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13-P-1844 Appeals Court

MICHAEL DEXTER vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL 

INSTITUTION, CONCORD.

No. 13-P-1844.

Middlesex. March 9, 2015. - September 11, 2015.

Present: Green, Trainor, & Carhart, JJ.

Imprisonment, Enforcement of discipline. Administrative Law, 

Regulations. Regulation.

Civil action commenced in the Superior Court Department on 

September 10, 2012.

The case was heard by Peter B. Krupp, J., on motions to 

dismiss and for summary judgment, and a motion to reconsider or,

in the alternative, to alter or amend the judgment was 

considered by him.

Joan T. Kennedy for the defendant.

TRAINOR, J. The plaintiff, Michael Dexter, was a pretrial 

detainee in custody at the Massachusetts Correctional 

Institution at Concord (MCI-Concord) for at least part of 2012.1 

The plaintiff filed a complaint seeking a declaration concerning 

 

1 During the pendency of this litigation the plaintiff was 

tried, convicted, sentenced, and moved to another facility.
2

the property that pretrial detainees are allowed to possess at 

MCI-Concord. The defendant filed a motion to dismiss and the 

plaintiff filed a motion for summary judgment. A Superior Court 

judge denied the defendant's motion to dismiss and granted the 

plaintiff's motion for summary judgment, entering a declaratory 

judgment stating: "103 C.M.R. 403, et seq., shall apply to 

inmates awaiting trial at MCI-Concord and no such inmate 

awaiting trial shall be considered a 'transient inmate' within 

the definition of that phrase in 103 C.M.R. 403.06." The 

defendant filed a motion to reconsider, or in the alternative, 

to alter or amend the judgment, which was denied. This appeal 

followed.

On appeal we are asked to determine the proper 

interpretation and application of the inmate property regulation 

as it applies to pretrial detainees.2

Prison administrators are permitted "considerable 

discretion in the adoption and implementation of prison 

policies." Royce v. Commissioner of Correction, 390 Mass. 425, 

 

2 The parties agree that the requested interpretation is 

fundamentally a question of law. Both parties also agree that, 

despite the plaintiff being subsequently convicted, sentenced,

and incarcerated, this matter falls within an exception to the 

mootness doctrine because it is "capable of repetition, yet 

evading review." Karchmar v. Worcester, 364 Mass. 124, 136 

(1973), quoting from Southern Pac. Terminal Co. v. Interstate 

Commerce Commn., 219 U.S. 498, 515 (1911). A significant number 

of G. L. c. 276, § 52A, pretrial detainees are held in our State 

prison system.
3

427 (1983). "However, the limits of such discretion are 

established by the rules and regulations promulgated by the 

Department of Correction. Once an agency has seen fit to 

promulgate regulations, it must comply with those regulations. 

[A]gency regulations have the force of law." Ibid. (citations 

omitted). Here, the Department of Correction is bound by its 

"inmate property" regulation, as promulgated in 103 Code Mass. 

Regs. §§ 403.00 (2001) (the regulation).

The "Applicability" section of the regulation states that 

it is applicable to "all inmates, whether sentenced or awaiting 

trial, incarcerated at state correctional institutions." 103 

Code Mass. Regs. § 403.04 (2001) (emphasis supplied). Section 

403.04 makes it clear that pretrial detainees awaiting trial are

considered to be inmates within the institution for the purposes 

of the inmate property regulation.

The "Definitions" section of the regulation provides that a 

transient inmate is "any inmate whose security classification 

has yet to be determined or who has not been assigned to a 

permanent housing location." 103 Code Mass. Regs. § 403.06

(2001). The "Approved Inmate Property by Security Level" 

section of the regulation first outlines items to which all 

inmates shall be provided access. 103 Code Mass. Regs.

§ 403.10(1) (2001). Additionally, § 403.10(4) (2001) provides:
4

"a master list of items approved for retention by inmates 

in general population in accordance with their security 

level. This is not required issue and is for property 

purposes only. Please refer to 103 DOC 755 for minimum 

institutional clothing issue. Unless an inmate is 

transient, his security level is the same as the 

institution in which he is housed."

3

This description is followed by a chart that details approved 

items for transient, boot camp, and inmates with security levels 

of one through six.

The defendant asserts that a pretrial detainee who is held 

pursuant to G. L. c. 276, § 52A, is considered a transient 

inmate under 103 Code Mass. Regs. §§ 403.00 (2001).

4 "We 

ordinarily accord an agency's interpretation of its own 

regulation[s] considerable deference. The party challenging an 

 

3 In addition, "[t]ransient inmates may retain the clothing 

worn during transportation so long as it meets security level 

property guidelines of the receiving institution." 103 Code 

Mass. Regs. § 403.09(2) (2001) (approved property for inmates 

being transported). This does not mean however, that transient 

inmates are allowed property generally, according to the 

security classification of the receiving institution, and 

applies only to clothing worn during transportation.

4 The plaintiff asserted below that the interpretation at 

issue in this case is not used consistently across the 

Department of Correction. Cf. Connery v. Commissioner of 

Correction, 414 Mass. 1009, 1010 (1993) ("Because the 

interpretation now urged by the defendants was not 

contemporaneous with the enactment of the statute and is 

inconsistent with the contemporaneous [and long-standing]

interpretation made by the agencies at the time of enactment, 

the Appeals Court correctly did not accord 'substantial 

deference' to the defendants' current interpretation"). It is 

the plaintiff's burden, however, to prove that the agency's

interpretation is arbitrary. As the Superior Court judge 

acknowledged, the plaintiff did not provide evidence to support 

such an assertion.
5

agency's interpretation of its own rules has a 'formidable 

burden' of showing that the interpretation is not rational." 

Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 

228 (2010) (citations omitted). See Manor v. Superintendent, 

Mass. Correctional Inst., Cedar Junction, 416 Mass. 820, 824

(1994) ("We agree that agency interpretations of their own 

regulations are entitled to deference. However, 'courts will 

not hesitate to overrule agency interpretations of rules when 

those interpretations are arbitrary, unreasonable, or 

inconsistent with the plain terms of the rule itself'")

(citation omitted); TBI, Inc. v. Board of Health of N. Andover, 

431 Mass. 9, 17 (2000), quoting from Brookline v. Commissioner 

of the Dept. of Envtl. Quality Engr., 398 Mass. 404, 414 (1986) 

("We only disturb an agency's interpretation of its own 

regulation if the 'interpretation is patently wrong, 

unreasonable, arbitrary, whimsical, or capricious'"); Shelales

v. Director of the Office of Medicaid, 75 Mass. App. Ct. 636, 

640 (2009) ("Where ambiguities exist, a reviewing court must 

show deference to the experience, technical competence, 

specialized knowledge, and discretionary authority conferred 

upon the regulatory agency").

Here, nothing in the plain language of the regulation 

specifies that an inmate awaiting trial cannot be considered a 

transient inmate. Pretrial detainees are defined as inmates
6

awaiting trial in § 403.04, and § 403.10 specifies property that 

inmates are allowed to access as determined by their security 

level.

A transient inmate is defined as an inmate whose "security 

classification has yet to be determined" or an inmate "who has 

not been assigned to a permanent housing location."5 103 Code 

Mass. Regs. § 403.06 (2001). While classification as a pretrial 

detainee versus an inmate might otherwise be an important 

distinction to the Department of Correction, the regulation 

pertaining to property access rights clearly considers both 

categories to be inmates. In addition, G. L. c. 125, entitled 

"Correctional Institutions of the Commonwealth," defines in § 1

"inmate" with respect to "this chapter and elsewhere here in the 

general laws, unless the context otherwise requires," as "a 

 

5 The Superior Court judge's focus on the word "yet" as 

necessarily excluding pretrial detainees is misplaced. The 

judge reasoned that because only sentenced inmates can receive a 

security classification and only sentenced inmates can receive a 

permanent housing location, a transient inmate only can be a 

sentenced inmate. The pretrial detainee therefore must be given 

property access rights equal to the security level of the 

institution in which he or she is being housed.

This logic, however, ignores the applicability section of 

the regulation which includes both individuals sentenced and 

those awaiting trial in the term "inmate." To that end, the 

term "transient inmate" in this regulation necessarily applies 

to both individuals who are sentenced and those awaiting trial 

who have not completed one of the two processes identified.

Furthermore, this logic would assign a security level for 

property access purposes, as if the institution used for the 

purposes of pretrial detention were the inmate's permanent 

housing location. This was error.
7

committed offender or such other person as is placed in custody 

in a correctional facility in accordance with law" (emphasis 

supplied). G. L. c. 125, § 1, as appearing in St. 1972 c. 777, 

§ 8. The property regulation applies equally to all inmates, 

whether pretrial and unsentenced, sentenced but not yet 

classified, sentenced and classified, assigned to a permanent

housing location, or not yet assigned to a permanent housing

location.

It is reasonable to conclude that the regulation intended 

to have both those sentenced inmates, who have not completed the 

process of classification or been assigned a permanent housing 

location, and all pretrial detainees, who will not complete 

either of these processes unless and until they are found guilty 

and sentenced, included as transient inmates. There is no other 

appropriate classification in the regulation for such an inmate: 

one who has neither gone through the classification process nor 

been assigned a permanent housing location. All other property 

access categories require a security classification. We defer, 

as the motion judge should have, to the defendant's reasonable 

interpretation of its own regulation.6 As the regulation states, 

 

6 Although the defendant was not required to proffer 

evidence that its interpretation was reasonable and based upon 

practical administrative and security considerations, the 

defendant did submit such evidence as part of its motion to 

reconsider or to alter and amend. This evidence suggests it 

would be an administrative burden and create security risks to 
8

103 Code Mass. Regs. §§ 403.00 (2001) applies to inmates 

awaiting trial. An inmate awaiting trial is considered a

transient inmate within the definition of that phrase in 103 

Code Mass. Regs. § 403.06 (2001).

The defendant's motion to dismiss should have been allowed. 

The plaintiff's motion for summary judgment should have been

denied. Accordingly, the judgment is reversed, and the case is 

remanded for entry of judgment for the defendant.

So ordered.

 

implement the plaintiff's interpretation of the regulation in 

which pretrial detainees are considered to be "inmates in [the] 

general population" whose "security level is the same as the 

institution in which he is housed." 103 Code Mass. Regs.

§ 403.10(4) (2001).