THOMAS SMITH v. CLARE B. WHEATLEY & 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

22-P-1254

THOMAS SMITH

vs.

CLARE B. WHEATLEY & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff Thomas Smith, an inmate at Old Colony

Correctional Center in Bridgewater (OCCC), appeals from a

Superior Court judgment dismissing his complaint seeking

judicial review of a decision by the Department of Correction

(DOC) that denied his grievance. We affirm.

Background. The administrative record filed by the

Massachusetts Department of Correction (DOC) shows that on

September 19, 2017, the plaintiff was transferred to OCCC from

the Massachusetts Correctional Institution, Concord (MCI-

1 Mark Fogaren, the internal grievance officer for Old Colony
Correctional Center in Bridgewater (OCCC); Erin Gaffney, the
superintendent for OCCC; and Kate Silva, the department
grievance manager for the Department of Correction (DOC). Clare
B. Wheatley is the informal grievance coordinator for OCCC. All
defendants were sued in their official capacities within the
OCCC and DOC. As is our usual practice, we take the parties'
names and capacities as they appear in the operative complaint.
Concord), where he was permitted to possess "Magic the

Gathering" playing cards (magic cards). The plaintiff described

the magic cards as a therapeutic game that is not a threat to

security.

Upon being transferred, OCCC did not return the magic cards

to the plaintiff. In October 2017, the plaintiff filed an

informal administrative complaint seeking the return of the

magic cards, stating that they had helped him throughout his

mental health treatment at MCI-Concord. OCCC denied the

plaintiff's request for the magic cards, with the explanation,

"according to property department policy, magic cards are

contraband and so you cannot possess them."

In response, the plaintiff filed a formal grievance. The

institutional grievance coordinator (IGC) denied the grievance

with the explanation "[i]n accordance with 103 [Code Mass.

Regs. §] 403 [(2017)], these items have been deemed contraband."

The plaintiff appealed the denial to the superintendent of OCCC,

whose decision stated, "Denied; I concur with IGC." The

plaintiff further appealed to the DOC's department grievance

manager, who "support[ed] the Superintendent's decision to deny

[the] grievance. Magic Cards are deemed contraband in

accordance with 103 DOC 403, Inmate Property." 2

2 Because the DOC has not otherwise identified any rule or policy
referred to as "103 DOC 403," we assume that the intended

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In December 2017, the plaintiff sought judicial review of

the denial of his grievance. A Superior Court judge, ruling on

cross motions for judgment on the pleadings, upheld the DOC's

decision denying the plaintiff's grievance. On appeal to this

court in June 2021, a panel vacated the judgment and remanded

for further explanation after concluding that the DOC's failure

to provide any reasoned justification for denying the

plaintiff's grievance rendered its determination arbitrary and

capricious. See Smith v. Wheatley, 99 Mass. App. Ct. 1128

(2021) (Smith I).

After remand, the DOC filed an explanation for its denial

of the plaintiff's request. The plaintiff, in response, filed

an amended complaint and a motion for judgment on the pleadings.

The defendants then filed a cross motion, and a Superior Court

judge ordered judgment dismissing the complaint. This appeal

followed.

Discussion. 1. Standard of review. "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)." Merriam

v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013), citing

Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass.

594, 600 (2010). In reviewing a Superior Court judge's ruling

reference was to 103 Code Mass. Regs. § 403, entitled "Inmate
Property."

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under G. L. c. 30A, § 14, an appellate court "conduct[s] an

analysis of the same agency record, and there is no reason why

the view of the Superior Court should be given any special

weight. Both in the Superior Court and in [the appellate] court

the scope of review is defined by G. L. c. 30A, § 14." Southern

Worcester County Regional Vocational Sch. Dist. v. Labor

Relations Comm'n, 377 Mass. 897, 903 (1979) (citation omitted).

The statute authorizes the reviewing court, among other possible

outcomes, to "affirm the decision of the agency." G. L. c. 30A,

§ 14 (7). In reviewing the agency's decision, the standard of

review is a highly deferential one. See Friends & Fishers of

the Edgartown Great Pond, Inc. v. Department of Envtl.

Protection, 446 Mass. 830, 836 (2006). "The court shall give

due weight to the experience, technical competence, and

specialized knowledge of the agency, as well as to the

discretionary authority conferred upon it." G. L. c. 30A,

§ 14 (7).

2. The DOC's denial of the plaintiff's grievance. The

first time this matter appeared before a panel of this court,

that panel found the DOC's actions to be arbitrary and

capricious 3 because the DOC's decision provided no basis for its

3 "Arbitrary and capricious action . . . is willful and
unreasoning action without consideration and in disregard of
facts and circumstances [quotation omitted]." Long v.
Commissioner of Pub. Safety, 26 Mass. App. Ct. 61, 65 (1988).

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determination that the plaintiff's magic cards would not be

returned to him. See Smith I, 99 Mass. App. Ct. 1128, slip op.

at 6, 10. Again, on appeal, the plaintiff argues that the DOC's

decision was arbitrary and capricious. We disagree.

In support of its denial of the plaintiff's grievance, Kate

Silvia, the director of communications and supervisor to the

department grievance coordinator, sent a detailed grievance

denial decision to the plaintiff on June 23, 2021. In support

of the denial, Silvia offered multiple reasons why the DOC had

designated magic cards as contraband. First, magic cards have

intrinsic cash value and are bought and sold outside the DOC.

Second, the game associated with the magic cards involved "role-

playing, and role-playing and fantasy games are inconsistent

with the rehabilitative goals of the" DOC. Third, the game

references extreme violence, with the game's goal being "to

destroy [one's] opponent(s) by reducing their 'life force to

zero.'" The DOC also articulated the ways in which magic cards

differ from other games, such as playing cards and chess: while

magic cards involve strategy -- as does chess and ordinary

playing cards -- the key difference is that many magic cards

possess visual imagery and descriptions of extreme violence.

See Hercules Chem. Co. v. Department of Envtl. Protection, 76
Mass. App. Ct. 639, 642-643 (2010).

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The plaintiff challenges many of the factual premises

underlying the DOC's reasons. He argues that the decision

refusing to return his cards was arbitrary and capricious

because magic cards do not have the characteristics DOC says

they do, or because other articles share certain of these

characteristics yet are not considered contraband. But the

plaintiff cites nothing in the record of the DOC proceedings to

support his factual arguments. Nor does it appear that he made

those arguments to the DOC or claimed in the Superior Court that

he was unfairly deprived of the opportunity to do so.

Accordingly, we decline the plaintiff's invitation to second-

guess the factual bases for the DOC's decision.

Given these articulated justifications, we cannot say that

the denial was arbitrary and capricious. "[I]f the question is

fairly debatable, we cannot substitute our judgment for that of

the commission[er] [quotation omitted]." Conservation Comm'n of

Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 739 n.3 (2000). "In

reviewing the action of an administrator, the court must apply

all rational presumptions in favor of the validity of the

administrative action [quotation omitted]." Long v.

Commissioner of Pub. Safety, 26 Mass. App. Ct. 61, 65 (1988).

Furthermore, "prison administrators have broad discretion in the

administration of prison affairs." Kenney v. Commissioner of

Correction, 393 Mass. 28, 35 (1984). The DOC "has a compelling

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interest in ensuring the safety of its staff and its inmates and

the integrity of its institutions." Rasheed v. Commissioner of

Correction, 446 Mass. 463, 473 (2006). "[P]rison officials must

be permitted latitude in determining what products can come into

the prison and what vendors can provide them." Id. at 475

(compelling interest standard to be applied with due deference

to need to maintain order, security, and discipline in prison).

Given the DOC's priority of disallowing products in prisons that

promote extreme violence -- coupled with the DOC's considerable

discretion in determining the products that enter the

prison -- we hold that the DOC's denial of the plaintiff's

grievance did not constitute an abuse of discretion.

3. The DOC's interpretation of order on remand. The

plaintiff also asserts that the earlier panel's order on remand

mandated that the commissioner must be the one to make the

decision regarding the magic cards. This is a misinterpretation

of the order. The earlier panel's order to the DOC was "for a

reasonably prompt explanation of the basis for refusing to

return Smith's magic cards to him, or other action on Smith's

grievance." Smith I, 99 Mass. App. Ct. 1128, slip op. at 11-12.

As discussed supra, the DOC has complied with that order.

Although DOC regulations provide that "[a]dditional property

items may be approved at any level via written approval of the

[p]roperty [c]ommittee and the [c]ommissioner [emphasis added],"

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103 Code Mass. Regs. § 403.11, the plaintiff cites nothing in

the regulations providing that only the commissioner may

determine which items shall not be approved for inmate

retention. See 103 Code Mass. Regs. § 403.05 (defining

"[c]ontraband" as "[a]ny item[s] not approved for inmate

retention at an institution").

4. Admission of the DOC's supplemental record. Finally,

the plaintiff's argument that the Superior Court judge erred in

admitting the DOC's supplemental record after he had filed his

motion for judgment on the pleadings is unavailing. See Douglas

Envtl. Assocs., Inc. v. Department of Envtl. Protection, 429

Mass. 71, 74-75 (1999) (finding judge appropriately allowed

additions to the record under G. L. c. 30A, § 14 [4], so that

record contained all materials considered by agency's decision

makers). See also G. L. c. 30A, § 14 (4) ("The court may

require or permit subsequent corrections or additions to the

record when deemed desirable"). In any event, the plaintiff

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does not explain how he was unfairly prejudiced by the judge's

consideration of the material in the supplemental record.

Conclusion. We affirm the Superior Court's judgment

denying the plaintiff's motion, and allowing the defendants'

cross motion, for judgment on the pleadings.

Judgment affirmed.

By the Court (Sacks, Grant &
Smyth, JJ. 4),

Clerk

Entered: November 7, 2023.

4 The panelists are listed in order of seniority.

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