placement,
but rather the department's history of blocking the placement of
juvenile homicide offenders in minimum security facilities,
which required the SJC's intervention in Deal I and Deal II, we
2 are inclined to reach the merits. See LaChance v. Commissioner
of Correction, 475 Mass. 757, 767-768 (2016) (case not moot
where conduct is capable of repetition as to same plaintiff such
that plaintiff has ongoing personal stake in matter).
2. Contempt. In Deal II, the SJC gave the department
specific instructions for using code R and code U to override
objective classification scores that would otherwise warrant
placement in a minimum security facility.2 With respect to code
R, the court issued this directive:
"[T]o ensure true individualized consideration, we now declare that, whenever code R is used as a discretionary override, the written explanation for the decision must explain in detail why this youthful offender's conduct in committing the murder is so significantly different in its seriousness as to reasonably distinguish it from the conduct of others and, in particular, other juveniles who committed murder."
Deal II, 478 Mass. at 342. With respect to code U, the court
declared as follows:
"Because the use of code U is so inconsistent with the objective classification score's reliance on recent disciplinary reports and acts of violence, and because it is so broad in its scope and duration and conclusory in its language, we now declare that, whenever code U is used as a discretionary override, the written explanation for the
2 "According to the [department's classification] manual, discretionary code R allows an override where '[t]he facts or notoriety of the offense presents a seriousness that cannot be captured in the score.' . . . Discretionary code U allows an override where an 'inmate['s] behavior, while not always negative enough to warrant disciplinary action, may serve to threaten security or undermine the exercise of proper control and maintenance of order within the institution.'" Deal II, 478 Mass. at 337-338.
3 decision must explain in detail the specific conduct that justifies its application."
Id. at 343. The plaintiff argues that Nelligan's explanation
for using codes R and U to block his transfer to minimum
security in 2022 was not sufficiently detailed and, therefore,
the defendants should be held in contempt, a remedy authorized
by G. L. c. 231A, § 5.3
"To constitute civil contempt there must be a clear and
undoubted disobedience of a clear and unequivocal command."
United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35,
36 (1972). See Birchall, petitioner, 454 Mass. 837, 851-852
(2009). The plaintiff bore the burden of proving the
department's clear and undoubted disobedience by clear and
convincing evidence. See id. at 852-853. "Where the order is
ambiguous or the disobedience is doubtful, there cannot be a
finding of contempt." Cooper v. Keto, 83 Mass. App. Ct. 798,
804 (2013), quoting Birchall, supra at 852.
To explain the use of code R, regarding the notoriety of
the plaintiff's offense, Nelligan stated, "Code R applies due to
the serious, violent, and premeditated nature of the offense in
which a brother and sister were fatally shot within their own
home and the brother's body was found on a blood-soaked bed and
3 The department acknowledges, and we agree, that the plaintiff stated a claim eligible for relief under G. L. c. 231A, § 5.
4 his sister was initially found alive on her bed suffering from a
gunshot wound to the head from which she later succumbed to."
To explain the use of code U, concerning why the plaintiff's
conduct in prison might undermine control and order in a minimum
security facility, Nelligan explained that the plaintiff had
only recently begun to talk about "the atrocious nature of the
offense . . . which warrants further addressing through
participation in programs that address the causal factors of
such conduct."4 Nelligan further explained why the combination
of the plaintiff's crime and his failure to grapple with it made
him unready for transfer, writing that he would be a risk to "a
minimum-security facility and thus to public safety" because he
had not yet acquired and "internalized the skills needed to be
safely and securely housed at minimum security."
Although Nelligan's explanation for the use of code R could
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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-1390
WILLIAM M. SHIPPS
vs.
DEPARTMENT OF CORRECTION & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, William Shipps, filed a petition for
contempt in the Superior Court against the defendant Department
of Correction (department) and its agents for their alleged
violation of directives of the Supreme Judicial Court (SJC).
Acting on cross motions for judgment on the pleadings, a
Superior Court judge declined to hold the defendants in contempt
and entered judgment in their favor. The plaintiff timely filed
a notice of appeal. We affirm.
Background. The plaintiff is a "juvenile homicide
offender." Deal v. Commissioner of Correction, 475 Mass. 307,
1Carol A. Mici, as Commissioner of Correction, and Abbe E. Nelligan, as the commissioner's designee for classification. 308 n.4 (2016) (Deal I), S.C., 478 Mass. 332 (2017) (Deal II).
At his annual classification review in January 2022, his
objective classification score made him eligible for placement
in a minimum security facility, and the departmental review
board voted two-to-one to recommend transfer to minimum
security. The minority recommended that Shipps remain at MCI-
Norfolk for further programming and rehabilitation. In May
2022, the commissioner's designee, defendant Nelligan, adopted
the minority view and utilized two discretionary override codes
(codes R and U) to deny the transfer.
The plaintiff argues that Nelligan's written explanation
for using codes R and U violated the SJC's directives in Deal
II, 478 Mass. at 342-343, discussed infra.
Discussion. 1. Mootness. While this appeal was pending,
after the plaintiff's classification review in 2024, the
plaintiff was recommended for transfer, and then transferred, to
a minimum security facility. Because the department and its
agents are no longer impeding the plaintiff's transfer, they
argue that his appeal from the denial of his petition for
contempt should be dismissed as moot. Given that the issue
underlying the contempt claim is not the plaintiff's placement,
but rather the department's history of blocking the placement of
juvenile homicide offenders in minimum security facilities,
which required the SJC's intervention in Deal I and Deal II, we
2 are inclined to reach the merits. See LaChance v. Commissioner
of Correction, 475 Mass. 757, 767-768 (2016) (case not moot
where conduct is capable of repetition as to same plaintiff such
that plaintiff has ongoing personal stake in matter).
2. Contempt. In Deal II, the SJC gave the department
specific instructions for using code R and code U to override
objective classification scores that would otherwise warrant
placement in a minimum security facility.2 With respect to code
R, the court issued this directive:
"[T]o ensure true individualized consideration, we now declare that, whenever code R is used as a discretionary override, the written explanation for the decision must explain in detail why this youthful offender's conduct in committing the murder is so significantly different in its seriousness as to reasonably distinguish it from the conduct of others and, in particular, other juveniles who committed murder."
Deal II, 478 Mass. at 342. With respect to code U, the court
declared as follows:
"Because the use of code U is so inconsistent with the objective classification score's reliance on recent disciplinary reports and acts of violence, and because it is so broad in its scope and duration and conclusory in its language, we now declare that, whenever code U is used as a discretionary override, the written explanation for the
2 "According to the [department's classification] manual, discretionary code R allows an override where '[t]he facts or notoriety of the offense presents a seriousness that cannot be captured in the score.' . . . Discretionary code U allows an override where an 'inmate['s] behavior, while not always negative enough to warrant disciplinary action, may serve to threaten security or undermine the exercise of proper control and maintenance of order within the institution.'" Deal II, 478 Mass. at 337-338.
3 decision must explain in detail the specific conduct that justifies its application."
Id. at 343. The plaintiff argues that Nelligan's explanation
for using codes R and U to block his transfer to minimum
security in 2022 was not sufficiently detailed and, therefore,
the defendants should be held in contempt, a remedy authorized
by G. L. c. 231A, § 5.3
"To constitute civil contempt there must be a clear and
undoubted disobedience of a clear and unequivocal command."
United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35,
36 (1972). See Birchall, petitioner, 454 Mass. 837, 851-852
(2009). The plaintiff bore the burden of proving the
department's clear and undoubted disobedience by clear and
convincing evidence. See id. at 852-853. "Where the order is
ambiguous or the disobedience is doubtful, there cannot be a
finding of contempt." Cooper v. Keto, 83 Mass. App. Ct. 798,
804 (2013), quoting Birchall, supra at 852.
To explain the use of code R, regarding the notoriety of
the plaintiff's offense, Nelligan stated, "Code R applies due to
the serious, violent, and premeditated nature of the offense in
which a brother and sister were fatally shot within their own
home and the brother's body was found on a blood-soaked bed and
3 The department acknowledges, and we agree, that the plaintiff stated a claim eligible for relief under G. L. c. 231A, § 5.
4 his sister was initially found alive on her bed suffering from a
gunshot wound to the head from which she later succumbed to."
To explain the use of code U, concerning why the plaintiff's
conduct in prison might undermine control and order in a minimum
security facility, Nelligan explained that the plaintiff had
only recently begun to talk about "the atrocious nature of the
offense . . . which warrants further addressing through
participation in programs that address the causal factors of
such conduct."4 Nelligan further explained why the combination
of the plaintiff's crime and his failure to grapple with it made
him unready for transfer, writing that he would be a risk to "a
minimum-security facility and thus to public safety" because he
had not yet acquired and "internalized the skills needed to be
safely and securely housed at minimum security."
Although Nelligan's explanation for the use of code R could
have been more detailed -- for example, she could have compared
the plaintiff's crime to the crimes of other juvenile homicide
offenders -- the plaintiff has not shown by clear and convincing
evidence that the explanation amounted to clear and undoubted
4 Nelligan credited the plaintiff's "vast participation in programming," but also noted that he denied shooting one of the victims and "presented information about his crime which is not supported by the facts of [the official version of] his case." Accordingly, the plaintiff required additional "programs that promote insight and empathy in order to understand the profound impact that they have had on others."
5 disobedience of the SJC's declarations in Deal II. Unlike the
department's explanations for the use of code R in Deal I, 475
Mass. at 314-315, Nelligan's explanation provided more than a
blanket "serious nature of offense" statement. She included
specific details about the plaintiff's crime, including that one
victim was found alive and suffering from a gunshot wound to the
head and the other was found in a "blood-soaked bed." The judge
concluded, and we agree, that the explanation "at least arguably
complie[d]" with Deal II's specificity requirement based on the
reasonable inference that the details Nelligan provided were the
factors that differentiated the plaintiff's crime from the
crimes of other similarly situated offenders.
Nelligan's explanation regarding her use of code U also
complied with the SJC's directives. While we agree with the
plaintiff that code U must be based on juvenile homicide
offenders' conduct in prison and not their underlying offenses,
see Deal II, 478 Mass. at 337-338, we disagree with the
plaintiff's assertion that the department relied on his offense
to invoke code U. Nelligan cited the plaintiff's failure to
address the root causes of his offense through programs and
services, his denial of culpability, and his unwillingness to
discuss his crimes as reasons for invoking code U. These
details sufficiently explained the plaintiff's specific conduct
in prison, or lack thereof, prior to the 2022 classification
6 hearing that might have undermined the rehabilitative mission of
a minimum security facility. See id. at 343. In any event, the
explanation was not so generic as to show the clear and
unequivocal disobedience required for a finding of contempt.
Judgment affirmed.
By the Court (Massing, Hand & Smyth, JJ.5),
Clerk
Entered: December 17, 2024.
5 The panelists are listed in order of seniority.