TONY B. GASKINS & Another v. CAROL MICI & Another.

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

24-P-1095

TONY B. GASKINS & another 1

vs.

CAROL MICI 2 & another. 3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Tony Gaskins and Melquiades Cabrera, 4 people

formerly confined to MCI-Concord and housed in that facility's

1 Melquiades Cabrera.

2Individually and as the former Commissioner of the
Massachusetts Department of Correction.

3Michael Rodrigues, individually and as the former
superintendent of the Massachusetts Correctional Institution at
Concord (MCI-Concord).

4The defendants argue that Cabrera waived his right to
appeal by failing to respond to a single justice of this court's
order dated November 25, 2024, which asked Cabrera to either
file his own brief or notify the court that he was joining
Gaskins's brief. Because Cabrera had already signed Gaskins's
brief and paid his filing fee, we determine that his failure to
respond was "relatively innocuous" and does not warrant the
harsh sanction of dismissal. Schulte v. Director of Div. of
"secure adjustment unit" (SAU), brought a complaint against the

defendants, Carol Mici and Michael Rodrigues, formerly the

Commissioner of Correction and superintendent of MCI-Concord,

respectively. The complaint alleged that the defendants had

violated various provisions of the Criminal Justice Reform Act

(CJRA) and the Massachusetts and Federal Constitutions and

sought declaratory relief and damages. A judge of the Superior

Court allowed the defendants' motion to dismiss the complaint

for failure to state a claim, pursuant to Mass. R. Civ. P.

12 (b) (6), 365 Mass. 754 (1974). The plaintiffs appealed from

the ensuing judgment of dismissal. 5

Background. "We summarize the factual allegations of the

verified complaint, accepting them as true at this motion to

dismiss stage and drawing all reasonable inferences in the

plaintiffs' favor." Haas v. Commissioner of Correction, 103

Mass. App. Ct. 1, 3 (2023).

On July 31, 2019, Gaskins was placed in the "restrictive

housing unit" (RHU) at the Massachusetts Correctional

Employment Sec., 369 Mass. 74, 79 (1975); Mass. R. A. P.
3 (a) (1), as appearing in 481 Mass. 1603 (2019).

5 A third plaintiff participated in the Superior Court
proceedings and signed the appellants' brief, but did not file
his own notice of appeal or join in the notice of appeal of the
named appellants. That plaintiff's appeal is not properly
before us. See Schulte, 369 Mass. at 79 (failure to timely file
notice of appeal is "serious misstep[]" that "call[s] for
dismissal of the appeal").

2
Institution in Norfolk pending disciplinary matters and

transferred to the SAU at MCI-Concord on August 13, 2019. 6 On

June 13, 2019, Cabrera was placed in the RHU at Old Colony

Correctional Center while awaiting disciplinary action and

transferred to the SAU at MCI-Concord on July 16, 2019. On or

about September 19, 2019, Cabrera was transferred from the SAU

to the Souza-Baranowski Correctional Center.

The plaintiffs' stays in the SAU at MCI-Concord exceeded

sixty days. They never received access to their televisions,

vocational programming, or their property in full. 7

Additionally, the plaintiffs' canteen purchases were restricted

to twenty-five dollars of certain food and cosmetic items, less

than the total purchases of seventy-five dollars available to

the general population.

Discussion. "We review the grant of a motion to dismiss de

novo, accepting as true all well-pleaded facts alleged in the

6 We note that the defendants' filings state that Gaskins
was transferred to the Souza-Baranowski Correctional Center on
November 17, 2019.

7 We treat the claim that the plaintiffs were denied full
property access as a factual allegation for purposes of our
analysis but do not regard it as true because it is a "legal
conclusion[] cast in the form of [a] factual allegation[]."
Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The
complaint may not rest on such "conclusory descriptions . . .
which could be dominated by unpleaded facts" (quotation and
citation omitted). Id. at 478. Accordingly, we do not consider
this allegation in the subsequent analysis of the plaintiffs'
legal claims.

3
complaint, drawing all reasonable inferences therefrom in the

plaintiff's favor, and determining whether the allegations

plausibly suggest that the plaintiff is entitled to relief."

Lanier v. President & Fellows of Harvard College, 490 Mass. 37,

43 (2022).

1. Claim for declaratory relief. The plaintiffs'

complaint, pursuant to G. L. c. 231A, §§ 1-2, alleged that the

defendants "are not in compliance with the CJRA" and sought a

ruling that they must come into compliance "with the legislative

intent of the CJRA" by providing "all prisoners within the

segregation units and SAU, who are not being disciplined," with

the required access to the canteen, property, television, and

vocational programming.

The judicial power to make declaratory determinations is

limited to cases "in which an actual controversy has arisen and

is specifically set forth in the pleadings." G. L. c. 231A,

§ 1. "Where no actual controversy is presented by a claim for

declaratory relief, the court lacks subject matter jurisdiction

over the matter, and the claim must be dismissed." Worcester

Regional Retirement Bd. v. Public Employees Retirement Admin.

Comm'n, 489 Mass. 94, 98 (2022). Here, the controversy alleged

in the complaint became moot when the plaintiffs were

transferred out of the SAU. See Littles v. Commissioner of

Correction, 444 Mass. 871, 872 n.3 (2005) (request for

4
injunctive relief from conditions of confinement in

administrative segregation was rendered moot by plaintiff's

return to general population). Additionally, the issues alleged

in the complaint are not capable of repetition because MCI-

Concord is permanently closed. St. 2024, c. 140, § 193. Cf.

Gonzalez v. Commissioner of Correction, 407 Mass. 448, 450

(1990) (issues around inmate drug testing that apply to "any

inmate in any Department of Correction institution" are capable

of repetition). Accordingly, we dismiss the claim for

declaratory relief as moot.

2. Claim for damages. The plaintiffs' complaint alleges

that the defendants -- through their failure to provide the

plaintiffs with access to the canteen, television, and

vocational programming during their stay in the SAU -- "use[d]

the SAU to circumvent the protections of the CJRA, violating the

mandates of the CJRA, in particular G. L. c. 127, § 39, G. L.

c. 213A, § 2, the Fourteenth Amendment to the United States

Constitution, Article 12 of the Massachusetts Declaration of

Rights, and acting under color of law, violated 42 U.S.C.

§ 1983." 8

8 The plaintiffs additionally argued in support of their
opposition to the motion to dismiss that (1) the defendants
violated the requirement of G. L. c. 127, § 32, to "treat the
prisoners with the kindness which their obedience, industry and
good conduct merit"; and (2) because the SAU "operates as a

5
We begin by addressing the plaintiffs' statutory claims

under G. L. c. 127, §§ 39, 39E. 9 Chapter 127, § 39 (b), provides

in relevant part that "restrictive housing units shall provide:

. . . (v) access to a radio or television if confinement exceeds

30 days; . . . (viii) the same access to canteen purchases and

privileges to retain property in a prisoner's cell as prisoners

in the general population at the same facility." Chapter 127,

§ 39E, provides in relevant part that "prisoners held in

restrictive housing for a period of more than 60 days shall have

traditional segregation unit," the plaintiffs were entitled to,
but did not receive, the protections of the "departmental
segregation unit" (DSU) regulations. We determine that nothing
in the complaint gave the defendants fair notice of these
claims, and therefore they cannot help the complaint to survive
a motion to dismiss. See Padmanabhan v. Cambridge, 99 Mass.
App. Ct. 332, 341-342 (2021). See also Mass. R. Civ. P. 8 (a),
365 Mass. 749 (1974) ("A pleading . . . shall contain [] a short
and plain statement of the claim showing that the pleader is
entitled to relief").
On appeal, the plaintiffs argue for the first time that the
defendants violated the CJRA by denying the plaintiffs access to
books, magazines, and in-person contact visits, and by
disciplining the plaintiffs for longer than the fifteen-day
statutory maximum. These claims are waived. See Albert v.
Municipal Court of Boston, 388 Mass. 491, 493-494 (1983) ("nor
is a party entitled to review of an issue not presented in the
court below").

9 Although the plaintiffs did not explicitly reference § 39E
in their complaint, the motion judge inferred, and we agree,
that the plaintiffs' allegations regarding vocational
programming invoked a claim under this section.
For the purposes of our analysis, we assume, without
deciding, that the plaintiffs' legal theories under the CJRA
could support a private right of action for monetary damages
against the defendants.

6
access to vocational, educational and rehabilitative programs to

the maximum extent possible consistent with the safety and

security of the unit." The plaintiffs argue that the SAU is

"restrictive housing" because the conditions of the SAU are

"restrictive" within the word's ordinary meaning. We are

unpersuaded.

In interpreting statutory language, we must "give the words

their plain meaning in light of the aim of the Legislature"

(citation omitted). Perez v. Bay State Ambulance & Hosp. Rental

Serv., Inc., 413 Mass. 670, 675 (1992). The term "restrictive

housing" is defined in G. L. c. 127, § 1, as "a housing

placement where a prisoner is confined to a cell for more than

22 hours per day." The ordinary meaning of "restrictive" relied

on by the plaintiffs is immaterial because a statutory

"definition which declares what a term means . . . excludes any

meaning that is not stated." Perez, supra, quoting Colautti v.

Franklin, 439 U.S. 379, 392-393 n.10 (1979). The complaint

fails to plausibly suggest that the plaintiffs were in

"restrictive housing" within the meaning of the statute because

it does not contain any averment concerning the number of hours

that the plaintiffs were daily confined to a cell in the SAU. 10

10To the contrary, supplementary filings by the plaintiffs
assert that they were afforded four hours of daily out-of-cell
time.

7
Therefore it fails to suggest any entitlement to relief under

G. L. c. 127, §§ 39, 39E.

The complaint fails to suggest any due process violation

under either the Fourteen Amendment to the United States

Constitution or art. 12 of the Massachusetts Declaration of

Rights. "Prison inmates have the protections of procedural due

process only if there is an existing liberty or property

interest at stake." Torres v. Commissioner of Correction, 427

Mass. 611, 617 (1998). Here, the alleged lack of access to the

canteen, vocational programming, and television in the SAU does

not implicate any protected liberty interests. See Murphy v.

Cruz, 52 Mass. App. Ct. 314, 319 (2001) (no liberty interest

implicated by temporary loss of canteen privileges); McKune v.

Lile, 536 U.S. 24, 39 (2002) (no liberty interest implicated by

loss of access to vocational programs caused by transfer); id.

at 48 (upholding constitutionality of State prisoner's transfer

that resulted in loss of access to personal television).

Having concluded that the complaint does not plausibly

suggest any violations of Federal constitutional or statutory

rights, we must also conclude that the complaint fails to state

a claim for relief under 42 U.S.C. § 1983. See Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979) ("section [1983] is not

itself a source of substantive rights, but a method for

vindicating federal rights elsewhere conferred").

8
Conclusion. So much of the plaintiffs' appeal as pertains

to their claim for declaratory relief is dismissed as moot. In

all other respects, the judgment is affirmed.

So ordered.

By the Court (Hand, Hodgens &
Tan, JJ. 11),

Clerk

Entered: December 1, 2025.

11 The panelists are listed in order of seniority.

9