Opinion
No. 2007-880-C.
February 4, 2008.
The plaintiff, Mac Hudson ("Hudson"), is a lawfully incarcerated inmate of the Massachusetts Department of Correction ("DoC"). Acting pro se, he brought this three count complaint seeking certiorari review of a decision made by the defendants, who are the members of the Massachusetts Parole Board ("Board"), denying him parole. He also seeks relief from the Board's alleged violation of his right to equal protection of the laws; and declaratory relief regarding his sentence structure. The matter is now before the court on the parties' cross-motions for summary judgment. For the following reasons, Hudson's motion for summary judgment is denied, and the Board's cross-motion for summary judgment is allowed.
Hudson's complaint named the Board members individually. And, although done individually, service was made to the members' business address. Hudson's arguments are made solely against the Board, and the Board defends their actions as such. Accordingly, the court views Hudson's claims to be against the Board and not against the Board's members in their individual capacity.
BACKGROUND
The relevant disputed and undisputed facts are as follows:
On January 29, 1997, Hudson was convicted of second degree murder in Suffolk Superior Court and sentenced to life in prison ("Sentence A"). The effective date of the sentence was April 24, 1989. Hudson was also convicted of assault and battery by means of a dangerous weapon and was sentenced to eight to ten years to be served from and after his life sentence ("Sentence B").
Indictments were returned in the Superior Court on August 11, 1989. Hudson was tried and convicted in 1990 of second degree murder, assault and battery by means of a dangerous weapon, armed assault with intent to murder, armed assault with intent to rob, and illegal possession of a firearm. In 1994, his convictions were reversed by the Appeals Court on the ground that he had been denied an impartial jury. Comm. v. Hudson, 36 Mass. App. Ct. 1115 (1994). In 1997 Hudson was again tried and convicted of the same offenses. Only the second degree murder and assault and battery by means of a deadly weapon convictions are pertinent to the present discussion. For a detailed discussion of the procedural posture of this case, see Comm. v. Hudson, 446 Mass. 709 (2006).
On October 26, 2004, Hudson appeared before the Board for his initial parole eligibility hearing. The Board denied his parole in a written decision on November 17, 2004, stating that:
Because Hudson is sentenced to life in prison for his conviction of second degree murder, the earliest that he is eligible for parole is 15 years from the date of his incarceration. See G.L. c. 127, § 133A.
"Mr. Hudson does not present as a viable candidate for parole supervision. Due to his poor institutional behavior, Mr. Hudson is currently incarcerated at the State's highest level of security. His destructive behavior, including 51 disciplinary reports, 4 segregation placements, and a DDU [Departmental Disciplinary Unit] placement for stabbing another inmate outweigh his minimal accomplishments while incarcerated."
Subsequent to the Board's November 17, 2004 denial, Hudson received at least two more disciplinary reports for excessive telephone calls, one on December 16, 2004, and one on May 5, 2005.
In the meantime, Hudson filed a motion for a new trial which was denied by the Superior Court. Hudson's appeal of this denial wound its way to the Appeals Court, which reversed and ordered a new trial. On January 10, 2006, Hudson was released on bail pending the Supreme Judicial Court's determination of the Commonwealth's appeal of the Appeals Court decision. On May 16, 2006, the SJC vacated the Appeals Court's decision and affirmed the Superior Court's denial of Hudson's new trial motion. Hudson was thereupon returned to the custody of the DoC. Commonwealth v. Hudson, 446 Mass. at 728.
On August 25, 2006, Hudson submitted a request for reconsideration of the Board's November 17, 2004, vote denying him parole. In support of his request, Hudson pointed to the four and a half month period, while on bail, when he was a law-abiding and productive member of his community. The Board, on November 16, 2006, voted to deny Hudson's request, with one member noting: "Appeal Denied. Since return subject continues to accrue disciplinary reports. Prior Vote to Stand." An Institutional Parole Officer ("IPO") informed the Board that Hudson had not, in fact, accrued any disciplinary reports since his return to custody. Nevertheless, on December 27, 2006, the Board again issued the same decision. An IPO informed Hudson of the Board's decision on January 4, 2007.
The summary judgment record is replete with letters in support of Hudson's parole, all of which attest to his positive influence and service in his community.
On February 28, 2007, Hudson filed the present action in the Superior Court. In his complaint, Hudson cited his lack of any disciplinary reports since his return to custody. The Board, on June 14, 2007, reviewed Hudson's record in light of his claim that he had not received any disciplinary reports since his return to custody. The Board again voted to deny Hudson's appeal, stating: "Upon reconsideration of its November 16, 2006 vote, and further review of the record, the appeal is denied, prior vote is to stand."
DISCUSSION
Summary judgment is appropriate when the summary judgment record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c); DuPont v. Comm'r of Corr., 448 Mass. 389, 397 (2007). A fact is "material" if it would affect the outcome of the suit. Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" where a reasonable finder of fact could return a verdict for the non-moving party. Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 809 (1991), citing Anderson, 477 U.S. at 252. The moving party bears the initial burden of demonstrating the absence of a triable issue and that the summary judgment record entitles him to judgment as a matter of law. Ng Bros. Const., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). The moving party may satisfy its burden by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the non-moving party has no reasonable expectation of proving an essential element of his case at trial. Flesner, 410 Mass. at 809; Kourouvacilis, 410 Mass. at 716 (adopting reasoning contained in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), that "the burden on the moving party may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case").
In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President Trs. of the Coll. of the Holy Cross, 388 Mass. 16, 17 (1983); see Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999). If the moving party has carried its burden, and the non-moving party has not responded with specific facts to establish a genuine, triable issue, then the court must grant summary judgment. Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976); see Ng Bros., 436 Mass. at 644 (even where the facts are disputed, "summary judgment is still available if the party with the burden of proof at trial . . . fails to present in the summary judgment record, taking everything it says as true and drawing all reasonable inferences in its favor, sufficient facts to warrant a finding in its favor"), citing White v. Univ. of Mass. at Boston, 410 Mass. 553, 557 (1991).
I.
Hudson first seeks this court's review of the Board's decision pursuant to G.L. c. 249, § 4. This statute provides for review in the nature of certiorari to correct claimed errors of law apparent on the record made in proceedings below that are not otherwise reviewable. Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass. App. Ct. 282, 290 (1996). A civil court exercising certiorari functions not to review or revise findings of fact, but to correct errors of law. Police Comm'r of Boston v. Robinson, 47 Mass. App. Ct. 767, 770 (1999). In such a proceeding, the reviewing judge is confined to the record of the proceedings below, and may only correct "substantial errors of law apparent on the record adversely affecting material rights." MacHenry v. Civil Serv. Comm'n, 40 Mass. App. Ct. 632, 634 (1996), quoting Comm'rs of Civil Serv. v. Mun. Court of Boston, 369 Mass. 84, 90 (1975). Certiorari review applies only to those errors "which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public." Durbin v. Bd. of Selectman of Kingston, 62 Mass. App. Ct. 1, 5 (2004), quoting Murray v. Second Dist. Court of East Middlesex, 389 Mass. 508, 511 (1983).
The standard of review that a court applies in a certiorari proceeding differs depending on the nature of the action for which review is sought. Durbin, 62 Mass. App. Ct. at 5 n. 7. Where, as here, an agency has been granted broad discretionary authority such that its decision is not constrained by the application of narrow and objective criteria, the proper standard of review is error of law or abuse of discretion as measured by the "arbitrary and capricious" test. Caswell v. Licensing Comm'n. for Brockton, 387 Mass. 864, 878 (1983). "A decision is not arbitrary and capricious unless there is no ground which reasonable [persons] might deem proper to support it." T.D.J. Dev. Corp. v. Conservation Comm'n of North Andover, 36 Mass. App. Ct. 124, 128 (1994).
Hudson claims that the Board's decision did not comport with the standard set forth in G.L. c. 127, § 130. However, a prisoner may not be granted parole simply because he have exhibited good conduct. G.L. c. 127, § 130. Rather, parole is only appropriate when there is a reasonable probability that: (1) the prisoner will "live and remain at liberty without violating the law," and (2) "that his release is not incompatible with the welfare of society." Id. The Board is entrusted with the responsibility of determining if and when convicted persons may be appropriately released. D'Urbano v. Com., 345 Mass. 466, 476 (1963). To that end, the Board is afforded broad discretion in determining when to grant parole. See Stewart v. Chairman of Massachusetts Parole Bd., 35 Mass. App. Ct. 843, 848 (1994).
Here, the decision of the Board was not arbitrary and capricious. Hudson contends that the Board's November 16, 2006 decision in reconsidering his parole was supported by erroneous facts; specifically, the reference to Hudson accruing disciplinary reports since his return to incarceration. On June 14, 2007, however, the Board revisited its November 16, 2006 decision, reviewed the record again, and denied Hudson parole, stating that its "prior vote [November 17, 2004] is to stand."
Even if the Board did not reconsider its November 16, 2004 decision wherein it cites inaccurate factual information, this, without more, would not support a decision overturning that decision. Where such a misstatement amounts to little more than technical error and would not result in manifest injustice, the court will not overturn a decision. As discussed above, a review of Hudson's institutional record alone provides substantial evidence for the Board's denial of parole. See Whitney v. Judge of the Dist. Court of North Berkshire, 271 Mass. 448, 459 (1930) ("[writ of certiorari] does not issue on account of formal or technical errors or those which have not resulted in manifest injustice.").
The Board, in its 2004 decision, cited a number of factors weighing against Hudson's parole. Included among the factors recited by the Board was Hudson's record of 51 disciplinary reports, 4 segregation placements, and a Departmental Disciplinary Unit placement for stabbing another inmate. In addition to the reasons cited by the Board in its 2004 decision, there is evidence in the record that Hudson received disciplinary reports for improper use of the telephone subsequent to 2004 decision. Although tempered by Hudson's recent good behavior, this information, coupled with the severity of Hudson's original crime, could reasonably lead the Board to determine that Hudson was unfit for parole as of June 14, 2007. See, e.g., Lacava v. Lucander, 58 Mass. App. Ct. 527, 532 (2003) (defendant's decision denying a prisoner's request for a burial plot next to his wife not arbitrary and capricious) . While acknowledging, and commending, Hudson for his service and behavior while out on bail, this court is not in a position to overturn the well-reasoned and supported decision of an administrative body whose sole function is to decide whether a prisoner is fit for parole. See, e.g., Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 537 n. 6 (1985) (administrative body entitled to great deference where decision based on facts from which conclusions and policy decisions are drawn).
Accordingly, the Board's decision is not arbitrary and capricious. Because Hudson has not presented sufficient facts to raise a genuine issue of material fact, the Board's summary judgment motion on this ground must be allowed.
II.
Hudson next appears to argue that because the Board's reconsideration decision relied on erroneous information, his right to equal protection of the laws, secured by both the federal and Massachusetts constitution, was violated. In reviewing a claimed violation of equal protection of the laws, Massachusetts applies "strict scrutiny" only if the claimant shows that he was treated differently because of his membership in a suspect class, or that the alleged wrongful action impinged upon a fundamental right. LaCava, 58 Mass. App. Ct. at 532. Absent such a showing the court will only look to see whether the action complained of bore a "reasonable relationship to some proper object." Id., quoting Bauza v. Morales Carrion, 578 F.2d 447, 450 (1st Cir. 1978).
Nowhere in his pleadings or documents in support of his claim does Hudson aver that he is a member of a suspect class. Nor does Hudson possess a fundamental right to parole. See Quegan v. Mass. Parole Bd., 423 Mass 834, 836 (1996). The court, therefore, examines the record to determine whether the Board's actions bore a reasonable relationship to the denial of Hudson's parole. For the reasons discussed above, the court concludes that the Board's decision bears a reasonable relationship to the end result, that is, denying parole to a prisoner who failed to satisfy the Board that he is fit for parole. See, e.g., Hastings v. Comm'r of Corr., 424 Mass. 46, 53 (1997) (plaintiff not denied equal protection of the laws where defendant proffered sufficient reasoning for decision that prisoners convicted of second degree murder whose parole had been denied twice were subject to transfer to different facility); LaCava, 58 Mass. App. Ct. at 533 (defendant did not violate prisoner's right to equal protection of the laws where prisoner's request to be buried in particular cemetery was denied).
Because Hudson has failed to present any evidence raising a genuine issue of material fact with regard to his equal protection claim, the Board's summary judgment motion on this ground is allowed.
III.
Lastly, Hudson seeks a declaration, pursuant to G.L. c. 231A, § 1, that Sentence B began running when he was released on bail on January 10, 2006. Under G.L. c. 231A, § 1, this court "may . . . make binding declarations of rights, duty, status and other legal relations . . . in any case in which an actual controversy has arisen and is specifically set forth in the pleadings." In order for this court to entertain a petition for declaratory relief, an actual controversy must appear on the pleadings. Galipault v. Wash Rock Inves., LLC, 65 Mass. App. Ct. 73, 83 (2005). Additionally, a plaintiff must demonstrate sufficient standing to secure resolution. Id. As far as can be gleaned from his memorandum in support of motion, Hudson appears to argue that once his second degree murder conviction was overturned by the Appeals Court, Sentence B, set to run from and after the completion of Sentence A, began running. Once his second degree conviction was reinstated, Hudson continues, sentencing documents as of May 17, 2006 show only the imposition of Sentence A. This, Hudson concludes, is proof that Sentence B is running concurrently with Sentence A.
In his initial and amended complaint, Hudson makes a different, although somewhat related, argument based on his Fifth Amendment right not to be tried twice for the same crime. As he does not pursue this line of argument in this motion, however, the court will not address its merits.
General Laws c. 279, § 8A governs the point from which a "from and after" sentence begins to run. That statute provides that a prisoner's from and after sentence begins running when a "prisoner serving such previous sentence shall have been released therefrom by parole or otherwise." The flaw in Hudson's argument is his conclusion that he was released from Sentence A by virtue of the word "otherwise" in G.L. c. 279, § 8A. An examination of the procedural posture and current status of Hudson's sentence structure reveals otherwise.
The Supreme Judicial Court, in Hudson, 446 Mass. 709, overturned the Appeals Court's order for a new trial, and affirmed the Superior Court's denial of Hudson's motion for a new trial. The Court's decision nullified any effect that the Appeals Court decision had on Sentence A. For this court's purposes, the practical effect of the Hudson case is that Sentence A began running in 1989 and has continued to run uninterrupted. Because Hudson has not been paroled or "otherwise" released from Sentence A, it follows that Sentence B has not yet begun to run. See Gardner v. Comm'n of Corr., 56 Mass. App. Ct. 31, 38-41 (2002) (from and after sentenced did not begin to run when anchor sentence was reversed but where plaintiff subsequently plead guilty to same offenses as initial sentence). This conclusion is buttressed by the fact that an Inmate Sentencing Listing, dated August 1, 2007, lists Sentence B's status as "held as warrant" to take effect from and after Sentence A. Accordingly, Sentence B is not running concurrently with Sentence A.
ORDER
For the foregoing reasons, Plaintiff's Motion for Summary Judgment or/Alternatively for Judgment on the Pleadings is DENIED , and the Defendants' Cross-Motion for Summary Judgment is ALLOWED .