NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

22-P-435 Appeals Court

GORDON HAAS & others1 vs. COMMISSIONER OF CORRECTION & others.2

No. 22-P-435.

Worcester. March 7, 2023. – July 17, 2023.

Present: Sullivan, Sacks, & Ditkoff, JJ.

Imprisonment, Earnings of prisoner. Commissioner of Correction.

Administrative Law, Regulations. Due Process of Law, 

Prison regulation. Regulation. Practice, Civil, 

Dismissal.

Civil action commenced in the Superior Court Department on 

July 24, 2019. 

A motion to dismiss was heard by David M. Hodge, J., and a 

motion for reconsideration was considered by him.

Gordon Haas, pro se.

Heidi D. Handler for the defendants.

1 Daniel Holland, Ricky Alford, James Keown, and Martin 

Lovato. 

2 Director of Classification for the Department of 

Correction, Superintendent of the Massachusetts Correctional 

Institution, Norfolk (MCI-Norfolk), and Deputy Superintendent of 

Reentry at MCI-Norfolk. 
2

SACKS, J. The plaintiffs, all of whom are serving life 

sentences in the custody of the Department of Correction (DOC), 

brought this action for declaratory and injunctive relief 

against DOC officials to challenge the validity of a newly 

issued DOC "standard operating procedure" (SOP) that restricts 

the disbursement of funds from inmates' institutional accounts. 

The SOP's stated purpose is to prevent disbursements "related to 

any illicit or improper activity." SOP § I.3 Its core

provisions essentially prohibit inmates (1) from sending funds 

directly to private individuals outside prison walls; and (2) 

from sending funds to businesses or organizations unless the 

inmate's disbursement request is accompanied by an invoice from,

or an order form issued by, the business or organization. On 

the defendants' motion, a Superior Court judge dismissed the 

verified complaint for failure to state a claim on which relief

could be granted. We conclude that the verified complaint 

states claims, sufficient to withstand a motion to dismiss, that 

the SOP (a) conflicts with a preexisting DOC regulation 

governing disbursements of inmate funds; and (b) was itself 

required to be promulgated as a regulation pursuant to G. L.

c. 30A procedures. We also conclude that it was premature to 

dismiss the plaintiffs' due process claim. We therefore reverse 

3 The same SOP was at issue in Fitzpatrick v. Department of 

Correction, 102 Mass. App. Ct. 617, 618, 624 (2023). 
3

the judgment as to those claims and remand for further 

proceedings.

Background. We summarize the factual allegations of the 

verified complaint, accepting them as true at this motion to 

dismiss stage and drawing all reasonable inferences in the 

plaintiffs' favor. See Curtis v. Herb Chambers I-95, Inc., 458 

Mass. 674, 676 (2011).

1. Factual allegations. The five plaintiffs are serving 

life sentences at Massachusetts Correctional Institution, 

Norfolk (MCI-Norfolk or institution), three of them without the 

possibility of parole. None of the plaintiffs has been subject 

to any disciplinary action at times relevant to this case.4

The defendant Commissioner of Correction (commissioner) 

approved the SOP on January 24, 2019, for the stated purpose of

"amend[ing]" the "policy" with respect to 103 Code Mass. Regs.

§§ 405.00 (2017) governing inmate funds. Thereafter, two of the 

other defendant DOC officials issued a memorandum, addressed to 

all inmates and staff at MCI-Norfolk, summarizing the SOP's new 

process for disbursements to recipients outside the institution. 

That memorandum summarized the SOP as follows:

"[A]ny request for disbursement from account funds for a 

monetary 'gift' shall be deemed invalid.

4 We acknowledge the allegation of good behavior by all of 

the plaintiffs but note that their statement regarding "times 

relevant" to the case is a legal conclusion.
4

"The inmate may[,] however, order a gift from an outside

company/business. This request must be accompanied by an 

order form the inmate has obtained from the specific 

company/business. The name and address of the intended 

recipient of the gift shall be listed on the order form.

"If the request for disbursement from funds is to pay a 

bill, a copy of that bill must be submitted at the time of

the request."

The SOP applies to disbursements from an inmate's "personal 

account."5 SOP §§ I, II.

The plaintiff Gordon Haas then wrote several letters to the 

commissioner, on behalf of the "Lifer's Group Inc." (lifers' 

group), listing various concerns that prisoners serving life 

sentences and other "long-termers" had about the SOP's 

restrictions.6 He received responses from other DOC officials 

that, inferably, did not substantively address the issues he had 

raised. One of the responses stated that "all charge slips 

5 The verified complaint alleges that DOC "maintains for 

every prisoner two accounts -- a [p]ersonal [a]ccount for funds 

to be accessed by a prisoner and a [s]avings [a]ccount for funds 

to be set aside for when a prisoner leaves the DOC to return to 

society." This structure is also reflected in G. L. c. 127, 

§ 48A, and in, e.g., 103 Code Mass. Regs. § 405.07.

6 A letter from Haas to the commissioner, inferably one of 

those referenced in the verified complaint, is appended to the 

plaintiffs' brief. The letter states that "[l]ifers comprise 

over 40% of the population at MCI-Norfolk" and that Haas's 

lifers' group "estimates that over one-third of our members have 

been regularly sending funds to family members for birthdays and 

other occasions or just to help out with daily finances." As it 

is unclear whether this letter was before the judge, we do not 

consider it in our analysis.
5

[i.e., the forms inmates must submit to request disbursements]

are reviewed upon receipt. Exceptions may be deemed necessary." 

Each of the five plaintiff inmates then requested 

disbursements from their accounts, in some cases mirroring 

disbursements made without difficulty in the past, but each of

the new requests was denied based on the SOP. Each plaintiff 

then pursued some form of complaint or grievance, but none 

obtained any relief.

Haas, for example, submitted two charge slips, requesting 

that twenty-five dollars from his account be sent to each of two 

different named individuals in Detroit, Michigan. A DOC 

employee declined to process the slips. He told Haas that the 

DOC official responsible for implementing the SOP had instructed 

that no charge slips for disbursement to individuals should be 

submitted, because they "would obviously be denied." Haas 

submitted a complaint form, which was returned to him with the 

notation that "[p]er [the SOP], you are no longer allowed to 

send out money to outside individuals. This is DOC wide." 

The plaintiff Daniel Holland submitted a charge slip "to 

send [twenty dollars] to Mellon to be invested in stocks 

designated for his son upon . . . Holland's death."7 The request 

7 The judge described Mellon as a bank in his decision.
6

was denied, as was his informal complaint about the denial. 

Holland submitted a grievance but received no response. 

The plaintiff Ricky Alford, on twenty-nine occasions dating 

back to 2012, had sent funds to his son, who is incarcerated in 

Louisiana, "to assist his son to purchase hygienic necessities 

and other items." After the SOP was issued, Alford requested 

another such disbursement, in the same manner as before, but 

this request was denied based on the SOP. Alford's informal 

complaint, formal grievance, and internal grievance appeal were 

likewise denied. Alford also wrote to the commissioner and 

received a response stating that "exceptions to [the SOP] are 

unable to be made." 

The plaintiff James Keown submitted a charge slip to send 

twenty-five dollars to his sister to help pay for his mother to 

travel from Missouri to visit him. Keown submitted a second 

charge slip to send ten dollars to a named Massachusetts State 

representative "as a donation to his reelection campaign." 

After waiting five days without receiving a written denial,

Keown submitted an informal complaint. That complaint was 

denied with the notation, "Per [the SOP] this type of financial 

transaction is no longer allowed. MCI-Norfolk is adhering to 

the policy." 

Finally, the plaintiff Martin Lovato had previously been 

sending funds monthly "to invest in Allete, Inc. to provide a 
7

legacy of stocks for his niece upon . . . Lovato's death."8 

After the SOP was issued, however, Lovato was informed that a 

charge slip to send funds to Allete, Inc. was denied. He filed 

an informal complaint, which was denied with a citation to the 

SOP and the regulation governing inmate funds. Lovato filed a 

formal grievance, which was denied, and he filed an internal 

appeal of the denial but received no response. Lovato also 

wrote to the superintendent of MCI-Norfolk, stating, "unless you

possess documentation that implicates Allete, Inc. and myself in 

some sort of illicit or improper activity, I am respectfully 

requesting that I be allowed to continue the transactions I 

engaged in." The superintendent responded that Lovato's request 

did not comply with the SOP.

In addition to these details about the individual 

plaintiffs' disbursement requests, the verified complaint 

alleged that the impetus for the SOP was DOC's "belief that drug 

transactions within [DOC] are funded through money sent from 

inmates' personal accounts." Before the SOP was implemented, 

"any and all charge slips involving a possible misuse of funds 

were flagged and investigated by correctional staff before said 

charge slips were processed and funds sent from a prisoner's 

8 An Internet search shows that there is an energy company, 

"Allete, Inc.," that is traded on the New York Stock Exchange. 

See https://www.allete.com [https://perma.cc/9CR4-A33U].
8

personal account, including, but not limited to, the

[p]laintiffs['] personal accounts." None of the plaintiffs was 

ever found to have misused personal funds while in DOC custody, 

and, prior to the SOP's implementation, none of them was ever 

denied the use of his personal funds. None of the plaintiffs

has ever tested positive for substance use while incarcerated. 

2. Legal claims. We briefly review the plaintiffs' legal 

claims, mindful that "there is no requirement that a complaint 

state the correct substantive theory of the case," and that "[a] 

complaint is not subject to dismissal if it would support relief 

on any theory of law" (citation omitted). Gallant v. Worcester, 

383 Mass. 707, 709-710 (1981). See Goodwin v. Lee Pub. Sch., 

475 Mass. 280, 286 (2016); Gutierrez v. Board of Managers of 

Flagship Wharf Condominium, 100 Mass. App. Ct. 678, 683 n.10 

(2022). See also Lamoureux v. Superintendent, Massachusetts 

Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983) (pro 

se filings interpreted liberally where complaint presents 

cognizable legal theory); Braley v. Bates, 100 Mass. App. Ct.

259, 262, 263 n.4 (2021) (same, in prisoner's G. L. c. 231A 

action against State prison official).
9

The plaintiffs' complaint advanced five claims, only three 

of which they press on appeal.9 First, they claim that the SOP 

violates 103 Code Mass. Regs. § 405.12, which imposes only a few 

limited prerequisites that inmates must meet in order to obtain 

disbursements of their funds. Second, they claim that the SOP 

was issued and implemented without legislative authority -- a 

claim that, as developed in the proceedings on the motion to 

dismiss, encompassed the argument that the SOP is a "regulation" 

as defined in G. L. c. 30A, requiring a public hearing before 

its implementation, and is not within an exemption to that 

definition. See Braley, 100 Mass. App. Ct. at 263 n.4. Third, 

the plaintiffs claim that the SOP arbitrarily restricts the use 

of their property, in violation of their due process rights 

under the United States Constitution's Fourteenth Amendment, 

enforceable under 42 U.S.C. § 1983. 

A judge granted DOC's motion to dismiss the complaint for 

failure to state a claim upon which relief could be granted. A 

9 The verified complaint also claimed that the SOP (1) 

violated Haas's and Keown's rights under the First Amendment to 

the United States Constitution to donate their money to persons, 

causes, and political campaigns which they support, and (2) 

violated G. L. c. 127, § 32 (providing that superintendents of 

DOC institutions "shall treat the prisoners with the kindness 

which their obedience, industry and good conduct merit"). On 

appeal, the plaintiffs have not argued either claim.
10

subsequent motion for reconsideration was denied, and the

plaintiffs appealed from both decisions. 

Discussion. 1. Propriety of declaratory relief. We 

reject DOC's threshold argument that, because the plaintiffs (in 

DOC's view) challenge the individual denials of their requests 

for disbursements of funds, they may not seek declaratory 

relief. An otherwise proper request for declaratory relief is 

not barred merely because a plaintiff also seeks review of an 

individualized administrative decision.10 See Grady v. 

Commissioner of Correction, 83 Mass. App. Ct. 126, 137 n.9 

(2013). And here, the plaintiffs' pursuit of declaratory relief 

is proper because they challenge the validity of the SOP itself, 

which they allege DOC has consistently and repeatedly relied 

upon to deny their requests to transfer their money to outside 

individuals and entities for lawful purposes. "[A] complaint 

for declaratory relief is an appropriate way of testing the 

validity of regulations or the propriety of practices involving 

violations of rights, which are consistent and repeated in 

nature." Id. at 135, quoting Nelson v. Commissioner of 

Correction, 390 Mass. 379, 388 n.12 (1983). Nor is an inmate 

with a grievance required to exhaust the administrative 

10 We therefore need not decide whether the plaintiffs 

actually do seek review of individualized decisions. Their 

appellate brief, at least, focuses instead on the validity of 

the SOP.
11

grievance process before seeking declaratory relief. See Grady, 

supra at 137 n.9. citing G. L. c. 127, §§ 38F, 38H. Finally, 

although Grady focused on declaratory judgment actions asserting 

constitutional claims, declaratory relief may also be sought, as 

the plaintiffs do here, based on alleged violations of statutes 

or regulations. See Braley, 100 Mass. App. Ct. at 261-262.

2. Conflict between SOP and regulations. The DOC has 

promulgated regulations governing inmate funds. See 103 Code 

Mass. Regs. §§ 405.00. These properly promulgated regulations

"ha[ve] the force of law . . . and must be accorded all the 

deference due to a statute." Borden, Inc. v. Commissioner of 

Pub. Health, 388 Mass. 707, 723, cert. denied sub nom.

Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983).

Of course, "courts permit prison administrators 

considerable discretion in the adoption and implementation of 

prison policies. . . . 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." 

Royce v. Commissioner of Correction, 390 Mass. 425, 427 (1983). 

See Dexter v. Superintendent, Massachusetts Correctional Inst., 

Concord, 88 Mass. App. Ct. 325, 326 (2015) (same; accordingly, 

DOC "is bound by its 'inmate property' regulation, as 

promulgated in 103 Code Mass. Regs."). As the Supreme Judicial 
12

Court has recently reiterated in the medical parole context, a 

court "cannot acquiesce" to DOC's failure to do what is 

"required by the regulation." McCauley v. Superintendent, 

Massachusetts Correctional Inst., Norfolk, 491 Mass. 571, 598 

(2023). "The regulations must be complied with." Haverty v.

Commissioner of Correction, 437 Mass. 737, 763 (2002), S.C., 440 

Mass. 1 (2003). See Northbridge v. Natick, 394 Mass. 70, 76 

(1985) (State "agency must follow its own regulations even in 

the face of inconsistent internal guidelines"); Dougan v.

Commissioner of Correction, 34 Mass. App. Ct. 147, 148 (1993).

And, "[b]ecause they allege that the policy violates DOC 

regulations, the plaintiffs properly brought this action under 

the declaratory judgment act." Ivey v. Commissioner of 

Correction, 88 Mass. App. Ct. 18, 22 (2015).

The particular regulation most relevant here is 103 Code 

Mass. Regs. § 405.12, which sets forth the relatively simple 

procedure by which inmates may obtain disbursements of funds 

from their personal accounts. The inmate need only fill out a

"withdrawal/issue slip" -- what the plaintiffs refer to as a 

"charge slip" -- that includes five items: the date, amount to 

be withdrawn, purpose, inmate's signature, and staff 

verification signature. 103 Code Mass. Regs. § 405.12(1). The 

superintendent of each DOC institution designates an employee 

responsible for verifying, through the employee's signed 
13

approval, that the request came from the inmate; the employee 

then submits the slip to the institution's treasurer's office. 

See 103 Code Mass. Regs. § 405.12(2). Once the slip is there, 

the procedure is as follows:

"The Accounting Clerk/Cashier shall take the 

withdrawal/issue slip and:

(a) Ensure that inmate has signed the request;

(b) Ensure that the staff member[']s verification signature 

is present;

(c) Check the inmate account to ascertain there are 

sufficient funds for withdrawal;

(d) Disburse the funds from the inmate[']s account in 

accordance with the request." (Emphasis added.)

Id. The plain language of this regulation appears to require

the accounting clerk, upon receipt of the completed slip and 

verification of the signatures and the inmate's account balance, 

to "[d]isburse the funds from the inmate[']s account in 

accordance with the request." Id. The regulation does not 

restrict the purpose for which a disbursement may be made or the 

person or entity to whom or which it may be made.

The SOP, in contrast, restricts both. The SOP states that

"[a]n inmate's request for disbursement of his/her inmate 

account funds for a monetary 'gift' shall be deemed invalid as 

such monetary disbursements are frequently used for illegitimate 

purposes." SOP § II.A.2. The DOC appears to interpret the 

SOP's term "gift" broadly, to encompass any transfer of money to 
14

a natural person. As a DOC official informed Haas, inmates "are 

no longer allowed to send out money to outside individuals. 

This is DOC wide." And as a DOC official informed Keown when he 

sought a twenty-five dollar disbursement to his sister to help 

pay for his mother to visit him from Missouri, and a ten dollar

disbursement to a State representative for his reelection 

campaign, "this type of financial transaction is no longer 

allowed" under the SOP, and "MCI-Norfolk is adhering to the 

policy." 

Does the SOP prohibit all "gifts"? No. The SOP states,

"Instead, the inmate may submit an order form to purchase a gift 

for the intended recipient through an outside company/business 

using funds from the inmate's personal account. The inmate may 

submit an order form he/she has obtained from any outside 

company/business." SOP § II.A.2. The SOP also permits an 

inmate to pay a bill on behalf of an outside person, provided 

the inmate furnishes DOC a physical copy of the company's or 

business's bill to that outside person. SOP § II.A.3. In 

either case, DOC then disburses the inmate's funds directly to 

the company or business.

But the ability to purchase an in-kind gift for a person, 

or to pay a bill on that person's behalf, is not the same as the 

ability to transfer money to that person to spend, or save, or 

invest, or donate, as and when that person wishes. Under the 
15

regulation, an inmate may request such a direct transfer, and 

the DOC accounting clerk is required to make it. Under the SOP, 

a request for such a transfer "shall be deemed invalid" and, at 

least as the SOP allegedly has been implemented so far, the DOC 

accounting clerk may not make the transfer. The SOP, far from 

merely interpreting and implementing the regulation, appears to 

directly contradict it.

Of course, we do not assume that DOC has heretofore applied 

the regulation so literally that disbursement requests were 

approved even where their stated purpose was unlawful or 

improper.11 Indeed, the plaintiffs themselves allege that, even 

before the SOP, "charge slips involving a possible misuse of 

funds were flagged and investigated by correctional staff before 

said charge slips were processed and funds sent." We also 

assume that, even under the SOP, gifts through company order 

forms -- allowed by the SOP -- are not permitted when used as 

payment for contraband.

We further recognize that the SOP contains hints that 

exceptions might be possible. For example, the SOP states that 

11 See Commonwealth v. Buccella, 434 Mass. 473, 481 (2001), 

cert. denied, 534 U.S. 1079 (2002) (court will reject literal 

interpretation of regulation that would be "utterly absurd" and 

"clearly not what the [agency] intended"); Commonwealth v. 

Hourican, 85 Mass. App. Ct. 408, 411 (2014) (same). Cf. 

Springfield Preservation Trust, Inc. v. Springfield Library & 

Museums Ass'n, Inc., 447 Mass. 408, 423 (2006) (same, for 

statute or municipal bylaw).
16

an institution's deputy superintendent of reentry or her 

designee is to review all disbursement requests and decide if 

the request, "whether for purchase of a gift, payment of a bill,

or for any other reason, should be approved or denied" (emphasis 

added). SOP § II.B.1. Also, "[r]equests for disbursements for 

special matters, such as paying child support obligations, 

returning bail funds, one-time requests for back-to-school 

supplies, and expenses related to establishing housing and 

transportation for release or parole, require additional 

verification to ensure the legitimacy of the request" (emphasis 

added). SOP § II.B.5.

So far, however, according to the verified complaint, the 

plaintiffs have not benefited from these possible exceptions. 

Their requests have been denied, without any indication that the 

relevant DOC officials reviewed whether a "special matter" may 

include contributing to a State representative's reelection 

campaign, or purchasing an investment to benefit the inmate's 

family member upon the inmate's death, or assisting the inmate's 

son incarcerated in another State with the purchase of 

necessaries, or helping a family member to travel from out of 

State to visit the inmate. Instead, inmates are informed that 

"exceptions . . . are unable to be made." 

The DOC argues that the SOP is "explicitly authorized" by 

another provision of the inmate funds regulations that, in DOC's 
17

view, places strict limits on disbursements from inmate 

accounts. Under that regulation,

"In accordance with [G. L.] c. 127, § 48A, inmates may 

expend earned savings and earned personal funds for 

circumstances of compelling need with the approval of the 

Superintendent. Such requests shall be submitted in 

writing to the Superintendent" (emphasis added).

103 Code Mass. Regs. § 405.07(3). Without expressing any 

further view concerning the correctness of DOC's current 

position about the meaning and applicability of this regulation, 

which we recently observed "applies only to 'earned' funds," 

Fitzpatrick v. Department of Correction, 102 Mass. App. Ct. 617, 

623 n.11 (2023), the short answer to this argument is that the 

SOP on its face applies not just to "earned" inmate personal 

funds but to all inmate personal funds, including those an 

inmate receives from outside sources. See, e.g., 103 Code Mass.

Regs. § 405.15 ("Individuals and/or organizations may make 

donations to an inmate by check for deposit in the inmate's 

personal account"). Neither the regulation DOC relies upon, 103 

Code Mass. Regs. § 405.07(3), nor the statute the regulation 

cites, G. L. c. 127, § 48A, subjects inmates' use of such donated 

funds to any "compelling need" determination by the 

institution's superintendent.

More important, nowhere in the ordinary process for 

disbursement of inmate funds, set forth in 103 Code Mass. Regs.

§ 405.12 and discussed in detail supra, is there any provision 
18

for a superintendent or any other DOC official or employee to 

find a compelling need -- or any need at all -- before an 

inmate's personal funds may be disbursed to outside persons or 

entities at the inmate's request. The scope and meaning of the 

"compelling need" provisions in the regulation and the statute 

are thus unclear. And at this early stage of the litigation, we 

are skeptical that they authorize what the SOP purports to 

require.

Nothing we have said calls into question the importance of 

the SOP's stated purpose, to prevent disbursements "related to 

any illicit or improper activity." SOP § I. That plainly 

encompasses the use of inmate funds to facilitate the 

introduction of unlawful substances or other contraband into 

prisons. Nor do we doubt that DOC's commissioner has the 

authority, under G. L. c. 124, § 1 (q), to promulgate 

regulations for that purpose.12 Here, however, as in Braley, 100 

Mass. App. Ct. at 265, "[f]urther development of the issues 

12 Under G. L. c. 124, § 1 (q), the commissioner may

"make and promulgate necessary rules and regulations 

incident to the exercise of [her] powers and the 

performance of [her] duties including but not limited to 

rules and regulations regarding nutrition, sanitation, 

safety, discipline, recreation, religious services, 

communication and visiting privileges, classification, 

education, training, employment, care, and custody for all 

persons committed to correctional facilities."
19

discussed is necessary in order to decide the merits of the 

claim[;] at this stage in the proceeding, the plaintiff[s']

complaint should not have been dismissed." The plaintiffs have 

stated a claim that the SOP conflicts with 103 Code Mass. Regs.

§ 405.12 and to that extent should be declared unenforceable.13

3. SOP as a "regulation" under G. L. c. 30A. The 

plaintiffs also claim that the SOP is a "regulation" within the 

meaning of G. L. c. 30A and therefore must be promulgated under 

chapter 30A procedures in order to be enforceable.14 A

regulation "depends for its validity upon compliance with the 

provisions of law (G. L. c. 30A, §§ 2, 3 and 5) relative to the 

promulgation of regulations." Robinson v. Secretary of Admin., 

12 Mass. App. Ct. 441, 444 n.6 (1981), and cases cited. See 

G. L. c. 30A, § 6.

a. Definition of regulation; internal management 

exemption. Chapter 30A generally defines the term "regulation" 

and then creates several exemptions. The general definition is:

13 The verified complaint appears to allege that the SOP 

conflicts with the regulation on its face, and that the 

plaintiffs have been injured by the SOP's implementation. It is 

for the parties to address, on remand, whether the SOP conflicts 

with the regulation on its face, as implemented, or both.

14 Whether the applicable procedures would be those of G. L. 

c. 30A, § 2 (regulations requiring public hearings), or G. L. 

c. 30A, § 3 (regulations not requiring public hearings), has not 

been briefed and need not now be addressed.
20

"'Regulation' includes the whole or any part of every rule, 

regulation, standard or other requirement of general 

application and future effect, including the amendment or 

repeal thereof, adopted by an agency to implement or 

interpret the law enforced or administered by it, but does 

not include [certain exempted items]."

G. L. c. 30A, § 1 (5).15 We are to "interpret [the] definition 

of regulation broadly," Carey v. Commissioner of Correction, 479 

Mass. 367, 371 (2018), while recognizing that "[a]gencies 

intending to fill in the details or clear up an ambiguity of an 

established policy may issue interpretation or informational 

pronouncements without going through the procedures required for 

the promulgation of a regulation" (quotation and citation 

omitted). Id. at 373.

Here, there is no dispute that the SOP falls within the 

general definition of "regulation." And, although the SOP is 

labeled a procedure, "the substance, not the name, [is] to 

control." Massachusetts Gen. Hosp. v. Rate Setting Comm'n, 371 

Mass. 705, 708 n.9 (1977) (agency "letter" or "bulletin" might 

also qualify as regulation). Rather, the principal dispute here 

concerns whether the SOP falls within one of the exemptions of 

15 This definition, depending in part as it does on the term 

"agency," must be read together with c. 30A's definition of 

"agency," as well as related provisions. See G. L. c. 30A, 

§ 1 (2) (defining "agency" and excluding DOC, among others, 

therefrom); G. L. c. 30A, § 1A (notwithstanding DOC's exclusion 

from G. L. c. 30A, § 1, definition, DOC remains subject to 

provisions of G. L. c. 30A, §§ 1-8, including those concerning 

regulations).
21

G. L. c. 30A, § 1 (5), that is, clause (b), which exempts from 

the general definition any "regulations concerning only the 

internal management or discipline of the adopting agency or any 

other agency, and not substantially affecting the rights of or 

the procedures available to the public or that portion of the 

public affected by the agency’s activities." For convenience,

we refer to this as the internal management exemption.

The case law construing this exemption is sparse. In 

Commonwealth v. Trumble, 396 Mass. 81, 88-89 (1985), the court 

held that guidelines promulgated by the Secretary of Public 

Safety to govern the State police department's conduct of 

roadside sobriety checkpoints or roadblocks fell within the 

internal management exemption. The court reasoned that because 

"[t]he guidelines are directed solely toward troopers, and 

instruct them as to the manner in which they are to fulfil their 

duties," they "concern the internal management of th[e] agency." 

Id. at 89. Moreover, the guidelines did not substantially 

affect the rights of or the procedures available to the public. 

Rather, they described the roadblocks' "purpose and operational 

philosophy," set forth "important procedural and safety 

considerations," and attempted to ensure compliance with 

governing constitutional principles. Id. "They do not purport 

directly to regulate public conduct. The guidelines are simply 
22

an accurate reflection of the rights of the public as set forth 

in [governing case law]." Id.

More recently, in Carey, 479 Mass. at 367-368, 371-373, the 

court held that a new DOC policy subjecting prison visitors to 

searches by drug-detecting dogs did not fall within the internal 

management exemption. "Simply put, the introduction of the new 

policy substantially affected the procedures available to the 

public because, prior to the implementation of the policy, 

visitors to correctional facilities were not subject to dog 

sniff searches, but now they are." Id. at 372. "This change 

could have a potentially significant impact on the visiting 

public's experience." Id. The court distinguished Trumble on 

the ground that "it concerned how [the] State police should 

conduct roadblocks already taking place." Id. Moreover, "[t]he 

fact that [DOC] publicized the new policy" well before its 

"implementation date is a strong indicator that [DOC] was well 

aware that implementing canine searches would be of substantial 

concern to those affected" and did not "concern[] only internal 

management issues." Id. 

The Carey court also rejected DOC's argument that the 

policy was merely "intend[ed] to fill in the details or clear up 

an ambiguity of the regulation governing searches of visitors, 

rather than to initiate a material change, and that thus the 

policy is not subject to [G. L. c. 30A]" (quotation and citation 
23

omitted). Id. at 372-373. The court acknowledged its prior 

decisions stating the general principle regarding subregulatory 

guidance. See id., citing Arthurs v. Board of Registration in 

Med., 383 Mass. 299, 313 n.26 (1981); Massachusetts Gen. Hosp., 

371 Mass. at 707. See also G.A. McDonough, Administrative Law 

and Practice § 12:3 (2d ed. 2016). But the Carey court 

recognized that there are limits to that principle, and DOC's 

dog sniff search policy went beyond those limits. See Carey, 

supra at 373. The court thus concluded: "An agency's 

interpretation of its own regulations may trigger [G. L. c. 30A] 

if that interpretation leads to a rule or policy that meets the 

[c. 30A] definition of a regulation."16 Id.

b. Application to SOP. Here, the SOP, although largely 

phrased as a series of procedures that DOC staff must follow, 

16 The Carey court explained that "the purpose of [the

administrative procedure act] would be disserved if an agency 

with a broad statutory command . . . could avoid notice-andcomment rulemaking simply by . . . invoking its power to 

interpret that statute and regulation in binding the public to a 

strict and specific set of obligations." 479 Mass. at 373, 

quoting Electronic Privacy Info. Ctr. v. United States Dep't of 

Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011). Compare Atlas 

Distrib. Co. v. Alcoholic Beverages Control Comm'n, 354 Mass. 

408, 414 (1968), where the court held that a particular agency's 

decision could "reasonably be characterized as a 

reinterpretation of the reasoning behind the application of 

existing rules," rather than as itself a regulation requiring 

promulgation under G. L. c. 30A. At the same time, the court 

acknowledged that "it is often difficult to draw a clear and 

objective line between a regulation and the reasoning behind 

it." Atlas Distrib. Co., supra.
24

imposes new substantive limitations on what inmates may do with 

their own money. The SOP thus appears to "substantially 

affect[] the rights of" all DOC inmates, who are certainly a 

"portion of the public affected by the agency's activities." 

G. L. c. 30A, § 1 (5) (b). The SOP classifies inmate requests 

for disbursements of money to outside individuals as "invalid,"

meaning inmates can no longer make such transfers, as they did 

before the SOP was issued. Also, among those who can no longer 

receive such transfers are inmates' family members, another 

portion of the public affected by DOC's activities. Cf. Carey, 

479 Mass. at 372 (dog sniff search policy "substantially 

affect[ed] the procedures available to visitors to correctional 

facilities"; visitors are portion of public affected by DOC's 

activities).

In addition, the SOP appears to substantially affect "the 

procedures available" to inmates. G. L. c. 30A, § 1 (5) (b). 

The SOP does so by limiting inmates, in the case of gifts, to 

submitting an order form to purchase a gift for the intended 

recipient through an outside company or business, using "an 

order form [the inmate] has obtained from [that]

company/business";17 or, in the case of bills, to paying a bill 

17 Although unclear from the SOP itself, the summary 

memorandum issued to all inmates and staff at MCI-Norfolk states 

that inmates must use "an order form the inmate has obtained 
25

on behalf of an outside person only if the inmate can furnish a 

physical copy of the bill. SOP § II.A.2, 3. The SOP's 

procedures thus make it more cumbersome, at a minimum, for 

inmates to obtain disbursements to provide in-kind assistance to 

outside persons. In an era of Internet commerce, it is not 

self-evident that inmates have access to physical order forms,

or access to the Internet to print order forms. The plaintiffs 

also plausibly question whether, for example, a transportation 

company in Missouri will send Keown a bill for advance payment 

of his mother's travel expenses, or whether a prison canteen in 

Louisiana will send Alford a bill for his incarcerated son's 

hygienic necessities. 

These are not mere quibbles with minor implementation 

details. Rather, the extent of the new procedural burdens the 

SOP imposes is a factor that may bear on whether the SOP is a 

regulation. See Massachusetts Gen. Hosp., 371 Mass. at 707 

(agency pronouncement more likely to be viewed as regulation 

where it "is seen to involve difficulties of compliance"). And 

from the specific company or business." There apparently is no 

room for an inmate to write a letter to the business that gives 

the information necessary to fulfill the order.
26

here, as in Massachusetts Gen. Hosp., the extent of the burdens 

may present questions of fact.18 See id. at 712-713.

Imposition of these new limits on inmates' transfer of 

their money, and of these new requirements for what they must do 

to exercise the options they still have, support a claim that 

the SOP substantially affects inmates' rights and the procedures

they must follow, and thus that the internal management 

exemption does not apply. Cf. Carey, 479 Mass. at 372 

(substantial effect shown where "prior to the implementation of 

the policy, visitors to correctional facilities were not subject 

to dog sniff searches, but now they are").

Another factor suggesting that the internal management 

exemption does not apply is that an MCI-Norfolk official 

assertedly issued a memorandum explaining the SOP, not merely to 

staff, but to all inmates. Although this was not a "coordinated 

multimedia campaign" as in Carey, 479 Mass. at 372, it plainly 

suggests that the SOP "concern[s] [more than] the internal 

management or discipline of" DOC. G. L. c. 30A, § 1 (5) (b).

18 In Massachusetts Gen. Hospital, 371 Mass. at 712-713, a 

hospital claimed that obtaining the data and documentation 

required by an agency "bulletin" would "seriously burden" it, 

but the trial testimony did not support that claim. Moreover, 

some of the harder-to-obtain data was required only when the 

agency requested it -- a request "which, we should assume, would 

not be made lightly or unreasonably." Id. at 713. Whether a 

similar assumption should apply here is an open question.
27

Finally, the SOP on its face does not merely "fill in the 

details or clear up an ambiguity of" an established policy

(citation omitted). Carey, 479 Mass. at 372-373. Instead, the 

SOP appears to establish new rules, which contradict the 

regulations already in effect, and which prohibit disbursements 

that the plaintiffs allege were routinely permitted under those 

regulations. We conclude that the verified complaint states a 

claim, sufficient to survive a motion to dismiss, that the SOP 

is a regulation and, not having been promulgated as such through 

G. L. c. 30A procedures, is unenforceable.19

4. Constitutional claim. The plaintiffs' complaint also 

claims that the SOP arbitrarily restricts the use of their 

property in violation of their due process rights.20 See Ciampi

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

(assuming without deciding that "prisoners have a statutorily 

19 We add that this case is unusual; in most instances, it 

will be clear, without any factual dispute, whether an agency's 

guidance document merely fills in details or clears up 

ambiguities in established policies, as opposed to substantially 

affecting the rights of or the procedures available to that part 

of the public the agency serves. And it is desirable that 

agencies be able to readily determine, without extensive factual 

inquiries, when a guidance document rises to the level requiring 

promulgation as a regulation.

20 Although on appeal the plaintiffs have made no separate 

First Amendment argument, we recognize that among the various 

purposes for which they seek to make disbursements to 

individuals are purposes that may further their speech and 

associational rights.
28

protected property interest in the funds in their prison 

accounts entitling them to due process protection").21 "[W]hen a 

prison regulation impinges on inmates' constitutional rights, 

the regulation is valid if it is reasonably related to 

legitimate penological interests." Turner v. Safley, 482 U.S.

78, 89 (1987). See Massachusetts Prisoners Ass'n Political 

Action Comm. v. Acting Governor, 435 Mass. 811, 819-820 (2002)

(MPAPAC) (adopting Turner test for prison regulations and 

policies); Gaskins v. Silva, 101 Mass. App. Ct. 555, 563 (2022). 

"Acknowledging the difficulty that prison officials face in the 

operation of prisons, [the Supreme Judicial Court has] expressly 

adopted Turner's deferential standard of review for 

constitutional challenges to prison regulations and policies." 

MPAPAC, supra at 819-820, citing Cacicio v. Secretary of Pub.

Safety, 422 Mass. 764, 769–770 (1996).

The court has "also adopted Turner's four-factor inquiry to 

determine whether a prison regulation is reasonably related to a 

legitimate penological interest." MPAPAC, 435 Mass. at 820. 

The Turner test asks: 

"(1) Is there a valid, rational connection between the 

regulation and the governmental interest put forward to 

21 See also Massachusetts Prisoners Ass'n Political Action 

Comm. v. Acting Governor, 435 Mass. 811, 819, 822 (2002)

(recognizing that inmates' ability to "contribute their personal 

funds to candidates and outside organizations," subject to 

neutral limitations imposed by 103 Code Mass. Regs. §§ 405.00, 

were means of exercising free speech and associational rights).
29

justify it, and is the governmental interest legitimate and 

neutral; (2) do alternative means of exercising the 

[asserted] right remain open to inmates; (3) will 

accommodating the [asserted] right have a significant 

'ripple effect' on guards, other inmates, and the 

allocation of prison resources in general; and (4) does an 

alternative to the regulation exist which would fully 

accommodate the inmates' rights at de minimis cost to valid 

penological interests?"

Cacicio, 422 Mass. at 770, citing Turner, 482 U.S. at 89-91.22

Importantly, application of the Turner factors sometimes 

requires factual inquiries. Turner itself was resolved only 

after a trial, and the Court, in holding the challenged prison 

regulation invalid, repeatedly referred to the factual record in 

applying its four-factor test. See Turner, 482 U.S. at 82, 97-

99. See also Gaskins, 101 Mass. App. Ct. at 562-564 (affirming 

invalidation of regulation based on Turner factors as 

illuminated by summary judgment record); Abdul-Alazim v.

Superintendent, Mass. Correctional Inst., Cedar Junction, 56 

Mass. App. Ct. 449, 456-458 (2002) (vacating summary judgment 

for prison officials and ordering summary judgment invalidating 

22 We note that Cacicio and subsequent Massachusetts cases, 

in describing the second and third Turner factors, have referred 

to "exercising the challenged right" and "accommodating the 

challenged right" (emphasis added). Cacicio, 422 Mass. at 770. 

See, e.g., MPAPAC, 435 Mass. at 820; Commonwealth v. Jessup, 471 

Mass. 121, 131 (2015); Gaskins, 101 Mass. App. Ct. at 563-564. 

Turner itself, however, referred to the exercise and 

accommodation of "the asserted right" (emphasis added), i.e., 

the right asserted by the inmate, with which the challenged 

prison regulation was claimed to interfere. Turner, 482 U.S. at 

90. See Jessup, supra. We use the clearer phrase "asserted 

right" herein.
30

policy, where record evidence did not show policy furthered 

claimed penological interest, or any adverse impact from 

accommodating asserted right); Lovell v. Superintendent, N.

Cent. Correctional Inst., 26 Mass. App. Ct. 35, 40 (1988) 

(reversing summary judgment upholding prison directive and 

remanding for further proceedings where first and fourth Turner

factors could not be evaluated solely as matter of law).

The Turner test does not focus solely on the challenged 

prison regulation or policy. Inmates' proposed alternatives to 

the regulation or policy must also be considered, both for their 

efficacy and for the degree of any adverse impact on valid 

penological interests. See Turner, 482 U.S. at 90-91; MPAPAC, 

435 Mass. at 820, 822. Significantly, however, the Turner test 

"is not a 'least restrictive alternative' test." Turner, 482 

U.S. at 90. See MPAPAC, 435 Mass. at 820 n.9. It is a test 

that is "deferential" to prison administrators. Commonwealth v. 

Jessup, 471 Mass. 121, 130 (2015).

Against this backdrop, we conclude that sufficient 

questions remain, about the implementation both of the 

preexisting regulation and of the SOP, that extended discussion 

of the Turner factors here would be premature and unwise. 

Courts "do not . . . decide constitutional questions 

unnecessarily or prematurely." Massachusetts Gen. Hosp. v. 

C.R., 484 Mass. 472, 488 (2020). Moreover, DOC has sought to 
31

recharacterize the right the plaintiffs are asserting, and the 

parties have not briefed the question of how we should go about 

characterizing that right. In these circumstances, attempting 

to apply the Turner test would be an exercise in hypotheticals, 

and courts "prefer not to pass on [a] constitutional question on 

a hypothetical basis." Boston Gas Co. v. Department of Pub. 

Utils., 387 Mass. 531, 540 (1982). Without implying any view on 

the merits of the constitutional claim, we determine only that 

its dismissal at this stage of the litigation was not warranted. 

As should be obvious, a decision in the plaintiffs' favor on 

either of their other remaining claims would make resolution of 

the constitutional issue unnecessary.

Conclusion. Insofar as the judgment dismissed the claims 

that the SOP conflicts with 103 Code Mass. Regs. § 405.12, is 

invalid because it was not promulgated as a regulation under 

G. L. c. 30A, and violates the plaintiffs' due process rights, 

it is reversed and the matter is remanded for further 

proceedings. The judgment is otherwise affirmed.

So ordered.