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SJC-12935

STEPHEN FOSTER1 & others2 vs. COMMISSIONER OF CORRECTION & 

others3 (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 

chair of the parole board (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 motions 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 Sibinich, 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). 

We 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 constitutional requirements, and whether the defendants 

have in fact "acted or failed to act with deliberate 

indifference." Foster (No. 1), 484 Mass. at . Instead, our 

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 

these 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]defendants 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 plaintiffs' 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, the plaintiffs allege 

that confining persons who have been civilly committed under 

G. L. c. 123, § 35, in correctional facilities violates those 

individuals' rights to substantive due process under the Federal 

and State Constitutions, 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 particular, 

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 arrangements; 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 seeks

an order "[m]aximizing the use of commutation and clemency" by 

the Governor and "[m]aximizing the use of the Governor's 

emergency powers and all other available 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 has 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 

Governor 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 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 plaintiffs are not entitled to relief against the 

Governor under the declaratory judgment 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 

departments." 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, the 

inherent power of this court "to say what the Constitution 

requires, when the question is properly presented." Bates v. 

Director 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 done 
4

but did not. And they certainly do not contend that the 

Governor had any direct, affirmative involvement in causing the 

challenged prison conditions. See Hannon v. Beard, 979 F. 

Supp. 2d 136, 141-142 (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 exercise 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 order 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 provided 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, 579 
5

(1911). Cf. 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 executive 

branch officials in the case. See Milton, supra. See also 

Barnes v. Secretary of Admin., 411 Mass. 822, 822 n.2 (1992). 

As stated, there 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 confident, as 

this court always has been, that any 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 unnecessary" 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. Parole 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 

population 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 plaintiffs 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 COVID-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 parole 

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 not 
6

later than sixty days prior to their parole eligibility date, as 

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 the

plaintiffs have alleged facts which, if proved, 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, 

considering the impact of COVID-19 as part of its assessment. 

If, as the plaintiffs contend, the parole board has been 

deliberately indifferent in its exposure 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 may, if such deliberate 

indifference is proved, entitle the plaintiffs 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 "the court's equitable powers may not 

be used to provide relief that is contrary to statutory or 

constitutional requirements." McCarthy v. Governor, 471 Mass. 

1008, 1010-1011 (2015), citing Haverty v. Commissioner of 

Correction, 440 Mass. 1, 8 (2003). See Immigration &

Naturalization Serv. v. Pangilinan, 486 U.S. 875, 883 (1988) 

("Courts of equity can no more disregard statutory and 

constitutional requirements and provisions than can courts of 

law" [citation omitted]). Where, however, the parole board has

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 would be a 

logical and necessary 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 plaintiffs.

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, District Attorney for the Suffolk 

district, & Hon. Jon Santiago, pro se.

Matthew R. Segal for American Civil Liberties Union of 

Massachusetts & another.