GEORGE MACKIE v. LISA MITCHELL & 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-169

GEORGE MACKIE

vs.

LISA MITCHELL 1 & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, George Mackie, was confined to the

Massachusetts Treatment Center (MTC) 3 from July 24, 2018, until

1 Individually and as former Superintendent of the Massachusetts
Treatment Center.

2 Carol Mici, individually and as Commissioner of Correction;
Charles D. Baker, individually and as former Governor of the
Commonwealth of Massachusetts; David Duarte, individually and as
Superintendent of the Massachusetts Treatment Center; Joann
Lynds, individually and as Deputy Superintendent of the
Massachusetts Treatment Center.

3 Because the plaintiff's claims rest on his assertion that the
MTC is functionally equivalent to a State correctional
institution, he contends that the MTC should be referred to as
the Nemansket Correctional Center, pursuant to G. L. c. 123A,
§ 2. In a 1998 opinion, the Supreme Judicial Court explained
why the center continues to be referred to as the MTC despite
legislation deeming it the Nemansket Correctional Center:

"On January 14, 1994, the Legislature transferred control
of the [MTC] from the Department of Mental Health to the
Department of Correction and renamed it the Nemansket
Correctional Center. . . . The Commissioner of Correction
March 23, 2022. Prior to his release from the MTC, the

plaintiff filed a complaint in the Superior Court against then-

Governor Charles D. Baker and other State officials, asserting

that the conditions of his confinement violated various State

and Federal constitutional provisions, statutes, and

regulations. 4 A Superior Court judge dismissed the complaint

pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974),

in a handwritten endorsement referencing the legal grounds

articulated in the defendants' memoranda of law. The plaintiff

appealed. Shortly after his appeal was entered in this court,

the plaintiff was released from the MTC. Accordingly, most of

his claims are now moot, and as to them the appeal is dismissed.

As explained below, as to the plaintiff's claims that are not

moot, we affirm the judgment dismissing the complaint.

Background. In August 2009, the plaintiff was convicted of

two counts of rape and sentenced to concurrent eight- to ten-

has determined that the [MTC] should continue to be
referred to as the Massachusetts Treatment Center,
apparently in deference to members of the Native American
community who objected to the use of the name Nemansket to
describe a center for sexually dangerous persons."

Wyatt, petitioner, 428 Mass. 347, 348 n.1 (1998).

4 The complaint is unclear whether defendant Mitchell was sued in
her capacity as the former Superintendent of the MTC or only in
her individual capacity. For purposes of this decision, we
treat the complaint as though all of the defendants were sued in
their official and individual capacities.

2
year prison terms. This court affirmed the judgment in an

unpublished decision. Commonwealth v. Mackie, 85 Mass. App. Ct.

1104 (2014).

On June 19, 2018, the Commonwealth filed a petition

pursuant to G. L. c. 123A, § 12 (b), alleging that the plaintiff

was a sexually dangerous person (SDP) who should be committed to

the MTC for an indeterminate period. The following day, a

Superior Court judge issued an order of temporary commitment

pending a determination of probable cause. See G. L. c. 123A,

§ 12 (e). As a result, when the plaintiff's criminal sentences

expired on July 24, 2018, the Department of Correction (DOC)

transferred him to the MTC.

On July 23, 2019, after a hearing, a Superior Court judge

found probable cause to believe that the plaintiff was an SDP

and continued his temporary commitment pending trial. On March

2, 2020, a jury unanimously found that the plaintiff was an SDP,

and he was committed to the MTC for a period of one day to life.

The plaintiff appealed, and on July 29, 2021, this court

vacated the Superior Court judgment, set aside the verdict, and

remanded the case for further proceedings. See Commonwealth v.

Mackie, 100 Mass. App. Ct. 78, 91 (2021). On March 22, 2022,

the Commonwealth moved to dismiss its SDP petition against the

plaintiff. The motion was allowed, and the plaintiff was

released from the MTC on March 23, 2022.

3
Mackie filed this action on June 6, 2019, while he was

still confined at the MTC awaiting trial to determine whether he

was an SDP. In his complaint, the plaintiff alleged that the

conditions of his civil confinement at the MTC were no different

than the conditions imposed on individuals who are sentenced to

a term of incarceration following a criminal conviction. 5 The

plaintiff averred that the imposition of such conditions

violated his rights, including, among other things, those

secured to him under the First, Fifth, Eighth, and Fourteenth

Amendments of the United States Constitution; various provisions

of the Massachusetts Declaration of Rights; and DOC regulations,

policies, and provisions of the General Laws "which deny the

Plaintiff his right to a less restrictive environment."

Discussion. 1. Mootness. Given the plaintiff's release

from the MTC on March 23, 2022, we first address the question of

mootness. "[L]itigation is considered moot when the party who

claimed to be aggrieved ceases to have a personal stake in its

outcome." Troila v. Department of Correction, 490 Mass. 1013,

1014 (2022), quoting Lynn v. Murrell, 489 Mass. 579, 582 (2022).

"A party no longer has a personal stake in a case where a court

can order no further effective relief" (quotations omitted).

5 The complaint cites, inter alia, the plaintiff's inability to
download certain music and books onto his tablet, restrictions
on his mail, phone calls, and visitors, and the fact that he was
subject to random strip searches.

4
Troila, supra. Because the plaintiff is no longer confined at

the MTC, his claims for declaratory and injunctive relief are

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

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

Although a court may exercise its discretion to decide a

moot case where the issues are "capable of repetition, yet

evading review," Harmon v. Commissioner of Correction, 487 Mass.

470, 472 (2021), we decline to do so here. The reason lies in

the potential duration of confinement for SDPs, which can extend

for the entirety of an individual's natural life. See G. L.

c. 123A, § 14 (d). See also DiMasi v. Secretary of the

Commonwealth, 491 Mass. 186, 190 (2023), quoting First Nat'l

Bank of Boston v. Haufler, 377 Mass. 209, 211 (1979) ("An issue

apt to evade review is one which tends to arise only in

circumstances that create a substantial likelihood of mootness

prior to completion of the appellate process"). Indeed, there

have been numerous actions challenging the conditions of

confinement for persons deemed sexually dangerous. See, e.g.,

Dutil, petitioner, 437 Mass. 9, 20 (2002). Therefore, there is

no reason to conclude that if similar claims arise, they will

evade review.

The lack of equitable relief available to the plaintiff

also moots the plaintiff's claims insofar as they are asserted

against the defendants in their official capacities. See

5
O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 140

(1993) (recovery from State officials sued in official capacity

limited to equitable relief). See also Doe, Sex Offender

Registry Bd. No. 474362 v. Sex Offender Registry Bd., 94 Mass.

App. Ct. 52, 64 (2018) ("the Commonwealth and its officers are

generally immune from suits for damages for actions taken as

State officers, unless the Legislature has acted expressly to

abrogate that immunity").

2. Dismissal of remaining claims. Because the plaintiff's

release from the MTC did not moot his claims for monetary

damages against defendants acting in their individual

capacities, we now turn to the plaintiff's challenge to the

dismissal of those claims. See Jiles v. Department of

Correction, 55 Mass. App. Ct. 658, 661 n.5 (2002) ("A release

from a challenged condition of confinement . . . does not render

a case moot where the complaint includes claims of

constitutional and statutory violations under the Federal and

State civil rights acts, and the complaint, in addition to

injunctive and declaratory relief, also includes . . . a demand

for damages").

"We review the allowance of a motion to dismiss de novo,

'accept[ing] as true the allegations in the complaint and

draw[ing] every reasonable inference in favor of the

plaintiff.'" John Moriarty & Assocs. v. Zurich Am. Ins. Co.,

6
102 Mass. App. Ct. 474, 479 (2023), quoting Dartmouth v. Greater

New Bedford Regional Vocational Tech. High Sch. Dist., 461 Mass.

366, 374 (2012). Dismissal under Mass. R. Civ. P. 12 (b) (6) is

proper where a reading of the complaint establishes beyond doubt

that the facts alleged do not support a cause of action that the

law recognizes, such that the plaintiff's claim is legally

insufficient. See Nguyen v. William Joiner Ctr. for the Study

of War & Social Consequences, 450 Mass. 291, 295-296 (2007).

Here, we conclude that the plaintiff's claims were properly

dismissed because the complaint failed to assert any facts

plausibly suggesting that any individual defendant caused or

contributed to any alleged constitutional violation or

wrongdoing. See Foster v. Commissioner of Correction, 484 Mass.

1059, 1061 (2020) (dismissing claims against Governor where

plaintiffs failed to allege Governor "had any direct,

affirmative involvement in causing the challenged prison

conditions"). See also Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009) ("a plaintiff must plead that each Government-official

defendant, through the official's own individual actions, has

violated the Constitution"). In the absence of any allegations

connecting the defendants to the alleged violations of the

plaintiff's rights, the motion judge correctly concluded that

the plaintiff failed to state a claim upon which relief may be

granted.

7
Last, the plaintiff's claim that the motion judge was

required to issue findings is without merit. Pursuant to Mass.

R. Civ. P. 52 (a), as amended, 423 Mass. 1408 (1996),

"[f]indings of fact and conclusions of law are unnecessary on

decisions of motions under Rule[] 12." Because the plaintiff's

motion was dismissed pursuant to Mass. R. Civ. P. 12 (b) (6), no

findings of fact were required. 6

So much of the plaintiff's
appeal as concerns (1) his
claims for injunctive and
declaratory relief; and (2)
all claims to the extent
those claims are asserted
against State officials
acting in their official
capacities, is dismissed as
moot. In all other
respects, the judgment is
affirmed.

By the Court (Blake, Grant &
Smyth, JJ. 7),

Clerk

Entered: August 23, 2023.

6 Given our conclusion, and to the extent that the plaintiff's
claims are not moot, because the motion to dismiss was properly
allowed we need not address the plaintiff's argument that he was
prejudiced by the failure to rule on his outstanding motions
during the proceedings below.

7 The panelists are listed in order of seniority.

8