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13-P-1858 Appeals Court

ROBERT CANTELL & others1 vs. COMMISSIONER OF CORRECTION & 

others.2

No. 13-P-1858.

Suffolk. December 12, 2014. - July 22, 2015.

Present: Rubin, Milkey, & Carhart, JJ.

Moot Question. Practice, Civil, Moot case, Dismissal of appeal, 

Class action. Commissioner of Correction. Administrative 

Law, Regulations. Imprisonment, Segregated confinement. 

Due Process of Law, Prison classification proceedings.

Civil action commenced in the Superior Court Department on 

January 20, 2012. 

Motions to dismiss and for class certification were heard

by Elizabeth M. Fahey, J. 

Bonita Tenneriello for the plaintiffs.

Sheryl F. Grant for the defendants.

 

1 Albert Jackson, Derrick Maldonado, John T. Fernandes, 

Wilfredo Virella, and Luis Bizzarro. Virella and Bizzarro did 

not join the appeal.

2 The superintendents of the Massachusetts Treatment 

Center, Old Colony Correctional Center, MCI-Cedar Junction, MCIShirley, MCI-Norfolk, MCI-Concord, NCCI-Gardner, MCI-Framingham, 

and Souza-Baranowski Correctional Center.
2

MILKEY, J. The plaintiffs are inmates at various State 

prison facilities who for a time had been held in segregated 

confinement in so-called "special management units" (SMUs).

3 

They brought this action seeking declaratory and injunctive 

relief against the Commissioner and other officials of the 

Department of Correction (collectively, the DOC). The

plaintiffs' amended complaint alleged that they, and other

inmates similarly situated, cannot be segregated in SMUs without 

being afforded certain substantive and procedural protections. 

Their claims were identical to ones raised by the inmate in 

LaChance v. Commissioner of Correction, 463 Mass. 767, 774-777 

(2012).

4 Thus, for example, like that inmate, the plaintiffs 

claimed inter alia that the conditions they faced in the SMUs 

were as onerous as those faced in so-called "departmental 

segregation units" (DSUs),5 and that therefore the DOC was bound 

to extend to them the benefit of existing regulations governing 

confinement in the DSUs. Once the Supreme Judicial Court issued 

its opinion in LaChance, a Superior Court judge dismissed this 

action without prejudice to the plaintiffs' filing a new 

 

3 See 103 Code Mass. Regs. §§ 423.00 (2007).

4 The inmate in LaChance, who was represented by the 

same counsel as the plaintiffs, additionally sought monetary 

damages. 463 Mass. at 768, 772.

5 See 103 Code Mass. Regs. §§ 421.00 (1994).
3

complaint alleging "that [the] DOC is failing to properly comply 

with LaChance."6 For the reasons set forth below, we dismiss 

this appeal from the judgment as moot.

Framing the mootness question. As an initial matter, we 

note that it is uncontested that the plaintiffs are no longer 

held in segregated confinement in SMUs.

7 Accordingly, to the 

extent that their case seeks to assert their own rights, it is 

moot. See Littles v. Commissioner of Correction, 444 Mass. 871, 

872 n.3 (2005). However, a moot case nevertheless can be heard 

if it presents an issue "of public importance, capable of 

repetition, yet evading review." Superintendent of Worcester 

State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978).8 As the 

 

6 The quoted language comes from the judge's memorandum 

and order allowing the DOC's motion to dismiss; the judgment 

itself does not state whether dismissal was with or without 

prejudice. However, pursuant to Mass.R.Civ.P. 41(b)(3), as 

amended, 454 Mass. 1403 (2009), a judgment of dismissal does not 

operate as an adjudication on the merits if "the court in its 

order for dismissal [so] specifies."

7 The two original plaintiffs had been released from 

SMU confinement by April of 2012 when the amended complaint was 

filed. All but one of the additional named plaintiffs had been 

released from SMU confinement when the DOC filed its status 

report in December of 2012. It is uncontested that this inmate 

has since been released.

8 In a similar vein, the case law reveals that such 

litigation often has been pursued through class actions, as the 

plaintiffs here sought to do. See, e.g., Haverty v. 

Commissioner of Correction, 437 Mass. 737 (2002), S.C., 440 

Mass. 1 (2003); Longval v. Commissioner of Correction, 448 Mass. 

412 (2007). At least one Massachusetts opinion states that in a 

case that purportedly has been brought as a class action, a 
4

dissent accurately points out, this long-recognized exception to 

the mootness doctrine has particular application to litigation 

involving inmate rights given the often ephemeral nature of the 

alleged improprieties being challenged. See, e.g., Commissioner

of Correction v. Myers, 379 Mass. 255, 260-261 (1979); AbdulAlázim v. Superintendent, Mass. Correctional Inst., Cedar 

Junction, 56 Mass. App. Ct. 449, 452 n.6 (2002). However, 

whether an appellate court should proceed to address an appeal 

that has become moot remains a matter of discretion. Lockhart

v. Attorney Gen., 390 Mass. 780, 782-783 (1984). See Blake v. 

Massachusetts Parole Bd., 369 Mass. 701, 708 (1976). As 

explained below, in the wake of LaChance and the pending 

regulatory proceeding that LaChance spawned, we conclude that 

addressing the underlying substantive issues that the plaintiffs 

seek to raise would be improvident at this time. 

The LaChance ruling. In LaChance, a Superior Court judge 

ruled on summary judgment that prison officials had violated an 

inmate's Federal and State due process rights by holding him in 

 

judge should, at least in some circumstances, address class 

certification before considering whether the case has become 

moot as to the named plaintiffs. Wolf v. Commissioner of Pub.

Welfare, 367 Mass. 293, 297 (1975). Subsequent cases have 

treated Wolf as an example of the doctrine that courts may hear 

moot cases if they raise important issues that are "capable of 

repetition, yet evading review," not as establishing a distinct 

procedural rule applicable to class actions. See, e.g., 

Gonzalez v. Commissioner of Correction, 407 Mass. 448, 451-453 

(1990).
5

an SMU for over ten months without a hearing in which he could 

seek to challenge his segregated confinement. 463 Mass. at 772-

773. With regard to the inmate's claims for monetary damages 

pursuant to 42 U.S.C. § 1983 against the officials in their 

individual capacities, the judge ruled that the officials were 

not entitled to qualified immunity, because -- in the judge's 

view -- the inmate's due process rights clearly had been 

established by existing precedent. LaChance, supra at 773. On 

the officials' interlocutory appeal of the denial of their 

motion to dismiss the § 1983 claims, id. at 768 & n.3, the 

Supreme Judicial Court held that the officials were entitled to 

qualified immunity, id. at 777-778.

At the same time, the LaChance court affirmed the judge's 

ruling that the officials had violated the inmate's due process 

rights. In the key paragraph, the court stated as follows:

"We conclude that an inmate confined to administrative 

segregation on awaiting action status, whether such 

confinement occurs in an area designated as an SMU, a DSU, 

or otherwise, is entitled, as a matter of due process, to 

notice of the basis on which he is so detained; a hearing 

at which he may contest the asserted rationale for his 

confinement; and a posthearing written notice explaining 

the reviewing authority's classification decision. The 

appropriate time frame for such actions must balance the 

inmate's interest -- to challenge potentially arbitrary 

detention in severe conditions -- with that of prison 

officials -- to secure the reclassification or transfer of 

an inmate who poses a threat to himself, to fellow inmates, 

or to the security of the facility. Although we leave it 

to the DOC to promulgate regulations that reflect the 

balance of these interests, we conclude that in no 

circumstances may an inmate be held in segregated 
6

confinement on awaiting action status for longer than 

ninety days without a hearing."

LaChance, 463 Mass. at 776-777. Thus, while broadly sketching 

out the due process rights that the DOC had to provide to 

inmates who were held in an SMU on "awaiting action" status, the 

court otherwise left it to the DOC to promulgate new regulations 

to balance the competing interests at stake. The court took 

that approach even though it recognized that "the conditions of 

LaChance's confinement in the SMU were, as the judge found, 

essentially equivalent to those in the system's designated DSUs, 

and in some respects even more restrictive." Id. at 774. 

The import of LaChance for the instant case. The LaChance

court made clear that its holding was not limited to the inmate 

in that case but instead applied to all "inmate[s] confined to 

administrative segregation on awaiting action status." Id. at 

776. Consequently, the DOC recognizes that, going forward, it 

is bound to provide all such inmates the due process rights 

recognized in LaChance.

9 In a January, 2013, status report 

requested by the motion judge, the DOC reported that it had 

begun the process of promulgating the new regulations required 

by LaChance, and that it would commence providing hearings to 

 

9 The amended complaint did not specify that the 

plaintiffs were confined in an SMU while "awaiting action," but 

both sides appear to have treated their confinement as such in 

their briefs. In any event, awaiting action status is subject 

to the review process governing SMUs generally. See 103 Code 

Mass. Regs. § 430.21(2) (2006).
7

inmates confined in an SMU even before the new regulations were 

finalized.

The plaintiffs argue that LaChance itself did not fully 

resolve the legal issues they raised in their amended complaint 

and that the completion of the pending regulatory process will 

not address the issues that remain open. Specifically, the

plaintiffs contend that because the conditions of segregated 

confinement in an SMU are equivalent to those in a DSU,

10 then --

regardless of what the new regulations mandated by LaChance

ultimately will say -- DOC is bound to apply its existing DSU 

regulations to all inmates segregated in an SMU for more than a 

brief period (including those held on awaiting action status).

11 

 

10 The plaintiffs alleged that SMUs across the 

Commonwealth had equivalent or worse conditions than designated 

DSUs, and that allegation must be accepted as true in the 

context of a motion to dismiss. The dissent characterizes 

inmates held in SMUs under such conditions as a mere "subgroup" 

of all inmates held in SMUs. The extent to which this is true 

is not developed in this record.

11 As the plaintiffs acknowledge, the Supreme Judicial 

Court previously has recognized that prison officials can 

temporarily confine inmates in segregation for "brief" periods 

without providing them the protections afforded by the DSU 

regulations. Haverty v. Commissioner of Correction, 437 Mass. 

737, 764 (2002), S.C., 440 Mass. 1 (2003). The court further 

indicated that by the term "brief," it "ha[d] in mind days, not 

weeks." Id. at 764 n.36. The DSU regulations themselves 

require a hearing within fifteen days of an inmate's being 

placed in segregated confinement, or within thirty days if the 

inmate is being investigated or charged with a disciplinary 

offense. 103 Code Mass. Regs. § 421.08(3) (1994). This appears 

to be the principal procedural protection that the plaintiffs 

are seeking to secure.
8

They acknowledge that LaChance implicitly forecloses a claim 

that Federal due process requires that result. However, relying 

on Haverty v. Commissioner of Correction, 437 Mass. 737 (2002),

and other cases cited with approval in LaChance, 463 Mass. at 

774-775, the plaintiffs claim that full compliance with the DSU 

regulations is independently required either by the State

Constitution or by the regulations themselves.12 The plaintiffs 

additionally maintain that a two-decade old injunction issued by 

a single justice of the Supreme Judicial Court prohibits the DOC 

from amending the DSU regulations to make them less protective. 

See Haverty, supra at 758 & n.26 (referencing the injunction). 

Therefore, according to the plaintiffs, the judge could not 

dismiss their case based on LaChance. Instead, they contend, 

 

12 In Haverty, the court stated that except where an 

inmate was held in segregated confinement for only a brief 

period (see note 11, supra), the DSU regulations applied "to all 

placement of prisoners in segregated confinement for 

nondisciplinary reasons for an indefinite period of time." 437 

Mass. at 760. As the plaintiffs acknowledge, LaChance, 463 

Mass. at 774-775, clarified that the holding of Haverty is not 

based on Federal due process requirements. However, as noted, 

LaChance arose as an interlocutory appeal of a judge's decision 

that DOC officials were not entitled to qualified immunity, and 

the court's opinion did not directly address whether compliance 

with the DSU regulations was required by State law. Because 

LaChance cites to Haverty with approval, the plaintiffs argue 

that the broad statements in Haverty about the applicability of 

the DSU regulations continue to stand and that those statements 

must be grounded either in State constitutional law or in the 

wording of the DSU regulations themselves. Their amended 

complaint also cited to G. L. c. 127, § 32 (requiring that 

inmates be treated with merited "kindness"), but the plaintiffs 

have abandoned that argument on appeal.
9

she first should have allowed them to put on their proof that 

the conditions of SMU confinement are as restrictive as those in 

the DSUs, and ultimately should have entered judgment requiring 

the DOC to comply with its DSU regulations as to all inmates 

held in segregated confinement in SMUs (including those on 

awaiting action status).

The DOC counters that even if older case law could be read 

along the lines that the plaintiffs suggest,13 LaChance marks an 

implicit departure from that precedent. According to the DOC, 

it would make no sense for the Supreme Judicial Court to have 

directed it to go through the process of promulgating a new set 

of regulations if case law already made it clear that the agency 

was bound to apply its existing DSU regulations.14 With regard 

to the plaintiffs' claim that the single justice's 1995

injunction continues to limit its ability to modify its 

 

13 The DOC does not concede that point and contends 

that the language in Haverty, 437 Mass. at 760, on which the 

plaintiffs seek to rely does not apply to inmates held in an SMU 

"awaiting action," because such confinement cannot be said to be 

for an "indefinite period of time" even if the event for which 

they are awaiting action has not been scheduled.

14 In support of its position, the DOC accurately 

points out that even though the LaChance court agreed with the 

motion judge's conclusion that conditions at the SMU were at 

least as restrictive as in DSUs, 463 Mass. at 774, the court 

characterized the case law requiring application of the DSU 

regulations as "not directly controlling." Id. at 775. In 

addition, the court referred to the DSU regulations merely as 

"other DOC regulations" that "informed in part" the court's 

decision. Id. at 777 n.14.
10

regulations, the DOC notes that the full court directed it to 

issue the new regulations while providing guidance on what due 

process minimally requires. The DOC also highlights that there 

is no lawful basis for a court to prohibit it from amending its 

regulations as it deems appropriate, except to the extent that 

the agency is constrained by statutory or constitutional 

limitations. See Judge Rotenberg Educ. Center, Inc. v. 

Commissioner of the Dept. of Mental Retardation (No. 1), 424 

Mass. 430, 466 (1997) ("[T]he judiciary lacks the authority to 

order a State agency to do anything that it is not required to 

do as a matter of law"), citing Attorney Gen. v. Sheriff of 

Suffolk County, 394 Mass. 624, 629-630 (1985). 

As this debate between the parties suggests, there is some 

unresolved tension in the case law. The question is whether we 

should try to resolve that tension at this time in the current 

litigation -- now moot as to all named plaintiffs -- under the 

circumstances presented. We conclude that it would be 

improvident to do so. Although LaChance may not directly have 

resolved all the issues the plaintiffs seek to raise, it set in 

motion a regulatory process that will help frame any unresolved 

questions. Once the regulations mandated by LaChance have been 

issued and applied, any remaining claims about what additional 

process is due, if any, properly can be assessed based on 

"concrete fact situation[s]." Entergy Nuclear Generation Co. v. 
11

Department of Envtl. Protection, 459 Mass. 319, 326 (2011), 

quoting from Hadley v. Amherst, 372 Mass. 46, 52 (1977). In 

that manner, judicial review can take place in a far more 

appropriate setting than the abstract one presented by what 

remains of the current case. See Hadley, 372 Mass. at 52 

(noting that "[i]n the absence of a concrete fact situation, any 

ruling as to the extent of the power granted [to a governmental 

entity by the relevant statute] is likely to be either too 

narrow or too broad"). In this regard, we note that an inmate's 

assignment to an SMU can occur in a broad array of 

circumstances, and the specific process that an inmate may be 

due may vary somewhat with those particular circumstances. 

Deferring consideration of the questions the plaintiffs seek to 

raise until the DOC has drafted and begun to apply its 

regulations will help allow informed review of such 

considerations. Although courts eventually may need to address 

the issues the plaintiffs seek to raise (assuming they are 

unsatisfied by the forthcoming regulations), consideration of 

such issues now would be premature. See Massachusetts Med. Soc.

v. Commissioner of Ins., 402 Mass. 44, 48-49 (1988) ("The better 

policy is to allow the administrative process to run its course 

before permitting appellate review, thereby granting the 

administrative agency a sufficient opportunity to apply its 
12

expertise to develop regulations in conformity with the 

statutory scheme").

For these reasons, we dismiss the appeal.

Appeal dismissed.
RUBIN, J. (dissenting). I disagree with the majority's 

novel conclusion that we may refuse in our "discretion" to hear 

a case over which we have jurisdiction.

Mootness is an "aspect[] of justiciability." O'Brien's 

Case, 424 Mass. 16, 18 (1996). If a case is moot, there is a 

"jurisdictional defect." Ibid. Unlike Federal courts, however, 

our Supreme Judicial Court has concluded it has discretion to 

hear and decide moot cases when it serves the public interest. 

"In . . . circumstances where some of the usual aspects of 

justiciability are missing -- particularly where the case was 

moot as to the parties before the court -- we have proceeded to 

render an opinion, if a question of general importance was 

presented which required resolution and if the jurisdictional 

defect would not interfere with or confuse that resolution." 

Ibid. In the case on which the majority would rely, Lockhart v. 

Attorney Gen., 390 Mass. 780, 782-783 (1984), the Supreme 

Judicial Court articulated this rule and, unremarkably, declined 

to hear and decide a moot case, id. at 784-785.

This case, however, is not moot, and there is no opinion

holding that when a case is as a matter of law not moot, we have 

discretion not to hear it. Rather, individuals with a claim of

aggrievement over which a court has jurisdiction are entitled to 

know and be granted their rights, whatever they might be. 

Courts have a "virtually unflagging obligation . . . to exercise 
2

the jurisdiction given them." Colorado River Water Conservation 

Dist. v. United States, 424 U.S. 800, 817 (1976).

This suit was brought as a putative class action. The 

allegedly wrongful conduct continues with respect to members of 

the putative class, even though it has ended with respect to the 

named plaintiffs. In these circumstances, "[i]f the underlying 

controversy continues, a court will not allow a defendant's 

voluntary cessation of his allegedly wrongful conduct with 

respect to named plaintiffs to moot the case for the entire 

plaintiff class." Wolf v. Commissioner of Pub. Welfare, 367 

Mass. 293, 299 (1975). Rather, the case will be held not to be 

moot. Id. at 297. This determination is a question of law, 

not, as the majority now holds, one of determining whether it 

would be "improvident" or not to hear the case. Indeed, in Wolf

itself, the trial court that had held the case moot was reversed 

for legal error, with no suggestion that it had discretion not 

to hear the case. See id. at 300. See also, e.g., State Tax 

Commn. v. Assessors of Haverhill, 331 Mass. 306, 308 (1954) 

(mootness is a "matter of law").1

Nor, I should point out, is there any prudential reason to 

wait for the regulations mandated by LaChance v. Commissioner of 

 

1 The plaintiffs' motion for class certification was denied 

solely as a logical consequence of the judge's ruling granting 

the defendants' motion to dismiss on the merits. The proper 

disposition of this case would include the judge on remand 

considering the plaintiffs' motion anew.
3

Correction, 463 Mass. 767, 777 (2012) –- which remain unissued 

years after that decision –- to decide this case. LaChance says 

that due process requires, among other things, a hearing within 

ninety days for inmates confined to administrative segregation 

on awaiting action status. Ibid. The plaintiffs contend that 

they are entitled to the more stringent regulatory protections 

provided for those held in departmental segregation units (DSUs)

-– including a hearing within fifteen days. Whatever the 

precise terms of the new regulations, they will not eliminate 

this disparity, and there is no reason to make those held in 

these conditions wait for an adjudication of their rights.

The judgment below therefore must rise or fall on its

merits, and it is to those I turn.

Those inmates before us on awaiting action status were not 

automatically placed because of that status in special

management units (SMUs), units whose conditions, including 

solitary confinement in cells twenty-three hours per day, are 

"substantially similar" (LaChance, supra at 774) to the 

extremely harsh conditions in DSUs. Rather, they were placed in 

SMUs only upon a determination by a prison official that their 

"continued presence . . . in the general population would pose a 

serious threat to life, property, self, staff or other inmates,

or to the security or orderly running of the institution." 103 

Code Mass. Regs. § 423.06 (2007) (explaining when administrative 
4

segregation is permitted). They were placed in SMUs only 

because they were deemed to warrant administrative segregation 

because of a threat to safety and security. Before this 

placement, however, they were not afforded the detailed 

procedures required by 103 Code Mass. Regs. §§ 421.00 for 

placement in a DSU. Those regulations require a hearing before 

an impartial board, 103 Code Mass. Regs. § 421.12, at which 

there must be "substantial evidence" that an inmate poses "a 

substantial threat" to either "to the safety of others; or . . . 

of damaging or destroying property; or . . . to the operation of 

a state correctional facility." 103 Code Mass. Regs. § 421.09

(1994).

In Haverty v. Commissioner of Correction, 437 Mass. 737, 

763, 764 n.36 (2002), the Supreme Judicial Court said that as a 

matter of interpretation of the regulations, the procedural 

safeguards detailed in 103 Code Mass. Regs. §§ 421.00 "must be 

afforded to all prisoners before they are housed in DSU-like 

conditions" except for those prisoners "whose stay . . . is 

intended to be, and is, brief," meaning "days, not weeks." The 

court reminded the Department of Correction (DOC) that "in 1995 

the commissioner attempted to repeal the DSU regulations, but 

his attempt to do so was enjoined by a single justice of this 

court. The commissioner did not appeal from the order of the 

single justice, nor does the record reflect that he has made any 
5

subsequent attempt to modify or repeal the regulations." Id. at 

758 (footnote omitted). Absent a court order to the contrary, 

these regulations thus "have the full force of law." Ibid. 

This has not changed since then, and because Haverty remains 

good law, the prisoners in this case are entitled to the 

protections of those regulations as a matter of State law.

The DOC essentially argues that LaChance, 463 Mass. at 774-

775, overruled Haverty, supra, and means that these prisoners 

are entitled only to what LaChance commanded, and no more. The 

language of the LaChance opinion, robust with favorable citation 

to Haverty and to Hoffer v. Commissioner of Correction, 412 

Mass. 450 (1992), certainly does not appear to have been 

intended to weaken the procedural protections for prisoners like 

these. In fact, the LaChance court reiterated that its prior 

decisions stated that (1) "under DOC regulations, indefinite 

confinement in any unit where conditions are substantially 

similar to those of a DSU entitles an inmate to the protections 

afforded by the DSU regulations," and (2) "the protections 

afforded by the DSU regulations are mandated by due process 

considerations." LaChance, 463 Mass. at 774-775, citing Hoffer, 

supra at 455, and Haverty, supra at 762. As the majority 

observes, the court noted that these prior decisions were "not 

directly controlling" on the issue actually decided, LaChance, 

supra at 775. However, this disclaimer seems to strengthen the 
6

argument that LaChance did not overrule Haverty: the State-law 

issue decided in Haverty was different from the issue the court 

was addressing in LaChance, that of Federal due process in the 

context of 42 U.S.C. § 1983.

On the other hand, as the majority indicates, it can be 

argued that, if the Supreme Judicial Court in LaChance was 

ordering the promulgation of regulations only for prisoners in 

DSU-like conditions, it must have meant to overrule Haverty. If 

all the prisoners who would be entitled to the benefit of the 

regulations ordered by LaChance –- including primarily the

requirement of a hearing within ninety days –- were already 

entitled under Haverty to the benefit of 103 Code Mass. Regs. 

§§ 421.00, which mandates a hearing within fifteen days, 

requiring the drafting of the new regulations would have been 

purposeless. Rather than having done something purposeless, the 

argument goes, the Supreme Judicial Court must have overruled

Haverty sub silentio.

The flaw in this argument lies in its major premise. The 

procedures required by the court in LaChance are not only for 

those in conditions "substantially similar" to those in the 

system's designated DSUs. Rather, the court concluded as a 

matter of Federal due process that the procedures it described 

are required for "an inmate confined to administrative 

segregation on awaiting action status, whether such confinement 
7

occurs in an area designated as an SMU, a DSU, or otherwise." 

LaChance, 463 Mass. at 776. "Administrative segregation is a 

'temporary form of segregation from general population used when 

the continued presence of the inmate in the general population 

would pose a serious threat to life, property, self, staff or 

other inmates, or to the security or orderly running of the 

institution.'" Id. at 769 n.4, quoting from 103 Code Mass. 

Regs. § 423.06 (2007). Nothing requires that those on 

administrative segregation be held in harsh conditions 

"substantially similar" to those in a DSU.

The court in LaChance said nothing about the question 

presented here: whether the subgroup of those held in 

administrative segregation on awaiting action status whose 

conditions of confinement are as harsh as those in DSUs are 

entitled as a matter of State law to the more stringent 

protections of 103 Code Mass. Regs. §§ 421.00. Under Haverty, 

the answer to that question is yes. But that does not render 

the LaChance regulations purposeless. The LaChance regulations 

still will articulate the protections required for those inmates 

held in administrative segregation in conditions which are not

substantially as restrictive as those in a DSU, who are not 

entitled to the more robust protections of Haverty.

For these reasons, I would reverse the judgment of the 

trial court.