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SJC

- 1 2935

STEPHEN FOSTER 1 & others 2 vs

. COMMISSIONER OF CORRECTION & others 3 (No. 2)

.

June 2 , 2020.

Commissioner of Correction

. Parole

. Commissioner of Public Safety

. Governor

. Imprisonment , Safe environment.
Constitutional Law , Sentence, Imprisonment, Cruel and unusual punishment. Due Process of Law , Sentence, Commitment. Practice, Criminal , Sentence, Execution of

sentence. Practice, Civil , Civil commitment.

In Foster v. Commissioner of Correction (No. 1) , 484 Mass.

, (2020) ( Foster [ No. 1 ] ) , we denied the plaintiffs' motion for a preliminary injunction and transferred the case to the Superior Court for a final adjudication on the merits. In this opinion, we address the motions brought by the Governor and the

c hair of the p arole b oard (parole board) to dismiss the claims against them. For the reasons that follow, we allow the Governor's motion and we allow in part and deny in part the parole board's motion.

Discussion

. 1. Allegations of the complaint

. In deciding
the motion s to dismiss, we accept as true the factual

1 On behalf of himself and all others similarly situated.

2 Michael Gomes , Peter Kyriakides , Richard O'Rourke , Steven Palladino , Mark Santos , David Si bi nich , Michelle Tourigny , Michael White , Frederick Yeomans , and Hendrick Davis , on behalf of themselves and all others similarly situated

.

3 Chair of the parole board, Secretary of the Executive Office of Public Safety and Security, and the Governor.2

allegations of the complaint and the reasonable inferences that can be drawn from those facts in the plaintiffs' favor . See Iannacchino v. Ford Motor Co ., 451 Mass. 623, 625 n.7 (2008).

W e do not address , let alone attempt to resolve here , the truth
of those allegations ; that is, whether in fact the conditions of confinement during the COVID

- 19 pandemic comport with State and
Federal constitution al require ment s , and whether the defendants have in fact "acted or failed to act with deliberate
indifference." Foster (No. 1) , 484 Mass. at

. Instead, o ur narrow focus is on whether the plaintiffs' complaint adequately

" state [s] a claim upon which relief can be granted " against the
Governor and the parole board , " 4 Mass. R. Civ. P. 12 (b) (6 ) , 365 Mass. 754 (1974) ; in other words, whether the allegations, if true, plausibly suggest an entitlement to any relief against
the se defendants

. Iannacchino , supra at 635

- 636.

The complaint alleges that , by confining the plaintiffs "under conditions that put them in grave and imminent danger of contracting the COVID

- 19 virus, and failing to implement an effective mechanism to reduce the incarcerated population to a
safe level , [the] [d]defen dants are deliberately indifferent to the substantial risk of serious harm suffered by [the] [p]laintiffs. " They allege that each of the defendants is (1) violating the plaintiff s ' right to be free from cruel or unusual punishment and their right to substantive due process, as guaranteed under the Declaration of Rights in the Massachusetts
Constitution , and as secured by G. L. c. 231A (count one) ; and (2) violating their right to be free from cruel and unusual punishment and their right to substantive due process as guaranteed by the Federal Constitution, and as secured by 42 U.S.C. § 1983 (count two)

. Additionally, t he plaintiffs allege
that confining persons who have been civilly committed under
G. L. c. 123, § 35, in correctional facilities violate s th ose individuals' right s to substantive due process under the Federal
and State C onstitutions , as secured by 42 U.S.C. § 1983 and
G. L. c. 231A, respectively (count three)

.

By its terms, the complaint seeks injunctive relief pursuant to G. L. c. 231A and 42 U.S.C. § 1983. In particula r, it seeks an order requiring the defendants , "their agents, officials, employees, and all persons acting in concert with
them" to confine prisoners in particular ways; requiring certain

4 The Governor has also moved to dismiss the complaint for "[l]ack of jurisdiction over the subject matter." Mass. R. Civ. P. 12 (b) (1), 365 Mass

. 754 (1974). Because of the result reached, we do not separately address the point.3

medical and health arrangement s ; prohibiting the ongoing
confinement in correctional facilities of persons civilly committed under G. L. c. 123, § 35; reducing the number of

persons incarcerated in prisons and jails; and mandating that the parole board take certain actions. The complaint also seek s an order "[m]aximizing the use of commutation and clem e ncy " by
the Governor and " [m]aximizing the use of the Governor's emergency powers and all other ava ila ble mechanisms to grant
releases to all those who are vulnerable."

2

. Governor 's motion to dismiss

. Although the complaint broadly alleges that the defendants have violated the plaintiffs' State and Federal constitutional rights, the specific allegations against the Governor are notably few . The complaint alleges that the "Governor h as refused to act on his near plenary emergency powers when it comes to the health and safety of prisoners ." The plaintiffs seek to compel the
Gove rnor to use his authority to order a reduction in the prison population, because, absent his exercise of authority, " [t]here have been no commutations, no furloughs, no increase in earned good times, no releases by the [Department of Correction] to home confinement, little if any increase in the use o f medical parole, and no effort by the parole board to streamline the parole process or modify the criteria for release in light of

COVID

- 19."

T he plaintiffs are not entitled to relief against the

Governor under the d eclaratory j udgment statute , G. L. c. 231A,
because the statute , by its terms, expressly does "not apply to the governor and council or the legislative and judicial department s ." G. L. c. 231A, § 2. See Milton v. Commonwealth , 416 Mass. 471, 475 (1993) ; Alliance, AFSCME/SEIU, AFL

- CIO v. Secretary of Admin ., 413 Mass. 377, 377 n.1 (1992), and cases
cited

.

Nor is their position enhanced by invoking, as they do, t he inherent power of this court "to say what the Constitution requires, when the question is properly presented

. " Bates v. Dire ctor of the Office of Campaign & Political Fin

. , 436 Mass. 144, 168 (2002), quoting Horton v. Attorney Gen ., 269 Mass. 503, 507 (1929) , and citing Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803) . Had they alleged that the Governor affirmatively took
action that was unconstitutional , or that anything he has done actually caused harm to the plaintiffs from alleged constitutional violations , the situation may well be different. But they do not challenge anything the Governor has in fact
done ; they only complain of what they allege he could have done4

but did not. And they certainly do not contend t hat the Governor had any direct , affirmative involvement in causing the challenged prison conditions. See Hannon v. Beard , 979 F. Supp. 2d 136, 14 1

- 142 (D. Mass. 2013) (no direct connection between prison conditions and Governor's actions) , and cases cited . See also Brown v. Rhode Island , 511 Fed. Appx. 4, 5 (1st Cir. 2013) (dismissing claims against Governor where plaintiff did not challenge any affirmative acts of Governor ). Moreover, the Governor cannot be found liable based on a theory of respondeat superior or vicarious liability, that is, on the theory that he is legally responsible for the conduct of those he appointed to government service or to the agencies they lead.
See Ashcroft v. Iqbal , 556 U.S. 662, 676 (2009) (vicarious liability not applicable in such actions ) ; Brown , supra (respondeat superior theory of liability not available in such circumstances).

In short, the complaint claims that the Governor is liable for things he has not done. First, it alleges that he is responsible for failing to reduce the prison population by failing to e xercise his executive authority to pardon and grant clemency . Second, it alleges that he has failed to exercise his

emergency powers to mitigate the situation

. These are not actionable claims. With respect to the first alleged failure to

act , it is well settled that the Governor's authority to grant pardons and other clemency is exclusively an executive authority

. See Part II, c. 2, § 1, art. 8, of the Massachusetts Constitution, as amended by art. 73 of the Amendments to the Massachusetts Constitution ("The power of pardoning offences

. . . shall be in the governor, by and with the advice of
council

. . . "). This court cannot compel him to exercise it.

See District Attorney for the Suffolk Dist . v. Watson , 381 Mass.
648 , 667 n.10 (1980) (judicial branch cannot control executive clemency)

.

With respect to the second alleged failure to act, viz.,
the Governor's failure to utilize his emergency powers to mitigate the situation , this court should tread lightly in telling any Governor when or how to exercise his or her powers

. It is one thing for a court to o rder a Governor to cease engaging in action the court has found to be unconstitutional; it is quite another for a court affirmatively to direct a
Governor how to act. For that reason, among others, this court historically has been unwilling to order a Governor to act where
the relief sought , if deserved, can be provid ed by means of a court order against some defendant other than the Governor. See Milton , 416 Mass. at 475

- 476 ; Rice v. Draper , 207 Mass. 577, 5795

(1911). C f

. LIMITS v. President of the Senate , 414 Mass. 31, 34 (1992). If the plaintiffs in this case are indeed entitled to a remedy at the conclusion of the case , it can be provided by an appropriate order or orders directed to the other e xecutive
b ranch officials in th e case. See Milton , supra . See also

Barnes v. Secretary of Admin

. , 411 Mass. 822, 822 n.2 (1992). As stated, t here is no claim that the Governor himself , by any affirmative act he has taken, has " overstepp [ ed ] constitutional
bounds." Horton , 269 Mass. at 507

. And we are c onfident , as this court always has been, that a ny declaration that we or the Superior Court may ultimately issue requiring action by any of the remaining defendants will be met with prompt compliance

. See LaChance v. Commissioner of Correction , 475 Mass. 757, 765 (2016) , quoting Massachusetts Coalition for the Homeless v. Secretary of Human Servs ., 400 Mass. 806, 825 (1987) ( where declaratory judgment is directed to public officials, injunctive order is "generally unne cessary" because Massachusetts courts "assume that public officials will comply with the law declared by a court "). The Governor's presence is simply not necessary

to provide any relief that a court may order in this case.

3

. P arole board's motion to dismiss

. The plaintiffs allege in their complaint that the parole board has "fail[ed] to implement an effective mechanism to reduce the incarcerated

po pulation to a safe level , " and that there has been "little if any increase in the use of medical parole, and no effort by the parole board to streamline the parole process or modify the criteria for release in light of COVID

- 19." The complaint in essence claims that the parole board is failing to take steps that it is empowered to take to protect the plaint iffs from
COVID

- 19, and that its deliberate indifference to the plaintiffs' plight creates "a substantial risk of serious harm to [the plaintiffs'] health or safety." Foster (No. 1) , 484 Mass. at . Accordingly, the complaint seeks an order requiring the parole board to exercise its authority under G. L. c. 127, §§ 130 et seq., and 120 Code Mass. Regs. § 200.10 (2017) to make persons serving house of correction sentences eligible for early parole; to consider the dangers posed by COVI D

- 19 when evaluating , as the statute requires it to do, whether "release is not incompatible with the welfare of society " ; to presumptively grant parole to parole eligible individuals; to expedite the release of individuals who have been granted par ole or medical parole; to ensure no prisoner is held beyond his or her "release to supervision date," see G. L. c. 127, § 130B; and to conduct parole hearings for parole eligible prisoners not6

later than sixty days prior to their parole eligibility date, a s required by G. L. c. 127, § 136. 5

Accepting the allegations of the complaint as true, as we

must in considering a motion to dismiss , we conclude that t he plaintiffs have alleged facts which, if prove d , are sufficient

to state a constitutional claim that the parole board was deliberately indifferent to the risk of death and serious illness to certain prisoners, particularly elderly and medically vulnerable prisoners. See Iannacchino , 451 Mass. at 636

. See
also Good v. Commissioner of Correction , 417 Mass. 329, 334 (1994) (Commissioner of Correction proper party defendant where he had "ability to prevent harm")

. The complaint alleges that
the parole board has authority to implement effective measures
to reduce the incarcerated population by, for example, expediting parole hearings and releases and, perhaps,
consider ing the impact of COVID

- 19 as part of its assessment. If, as the plaintiffs contend, the parole board has been deliberately indifferent in its expo sure of the prisoners to
"unreasonable risks from the COVID

- 19 pandemic," Foster (No. 1) , 484 Mass. at , then the parole board's failure to act within , and to the extent of , its authority m ay , if such deliberate indifference is proved, entitle the plain tiffs to relief.

We recognize that the scope of the parole board's authority
is defined by statute, see G. L. c. 27 , § 4 , and G. L. c. 127, §§ 130 et seq. , and that " t he court's equitable powers may not be used to provide relief that is contrary to statutory or constitutional requirements." McCarthy v. Gove r nor , 471 Mass. 1008, 1010

- 10 11 (2015), citing Haverty v. Commissioner of
Correction , 440 Mass. 1, 8 (2003)

. See Immigration & Naturalization Serv . v. Pangilinan , 486 U.S. 875, 883 (1988) ( " C ourts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of
law " [citation omitted] ). Where, however, the parole board ha s authority to act and it fails to do so , for example, by failing

to consider early parole in circumstances that are " sufficiently compelling ," see Committee for Pub

. Counsel Servs . v. Chief
Justice of the Trial Court , 484 Mass. 431 , 452 (2020), quoting 120 Code Mass. Regs. § 200.10, or by failing to hold timely hearings, this court (and likewise the Superior Court) can exercise its equitable authority to require the parole board to exercise its statutory authority to remedy a constitutional

5 The plaintiffs do not oppose dismissal of the claim against the parole board relating to individuals civilly committed under G. L. c. 123, § 35

.7

violation , if such a violation were to be found

. Indeed, if the plaintiffs' constitutional claims were to prevail and if this

court (or the Superior Court) were to order the population of incarcerated inmates to be reduced, the parole board w ould be a logical and ne cessary party to accomplish a reasonable and
sensible remedial process. See Richardson v. Sheriff of Middlesex County , 407 Mass. 455, 469

- 470 (1990).

Conclusion . The Governor's motion to dismiss the complaint is allowed. The parole board's motion is allowed only with respect to the claims of the individuals civilly committed under G. L. c. 123, § 35 , and is otherwise denied

.

So ordered

.

James R. Pingeon for the p laintiffs

. Stephen G. Dietrick for Commissioner of Correction &
another

. Ryan P. McManus , Special Assistant Attorney General, for
the Governor. Michael R. Byrne for the parole board. The following submitted briefs for amici curiae:
Tatum A. Pritchard for Disability Law Center, Inc.
Rachael Rollins , D istrict A ttorney for the Suf folk
d istrict, & Hon. Jon Santiago , pro se. Matthew R. Segal for American Civil Liberties Union of
Massachusetts & another.