Opinion
No. 97-3290-E
April, 1999
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
Wendall Greenman ("Greenman"), a state prisoner lawfully in the custody of the Department of Correction ("DOC"), filed suit on June 6, 1997, alleging that the DOC failed to properly pay him for work he performed as a prison inmate.
On October 16, 1997, the DOC moved to dismiss, alleging that Greenman's claims were barred by the doctrine of res judicata, stemming from the Superior Court's decision in Josey v. DuBois, Suffolk C.A. 95-3266-D (1996). On November 6, 1997, Greenman filed an opposition to the DOC's motion to dismiss, claiming that his particular claims were not litigated in the Josey case, and that under the settlement agreement reached after the Josey litigation, he was still entitled to bring suit. Finally, on February 19, 1999, the DOC filed a supplemental memorandum in support of his motion to dismiss, which incorporated more recent case law.
Upon consideration of the parties' motions and memoranda, the defendant's motion to dismiss is ALLOWED.
BACKGROUND
Greenman claims that while incarcerated, he worked as a full-time employee for Correctional Industries from February 1992 to November 1995. During this time, Greenman alleges he was paid an hourly wage which was less than what he was entitled under 103 CMR 405.07(7): Inmate Wages and Stipends (enacted 4/26/91). Specifically, Greenman argues he was entitled to an extra $0.25 per hour, as he claims he was incorrectly paid at Grade C instead of Grade B because he was a full-time employee. On this allegation, Greenman claims that he is only entitled to damages which incurred from October 21, 1994 to November 1995, as the remainder of his damages were covered by the decision in the Josey case.
Greenman also claims that he was denied longevity and overtime pay to which he was entitled under 103 CMR 405.07(7): Inmate Wages and Stipends (enacted 4/26/91), and the former version of 103 CMR 455.10(4): Inmate Compensation (enacted 12/20/91).
DISCUSSION
In evaluating the sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the court must take the factual allegations of the complaint, as well as any inferences which can be drawn from those allegations in the plaintiff's favor, as true. See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). The complaint should not be dismissed for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Nader v. Citron, 372 Mass. 96, 98 (1977) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Charbonnier v. Amico, 367 Mass. 146, 152 (1975); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979).
The Court does not reach the res judicata issue raised in this case because Greenman's complaint must be dismissed on other grounds. In Loffredo v. Center for Addictive Behaviors, 426 Mass. 541 (1998), the Supreme Judicial Court addressed the issue of whether a private cause of action may be inferred from an agency regulation adopted pursuant to an enabling statute. In considering the issue, the Supreme Judicial Court, acutely aware of the complexities it was being asked to decide, noted that "judicial inference of a private cause of action solely from an agency regulation requires a twofold stretch: the judiciary infers a cause of action not to supplement a statute enacted by the Legislature, but to supplement a rule enacted by the executive, which itself supplements the statute." Loffredo, 426 Mass. at 545. In rejecting this "twofold stretch," the Court concluding that "a private cause of action cannot be inferred solely from an agency regulation," noting that to do otherwise would run the risk of the Court "joining with the executive branch to revise and substantially go beyond the will of the Legislature." Loffredo, 426 Mass. at 546.
In this case, Greenman's claim must be dismissed because the regulations upon which he bases his theory of recovery do not clearly create a private cause of action. In order for Greenman to prevail, the regulations upon which he relies for recovery would need to show a "clear legislative intent" to create a private cause of action, since one cannot be inferred. Loffredo, 426 Mass. at 543.
Employment of prisoners is governed by statute and by Department of Correction regulations. As noted in Gauthier v. Massachusetts Department of Correction, Suffolk C.A. 97-3279-C (1998), neither G.L.c. 127, § 48A, which empowers the Commissioner of Correction to establish inmate compensation guidelines, nor 103 CMR 455 or 103 CMR 405.07 show a clear legislative intent to confer rights which are enforceable in a private action. Gauthier, Suffolk C.A. 97-3279-C at 7.
G.L.c. 127, § 48A provides in pertinent part:
Subject to appropriation from the General Fund, the commissioner shall establish a system of compensation for inmates of the correctional institutions of the commonwealth who perform good and satisfactory work either within the industrial program or in the servicing and maintenance of the correctional institutions or in the prison camps. Upon recommendation of any superintendent, the commissioner may establish a graduated scale of compensation to be paid inmates in accordance with their skill and industry, and the commissioner shall establish, and may at any time amend or annul, rules and regulations for carrying out the purposes of this section. No money shall be paid directly to any inmate during the term of his imprisonment.
103 CMR 455.10(3) Inmate Compensation (enacted 9/18/87) states that "[o]nly inmates who work full-time in industries will be eligible to receive the top pay grades `A' and `B' . . . . Inmates who are employed part-time by industries will receive Grade `C'." Section (4) states that "[i]nmates will be entitled to compensation at time and a half for those hours worked in excess of their normal day."
103 CMR 405.07 provides in pertinent part:
The hourly wages are as follows:
(a) Grade A — $1.35 an hour
(b) Grade B — $1.25 an hour
(c) Grade C — $1.00 an hour
(d) Grade D — $.75 an hour
(e) Grade E — $.50 an hour
When an inmate has earned industrial good time . . . for two consecutive years or more, at one or more institutions, he shall become eligible for longevity pay. After verification has been made, his wages shall be increased by ten cents per hour.
In general, section 48A and the regulations cited merely grant "the Commissioner of Correction (and not an individual inmate) . . . statutory authority to establish standards for programs such as the Industries Program and to enforce those standards." Gauthier, Suffolk C.A. 97-3279-C at 6. Although the language in these regulations provide that the procedures referenced "shall" be followed, their stated purpose is to "establish Departmental procedures regarding Correctional Industries." See 103 CMR 455.01. See also 103 CMR 405.01 ("The purpose of 103 CMR 405.00 is to set Department of Correction policy concerning the proper handling and distribution of Inmate Funds."). None of these regulations indicate that a prisoner may sue the Department of Correction if the regulations are not followed. In fact, in 1991, 103 CMR 455.02: Authorization (enacted 12/20/91) was revised to provide specifically that "[t]hese regulations are not intended to confer any procedural or substantive rights not otherwise granted by state or federal law."
The plaintiffs cite to Josey v. DuBois, Suffolk C.A. 95-3266-D (1996) for the proposition that a breach of contract action can be asserted against the Commonwealth for violation of Department of Correction regulations. However, the Supreme Judicial Court's more recent decision in Loffredo is now controlling here and this court is bound to follow its holding.
Therefore, because there is no clear legislative intent to create a private cause of action for inmates who work for Correctional Industries under the G.L.c. 127, § 48A, 103 CMR 455, or 103 CMR 405.07, Greenman has failed to state a claim upon which relief can be granted.
ORDER
For the reasons stated herein, the Defendant's Motion to Dismiss is ALLOWED.
_____________________________ Peter M. Lauriat Justice of the Superior Court
Date: April, 1999