EDWARD G. WRIGHT v. STEVEN SILVA & 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

21-P-1098

EDWARD G. WRIGHT

vs.

STEVEN SILVA1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Edward G. Wright, appeals from the grant of

summary judgment for the defendants, employees of the Department

of Correction (DOC) and DOC itself. The plaintiff is an inmate

in the lawful custody of DOC who was previously housed at the

Souza Baranowski Correctional Center (SBCC). The plaintiff

authored a manuscript that SBCC correction officers confiscated

from the incoming mail and designated as contraband. The

plaintiff filed this action alleging that the confiscation

violated his rights under the First and Fourteenth Amendments to

1 Individually and in his capacity as superintendent of the Souza
Baranowski Correctional Center.

2 Christopher Phelps, individually and in his capacity as the
director of operations and acting superintendent of the Souza
Baranowski Correctional Center; Thomas Lynch; and the Department
of Correction.
the United States Constitution and seeking relief under 42

U.S.C. § 1983. The motion judge concluded that the defendants

misapplied DOC's regulations but that no actionable

constitutional violation occurred. On appeal, the plaintiff

claims summary judgment was improper for a range of reasons. We

affirm.

Discussion. We review the allowance of summary judgment de

novo, viewing the facts in the light most favorable to the

nonmoving party, here the plaintiff. See Bulwer v. Mount Auburn

Hosp., 473 Mass. 672, 680 (2016). Summary judgment is

appropriate when there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law.

See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

In January 2019, the plaintiff's wife mailed the almost two

hundred-page manuscript to the plaintiff at SBCC. Correction

officers had previously given the manuscript directly to the

plaintiff when it arrived by mail. The mailroom officer and

acting superintendent confiscated it on this occasion,

determining the document was a contraband "publication" under

DOC's inmate mail regulation, 103 Code Mass Regs. § 481.00

(2017).3 The SBCC officers allowed the plaintiff to receive the

3 The plaintiff appealed internally and filed a grievance
relative to the contraband classification. When those were
denied, the plaintiff notified SBCC of this lawsuit and the
superintendent agreed to preserve the manuscript.

2
document in batches of five pages per day. After the plaintiff

commenced this action, the parties filed cross motions for

summary judgment. The motion judge concluded that the seizure

of the manuscript was "a regulatory misstep," but was not,

"without more, a constitutional tort actionable under 42 U.S.C.

§ 1983."4 The judge ordered the defendants to provide the full

manuscript to the plaintiff.

The plaintiff claims on appeal that the motion judge erred

in determining that no actionable violation of a constitutional

right occurred. To maintain a § 1983 claim, the plaintiff would

be required to prove that the defendants deprived him of a

Federal constitutional or statutory right while acting under

color of State law. See Gutierrez v. Massachusetts Bay Transp.

Auth., 437 Mass. 396, 401 (2002). At the summary judgment

stage, DOC could prevail either by providing "evidence negating

an essential element of the plaintiff's case [or] by

demonstrating that proof of that element is unlikely to be

forthcoming at trial." Flesner v. Technical Communications

Corp., 410 Mass. 805, 809 (1991). It was undisputed that the

defendants acted under color of State law, but the motion judge

determined that the evidence did not demonstrate a deprivation

4 The plaintiff also sought injunctive relief and a declaratory
judgment that his manuscript was not a publication subject to
confiscation under the inmate mail policy.

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of a Federal constitutional or statutory right, an essential

element of a § 1983 claim. We agree.

"[A] prison inmate retains those First Amendment rights

that are not inconsistent with his status as a prisoner or with

the legitimate penological objectives of the corrections

system." Champagne v. Commissioner of Correction, 395 Mass.

382, 386 (1985), quoting Pell v. Procunier, 417 U.S. 817, 822

(1974). "[E]ven when an institutional restriction infringes a

specific constitutional guarantee, such as the First Amendment,

the practice must be evaluated in the light of the central

objective of prison administration, safeguarding institutional

security." Champagne, supra at 387, quoting Bell v. Wolfish,

441 U.S. 520, 547 (1979). "[C]ourts permit prison

administrators considerable discretion in the adoption and

implementation of prison policies." Royce v. Commissioner of

Correction, 390 Mass. 425, 427 (1983), citing Bell, supra. In

light of this standard, a policy of confiscating inmate mail

does not offend the First or Fourteenth Amendments if it is

"reasonably related to legitimate penological interests"

(citation omitted). Commonwealth v. Jessup, 471 Mass. 121, 130-

131 (2015).

In 2019, DOC's inmate mail regulation defined a publication

as "[a]ny book, booklet, pamphlet, magazine, periodical,

newsletter, newspaper, or similar document, including stationary

4
and greeting cards, published by any individual, organization,

company, or corporation which is distributed or made available

through any means or media for a commercial purpose." 103 Code

Mass. Regs. § 481.05 (2017) (definitions). The regulation

allowed inmates to receive extracts from publications of up to

five pages per day. See id. Here, the acting superintendent

explained that officers confiscated the manuscript because it

appeared to be a publication subject to the regulation. As the

motion judge noted, the manuscript had some features of a

published work. However, it was a word-processed document with

a title page identifying the plaintiff as its author, and the

judge saw no evidence that the document had been distributed for

a commercial purpose. The judge therefore properly concluded

that DOC erroneously applied the regulation to the manuscript.

Compare Gaskins v. Silva, 101 Mass. App. Ct. 555, 558 (2022)

(DOC's treatment of all printed materials as publications

inconsistent with regulation's plain language).

The erroneous decision, however, did not amount to a

constitutional violation. See Richardson v. Sheriff of

Middlesex County, 407 Mass. 455, 460 (1990) ("mere failure to

conform to State minimum standards does not per se establish a

constitutional violation" [citation omitted]); Miga v. Holyoke,

398 Mass. 343, 349-350 (1986) ("Mere negligent or inadvertent

failure" does not qualify as constitutional violation). On this

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basis, the motion judge properly discerned that confiscating the

manuscript "visited only an incidental (rather than intended)

effect on the [p]laintiff's First Amendment freedoms," and

"[t]hat incidental effect cannot be equated with instances,

cognizable under Section 1983, in which [S]tate actors

purposefully interfere with an inmate's free speech rights."

The plaintiff's claim that the individual defendants acted

purposefully by ignoring the inmate mail regulation is also

unpersuasive. This claim relies on allegations that the

defendants' actions went against their training and undermined

the purpose of the regulation.5 The summary judgment record did

not support these allegations: it indicated that the defendants

mistakenly applied, rather than intentionally misapplied, the

regulation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249-250 (1986) (merely "colorable" evidence not sufficient to

satisfy burden at summary judgment); Ng Bros. Constr., Inc. v.

Cranney, 436 Mass. 638, 644 (2002) (plaintiff has burden "to

5 The plaintiff's claim that the judge ignored content-based
censorship is also without merit. In response to the
plaintiff's interrogatory, the acting superintendent indicated
that "DOC had concerns regarding the content of the material
because of violent references." In denying the plaintiff's
appeal, however, the acting superintendent relied solely on the
perceived violation of the inmate mail policy. The defendants
have consistently provided the same reason. We therefore agree
with the motion judge that as a matter of law the single
reference to the manuscript's content did not rise to the level
of a constitutional violation.

6
present in the summary judgment record . . . sufficient facts to

warrant a finding in its favor").6

Judgment affirmed.

By the Court (Meade,
Wolohojian & Walsh, JJ.7),

Clerk

Entered: May 8, 2023.

6 The plaintiff also challenges the denial of his motion to
strike one of the defendants' affidavits, wherein the plaintiff
alleged that the affiant knowingly made false statements by
inaccurately summarizing DOC's regulations. The motion judge
concluded that the plaintiff mischaracterized the summaries as
interpretations of the regulations. We agree, therefore we find
no abuse of discretion. See N.E. Physical Therapy Plus, Inc. v.
Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). To the extent
that we have not addressed the plaintiff's other contentions,
they "have not been overlooked. We find nothing in them that
requires discussion" given the forgoing conclusions.
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

7 The panelists are listed in order of seniority.

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