NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0 , as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28 , as amended by 73 Mass. App. Ct. 1001 [2009]) , are primarily directed to the partie s and , therefore , may not fully address the facts of the case or the panel ' s decisional rationale. Moreover , such decisions are not circulated to the entire court and , therefore , represent only the views of the panel that decided the case. A summary deci sion pursuant to rule 23.0 or rule 1:28 issued after February 25 , 2008 , may be cited for its persuasive value but , because of the limitations noted above , not as binding precedent. See Chace v. Curran , 71 Mass. App. Ct. 258 , 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT
22

- P

- 1254

THOMAS SMITH

vs . CLARE B. WHEATLEY & others

. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

P laintiff Thomas Smith , an inmate at Old Colony Correctional Center in Bridgewater (OCCC) , appeals from a Superior Court judgment dismissing his complaint s eeking judicial review of a decision by the Department of Correction
(DOC) that deni ed his grievance

. We affirm. Backgrou nd

. The administrative record filed by the Massachusetts Department of Correct ion ( DOC ) shows that on September 19 , 2017 , the plaintiff was transferred to OCCC from
the Massachusetts Correctional Institution , Concord (MCI

1 Mark Fogaren , the i nternal g rievance o fficer for O ld C olony C orrectional C enter in Bridgewater (OCCC) ; Erin Gaffney , the s uperintendent for OCCC ; and Kate Silva , the d epartment g rievance m anage r for the D epartment of C orrection (DOC)

. Clare B. Wheatley is the i nformal g rievance c oordinator for OCCC

. All defendants were sued in their official capacities within the OCCC and DOC. As is our usual practice , we take the parties ' names and capacities as they appear in the o perative complaint.2 Concord) , where he was permitted to possess " Magic the Gathering " p laying c ards ( m agic c ards). The p laintiff described
the m agic c ards as a therapeutic game that is not a threat to security

. Upon being transferred , OCCC did not return the m agic c ards

to the plaintiff

. In October 2017 , the plaintiff filed an
i nformal administrative c omplaint seeking the return of the

m agic c ards , stating that they had helped him throughout his
mental health treatment at MCI

- Concord. OCCC denied the plaintiff ' s request for the m agic c ards , with the explanation ,

" according to p roperty d epartment p olicy , m agic c ards are contraband and so you cannot possess them. "
In response , the plaintiff filed a formal grievance. The
i nstitutional g rievance c oordinator (IGC) denied the grievance
with the explanation " [i] n accordance with 103 [Code Mass.
Regs. §] 403 [(2017)] , these items have been deemed contraband. " The p laintiff appealed the denial to the s uperintendent of OCCC , whose decision stated , " Denied; I concur with IGC. " The

p laintiff further appealed to the DOC ' s d epartment g rievance

m anager , who " support[ed] the S uperintendent ' s decision to deny [the] grievance. Magic C ards are deemed contraband in
accordance with 103 DOC 403 , Inmate Property. " 2

2 Because the DOC has not otherwise identified any rule or policy referred to as " 103 DOC 403 ," we assume that the intended3 In December 2017 , the plaintiff sought judicial review of the denial of his grievance

. A Superior Court judge , ruling on cross motions for judgment on the pleadings , upheld the DOC ' s decision denying the plaintiff ' s grievance. On appeal to this

court in June 2021 , a panel vac ated the judgment and remanded for further explanation after concluding that the DOC ' s failure to provide any reasoned justification for denying the plaintiff ' s grievance rendered its determination arbitrary and capricious. See Smith v. Wheatley , 99 Mass. App. Ct. 1128
(2021) ( Smith I )

. After remand , the DOC filed an explanation for its denial
of the plaintiff ' s request. T he plaintiff , in response , filed an amended complaint and a motion for judgment on the pleadings

. The defendants then filed a cross motion , and a Superior Court judge ordered judgment dismissing the complaint

. This appeal
followed

. Discussion

. 1. Standard of r eview

. " W e review de novo a judge ' s order allowing a motion for judgment on the pleadings
under Mass. R. Civ. P. 12 (c) , 365 Mass. 754 (1974). " Merriam

v. Demoulas Super Mkts. , Inc

. , 464 Mass. 721 , 726 (2013) , citing Wheatley v. Mass achusetts Insurers Insolvency Fund , 456 Mass.
594 , 600 (2010). In reviewing a Superior Court judge ' s ruling

reference was to 103 Code Mass. Regs. § 403 , entitled " Inmate Property. "4 under G. L. c. 30A , § 14 , an appellate court " conduct[s] an analysis of the same agency record , and there is no reason why the view of the Superior Court should be given any special weight. Both in the Superior Court and in [the appellate] court the scope of review is defined by G. L. c. 30A , § 14

. " S outhern
Worcester County Regional Vocational Sch. Dist . v. Labor
Relations Comm ' n , 377 Mass. 897 , 903 (1979) (citation omitted). The statute authorizes the reviewing court , among other possible

outcomes , to " affirm the decision of the agency. " G. L. c. 30A , § 14 (7). In reviewing the agency ' s decision , the standard of review is a highly deferential one. See Friends & Fishers of the Edgartown Great Pond , Inc . v. Dep ar t ment of Envtl.

Prot ection , 446 Mass. 830 , 836 (2006). " The court shall give due weight to the experience , technical competence , and specialized knowledge of the agency , as well as to the discretionary authority conferred upon it. " G. L. c. 30A , § 14 (7).
2. The DOC ' s d enial of the plaintiff ' s grievance

. The first time this matter appeared before a panel of this court , that panel found the DOC ' s actions to be arbitrary and capricious 3 because the DOC ' s decision provided no basis for its

3 " Arbitrary and capricious action .

. . is willful and unreasoning action without consideration and in disregard of facts and circumstances [quotation omitted]

. " Long v. Comm issione r of Pub. Safety , 26 Mass. App. Ct. 61 , 65 (1988)

.5 determination that the plaintiff ' s m agic c ards would not be
returned to him

. See Smith I , 99 Mass. App. Ct. 1128 , slip op.

at 6 , 10

. Again , on appeal , the plaintiff argues that the DOC ' s decision was arbitrary and capricious

. We disagree. In support of its denial of the plaintiff ' s grievance , Kate
Silvia , the d irector of c ommunications and s upervisor to the
d epartment g rievance c oordinator , sent a detailed grievance
denial decision to the plaintiff on June 23 , 2021

. In support
of the denial , Silv i a offered multiple reasons why the DOC had designated m agic c ards as contraband. First , m agic c ards have intrinsic cash value and are bought and sold outside the DOC

. Second , the game associated with the m agic c ards involved " role

playing , and role

- playing and fantasy games are inconsistent
with the rehabilitative goals of the " DOC. Third , the game
references extreme violence , with the game ' s goal being " to destroy [ one ' s ] opponent (s) by reducing their ' life force to

zero . '" The DOC also articulated the ways in which m agic c ards
differ from other games , such as playing cards and chess : w hile

m agic c ards involve strategy

-- as do es chess and ordinary playing cards

-- the key difference is that many m agic c ards possess visual imagery and descriptions of extreme violence

.

S ee Hercules Chem. Co . v. Dep artment of Env tl. Prot ection , 76 Mass. App. Ct. 639 , 64 2

- 64 3 (2010).6 T he plaintiff challenges many of the factual premises underlying the DOC ' s reasons. He argues that the decision refusing to return his cards was arbitrary and capricious
because m agic c ard s do not have the characteristics DOC says they do , or because other articles share certain of these characteristics yet are not considered contraband. But the plaintiff cites nothing in the record of the DOC proceedings to support his factual arguments. Nor does it appear that he made those arguments to the DOC or claimed in the Superior Court that he was unfairly deprived of the opportunity to do so. Accordingly , we decline the plaintiff ' s invitation to second

guess the factual bases for the DOC ' s deci sion.
Given these articulated justifications , we cannot say that the denial was arbitrary and capricious. " [I]f the question is fairly debatable , we cannot substitute our judgment for that of
the commission[er] [ quotation omitted ]

. " Conservation Comm ' n of
Falmouth v. Pacheco , 49 Mass. App. Ct. 737 , 739 n.3 (2000)

. " In reviewing the action of an administrator , the court must apply all rational presumptions in favor of the validity of the
administrative action [ quotation omitted ]

. " Lo ng v.
Comm issione r of Pub. Safety , 26 Mass. App. Ct. 61 , 65 (1988)

. Furthermore , " prison administrators have broad discretion in the administration of prison affairs. " Kenne y v. Comm issione r of
Correction , 393 Mass. 28 , 35 (1984). The DOC " has a compelling7 interest in ensuring the safety o f its staff and its inmates and the integrity of its institutions

. " Rasheed v. Comm issione r of
Correction , 446 Mass. 463 , 473 (2006)

. " [P] rison officials must be permitted latitude in determining what pro ducts can come into the prison and what vendors can provide them

. " I d . at 475
( compelling interest standard to be applied with due deference
to need to maintain order , security , and discipline in prison).
Given the DOC ' s priority of disallowing products in prisons that promote extreme violence

-- coupled with the DOC ' s considerable discretion in determining the products that enter the prison

-- we hold that the DOC ' s de nial of the plaintiff ' s grievance did not constitute a n abuse of discretion.

3. The DOC ' s i nterpretation of o rder on r emand

. The

p laintiff also asserts that the earlier panel ' s order on remand
mandated that the c ommissioner must be the one to make the decision regarding the m agic c ards. This is a misinterpretation
of the order

. The earlier panel ' s order to the DOC was " for a
reasonabl y prompt explanation of the basis for refusing to
return Smith ' s magic cards to him , or other action on Smith ' s grievance. " Smith I , 99 Mass. App. Ct. 1128 , slip op. at 11

- 12

. As discussed supra , the DOC has complied with that order. Although DOC regulations provide that " [a]dditional property items may be approved at any level via written approval of the [p]roperty [c]ommittee and the [c]ommissioner [ emphasis added ] ,"8 103 Code Mass. Regs. § 403.11 , the plaintiff cites nothing in the regulations providing that only the commissioner may
determine which items shall no t be approved for inmate
retention. See 103 Code Mass. Regs. § 403.05 (defining

" [c]ontraband " as " [a]ny item [ s ] not approved for inmate
retention at an institution " ).
4. Admission of the DOC ' s s upplemental r ecord

. Finally , the plaintiff ' s argument that the Superior Court judge erred in admitting the DOC ' s supplemental record after he had filed his motion for judgment on the pleadings is unavailing. See Douglas
Envtl. Assocs

. , Inc . v. Dep artmen t of Envtl. Prot ection , 429
Mass. 71 , 74

- 75 ( 1999) (finding judge appropriately allowed
additions to the record under G. L. c. 30A , § 14 [ 4 ] , so that
record contained all materials considered by agency ' s decision
makers)

. S ee also G. L. c. 30A , § 14 (4) ( " The court may require or permit subsequent corrections or additions to the
record when deemed desirable " ). In any event , the plaintiff9 does not explain how he was unfairly prejudiced by the judge ' s consideration of the material in the supplemental record.
Conclusion

. We affirm the S uperior Court ' s judgment
d enying the plaintiff ' s motion , and allowing the defendants '
cross motion , for judgment on the pleadings

. Judgment affirmed

. By the Court (Sacks , Grant & Smyth , JJ. 4 ) ,

Clerk

Entered: No vember 7, 2023.

4 The panelists are listed in order of seniority.