Censorship of Reading Materials
Under the current DOC policy (103 CMR 481), individuals should be able to receive any reading material sent to them from the publisher of the material itself (unless the material falls into one of the categories listed in 103 CMR 481.15(2) which are censored under the regulations). The DOC policy for disapproving incoming publications requires that a notice be promptly sent to the recipient and to the sender, stating the reason for disapproval and explaining that the recipient and the sender have a right to appeal the determination. 103 CMR 481.16(2). You can ask to inspect the disapproved materials, with officers present, for the purpose of filing an appeal. 103 CMR 481.16(4). The Superintendent must reply to your appeal within a reasonable time. 103 CMR 481.16(5). If this procedure is not followed, you should grieve it and appeal any denied grievance, keeping copies of all paperwork.
We recognize that access to reading materials is very important as it is a way to get information about the outside world, to learn, to study religion, to pass the time in a meaningful way, to relax, and to exercise First Amendment rights under the U.S. Constitution. We are disappointed that the DOC has chosen to restrict people’s ability to exercise these rights and to make it difficult for people to get reading materials of their own choosing.
PLS may not be able to conduct extensive advocacy on this type of issue, but we can offer advice and provide resources that we may have.
Fees Charged to INcarcerated persons
The following are brief descriptions of the administration’s legal authority to charge for services or to take money from a person’s canteen accounts.
I. Medical Co-payments
Massachusetts law allows correctional facilities to charge a reasonable fee for medical services, including prescriptions, provided to a person in a state prison or correctional facility. G.L. c. 124, §1(s). The court ruled in Souza v. Hodgson, litigated by PLS, that the statute does not allow county facilities to charge for these services.
Medical care CANNOT be denied for financial reasons, meaning if a person can’t pay, the prison or jail must provide the care anyway. The fees currently run from $3 to $5 per service, depending on the facility. The law authorizes the prison to deduct the fee for medical services from one-half of the money a person earns at a prison industries job (except for those serving life sentences or classified as a sexually dangerous person in which case they are not limited to one half). G.L. c. 127, § 48A. The DOC has created a policy, 103 DOC 763, which explains who will be charged a fee and for what services. The policy identifies a number of medical services which no one should be charged for, including: emergency or trauma care, hospitalization or infirmary admissions, diagnosis and treatment of contagious diseases, care for chronic conditions (for example diabetes or Hepatitis C), and the medications needed to manage them, mental health care, pregnancy-related care, and any care that the medical provider requests you be given (read the policy for a full listing, 103 DOC 763.05).
The DOC policy states that any person who is indigent by DOC standards will not be charged for care. By this policy, if a person is being charged a $3 fee but has had no more than $13 in his or her personal account and no more than the $100 minimum in a savings account, the person should not be charged the fee. DOC practice is to deduct the fee from the person’s savings account if he or she has previously held a prison job, but does not currently have one.
G.L. c. 124, § 1(s) also authorizes the DOC to charge a reasonable fee to a person for medical care for self-inflicted injuries and to charge a reasonable fee for medical care for another person that he or she has injured. 103 DOC 763.06 sets these fees at $15 for care received inside the prison or $25 for care received outside the prison. The co-pay is charged for each instance of care, for example: if the injured person goes to an outside hospital, sees a medical professional, and gets an x-ray and two prescriptions, there would be four $25 co-pays charged. The DOC policy also charges people for “incidental” costs in this circumstance, such as the ambulance fees or staff overtime for the hospital trip. Those charges are not authorized by statute and PLS believes they are illegal.
Those who believe they are being charged for care that they should not be charged for, whether because they are indigent, have not earned money earned from a prison job, or are being charged for services that are excluded from the fees by law or policy, should file a formal grievance with the DOC. Keep a copy and send a copy to PLS. We are not able to do individual advocacy on this issue, however, we are tracking problems with the fee policy to determine whether the practice violates the law.
Massachusetts correctional facilities are authorized by G.L. c. 124, §1(r) to charge incarcerated people at any county or state correctional facility a reasonable fee for haircuts. However, the law only authorizes the prison to deduct the charge for a haircut from one-half of the money the person earns at a prison industries job (except for lifers and those classified as a sexually dangerous person). G.L. c. 127, § 48A. The DOC has instituted a policy, 103 DOC 762, which conforms to this law. If it is not followed, grieve the problem and cite that policy and the above laws. We cannot assist people with this issue. If a person does not consent to paying for his or her haircut, the statute allows the prison to refuse to provide one.
III. Prison Accounts
Massachusetts DOC, but not counties, is authorized by G.L. c. 124, §1(u) to charge individuals a fee for maintaining their prison accounts. DOC policy is to charge a $1 activity fee in any month that a person’s account gets a deposit from outside the prison or money is sent out of the account by check. No fee is charged for ordering canteen or getting paid for a prison job.
IV. DNA Database Charges
Currently, the DNA Database Law, G.L. c. 22E, § 4(b), requires people who must submit DNA samples to pay for the sample unless they are indigent according to the standard in G.L. c.261, §27A. This is the standard used by the courts when determining indigence for the purpose of a court case. The prison or jail may not take money for DNA tests without the consent of the person. Currently, the charge for the DNA sample is $110 and the prison can only collect this fee if the individual signs a form giving consent to the withdrawal of funds from his or her account. It is the advice of PLS that no one should consent to paying for DNA sampling unless you believe that you are not indigent under any standard and wish to pay this fee. If a person refuses to sign the consent form, the prison cannot take his or her money, freeze his or her account, or penalize him or her in any other way.
V. Victim And Witness Assessment
If the judge at sentencing ordered that the defendant pay a Victim Witness fee, the prison can take the money to satisfy that fee from any funds in the person’s accounts without his or her consent. G.L. c. 258B, §8.
VI. Child Support
Imprisonment does not stop a person’s legal obligation to pay child support if he or she has been ordered to do so. DOC and the Department of Revenue have begun increased enforcement of these obligations. The DOC is not granted authorization to take this money from a person’s account without his or her consent unless the court that ordered payment of support has also issued an order directing that the person’s wages can be garnished (taken) or that money can be taken from his or her bank account. Those who need to get their support obligations modified can write and ask for PLS’ information packet on modification of child support orders as soon as possible because modifications are not retroactive.
VII. Restitution for Disciplinary Violations
A decision of the Supreme Judicial Court in the summer of 2008, called Ciampi has devastated the security of funds in prisoner accounts. In that case, the SJC held that the Department of Correction can seize a person’s funds without limit to punish the person for disciplinary violations. Following the Ciampi case, PLS must advise all incarcerated people to keep as little money as possible in prison accounts, as nothing but a disciplinary hearing stands between them and loss of whatever assets he or she may have, whether from prison jobs or friends and family.
I. Indigent Postage
The DOC mail regulations say that some people who have no money can get free postage for outgoing personal and legal mail. However, DOC regulations place severe restrictions on who can get free postage. The DOC’s definition of indigence is much worse than that used by the courts to determine whether to waive the filing fee for a court case. Just because the court will let a person file his or her case for free does not mean that the DOC will let him or her mail papers to the court for free. The DOC definition of who is indigent is set forth at 103 CMR 481.06:
Indigent Inmate – Upon request for waiver of fees or cost, an inmate may be declared indigent if:
(a) At the time of the request, the inmate has, in all accounts to which he or she has access, a total amount less than or equal to $10.00 plus the cost or fees sought to be waived; and
(b) At no time for the 60 days immediately preceding said request, have the inmate’s accounts contained more than $10.00 plus the cost or fees sought to be waived. (e.g. request to waiver $5.00 on July 1, 1998; indigent if, at no time since May 1, 1998, total in accounts has been more than $15.00).
In addition to the above definition, the superintendent may in his discretion, designate an inmate as indigent if the inmate has less than $2.00 in his account at the time of the request, or in other circumstances as he or she deems appropriate.
103 CMR 481.06
If a person qualifies under this standard, he or she can get free postage to mail legal papers to the courts and for three personal letters to friends and family per week. The regulation that governs this is 103 CMR 481.10:
Free Postage for Indigent Inmates
Indigent inmates shall be permitted to mail three letters first class weighing one ounce or less each week at institution expense. In addition, an indigent inmate shall be permitted, where necessary, to send an unlimited number of letters of any weight to any court official at institution expense. A charge shall not be placed against future deposits to an inmate’s account for the cost of postage and materials supplied in accordance with 103 CMR 481.10.
103 CMR 481.10
II. Indigent Mail to Attorneys
Indigent individuals do not receive postage for privileged legal mail being sent to attorneys due to a change in the mail regulations that occurred in April 2002. The change removed the provision for indigent mail postage on letters to attorneys. PLS recognizes that this is an important issue affecting the ability of those incarcerated to seek legal representation, to communicate with their attorney, and to carry out the obligations of a pro se litigant. When this change occurred, our office engaged in advocacy on this issue with the DOC but we were unsuccessful. We were also unable to find attorneys willing to challenge the DOC policy in court.
People who wish to challenge the application of the regulation in court would have to meet the legal standard for denial of access to the courts under Lewis v. Casey, 116 S.Ct. 2174 (1996). That standard basically requires that a prisoner litigant be able to demonstrate that the prison policy has caused “actual injury” in the form of a non-frivolous case being dismissed or the person being prevented from bringing a non-frivolous case.
III. Interference with Pro Se Litigation
The limitations contained in the DOC’s definition of indigence often create problems for individuals who are engaged in pro se litigation in the state or federal courts. Those with no money find themselves facing filing deadlines for complaints, answers, briefs, or notices of appeal, while at the same time they are refused postage to mail those items to the courts because they had $15 in their account six weeks ago. In some circumstances, these filing restrictions may cause the DOC to deny postage until after the statute of limitations has run on the case. An example is a lawsuit to challenge an improper disciplinary conviction, which must be filed within sixty days after the superintendent denies the appeal. A suit for denial of access to courts based on the effect of the mail regulations causing the dismissal of an individual’s pro se litigation would be subject to the same Lewis v. Casey standard described above.
If a person is denied the ability to carry out his or her responsibilities in a pro se suit (for example, denied postage to serve defendants or to serve interrogatory answers) PLS suggests that, in addition to filing a grievance and appealing any denials, the individual draft a short motion to the court in the case explaining that he or she is indigent and is prepared to do what is required but that the DOC regulation prevents him or her from mailing out what is required. Attach copies of the regulation and of any paperwork showing the attempt(s) to mail out the materials and the denial(s). They should attach a copy of whatever it is they were required to send out to the attorney and ask that the court do it for them because they are unable or that the court requires DOC to give them the postage. Be sure to keep a copy so that you can still mail it out if the court orders DOC to provide the postage.
If a person’s lawsuit is dismissed because (1) he or she missed the statute of limitations and (2) the person can show that he or she missed the filing deadline because he or she had no money, asked for postage, and was denied postage, the person may have a claim. If the person’s appeal was dismissed because he or she was unable to file a notice of appeal under similar circumstances, the person may have a claim. If summary judgment was granted against the person because he or she was unable to file a brief or an affidavit because he or she was denied postage to mail it to the court, the person may have a claim. Any lesser damage than dismissal of the case or the rendering of judgment against the person will probably not support a constitutional claim.
IV. General Mail Rules
Whether a person qualifies as indigent or not, the number of persons to whom he or she can write is the same. This is controlled by 103 CMR 481.09:
Amount of Mail
Except as provided in 103 CMR 481.10 where an inmate requests free postage, there shall be no limitation placed on the number of persons with whom an inmate may correspond, nor shall there be any limitation on the number of letters an inmate may send or receive.
In general, incarcerated people are not allowed to write to other incarcerated people in Massachusetts. The regulation that controls this is 103 CMR 481.21. It allows for prisoner-to-prisoner correspondence only when approved by the Superintendents at both prisons and the individuals are either immediate family members or parties to the same legal action in which they represent themselves. Those few letters that may be permitted between incarcerated individuals will also be subject to all of the inspection and refusal provisions that apply to mail to friends and family. This is true even for prisoner-to-prisoner mail that concerns legal matters.
Prison Account Maintenance and Administration Fees
In 2003, G.L. c. 124, § 1 was amended to add subsection (u). This amendment to the statute states that the Commissioner of Correction shall:
(u) adopt policies and procedures establishing reasonable fees for maintenance and administration of inmate accounts maintained at any state correctional facility. The commissioner may charge each inmate reasonable fees for the maintenance and administration of inmate accounts and may deduct such fees from each inmate’s accounts.
G.L. c. 124, § 1(u)
This law allows the Department of Correction to charge a fee for keeping prison accounts. It does not allow such fees to be charged for accounts in county facilities. According to the Commissioner’s August 2004 memorandum putting this policy into effect, as of October 4, 2004, incarcerated individuals will be charged a $1 activity fee in any calendar month in which their accounts have any one or more of the following transactions:
- A deposit of money received in the mail
- A deposit of money received from a visitor
- A deposit of money received during intake into the prison
- A withdrawal of money by check from your account
No matter how many of these transactions a person makes in one month, the DOC will not charge more than a $1 activity fee for that month. In order to reduce the number of months for which a person is charged a fee, he or she may want to try to consolidate transactions into one month as much as possible. For example, if a relative sends a person a certain amount of money each month, the relative may be able to gather that money for a few months and send it all at once. Individuals should not be charged the $1 activity fee in any month in which they only use their accounts for the canteen or for getting paid for a prison job.
Under the policy, the DOC will also charge a $1 fee for each check that requires a stop payment.
If a person is charged a fee that is not allowed under the policy, he or she should file a grievance and follow through with the full appeal process if needed.
Lost Property Complaints
The following information is for incarcerated individuals who have had their property lost or destroyed.
Property is frequently lost or destroyed by prison guards, either directly or because of failure to secure a cell properly. For example, a person is transferred from one institution to another, and some or all of his property disappears in the process. Or a person is sent to the hole, his property is packed up, and when he gets out some or all of it is missing. Until fairly recently, if you had receipts and property records, you could make a claim in court for the value of the lost or destroyed property, using a law called the Massachusetts Tort Claims Act (MCTA), Massachusetts General Laws chapter 258. But recent decisions of the Massachusetts Appeals Court have eliminated the Tort Claims Act as a way to recover the value of the property that has been lost or destroyed by guards. See Vining v. Commonwealth, 63 Mass.App. Ct. 690 (2005) and Locke v. Commissioner of Correction, 881 N.E.2d 171 (2008) (Rule 1:28 decision).
These decisions interpret a provision of the MTCA, G.L. c. 258 (section 10 (d)), to grant immunity to law enforcement officers, including correction officers, for the negligent loss or destruction of property. As a practical matter, this makes the state immune from having to pay for the loss or destruction of property by guards directly or indirectly, indirectly meaning situations where guards fail to secure your property and other people steal it. Without the legislature doing a thing, a well-established method for protecting prisoners’ property rights was “interpreted” out of existence by the courts. Therefore a suit under the MTCA against prison officials for the loss or destruction of property will now likely be dismissed.
Prisoners’ Legal Services believes that the best course of legal action is described below.
You Must Grieve Lost Property Claims
If your property is lost or destroyed and you want to be compensated, you first must grieve the loss of your property before you take the matter to court. Use the grievance procedure for the prison or jail you are in. In DOC prisons, the grievance policy is the regulation numbered 103 CMR 491. It requires that you file your grievance within 10 working days of the incident, or at least within ten days of the date that you find out that your property is lost or damaged. If the grievance is denied or you receive no response within 10 working days (no response after 10 working days is treated as a form of denial), you must appeal the denial of the decision to the superintendent. If you are held in a county facility, whether awaiting trial or sentenced, the jail or house of correction where you are will have a grievance procedure and (probably) a grievance form. Use it, even if you know that your grievance will be denied or not answered. Both state and federal law requires that to sue about almost anything that happens in prison, you must first “exhaust administrative remedies” by using available grievance procedures before filing suit. The federal law that requires this is the Prison Litigation Reform Act, 42 U.S.C. §1997e, and the state law that requires this is M.G.L. c. 127, §38F. You must grieve lost property claims and appeal grievances that are denied or grievances to which you do not receive a response within the time deadlines.
PLS urges you to take the grievance procedure seriously. Although in some jails and prisons the grievance procedure is not effective, some grievance officers make a genuine effort to be fair, and the grievance procedure may be the best (and certainly can be the fastest) way to be compensated for your loss. If prison authorities fail or refuse to respond to grievances or fail to take the process seriously, you can point that out later in your papers for the court. PLS suggests filing copies of the receipts from your purchase of the property in question with your grievance and grievance appeal in order to show the value of your claim.
Getting Into Court
Assuming that you have fully grieved the loss or destruction of your property and appealed the denial of your grievance, you may seek review of the grievance decision under either G.L. c. 249 § 4, an Action in the Nature of Certiorari, or the Massachusetts Administrative Procedures Act, G.L. c. 30A § 14. [If you believe your property was intentionally destroyed or lost you can file a claim of civil conversion against the person who stole or destroyed your property.]
Keep in mind that the decision to go to court should not be taken lightly, because going to court is uncertain and expensive, especially for the average person who has next to nothing in financial resources. Plus, to go to court, several things must be done quickly, because there is a lot to do to get into court and most of it needs to be done within thirty days of the denial of your grievance appeal.
At this point in time, there are two different laws that appear to provide a basis for judicial review of the denial of a grievance. It is not clear which law your should use, because there is a direct contradiction between what the two laws say about which law to use. One law is the Massachusetts Administrative Procedure Act, G.L. c. 30A (“APA”). That law provides judicial review of two different kinds of agency decisions. The first sections of the law provide for review of the procedures, usually involving public hearings, by which agencies promulgate their regulations, generally called “rulemaking proceedings.” The later sections of the APA provide for review of “adjudicative” decisions that agencies make under their own regulations. An adjudicative decision is a decision deciding a claim in a particular case. A decision to grant or deny a person’s grievance is an adjudicative decision. Although a decision on a prisoner grievance is an adjudicative decision of a state agency, there is a special section of the Administrative Procedure Act, § 1A, that specifically states that the Department of Correction is subject to the judicial review requirements of the Administrative Procedure Act only with respect to rulemaking proceedings. G.L. c. 30A, § 1A, which states: The department of correction shall be subject to sections one through eight, inclusive, and shall not otherwise be subject to this chapter, notwithstanding the exclusion of said department from the definition of the word “agency” in section one. This seems to mean that G.L. c. 30A can not be used to obtain judicial review of a decision to deny a prisoner grievance.
Despite the fact that section 1A of the Administrative Procedure Act says that it cannot be used for review of DOC adjudicative decisions, there is another statute, G.L. c. 127, § 38H, which is part of a law governing Massachusetts prison grievance procedures and which requires exhaustion of grievance procedures before going to court. That section specifically says that “ [a] final decision with respect to a grievance shall be subject to judicial review in accordance with section 14 of chapter 30A, in the superior court for the county in which the inmate is incarcerated or otherwise being held, or in Suffolk county.” In other words, that section requires a person to use the APA.
Sooner or later, a court or the legislature will straighten this contradiction out. And fortunately, it is not as big a problem as it may at first seem to be. This is because, assuming that you can use G.L. c. 127, § 38H, that statute explains what to do, and in the event that you cannot use G.L. c. 127, §38H, you can use an alternative, G.L. c. 249, § 4, an action in the nature of certiorari. The key is that the legal procedure required for a certiorari action is almost the same as what you have to do under the APA so that it doesn’t much matter what you call it so long as you file all the necessary paperwork. There is one very important distinction between APA review and certiorari review, however: the statute of limitations for a certiorari action is sixty days from the date your grievance appeal is denied, but the statute of limitations for APA review is thirty days from the date your grievance appeal is denied. The way to avoid this problem is to title your complaint as one for “Review under the Administrative Procedure Act or in the Alternative, for Certiorari.” The court has the power to review your claim under one or the other of these statutes and can pick either one, so long as you file your complaint within the shorter time limit, 30 days. If you miss the thirty-day deadline and the court decides that the APA applies (and you can be sure that the DOC will argue that the APA applies), your case will be dismissed.
The procedure under G.L. c. 30A § 14 (APA): After receiving a final administrative decision on the grievance and appeal, you must then file for judicial review under G.L. c. 30A,? § 14 (the Administrative Procedures Act). A prisoner lawsuit under c. 30A to challenge the outcome of a grievance is authorized by G.L. c. 127 § 38H. Remember that a complaint under G.L. c. 30A? § 14 must be filed within 30 days of the final administrative decision. If you have not received a response to your grievance or appeal after 180 days, you can go ahead and file under c. 30A. Be sure to state in the complaint that you filed a grievance, that you appealed either the negative grievance decision or the failure of the prison to respond to the grievance, and that either the appeal was denied or you have not received any answer to your appeal, as the case may be. If you are in DOC custody, you can file your complaint in the superior court for the county in which you are incarcerated, or in Suffolk County. If you are in county custody, file in the superior court for the county in which you are held. A copy of the grievance, the decision on the grievance, your appeal, and the decision on the appeal (if you received a response) should be filed with the complaint, along with any receipts showing how much you paid for the property that was lost or destroyed.
The procedure under c 249 § 4 (Certiorari): After receiving a final administrative decision on the grievance and appeal, you may seek judicial review under G.L. c. 249 § 4, certiorari. A complaint under G.L. c. 249, § 4 must be filed within 60 days of the denial of your appeal. If you are in DOC custody, the complaint can be filed in the superior court for the county in which you are incarcerated, or in Suffolk County. If you are in county custody, you should file in the superior court for the county in which you are held. A copy of the grievance and all attachments (such as receipts), the decision on the grievance (if you received a response), your grievance appeal, and the final decision on the grievance appeal (if you received one) should be filed with the complaint.
Intentional Tort of Conversion claim: If you have direct evidence that your property was stolen or intentionally wrecked by correctional officers you may have a claim for civil conversion of your property. This type of claim must be made against the individual correctional officers or officials who stole your property, in their individual capacities. The claim cannot be made against the DOC, the “Commissioner,” or the Commonwealth. This means that you have to be able to prove who took or damaged your property.
As a practical matter, such proof will be available only occasionally, in the form of testimony (such as from someone who saw a particular officer take or smash the property) or video from a security camera. In order to show conversion of your property you must show (1) that you had possession, or a right to immediate possession, of the personal property described in your complaint at the time when the defendant took, damaged, or destroyed it, (2) that the defendant converted the personal property to his own use by exercising control over it which was inconsistent with your rights, and (3) damage, which is the value of the property taken, damaged or destroyed. If you can prove these 3 elements you may consider a civil conversion complaint. You have 3 years from the loss or destruction of your property in which to file a civil conversion claim. The complaint can be filed in the superior court for the county in which you are incarcerated, or in Suffolk County.
Judicial Review of a Grievance is controlled by Superior Court Standing Order 1-96
The Superior Court has established a procedure specifically for handling applications to review agency adjudicative decisions. This procedure is called Superior Court Standing Order 1-96. It controls the procedural details of bringing lawsuits for review of administrative decisions, and it applies to both APA and certiorari complaints. It is so useful and so important to getting your grievance claim properly before the superior court that PLS reprints it here in full. Study it carefully.
Superior Court Order 1-96
Standing Order 1-96. Processing and Hearing of Complaints
for Judicial Review of Administrative Agency Proceedings
In order to facilitate and clarify the orderly processing and hearing of Complaints for Judicial Review of Administrative Agency Proceedings, it is hereby ORDERED, effective March 18, 2002, that:
- Claims filed in the Superior Court seeking judicial review of administrative agency proceedings on the administrative record pursuant to the standards set forth in G.L. c. 30A, § 14, G.L. c. 249, § 4, or similar statutes, whether joined with a claim for declaratory relief under G.L. c. 231A, or any other claim, shall be heard in accordance with the following procedures.
- The administrative agency whose proceedings are to be judicially reviewed shall, by way of answer, file the original or certified copy of the record of the proceeding under review (the record) within ninety (90) days after service upon it of the Complaint. Such record “shall consist of (a) the entire proceedings, or (b) such portions thereof as the agency and the parties may stipulate, or (c) a statement of the case agreed to by the agency and the parties.” G.L. c. 30A, § 14(4). Upon service of a Complaint, the agency shall notify all parties of procedures for acquiring a transcript of the hearing testimony. The agency shall also inform the parties of their obligation to provide a transcript, or portions thereof, to the court if alleging that an agency’s decision is not supported by substantial evidence or is arbitrary or capricious, or is an abuse of discretion. A request for a copy of the transcript must be made by a party within thirty (30) days after service of the Complaint, and such transcript or portion thereof shall be made part of the record. Any party seeking to defend the agency’s decision as supported by substantial evidence or as not arbitrary or capricious, or is not an abuse of discretion shall have an affirmative obligation to provide the court with a copy of the transcript or portion thereof in support of its position. The court may assess the expense of preparing the record as part of the costs in the case. G.L. c. 30A, § 14(4). Additionally, “the court may, regardless of the outcome of the case, assess any one unreasonably refusing to stipulate to limit the record, for the additional expenses of preparation caused by such refusal.” G.L. c. 30A, § 14(4). The court may require or permit subsequent corrections or additions to the record when deemed desirable. G.L. c. 30A, § 14(4). The time for filing the record may be enlarged, for good cause shown, upon allowance of an appropriate motion.
- The following motions raising preliminary matters must be served in accordance with Superior Court Rule 9A not later than twenty (20) days after service of the record by the administrative agency. Any party failing to serve such a motion within the prescribed time limit, or within any court-ordered extension, shall be deemed to have waived any such motion (unless relating to jurisdiction) and the case shall proceed solely on the basis of the record. Any such motion shall be promptly resolved in accordance with Superior Court Rule 9A. If the motion specified in (c) is allowed, all further proceedings shall be stayed until the administrative agency has complied with the provisions of G.L. c. 30A, § 14(6).
- Motions authorized by Mass.R.Civ.P. 12(b) or 12(e).
- Motion for leave to present testimony of alleged irregularities in procedure before the agency, not shown in the record (G.L. c. 30A, § 14(5)).
- Motion for leave to present additional evidence (G.L. c. 30A, § 14(6)).
- A claim for judicial review shall be resolved through a motion for judgment on the pleadings, Mass.R.Civ.P. 12(c), in accordance with Superior Court Rule 9A except as otherwise provided by this Standing Order, unless the Court’s decision on any motion specified in part 3 above has made such a resolution inappropriate. A plaintiff’s Rule 12(c) motion and supporting memorandum shall be served within thirty (30) days of the service of the record or of the Court’s decision on any motion specified in part 3 above, whichever is later. A defendant’s response shall be served within thirty (30) days after service of the plaintiff’s motion and memorandum. The plaintiff shall then promptly file the motion materials in accordance with Superior Court Rule 9A. The Court may grant an extension of time to file for good cause shown. Memoranda shall include specific page citations to matters in the record.
- The Clerk or her/his designee will schedule a hearing date after receiving the motion materials. No pre-trial conference will be held, and no pre-trial memorandum filed, unless specifically ordered by the Court. No testimony or other evidence shall be presented at the hearing, and the review shall be confined to the record. A party may waive oral argument and submit on the brief by filing a written notice. Such waiver by a party shall not affect the right of any other party to appear and present oral argument.
End of Text of Superior Court Standing Order 1-96
Comment: PLS would like to direct your attention to paragraph 2 of this standing order, which contains the heart of the procedure. Note that it provides that the entire administrative record or those parts of the administrative record that the agency thinks are necessary to decide the case, is supposed to be attached by the agency (in prisoner cases here that will be the DOC or a sheriff) that is the defendant to its answer to the complaint. This requirement can be helpful to a person challenging the denial of a grievance if his copies of the paperwork are lost or unavailable to him. However, PLS recommends that if you have the administrative record (grievance, denial of grievance, appeal, denial of appeal, and any associated documents (such as a request to view video or for witnesses) you nevertheless attach a copy of all of that material to your complaint. When you get the answer, review it carefully to be sure that all of the grievance documentation that you think is important is attached either to the complaint or the answer, so that the court will have all the documents necessary to get a fair view of your claim.
A note about transcripts. A transcript is an audio or written record of a hearing. Although disciplinary proceedings often involve hearings, grievances almost always do not. If there was no hearing, there is no transcript. The paperwork associated with a typical claim of lost property is minimal – grievance, receipts to show the value of the property, perhaps a written statement in support of your grievance from a witness or two, or a request to review a tier video, etc.
If you think that important evidence necessary to reach a proper decision of your grievance was not presented during the grievance process, you can move within 20 days of service of the defendants’ Answer and record, for leave to present additional evidence pursuant to G.L. c. 30A, § 14(6), which reads:
If an application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision.
The administrative record for grievance proceedings will generally be less than ten pages and should be very easy for a court to digest and decide. In APA or certiorari cases challenging the denial of a lost property grievance, the superior court often can decide the matter “on the papers,” without oral argument (referred to in the Standing Order 1-96 as “judgment on the pleadings”). You can ask the court for oral argument if you wish. Do not ask for oral argument unless you think it is important for the judge to hear from you directly. If you do argue the matter, you cannot introduce any new evidence (information not in the written record attached to the answer and the complaint) at the hearing and must limit your argument strictly to what is in the grievance and the grievance appeal.
There is a real question about what the court can do if it decides that you are right and that your grievance was not handled properly. The most likely outcome in such a case is that the court will simply order the DOC to rehear the grievance. The DOC might in such a situation decide to settle your claim rather than go through the grievance procedure (and probable appeal) twice. Another possibility is that the court will make a declaratory judgment that says that the grievance procedure was not followed properly, or that certain evidence should have been considered that was not considered, etc.
What the court will not do is order the DOC to pay you for your lost property. That is because it has already been decided by the Appeals Court that because the DOC is a state agency, it is immune from paying for property that is lost or damaged by guard negligence. To put it another way, you cannot get an order for damages against the DOC by using the APA or certiorari that you cannot get through the Tort Claims Act. This may lead to some very frustrating situations. For example, you could “win” the APA review case and get an order for the DOC to rehear the grievance. The DOC might rehear the grievance and deny it again. Even if you win the grievance on rehearing the DOC does not have to pay you the value of the property lost or destroyed. In such a situation the remedy is unclear, and you should consult with PLS or another attorney before proceeding further.
If you have additional questions or concerns that you would like assistance with, please call us during our intake hours on Monday (or Tuesday if Monday is a holiday):
1:00pm – 4:00pm
or write us a letter to:
50 Federal Street
Boston, MA 02110