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

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-503

TONY B. GASKINS & others1

vs.

CAROL MICI2 & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, officials of the Department of Correction

(DOC) or the Massachusetts Correctional Institution at Concord

(MCI-Concord), appeal pursuant to G. L. c. 231, § 118, second

par., from the issuance by a Superior Court judge of a

preliminary injunction ordering them to immediately release into

the general prison population all inmates held in a Behavior

1 Donald Williams and David Yarde.

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

3Dean Gray, individually and as the Superintendent of the
Massachusetts Correctional Institution at Concord (MCI-Concord),
and Patrice Hollomon, individually and as the Deputy
Superintendent of Reentry at MCI-Concord.
Assessment Unit (BAU) for more than ninety days without a

hearing.4 We conclude that the Superior Court judge abused her

discretion in issuing the preliminary injunction. Accordingly,

we reverse the orders issuing the preliminary injunction and

denying the defendants' motion to reconsider its issuance.

Background. The plaintiffs, inmates who were then confined

in the BAU at MCI-Concord, filed a Superior Court complaint

alleging that the defendants imposed conditions of confinement

in the BAU that violated the plaintiffs' constitutional and

statutory rights. The allegations included that the defendants

violated G. L. c. 127, § 39 (b), as amended by the Criminal

Justice Reform Act, St. 2018, c. 69, § 93, and failed to provide

the plaintiffs with hearings afforded by LaChance v.

Commissioner of Correction, 463 Mass. 767, 777 (2012), S.C., 475

Mass. 757 (2016). The plaintiffs sought declaratory relief for

themselves and "similarly situated prisoners" as well as money

damages.

The plaintiffs moved for a preliminary injunction, arguing

that BAU conditions posed a hardship to themselves "and those

similarly situated." After a hearing, a Superior Court judge

issued a preliminary injunction ordering:

4 We acknowledge the amicus brief filed in support of the
plaintiffs by Prisoners' Legal Services of Massachusetts.

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"After Hearing: ALLOWED. All plaintiffs held more than 90
days total in segregation without a hearing shall be
released from (BAU) segregation on this date, 2-6-24. This
includes the Behavioral Adjustment [sic] Unit and any other
unit that segregates inmates. All General population
privileges and Rights shall be Restored to those inmates on
this date. And until further order of this court. This
order applies to the Behavioral Assessment Unit."

The defendants filed an emergency motion to stay the preliminary

injunction, also seeking reconsideration and clarification

whether it applied to units other than the BAU. The judge

denied the motion, stating that she issued a "very clear order

to immediately RELEASE all inmates (including named plaintiffs)

who have been held for more than a total of 90 days without a

hearing from the BAU, or other solitary confinement (no matter

the name of it)."

On appeal to a single justice of this court, the defendants

moved to stay the preliminary injunction pursuant to Mass.

R. A. P. 6 (a), as appearing in 494 Mass. 1601 (2024). After a

hearing, the single justice stayed the injunction pending this

appeal. The single justice concluded that the judge "issued a

flawed preliminary injunction without adequate factual support

in the affidavits before her." Even so, the single justice

noted that "[w]ith future factual submissions or an evidentiary

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hearing, a properly crafted preliminary injunction may well be

proper."5

Now before us is the defendants' appeal from the Superior

Court judge's orders issuing the preliminary injunction and

denying the motion for reconsideration.

Discussion. We begin by noting that MCI-Concord is now

closed. St. 2024, c. 140, § 193. Because the plaintiffs are no

longer confined in the BAU there, this litigation may very well

be moot. See Pidge v. Superintendent, Mass. Correctional Inst.,

Cedar Junction, 32 Mass. App. Ct. 14, 19-20 (1992) (after

plaintiff released from segregated unit into general prison

population, claim for declaratory relief moot). The plaintiffs

assert that appellate review is nevertheless appropriate because

the issue is of public importance and very likely to arise again

in similar factual circumstances. See DiMasi v. Secretary of

the Commonwealth, 491 Mass. 186, 190 (2023). Assuming, without

deciding, that the issues before us are not moot, we consider

them.

We review for an abuse of discretion the judge's grant of

the preliminary injunction. See Boston Firefighters Union,

Local 718, Int'l Assoc. of Fire Fighters, AFL-CIO v. Boston, 491

5 Although the plaintiffs filed a second motion for a
preliminary injunction, the motion was denied by a different
Superior Court judge and that order is not before us on appeal.

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Mass. 556, 561-562 (2023) (Boston Firefighters). See also

Fordyce v. Hanover, 457 Mass. 248, 256 (2010) (where single

justice vacated preliminary injunction under G. L. c. 231,

§ 118, appellate court reviews for whether motion judge abused

discretion in issuing it). In making this determination, we

consider "whether the judge applied proper legal standards and

whether there was reasonable support for [her] evaluation of

factual questions." Boston Firefighters, supra at 562, quoting

Fordyce, supra. An abuse of discretion occurs when a judge has

made a clear error of judgment in weighing factors relevant to a

decision "such that the decision falls outside the range of

reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014).

A party seeking a preliminary injunction must show the

following:

"first, that success is likely on the merits; second, that
if the injunction is denied, the moving party faces a
substantial risk of irreparable harm; and third, that this
risk of irreparable harm, considered in light of the moving
party's chances of prevailing on the merits, outweighs the
nonmoving party's probable harm."

Foster v. Commissioner of Correction, 488 Mass. 643, 650 (2021)

(Foster II). "Where a party seeks to enjoin government action,

the judge also must determine that the requested order promotes

the public interest, or, alternatively, that the equitable

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relief will not adversely affect the public" (citation omitted).

Id.

1. Plaintiffs' likelihood of success. The defendants

argue that the judge abused her discretion in finding that the

plaintiffs demonstrated a likelihood of success on the merits of

their complaint.

The plaintiffs have presented two serious issues concerning

conditions in the BAU. First, the plaintiffs alleged violations

of their rights pursuant to G. L. c. 127, § 39 (b). Under that

statute, inmates confined to "restrictive housing" have certain

rights to visitation, canteen purchases, access to reading and

writing materials, and access to radio or television. G. L.

c. 127, § 39 (b) (iii)-(v), (viii). The plaintiffs assert that

the defendants evaded the requirements of G. L. c. 127,

§ 39 (b), by simply renaming a restrictive housing unit the

"BAU." We are not persuaded.

Restrictive housing is defined as housing where an inmate

"is confined to a cell for more than 22 hours per day." G. L.

c. 127, § 1. Nowhere in the plaintiffs' verified complaint or

affidavits in support of the preliminary injunction was there an

averment that they were confined in their cells for more than

twenty-two hours per day. Indeed, the plaintiffs stated in

their motion and during the motion hearing that they were

allowed out of their cells for two hours per day. The

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defendants presented a DOC policy, 103 DOC § 427.06.H (2023),

and an affidavit of a DOC official, both stating that inmates

confined to the BAU had at a minimum three hours outside their

cells every day.

Nothing in the judge's handwritten orders indicates whether

the judge made any findings on the issue whether the BAUs fall

within the statutory definition of "restrictive housing," G. L.

c. 127, §§ 1, 39 (b). "A preliminary injunction is usually

based upon affidavits." Alexander & Alexander, Inc. v. Danahy,

21 Mass. App. Ct. 488, 493 (1986). Generally, where facts are

contested, "[f]actual assertions and representations of counsel

which are not contained in the affidavits have no force."

French v. Vandkjaer, 14 Mass. App. Ct. 980, 981 (1982). Cf.

Massachusetts Bay Transp. Auth. Advisory Bd. v. Massachusetts

Bay Transp. Auth., 382 Mass. 569, 572 (1981) (representations of

counsel may be relied on to establish undisputed facts).

Accordingly, this issue required more factual exploration, from

both parties, before it could serve as the basis for a

preliminary injunction.

Second, the plaintiffs alleged violations of their rights

to LaChance hearings. In LaChance, DOC officials held LaChance

in a special management unit, under conditions substantially

more restrictive than those alleged here, for more than ten

months without a hearing while on "awaiting action" status. 463

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Mass. at 769-771 & n.5. The court held that the conditions of

LaChance's confinement, as compared to ordinary prison

circumstances, constituted an "atypical and significant

hardship" triggering LaChance's rights to procedural safeguards.

Id. at 774, quoting Sandin v. Conner, 515 U.S. 472, 484 (1995).

Those included a right to notice of the basis of confinement to

administrative segregation, a hearing at which the inmate could

contest that basis, and a posthearing written notice explaining

DOC's classification decision. LaChance, supra at 776-777. The

court concluded that "in no circumstances may an inmate be held

in segregated confinement on awaiting action status for longer

than ninety days without [such] a hearing." Id. at 777. See

also Cantell v. Commissioner of Correction, 475 Mass. 745, 752

(2016).

We agree with the single justice that the plaintiffs made a

showing that the conditions in the BAU imposed on them an

"atypical and significant hardship" triggering the due process

protections provided by LaChance. At the very least, the

plaintiffs demonstrated that, contrary to LaChance, the

defendants did not provide the plaintiffs with the opportunity

to appear in person at the hearings concerning their placement

in the BAU. See 103 DOC § 427.02.B.2, 6 (2023) (inmates placed

in BAUs receive initial appraisal and sixty-day placement

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reviews, but those appraisals do not include inmates' in-person

participation).

Even if the plaintiffs did show that they were not afforded

due process protections under LaChance or that conditions in the

BAU were unlawful, the preliminary injunction was not tailored

to remedy those issues. As the single justice noted, "If

prisoners are being denied LaChance hearings, the proper remedy

is to order the prison to provide them with LaChance hearings.

If the conditions in a BAU are unlawful under G. L. c. 127,

§ 39 (b), the proper remedy is to order the prison to improve

the conditions." It was an abuse of discretion for the judge to

issue a release order when, even assuming that some violations

occurred, any remedy should have been tailored to those specific

violations. See Michaud v. Sheriff of Essex County, 390 Mass.

523, 535 (1983) (remedy for unconstitutional conditions not to

order cells closed, but to allow sheriff "a definite and final

period of time within which repairs bringing the jail up to the

constitutional minimum shall be completed"). See also

Richardson v. Sheriff of Middlesex County, 407 Mass. 455, 468

(1990) (population cap at jail was "narrowly tailored" remedy

for overcrowded conditions).

Moreover, although the complaint and motion for preliminary

injunction sought relief only for the three plaintiffs with

respect to the BAU at MCI-Concord, the judge ordered the release

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of "all inmates" held without a hearing for more than ninety

days in the BAU or any other segregation unit. In those

circumstances, the injunction was an abuse of discretion because

it was overbroad. "The broad injunctive relief" issued by the

Superior Court judge "is possible only if there is a class that

may be certified." Foster v. Commissioner of Correction, 484

Mass. 698, 712 (2020), S.C., Foster II, 488 Mass. 643 (denying

preliminary injunction where eleven inmates on behalf of

themselves and all others similarly situated sought to enjoin

DOC from housing any inmate near another). This suit is not a

class action. Regardless of whether the judge's order was

construed narrowly to require the release of all inmates placed

in BAUs at MCI-Concord, or broadly to require the release of all

inmates housed in all segregation units at all State

correctional facilities, the plaintiffs' argument regarding

themselves and "similarly situated prisoners" did not provide a

basis for such a broad injunction.

We conclude that the plaintiffs did not show a likelihood

of success on the merits. See Foster II, 488 Mass. at 653-654

(inmates did not show likelihood of success in proving that

prison officials acted with deliberate indifference during

COVID-19 pandemic).

2. Remaining factors for preliminary injunction. Because

the preliminary injunction was not tailored to remedy the

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conditions to which these three plaintiffs were subjected in the

MCI-Concord BAU, the injunction did not satisfy any of the

remaining factors set forth in Foster II, 488 Mass. at 650. The

plaintiffs did not demonstrate that they faced a substantial

risk of irreparable harm if other inmates were not immediately

released from the BAUs and "any other unit that segregates

inmates." Nor did the plaintiffs demonstrate that any risk they

faced outweighed the harm to the defendants and the inmates in

general population if inmates who were placed in BAUs because

they present "an unacceptable risk to the safety, security, and

orderly operations" of the prison were released into the general

prison population without the defendants' having first been

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ordered to hold a proper LaChance hearing. 103 DOC § 427.02.A

(2023).

Order dated February 6, 2024,
allowing plaintiffs' motion
for preliminary injunction,
reversed.

Order dated February 12,
2024, denying defendants'
motion for stay and for
reconsideration, reversed.

By the Court (Grant,
Brennan & Toone, JJ.6),

Clerk

Entered: May 1, 2025.

6 The panelists are listed in order of seniority.

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