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17-P-814 Appeals Court

17-P-968

BRIAN BUTLER vs. THOMAS A. TURCO & others1

(and a companion case2).

Nos. 17-P-814 & 17-P-968.

Worcester. Suffolk. February 5, 2018. - March 30, 2018.

Present: Meade, Sullivan, & Wendlandt, JJ.

Imprisonment, Grievances. Commissioner of Correction.

Constitutional Law, Imprisonment, Ex post facto law, Double 

jeopardy, Cruel and unusual punishment. Due Process of 

Law, Prison regulation. Practice, Civil, Dismissal.

Civil action commenced in the Superior Court Department on 

January 5, 2016.

A motion to dismiss was heard by David Ricciardone, J.

Civil action commenced in the Superior Court Department on 

November 13, 2015.

 

1 Sean Medeiros and Lynn Lizotte. The defendants were sued 

in their official capacities. As pertinent here, Turco was the 

Commissioner of Correction, Medeiros was the Superintendent of 

Massachusetts Correctional Institution at Norfolk (MCI-Norfolk), 

and Lizotte was the Deputy Superintendent for classification and 

treatment at MCI-Norfolk.

2 Owen McCants vs. Superintendent, MCI-Norfolk.
2

A motion to dismiss was heard by Paul D. Wilson, J.

Brian Butler, pro se.

Owen McCants, pro se.

Sheryl F. Grant for the defendants.

MEADE, J. The plaintiffs, Brian Butler and Owen McCants, 

inmates supervised by the Massachusetts Department of Correction 

(department) and housed at MCI-Norfolk, each brought actions pro 

se challenging the consequences imposed on them pursuant to the 

department's "Program Engagement Strategy" (PES). The 

defendants filed motions to dismiss both complaints, which were 

allowed by two different judges. The plaintiffs appeal, 

alleging what we construe to be3 various constitutional 

infirmities in the PES program. We consolidated the cases for 

hearing in this court, and now affirm. 

Background. PES program. In accordance with its mission 

to "promote public safety by managing offenders," the department 

established "appropriate programming in preparation for 

[inmates'] successful reentry into the community," such as the 

Sex Offender Treatment Program (SOTP). However, the department

is unable to mandate participation in such programs. As a 

result, by 2012, a high percentage of offenders declined to 

 

3 Butler's complaint advances several specific 

constitutional claims. McCants's complaint is less clear. We 

read it, however, to include the same arguments as Butler's 

complaint.
3

attend recommended programs, spending their time in ways that 

did not address "the very issues that [would] decrease the 

likelihood that they recidivate."4 Nevertheless, these inmates

enjoyed the same privileges as "program compliant" offenders, 

such as single rooms, housing seniority, and institutional jobs. 

In response, in December of 2013, the department announced it 

would implement PES, an incentivization structure for program 

participation.5 Under PES, privileges are awarded as incentives 

for inmates who voluntarily participate in programs and are 

 

4 Butler takes issue with the department's use of the word 

"criminogenic" in its description of PES, which provides, in 

pertinent part:

"[T]he inability to mandate program participation for high 

to moderate risk offenders . . . has lead to many offenders 

refusing to address their criminogenic need areas 

increasing the likelihood they will recidivate soon after 

release."

Butler claims the term refers to offenders possessing a 

"criminal gene." We note that, besides being insufficient to 

rise to the level of appellate argument, see Mass.R.A.P. 

16(a)(4), as amended, 367 Mass. 921 (1975), Butler's claim is 

based on a misunderstanding. The term does not relate to genes 

or genetics. Rather, "criminogenic" refers to the tendency to 

cause crime or criminality, or, something that "contributes to 

the occurrence of crime." Coleman v. Schwarzenegger, 922 F. 

Supp. 2d 882, 973 n.68 (E.D. Cal. 2009). 

5 The department appears to have modelled PES on a similar 

program at the Massachusetts Treatment Center (MTC). At MTC, 

rather than mandating program participation, which the 

department is apparently unable to do, MTC rewarded offenders 

who participated, and "[o]ffenders who refused programming were 

assigned to an accountability unit without televisions, hot 

pots, microwaves and [with] limited job privileges." As a 

result, MTC's program participation increased by thirty percent.
4

withdrawn from inmates who refuse. The department notified 

inmates about PES by amending its institutional procedures, 

hosting informational sessions for inmates, and creating 

informational flyers. PES went into effect on January 1, 2014. 

Butler. Butler was convicted in 1993 of aggravated rape, 

assault and battery by means of a dangerous weapon, and 

kidnapping. He was sentenced to twenty-five to thirty years for 

the aggravated rape and to concurrent eight to ten year terms on 

the remaining convictions. This court affirmed Butler's 

convictions and the Supreme Judicial Court denied further 

appellate review.6 

Butler was, at all relevant times, an inmate at MCINorfolk. He became eligible to participate in SOTP classes, and 

the department recommended that he do so. In May of 2015, 

Butler was informed that his failure to attend SOTP classes 

would result in the imposition of PES consequences. Butler 

began attending a "preliminary" SOTP phase, but in September of 

2015, he refused to participate further. Consequently, in 

accordance with PES protocol, he lost his seniority with respect 

to housing. On October 1, 2015, he was reassigned from the 

single room he had occupied for nineteen years to a double room, 

and his seniority date was changed to September 24, 2015. 

 

6 See Commonwealth v. Butler, 41 Mass. App. Ct. 1101, S.C.,

423 Mass. 1107 (1996).
5

McCants. McCants was convicted of rape of a child by 

force, kidnapping, assault with intent to rape, drugging for 

sexual intercourse, and assault and battery by means of a 

dangerous weapon. Commonwealth v. McCants, 83 Mass. App. Ct. 

1129 (2013). He was separately convicted of being an habitual 

offender. This court affirmed McCants's convictions and the 

Supreme Judicial Court denied further appellate review.7 He 

later filed a motion for new trial, which was denied. This 

court affirmed that denial.8 

McCants was, at all relevant times, an inmate at MCINorfolk. The department recommended that McCants participate in 

SOTP classes. In February, 2014, McCants refused to attend the 

classes and subsequently lost his single cell housing 

assignment, institutional job, and seniority9 with respect to 

housing and job placement. 

Discussion. 1. Standard of review. "We review the 

allowance of a motion to dismiss de novo. . . . We accept as 

true the facts alleged in the plaintiffs' complaint as well as 

any favorable inferences that reasonably can be drawn from 

 

7 See Commonwealth v. McCants, 65 Mass. App. Ct. 1121, S.C., 

447 Mass. 1102 (2006). 

8 Commonwealth v. McCants, 83 Mass. App. Ct. 1129 (2013).

9 On March 5, 2014, McCants was assigned a seniority date of 

March 5, 2014. On July 25, 2014, without explanation in the 

record or in McCants's brief, he was given a new seniority date 

of July 22, 2014. This does not affect our analysis.
6

them." Galiastro v. Mortgage Electronic Registration Sys., 467 

Mass. 160, 164 (2014). To survive a motion to dismiss, a 

plaintiff must include in the complaint factual allegations that 

sufficiently "raise a right to relief above the speculative 

level." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 

(2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007).

2. Due process. We construe some of Butler's claims to be 

due process claims, i.e., that PES consequences imposed on him

denied him of liberty for which he should have been afforded due 

process. We disagree. "The Fourteenth Amendment [to the United 

States Constitution] prohibits any State from depriving a person 

of life, liberty, or property without due process of law." 

Meachum v. Fano, 427 U.S. 215, 223 (1976). A liberty interest 

may arise from the Constitution itself, or it may arise from an 

expectation or interest created by State laws or regulations. 

See Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974). See also

Torres v. Commissioner of Correction, 427 Mass. 611, 617, cert. 

denied, 525 U.S. 1017 (1998) ("Prison inmates have the 

protections of procedural due process only if there is an 

existing liberty or property interest at stake"). However, for 

prisoners, liberty interests are generally limited to "freedom 

from restraint which . . . imposes atypical and significant 

hardship . . . in relation to the ordinary incidents of prison 
7

life." Sandin v. Conner, 515 U.S. 472, 484 (1995).10 See 

Wilkinson v. Austin, 545 U.S. 209, 221-223 (2005).

Thus, the Sandin standard requires us to determine whether

the PES "imposes atypical and significant hardship on the inmate 

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

v. Conner, supra. It does not. The due process clause itself 

does not create a liberty interest in inmates having a room of 

their choice, maintaining seniority in their housing 

assignments, or keeping an institutional job. See id. at 484-

485. See also LaChance v. Commissioner of Correction, 88 Mass. 

App. Ct. 507, 512 n.9 (2015) ("[L]oss of prison employment or 

participation in the garden program does not implicate a liberty 

or property interest"). Furthermore, nothing in the record 

suggests that returning to a more "default" housing and 

employment status is atypical of ordinary prison life, a 

necessary prerequisite for a due process claim under Sandin. 

Although Butler's decrease in seniority and loss of the single 

 

10 Prior to Sandin, the Court had employed a methodology for 

identifying State-created liberty interests that emphasized "the 

language of a particular [prison] regulation" instead of "the 

nature of the deprivation." Sandin v. Conner, supra at 481. 

See Hewitt v. Helms, 459 U.S. 460, 469-472 (1983). In Sandin, 

the Court criticized this methodology as creating a disincentive 

for States to promulgate procedures for prison management, and 

as involving the Federal courts in the day-to-day management of 

prisons. Sandin v. Conner, supra at 482-483. As a result, the 

Court abrogated the former methodology of parsing the language 

of particular regulations in search of mandatory directives from 

which a State-created liberty interest may have sprung. Id. at 

483 & n.5.
8

room may have been a dramatic change in his circumstances, that 

does not elevate his conditions to "the type of atypical, 

significant deprivation in which a State might conceivably 

create a liberty interest." Sandin v. Conner, supra at 486. 

See Murphy v. Cruz, 52 Mass. App. Ct. 314, 319 (2001) ("The 

plaintiff's temporary loss of canteen privileges and attendance 

at the residents council's meeting are at most losses of 

privileges that do not give rise to a liberty interest"). Also, 

courts have repeatedly held that no liberty interest exists in 

these incentives. See, e.g., DuPont v. Saunders, 800 F.2d 8, 10 

(1st Cir. 1986) (no "property or liberty rights to either obtain 

or maintain prison jobs"); Restucci v. Clarke, 669 F. Supp. 2d 

150, 157 (D. Mass. 2009) ("There is . . . no constitutionally 

protected right to a single-cell"). 

Nor does the PES "inevitably affect the duration of 

[Butler's] sentence." Sandin v. Conner, supra at 487. Butler 

has not been impermissibly incarcerated beyond his sentence, nor 

was he denied parole solely as a result of PES consequences. On 

the contrary, Butler was denied parole on January 4, 2012 --

roughly two years prior to the PES amendment and its effective 

date of January 1, 2014 -- for denying his offenses, refusing to 

participate in SOTP, and failing to demonstrate that he was 

rehabilitated. He was again denied parole on January 10, 2014. 
9

Butler is not scheduled for release until 2019.11 As in 

Dominique v. Weld, were we to rule in favor of Butler on his 

claims, "we would open the door to finding an 'atypical 

restraint' whenever an inmate is moved from one situation to a 

significantly harsher one that is, nonetheless, a commonplace 

aspect of prison existence." Dominique v. Weld, 73 F.3d 1156, 

1160 (1st Cir. 1996). We decline to do so. 

To the extent that Butler alleges the department failed to 

follow its internal procedures, stated in 103 Code Mass. Regs. 

§ 420.09 (2007), in assessing his compliance with the SOTP, we 

note that this section merely establishes the rules and 

procedures related to classification of inmates "to determine 

the status of an inmate's housing, program[,] and work 

assignment within a correctional facility." 103 Code Mass. 

Regs. § 420.06 (2007). These procedures must be followed when 

an inmate undergoes a periodic internal classification status 

review, which must occur regularly at predetermined intervals, 

and not, as here, when a PES-initiated removal of certain 

privileges occurs. Put another way, when Butler is 

reclassified, these procedures will guide the department in 

 

11 Butler does not enjoy a liberty interest in being granted 

parole, and he makes no such claim. See Greenholtz v. Inmates 

of the Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979); 

Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836 (1996).
10

assessing his housing, program compliance, and work assignment, 

but were not required under the circumstances presented here.

3. Ex post facto. Butler next claims that PES 

consequences are impermissible ex post facto laws. We disagree. 

The United States Constitution prohibits States from passing ex 

post facto laws. United States Constitution, art. I, § 10. 

These include "[e]very law that changes the punishment, and 

inflicts a greater punishment, than the law annexed to the 

crime, when committed." Miller v. Florida, 482 U.S. 423, 429 

(1987), quoting from Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 

(1798). "[T]he proper focus of [the] ex post facto inquiry is 

whether the relevant change 'alters the definition of criminal 

conduct or increases the penalty by which a crime is 

punishable." Dominique v. Weld, 73 F.3d at 1162, quoting from 

California Dept. of Corrections v. Morales, 514 U.S. 499, 506 

n.3 (1995). The prohibition against ex post facto laws 

necessarily relates to punishment, and not "remedial" policies, 

such as PES. See Lyman v. Commissioner of Correction, 46 Mass. 

App. Ct. 202, 207 (1999). See also Opinion of the Justices to 

the Senate, 423 Mass. 1201, 1220 (1996) ("[L]aws[ that]

rearrange rights so as to effect what is believed to be the 

public good[] are described compendiously as regulatory or 

remedial"). The stated goal of the PES program was to promote 

public safety by incentivizing program compliance, not to punish 
11

those who do not comply. PES consequences merely constitute a 

change in Butler's conditions, and do not "inflict a greater 

punishment than the law imposed for the same crime."12 Lyman v. 

Commissioner of Correction, supra at 206, citing Dominique v. 

Weld, supra at 1162. 

4. Double jeopardy. To the extent that Butler alleges the 

PES policy violates his right against double jeopardy, the claim

is without merit. "The double jeopardy clause of the Fifth 

Amendment to the United States Constitution protects against a 

second prosecution for the same offense, either after acquittal 

or after conviction, and multiple punishments for the same 

offense." Lyman v. Commissioner of Correction, supra at 207. 

See Opinion of the Justices to the Senate, 423 Mass. at 1221-

1222. Butler's circumstances fit none of these categories. He 

was not tried a second time for his offenses, and he did not 

receive multiple punishments for the same offenses. Once 

 

12 Butler also argues that PES should not be applied 

"retroactive[ly]" to him, because, he maintains, only the 

regulations in place at the time of his sentencing should be 

applied to him. Assuming such a principle could be applied to 

internal department policies or practices, which seems doubtful, 

we note that PES was not applied retroactively to behavior that 

occurred prior to the implementation of PES. See Koe v. 

Commissioner of Probation, 478 Mass. 12, 16 (2017) (a statute or 

regulation is retroactive only when new legal consequences 

attach to events completed before enactment). In any event, 

were Butler to prevail on this claim, each inmate would be 

subject to individualized regulations according to his

incarceration date. We defer to the department's assessment 

that such a result would prove unworkable. See Cacicio v. 

Secretary of Pub. Safety, 422 Mass. 764, 771-772 (1996).
12

convicted and sentenced as a sex offender, Butler was

recommended to participate in SOTP to decrease the likelihood 

that he would recidivate. When he elected not to participate, 

certain privileges were rescinded as a result. This was not 

additional punishment for his crimes. See LaChance v. 

Commissioner of Correction, 88 Mass. App. Ct. at 512-513. 

Indeed, encouraging program participation by withholding 

incentives from inmates who elect not to participate in sex 

offender rehabilitation programs does not increase the penalty 

for their crimes or extend the length of their overall 

sentence.13 See Dominique v. Weld, 73 F.3d at 1162, citing 

California Dept. of Corrections v. Morales, 514 U.S. at 506 n.3. 

See also 103 Department of Correction regulations (DOC) § 400 

(2014) "Program Access." 

5. Eighth Amendment. Butler also claims that reassigning 

him from a single room to a double, without any screening for 

 

13 To the extent Butler claims that the SOTP requires him to 

admit his guilt, and that enforcement of the PES consequences 

against him violates his right against self-incrimination under 

the Fifth Amendment to the United States Constitution and art. 

12 of the Massachusetts Declaration of Rights, the judge 

properly determined that the claim is without merit. See Quegan

v. Massachusetts Parole Bd., 423 Mass. at 837-838, and cases 

cited; Lyman v. Commissioner of Correction, 46 Mass. App. Ct. at 

205 (requirement that prisoner admit that he is a sex offender 

as part of treatment program implicates neither Federal nor 

State privilege against self-incrimination). We note further

that in April, 2015, the department revised its policy to 

provide that inmates are no longer required to admit guilt as a 

condition of participating in the SOTP.
13

compatibility (presumably with his new cellmate), violated the 

Eighth Amendment to the United States Constitution and art. 26 

of the Massachusetts Declaration of Rights, which prohibit cruel 

and unusual punishments. We disagree. 

To prove a violation of the Eighth Amendment, Butler must 

satisfy a demanding standard. "Because routine discomfort is 

part of the penalty that criminal offenders pay for their 

offenses against society, only those deprivations denying the 

minimal civilized measure of life's necessities are sufficiently 

grave to form the basis of an Eighth Amendment violation." 

Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citation and 

quotation omitted). To prove a "conditions of confinement" 

claim under the Eighth Amendment, Butler must show (1) 

conditions "sufficiently serious" as to "result in the denial of 

the 'minimal civilized measure of life's necessities,'" Farmer

v. Brennan, 511 U.S. 825, 832, 834 (1994), quoting from Rhodes

v. Chapman, 452 U.S. 337, 347 (1981), and (2) that the 

department acted with "deliberate indifference" to his health or 

safety.14 Farmer v. Brennan, supra at 834. 

 

14 In both Butler's amended complaint and on appeal, he 

failed to specify the basis for his otherwise unadorned Eighth 

Amendment claim. In dismissing the complaint, the judge 

properly determined that Butler insufficiently raised a 

deliberate indifference claim. For substantially the same 

reasons, we agree with the judge that, if construed as a 

deliberate indifference claim, it would nonetheless fail. See 

Hudson v. Commissioner of Correction, 46 Mass. App. Ct. 538, 548 
14

"No static 'test' can exist by which courts determine 

whether conditions of confinement are cruel and unusual."

Rhodes v. Chapman, supra at 346. Courts interpreting the Eighth 

Amendment and art. 26 of our Declaration of Rights take a 

flexible approach, deriving their "'meaning from the evolving 

standards of decency that mark the progress of a maturing 

society[,]' . . . as measured by objective standards." Michaud

v. Sheriff of Essex County, 390 Mass. 523, 527-528 (1983), 

quoting from Libby v. Commissioner of Correction, 385 Mass. 421, 

431 (1982). See Good v. Commissioner of Correction, 417 Mass. 

329, 335 (1994). One such objective standard can be found in 

State legislation and regulations governing the department and 

its treatment of inmates. Michaud v. Sheriff of Essex County, 

supra at 529-531. 

With respect to Butler's claim, 103 DOC § 400.08 (2014)

addresses inmate housing cell assignments, including the use of 

double occupancy cells and rooms. This regulation permits

double occupancy "where single cells are not . . . appropriate" 

and requires the department to consider a series of guidelines, 

which prioritize inmate safety, when authorizing such 

 

(1999), S.C., 431 Mass. 1 (2000) (insufficient facts to show 

"the defendants acted . . . with deliberate indifference to the 

claimed unlawful conditions and that those conditions 

constituted extreme deprivation and the unnecessary and wanton 

infliction of pain grossly disproportionate to the severity of 

his offense"). As addressed infra, we review additional grounds 

for rejecting Butler's Eighth Amendment claim.
15

assignments.15 In fact, from our reading of the regulation, 

double occupancy appears to be the norm, with single occupancy 

reserved for inmates who are more vulnerable or who are likely 

to present a risk of harm to others. Measured by this objective 

standard, reassigning inmates to double occupancy cells is 

acceptable. However, it is important to note that even if the 

guidelines or regulations were violated, or if they ceased to 

exist, such a circumstance would not itself constitute a "per 

se" Eighth Amendment or art. 26 violation given the flexibility 

of the standard to be applied. See Michaud v. Sheriff of Essex 

County, 390 Mass. at 531.

Here, pursuant to the PES, Butler lost the privilege of 

living in a single cell due to his choice not to participate in 

the SOTP. These facts neither demonstrate nor allow an 

inference that Butler has been denied "the minimal civilized 

measure of life's necessities." Rhodes v. Chapman, 452 U.S. at 

347. Nor can we infer from his complaint that he faces any 

danger in his double cell assignment.16 Simply put, "the 

 

15 These guidelines include an inmate's legal status, 

whether the inmate is a new arrival and is thus provided

intensive supervision, the potential for predatory behavior 

between cellmates, an inmate's own perception of the potential 

for danger and conflicts with others, and any language barriers. 

103 DOC § 400.08 (2014).

16 Assuming Butler's claim could be construed as an argument 

that, categorically, sex offenders are more vulnerable than 

other offenders, such that they should automatically be assigned 
16

Constitution does not mandate comfortable prisons." Id. at 349. 

See Wilson v. Seiter, 501 U.S. 294, 298 (1991). At bottom, as 

the United States Supreme Court has held, requiring a prisoner 

to share his cell with another inmate or multiple other inmates 

does not constitute cruel and unusual punishment. Rhodes v. 

Chapman, 452 U.S. at 349-352.

Various other arguments the plaintiffs presented on appeal 

failed to cite to relevant legal authority or to their basis in 

the record and, as such, do not rise to the level of appellate 

argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 

(1975). They are therefore deemed to be waived. See Popp v. 

Popp, 477 Mass. 1022, 1023 n.1 (2017).

Judgments affirmed.

 

a single room, that claim would similarly fail. Pursuant to 103 

DOC § 400.08 (2014), single occupancy is permitted "when 

indicated," as where the department determines it necessary by 

its "classification system, medical diagnosis, or other 

professional conclusions." The 2008 version of 103 DOC 

§ 400.07, addressing "Inmate Protection," included sexual 

predators as a category of inmates who "shall be" assigned 

single rooms, but again, only "when indicated." This provision 

was removed from § 400.07 in 2011. In any event, the department 

is duty-bound to consider each inmate's special needs and 

circumstances in assigning rooms to inmates. We decline to 

strip the department of its ability to, in its discretion, 

assess and utilize its resources most efficiently and 

effectively.