GLENN HART v. DENNIS W. BUTLER & 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

23-P-740

GLENN HART

vs.

DENNIS W. BUTLER & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff Glenn Hart appeals from a Superior Court judgment

entered in favor of the defendants, Dennis W. Butler, Lauren

Vinitsky, and Stephen Kennedy, on cross motions for judgment on

the pleadings. We affirm.

Background. The plaintiff is an inmate in the custody of

the Massachusetts Department of Correction (department) at the

Old Colony Correctional Center (OCCC) in Bridgewater. In

February and March 2019, the department received reports from

three confidential informants (CIs) that counterfeit U.S.

postage stamps were being made in OCCC's print shop and then

1 Lauren Vinitsky and Stephen Kennedy.
circulated among the general prison population. After receiving

the first CI report, the department opened an investigation. On

a computer that was assigned to the plaintiff, department staff

found the computer file used to create counterfeit stamps (stamp

file). According to the stamp file's metadata, the stamp file

was created on January 31, 2019.

On March 1, 2019, Kenneth Newby, the print shop supervisor,

filed an incident report stating that the three inmates who had

the "access" and "knowledge" to produce counterfeit stamps in

the print shop were the plaintiff, Jamie Richards, and another

inmate. That same day, department staff interviewed all three

inmates. The plaintiff refused to speak during his interview

and denied permission for his interview to be recorded.

The department held a disciplinary hearing to determine

whether the plaintiff violated departmental regulations by using

a computer in OCCC's print shop to produce counterfeit stamps.

The plaintiff, represented by counsel, appeared before the

hearing officer, defendant Vinitsky. The plaintiff and

defendant Butler, the reporting OCCC sergeant, testified.

During the latter portion of the hearing, plaintiff's counsel

requested that Newby be called as a witness, but that request

was denied as untimely.

The plaintiff also requested that Richards appear as a

witness to testify "[t]hat [Richards] was the sole person and

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acted alone in this." Instead of testifying at the hearing,

Richards opted to submit a written affidavit (Richards

affidavit). The Richards affidavit stated that "[the plaintiff]

played no part in printing of stamps . . . he never copied or

helped me copy any items there. I used the computer he was

assigned to do all scanning and copying." The Richards

affidavit was admitted at the hearing, and Butler testified that

it was consistent with Richards's statements during his March 1

interview. The hearing officer considered the Richards

affidavit, but ultimately "[did] not find it persuasive in

absolving [the plaintiff's] conduct of accessing the file

containing the stamps, even if it was to simply do a 'save as'

as [the plaintiff's] testimony insinuated."

Documentary evidence was also admitted at the disciplinary

hearing, including copies of the print shop's color copier log,

video footage from the print shop dated January 31, 2019, a

report summarizing information from a CI, and Newby's incident

report. The hearing officer found that the January 31 video

showed the plaintiff "on the computer in question at the time."

The hearing examiner found that the CI's information was

reliable and credible in stating that "the stamps are being made

in the Print Shop off of [the plaintiff]'s computer," and that

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"[the plaintiff] is going to have inmate Jamie Richards take the

hit for the stamps."2

The plaintiff requested that additional documentary

evidence be introduced, but the request was denied. Among other

things, the plaintiff requested introduction of (1) recordings

of the March 1 interviews of Richards and the other inmate, and

(2) video footage of the shipping area of the print shop on

January 31.3 The plaintiff expected that the shipping area video

would show Richards cutting the stamps or using the scanner, and

would show whether the plaintiff was present with Richards.

Because the Richards affidavit was in evidence, a

department officer excluded the Richards interview, which the

officer found did not contain "anything further exculpatory

beyond what Inmate Richards already provided in his written

affidavit." The department officer denied the plaintiff's

request to introduce the shipping area video because it was

"nonexistent." Butler testified that, though there were

2 On motion by the plaintiff, the hearing officer excluded
the reports of the information from the other two CIs because
they were unsupported by personal knowledge.

3 The plaintiff also requested introduction of his annual
work performance evaluations, the stamp file, and memoranda or
notes created by department officers. Because the plaintiff
does not raise arguments concerning the denial of his request
for these items on appeal, we do not consider them.

4
multiple cameras in the print shop, no camera captured video

footage of the area where the plaintiff requested.

At the conclusion of the disciplinary hearing, the hearing

officer found the plaintiff guilty of offense 2-23,

"counterfeiting, committing forgery, altering or unauthorized

reproduction of any document, article of identification, money,

security, or official paper," 103 Code Mass. Regs. § 430.24

(2019).4 The plaintiff pursued an administrative appeal from the

hearing officer's decision. Defendant Kennedy, superintendent

for OCCC, concurred with the hearing officer and denied the

plaintiff's appeal.

In October 2019, the plaintiff sought judicial review of

his disciplinary determination by filing a Superior Court

complaint against the defendants pursuant to G. L. c. 249, § 4.5

The parties cross-moved for judgment on the pleadings. After a

hearing, a judge allowed the defendants' motion and denied the

plaintiff's motion, concluding "that the hearing officer's

decision was based upon substantial evidence and further that

4 Other charges against the plaintiff were dismissed as
duplicative or unsupported by the record.

5 Because this is a disciplinary appeal, this is an action
in the nature of certiorari pursuant to G. L. c. 249, § 4, and
not an inmate grievance appeal subject to review under G. L.
c. 30A, § 14. See Fitzpatrick v. Department of Correction, 102
Mass. App. Ct. 617, 619 (2023).

5
the plaintiff's claims for due process violations are without

merit." Final judgment of dismissal entered on May 7, 2021.

The plaintiff appeals.

Discussion. "We review de novo a judge's order allowing a

motion for judgment on the pleadings under Mass. R. Civ. P.

12 (c), 365 Mass. 754 (1974)." UBS Fin. Servs., Inc. v.

Aliberti, 483 Mass. 396, 405 (2019), quoting Champa v. Weston

Pub. Sch., 473 Mass. 86, 90 (2015). In reviewing the

disciplinary decision of the department pursuant to G. L.

c. 249, § 4, we review the administrative record "to correct

substantial errors of law on the record that adversely affect

material rights." Drayton v. Commissioner of Correction, 52

Mass. App. Ct. 135, 140 (2001). "Our review of a disciplinary

proceeding is based on whether the record contains substantial

evidence to support the hearing officer's decision." Puleio v.

Commissioner of Correction, 52 Mass. App. Ct. 302, 305 (2001)).

We defer to the hearing officer's exclusive function of weighing

the credibility of witnesses and resolving factual disputes.

See Jordan v. Superintendent, Mass. Correctional Inst., Cedar

Junction, 53 Mass. App. Ct. 584, 588 (2002).

Due process. During disciplinary proceedings, inmates are

entitled to procedural due process protections under the United

States and the Massachusetts Constitutions. See Torres v.

Commissioner of Correction, 427 Mass. 611, 617-618, cert.

6
denied, 525 U.S. 1017 (1998). The plaintiff argues that the

defendants deprived him of procedural due process by denying him

the opportunity to present witnesses and evidence.

An inmate may call witnesses or present evidence in his or

her defense at a disciplinary hearing. 103 Code Mass. Regs.

§ 430.14(4) (2019). See Torres, 427 Mass. at 618. Requests for

witnesses or evidence may be denied by a department hearing

officer, who must "deny with good cause and in writing." 103

Code Mass. Regs. § 430.11(2) (2019). Pursuant to 103 Code Mass.

Regs. § 430.14(4), "the hearing officer ha[s] discretion to

deny . . . requests for reasons that include[] lack of

relevance . . . or cumulativeness." Santiago v. Russo, 77 Mass.

App. Ct. 612, 617 (2010).

The Richards affidavit was admitted at the disciplinary

hearing in lieu of Richards's live testimony. This satisfied

constitutional due process.6 See Allen v. Department of

Correction, 69 Mass. App. Ct. 682, 685 (2007) (upholding

disciplinary decision where department accepted witness's

affidavit instead of live testimony, where petitioner "found no

6 The defendants assert that this issue is waived. In his
administrative appeal and in the Superior Court, the plaintiff
did argue that the defendants violated department policy by
denying him the opportunity to present witnesses. The plaintiff
also argued, in his opposition to the defendant's motion for
judgment on the pleadings, that Richards's "several sentence
aff[i]davit can only say so much. . . . more evidence should
have been allowed to prove [the plaintiff]'s innocence."

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fault with the contents of his witness's affidavit"). Though we

recognize that "live testimony may often be more persuasive than

evidence in affidavit form," the plaintiff here "fails to

explain why live testimony would have helped his case." Id.

Where the Richards affidavit included the exculpatory

information that the plaintiff sought to elicit -- "[the

plaintiff] played no part in printing of stamps" -- the

plaintiff was not prejudiced by this evidentiary decision.

We also conclude that the hearing officer properly denied

as untimely the plaintiff's request to call Newby as a witness.

When an inmate is represented at a disciplinary hearing, counsel

is "entitled to make one amended written request for

witnesses . . . provided that such amended request is

communicated to the Disciplinary Officer at least three business

days prior to the scheduled time for the hearing." 103 Code

Mass. Regs. § 430.12(1) (2019). Here, plaintiff's counsel did

not request the opportunity to call Newby until during the

hearing, so the request was untimely. Moreover, it is not

evident what Newby's testimony would have been that would be

helpful and relevant.

The hearing officer's decision to exclude the recording of

Richards's March 1 interview and shipping area video was also

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proper.7 Given the admission of the Richards affidavit and

Butler's testimony that it was consistent with Richards's

interview, the recording would have been cumulative. As for the

video of the shipping area, the plaintiff has failed to provide

any support for his contention that it does in fact exist. The

plaintiff asserts that even if the shipping area video does not

exist, the hearing officer was required to do more to explain

its nonexistence, such as describing how the department searched

for the footage. But that misconstrues what is required. The

defendants satisfied due process and department regulations when

they provided the following reason: "None of the cameras in the

Print Shop on 1-31-19 are focused on the requested area. As

such, this footage cannot be provided as it is non-existent."

See Ponte v. Real, 471 U.S. 491, 497 (1985) (holding that prison

officials may be required "in a limited manner" to give reasons

for denying inmate's witness or evidence request).

The plaintiff also raises an issue that he did not raise in

his administrative appeal, or in his Superior Court motion for

judgment on the pleadings.8 He contends that because the report

7 To the extent that the plaintiff disputes the exclusion of
his own March 1 interview, because the plaintiff refused to
speak and did not consent to a recording, there was "nothing to
document."

8 In his Superior Court motion for judgment on the
pleadings, the plaintiff did discuss the report of the CI's
information, but did not argue that it was inadmissible.

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of the information from the CI quoted the CI as stating, "the

word is out," that showed that the CI lacked personal knowledge

and therefore the hearing officer erred in considering the CI's

information. Setting aside the defendants' contention that the

plaintiff waived the issue, we conclude that it lacks merit.

In Nelson v. Commissioner of Correction, 390 Mass. 379, 396

(1983), and Lamoureux v. Superintendent, Mass. Correctional

Inst., Walpole, 390 Mass. 409, 414 (1983), the Supreme Judicial

Court set forth the standards by which prison disciplinary

boards should analyze the reliability of information from

informants. We have summarized the holdings of those cases as

follows:

"[W]here a disciplinary board's determination is based on
informant information, the record must contain some
underlying factual information from which the board can
conclude that the informant was credible and his
information reliable, must contain the informant's
statement in language that is factual and not conclusory,
and must establish that the informant spoke with personal
knowledge of the matters contained in [the CI's]
statement."

Pidge v. Superintendent, Mass. Correctional Inst., Cedar

Junction, 32 Mass. App. Ct. 14, 16 n.4 (1992). The information

from the CI met that standard. The reliability of the CI's

information was bolstered by the fact that Butler had received

accurate information from the CI on twelve previous occasions.

10
See Commonwealth v. Santos, 94 Mass. App. Ct. 696, 700 (2019)

(informant's credibility established through prior tips).

Moreover, the information from the CI was independently

corroborated by evidence including the stamp file and the

January 31 video depicting the plaintiff at the computer.

We conclude that plaintiff's disciplinary hearing conformed

to the applicable departmental regulations, 103 Code Mass. Regs.

§§ 430.00 (2019), and thus there was no due process violation.

See Torres, 427 Mass. at 618-619.

Sufficiency of the evidence. When an inmate argues there

was insufficient evidence to support a guilty finding of a

disciplinary board, we review using the substantial evidence

test -- "whether evidence exists in the administrative record

that a 'reasonable mind might accept as adequate to support a

conclusion.'" Allen, 69 Mass. App. Ct. at 684, quoting

Cepulonis v. Commissioner of Correction, 15 Mass. App. Ct. 292,

295-296 (1983).

The plaintiff argues that the record lacks substantial

evidence because the Richards affidavit exculpated him. We are

unpersuaded. First, the hearing officer credited the report of

the information from the CI that stated the counterfeit stamps

were being made on the plaintiff's computer and that the

plaintiff was planning to have Richards "take the hit" for

producing the stamps. Second, Newby's incident report

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identified the plaintiff as a person who possessed the requisite

access, skills, and knowledge to counterfeit stamps. Third, the

hearing officer credited Butler's testimony and the January 31

video showing the plaintiff using the computer on the day the

stamp file was created. Fourth, the hearing officer did not

ignore the exculpatory value of the Richards affidavit; she

considered it, but she was not required to credit it.

The plaintiff also asserts that the record did not show

that he "altered" any stamps, so he could not be found guilty.

In addition to "altering" of stamps, offense 2-23 prohibits

"counterfeiting," "committing forgery," and "unauthorized

reproduction." See 130 Code Mass. Regs. § 430.24. The record

thus adequately supports the hearing officer's decision.

Judgment affirmed.

By the Court (Desmond,
Grant & Hodgens, JJ.9),

Clerk

Entered: April 16, 2025.

9 The panelists are listed in order of seniority.

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