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-606

JAMES M. FEENEY

vs.

DEPARTMENT OF CORRECTION.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff brought an action in the nature of certiorari 

challenging a disciplinary decision of the Department of 

Correction (department). A Superior Court judge allowed the 

department's motion for judgment on the pleadings and dismissed 

the plaintiff's complaint. On appeal, the plaintiff contends 

that in conducting the disciplinary hearing, the department 

based its decision on insufficient evidence, and violated his 

due process rights by denying his requests to call witnesses and 

access certain evidence. Because we conclude that the 

department failed to adequately support its decision to deny the 

plaintiff's request to present certain witness testimony that 

was relevant and potentially exculpatory, we vacate the judgment 

and remand for further proceedings. 
2

Background. On July 28, 2020, while the plaintiff was 

incarcerated at the Souza-Baranowski Correctional Center, 

Sergeant Aaron Gill observed the plaintiff wearing a 4XL 

department-issued T-shirt with the "V-neck collar [having been] 

intentionally removed." The plaintiff was issued a disciplinary 

report alleging three separate infractions, including

"[m]utilating, defacing or destroying state property." 103 Code 

Mass. Regs. § 430.24(4-2) (2019). Sergeant Gill seized the 

shirt from the plaintiff, took photographs for evidence, and 

then disposed of it.

Before his disciplinary hearing, the plaintiff requested 

certain video footage between April 2019 and the date the 

disciplinary report was issued to use as evidence in his 

defense.1 He alleged that the video footage would prove "th[e] 

shirt was issued to [him] in th[e] same condition," and that it 

was the only shirt he had worn outside his housing unit during 

his time at the facility. Further, the plaintiff sought to call

Sergeant Joseph Bue, along with an unidentified inmate who had 

worked for Sergeant Bue in January 2019, as witnesses. The

primary purpose of their testimony was to address whether 

Sergeant Bue issued new or used clothing to inmates around that 

1 On an evidence request form, the plaintiff sought "[a]ll video 

footage of 'Happy Hour' in which between Jan 19 and the end of 

happy hour in the corridor. Specifically, months June, July, 

Aug[ust]. Also Booking in April 2019."
3

time, and whether the plaintiff was issued the used shirt "due 

to lack of new ones." The plaintiff's requests were denied on 

the grounds that his request for video footage was "[v]ague," 

and the expected testimony of Sergeant Bue and the unidentified 

inmate was "irrelevant."2

On August 11, 2020, the plaintiff's disciplinary hearing 

was held.3 At the hearing, the plaintiff repeated his requests 

for certain evidence, testified in his own defense, and 

questioned Sergeant Gill regarding the issuance of the 

disciplinary report.4 The plaintiff argued, among other things, 

that he had been issued the shirt in the same condition nearly 

two years prior, and that the denial of his requests for 

evidence violated applicable department regulations and his due 

process rights. The hearing officer found the plaintiff guilty 

of charge 4-02, mutilating, defacing, or destroying State 

property; the remaining charges were dismissed as duplicative.

See 103 Code Mass. Regs. § 430.24 (2019). In rendering his 

2 At the August 11 disciplinary hearing, the plaintiff identified 

the inmate worker as "Marty." The hearing officer also denied 

this testimony for "[f]ailure to identify."

3 The plaintiff requested (and paid for) an audio recording of 

the August 11 disciplinary hearing. The plaintiff relied on 

this recording in filing a "supplemental motion" following the 

May 24, 2021 hearing before the Superior Court, and both parties 

cited to portions of the recording in their briefs on appeal. 

We therefore have considered the recording here. 4 The plaintiff requested that the T-shirt be present for the 

hearing, but it was disposed of. Sergeant Gill testified that 

he did not observe the plaintiff alter the shirt.
4

decision, the hearing officer credited the oral and written 

statements of Sergeant Gill, and determined that the evidence 

requested by the plaintiff was properly denied.5 As a sanction, 

the plaintiff was assessed restitution in the amount of $8.45, 

the cost of the shirt.

The plaintiff appealed the guilty finding to the acting 

superintendent, which was later denied. Thereafter, the 

plaintiff filed an action in the Superior Court pursuant to 

G. L. c. 249, § 4, seeking relief from the disciplinary 

decision. The parties filed cross motions for judgment on the 

pleadings. After a hearing, the motion judge allowed the 

department's motion, finding that substantial evidence supported

the guilty finding, and that the plaintiff's due process rights 

had not been infringed. This appeal followed.

Discussion. In considering the plaintiff's appeal from the 

final disciplinary decision, we review the administrative record 

"to correct substantial errors of law on the record that 

adversely affect material rights." Drayton v. Commissioner of 

Correction, 52 Mass. App. Ct. 135, 140 (2001). Prison inmates 

are entitled to procedural due process protections under the 

5 In a written statement explaining the basis for the guilty 

finding, the hearing officer stated: "In conclusion I find that 

while the [plaintiff] was not actually observed altering [the]

garment, he was in possession of an altered state issued scrub 

top."
5

United States and the Massachusetts Constitutions if sanctions 

create an "atypical and significant hardship on the inmate in 

relation to the ordinary incidents of prison life." Sandin v. 

Conner, 515 U.S. 472, 484 (1995). See Torres v. Commissioner of 

Correction, 427 Mass. 611, 617-618, cert. denied, 525 U.S. 1017 

(1998). 

It is well settled that "[t]he procedural protections of 

due process apply . . . only if there is an existing liberty or 

property interest at stake." O'Malley v. Sheriff of Worcester 

County, 415 Mass. 132, 135 (1993). Here, the plaintiff asserts

that he had a protected property interest in the $8.45 withdrawn 

from his account to satisfy the ordered sanction of restitution. 

The United States Court of Appeals for the First Circuit has

stated that "[i]t is clear beyond hope of contradiction that an 

inmate has a property interest in the balances held in his 

accounts." Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011), 

citing Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir. 1997). We 

thus conclude that, at least in this context, the plaintiff was 

entitled to due process prior to the deprivation of his funds. 

See, e.g., Shinault v. Hawks, 782 F.3d 1053, 1057 (9th Cir.), 

cert. denied, 577 U.S. 889 (2015) ("[t]here is no question that 

[an inmate's] interest in the funds in his prison account is a 

protected property interest" [citation omitted]). See also 

Ciampi v. Commissioner of Correction, 452 Mass. 162, 170 (2008)
6

(assuming that "prisoners have a statutorily protected property 

interest in the funds in their prison accounts entitling them to 

due process protection"). We next consider whether the 

plaintiff received the process he was due.

"At a minimum, the due process clause of the Fourteenth 

Amendment to the United States Constitution requires that there 

be notice and an opportunity for a hearing before a person is 

deprived of a protected property interest." Ciampi, 452 Mass. 

at 170. 

"In a disciplinary proceeding where a prisoner's [property]

interest is at stake he must be given '(1) advanced written 

notice of the disciplinary charges; (2) an opportunity, 

when consistent with institutional safety and correctional 

goals, to call witnesses and to present evidence in his 

defense; and (3) a written statement by the factfinder of 

the evidence relied on and the reasons for the disciplinary 

action.'" 

Id. at 170-171, quoting O'Malley, 415 Mass. at 138. The 

gravamen of the plaintiff's due process claim here is that the 

denial of his requests to call certain witnesses infringed on 

his due process rights. We agree. 

Although "[a] disciplinary board, at its discretion, may 

refuse to call a witness [or produce evidence] requested by an 

inmate on grounds of 'irrelevance, lack of necessity, or the 

hazards presented in individual cases" (citation omitted),

Nelson v. Commissioner of Correction, 390 Mass. 379, 390 (1983),

"prison officials may be required to explain, in a limited 
7

manner," the basis for limitations placed on an inmate's calling 

of witnesses or the denial of requested evidence, Ponte v. Real, 

471 U.S. 491, 497 (1985). An inmate ordinarily "should be 

allowed to call witnesses if to do so will 'not be unduly 

hazardous to institutional safety or correctional goals"

(citation omitted). Nelson, supra. See 103 Code Mass. Regs. 

§ 430.14(4) (2019) (inmate may present evidence, "when 

permitting him or her to do so will not be unduly hazardous to 

personal or institutional safety"). "[T]he burden of persuasion 

as to the existence and sufficiency of such institutional 

concerns [justifying the denial of an inmate's request to call 

witnesses] is borne by the prison officials, not by the 

prisoners" (citation omitted). Smith v. Massachusetts Dep't of 

Correction, 936 F.2d 1390, 1399-1400 (1st Cir. 1991).

In denying the plaintiff's request to call Sergeant Bue as

a witness, the department reasoned that the expected testimony 

was irrelevant. Department regulations define "[e]xculpatory 

[e]vidence" as "[e]vidence that is potentially helpful to the 

inmate in either proving innocence or in establishing lesser 

responsibility for the offense(s) as charged." 103 Code Mass. 

Regs. § 430.05 (2019). Here, the plaintiff maintained that 

Sergeant Bue, or an unidentified inmate working under his 

supervision, issued him the shirt in the same condition as when 
8

it was seized.6 He explained that the purported reason he was 

issued the shirt in such a worn condition was that there were no

other shirts in his size (4XL) available, and that he was 

supposed to be given new clothes. Had Sergeant Bue, who we 

presume was responsible for issuing clothing to inmates in 

January 2019, confirmed the plaintiff's version of events, it 

would have likely proven the plaintiff's lack of culpability for 

the mutilation or alteration of the shirt. It is therefore 

apparent that the testimony of Sergeant Bue was relevant,7 and 

possibly exculpatory.

6 In his written disciplinary decision, the hearing officer 

stated that the plaintiff "did not . . . dispute the condition 

of the scrub top and indicated it was issued to him in disrepair 

and that the collar eventually fell off." In apparent reliance 

on this statement, the Superior Court judge stated in her 

decision allowing the department's motion for judgment on the 

pleadings that "whether the shirt issued to Feeney was new or 

used was not relevant where Feeney testified that the collar 

fell off after the shirt was in his possession." However, this 

is not supported by the audio recording of the disciplinary 

hearing. The plaintiff did not testify that the shirt collar 

fell off after he received it. Rather, he pointed out that the 

photographs of the shirt suggested that the stitching around the 

collar had come apart, causing the collar to fall off, without 

any reference to when that may have occurred. The plaintiff 

stated multiple times at the hearing, during his own testimony,

and in examining Sergeant Gill, that the condition of the shirt

was the same as when it was issued to him. This is consistent 

with the plaintiff's written request for video footage, dated 

July 29, 2020, where he explained that "the[ ] tapes will show

this shirt was issued to me in this same condition." 7 If the inmate working under Sergeant Bue's supervision were to 

be sufficiently identified, we would also view their testimony 

as relevant. 
9

In conclusion, while disciplinary proceedings are civil in 

nature, and thus "the full panoply of rights due a defendant in 

[a criminal prosecution] do[ ] not apply," Wolff v. McDonnell, 

418 U.S. 539, 556 (1974), "[t]he touchstone of due process is 

protection of the individual against arbitrary action" (citation 

omitted). Nelson, 390 Mass. at 392. Here, we discern no 

reasonable basis for the denial of the plaintiff's request to 

call Sergeant Bue as a witness,8 see 103 Code Mass. Regs. 

§ 430.11(2) (2019) (conferring on disciplinary officer 

responsibility to "approve or deny with good cause and in 

writing any requests made by the inmate for witnesses or 

evidence" [emphasis added]), and thus conclude that the 

8 Although not determinative, we note that our conclusion here is 

buttressed by the plaintiff's other grievances making up his due 

process claim -- namely, the denial of the requested video 

footage, the destruction of the shirt at issue, and the 

expedited nature of the proceedings over the plaintiff's 

objection. As for the video footage, we doubt that the hearing 

officer, with institutional knowledge, could not discern the 

meaning of the plaintiff's request. In any event, it would not 

have been burdensome to seek clarification. Further, the shirt 

for which the plaintiff was disciplined should have been 

preserved as evidence. The department has not articulated any

safety or security risk that would warrant the disposal of the 

shirt. See 103 Code Mass. Regs. § 430.11(7) (2019) ("Contraband 

evidence that is deemed to constitute a risk to the safety or 

security of the institution, its staff, inmates, or any 

participant in the hearing process shall not be presented at the 

hearing"). And the hearing officer's assertion that "having the 

garment present . . . would not have affected the outcome" is

not a reasonable justification for its disposal in this case. 

Again, although not determinative, we are troubled by these 

issues.
10

plaintiff's disciplinary hearing did not comport with due 

process. See Ayers v. Ryan, 152 F.3d 77, 81-82 (2d Cir. 1998) 

(denial of requested witness testimony for prison disciplinary 

hearing violated due process). Accordingly, we vacate the 

judgment in favor of the department, and remand the matter for 

the entry of a new judgment ordering further proceedings before 

a hearing officer consistent with this memorandum and order.

So ordered.

By the Court (Wolohojian, 

Singh & Hand, JJ.9),

Clerk

Entered: August 28, 2023.

9 The panelists are listed in order of seniority.