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 parties 

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 decision 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

23-P-431

DARRIN WHITMAN

vs.

CAROL A. MICI1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff filed a complaint in Superior Court seeking 

declaratory and injunctive relief requiring the defendants to 

house him in a single cell at the Massachusetts Correctional 

Institution at Norfolk (MCI-Norfolk), pursuant to G. L. c. 127, 

§ 22. He appeals from a judgment of the Superior Court granting 

the defendants' motion to dismiss for failure to state a claim 

upon which relief can be granted. Mass. R. Civ. P. 12 (b) (6), 

365 Mass. 754 (1974). He also appeals from the denial of his 

motion for reconsideration. We affirm.

Discussion. "We review the grant of a motion to dismiss de 

novo, accepting as true all well-pleaded facts alleged in the 

1 Individually, and as Commissioner of Correction.

2 Nelson Alves, individually and as superintendent of the 

Massachusetts Correctional Institution at Norfolk.
2

complaint, drawing all reasonable inferences therefrom in the 

plaintiff's favor, and determining whether the allegations 

plausibly suggest that the plaintiff is entitled to relief." 

Lanier v. President & Fellows of Harvard College, 490 Mass. 37, 

43 (2022).

The plaintiff is incarcerated at MCI-Norfolk, where he 

serves a life sentence on his conviction for murder in the first 

degree. See Commonwealth v. Darrin Whitman, 416 Mass. 90 

(1993). In his complaint, the plaintiff requested a declaration 

and permanent injunction pursuant to G. L. c. 127, § 22, 

requiring the defendants to refrain from housing two inmates in 

the same cell. Massachusetts General Laws c. 127, § 22, states 

"unless the crowded state of the institution so requires, [any 

two prisoners shall not] . . . be allowed to occupy the same 

room, except for work" (emphasis added). The plaintiff asserts

that the statute empowers a judge of the Superior Court to 

enjoin the defendants from housing more than one inmate in the 

same cell. 

However, the plaintiff only alleged that six thousand fewer 

individuals were incarcerated at the time of the complaint than 

were incarcerated at some point in the past. He did not plead 

that MCI-Norfolk was insufficiently crowded to warrant housing 

any inmate with another, which is what the statute prohibits, or 

even that he himself was currently housed or very likely to be 
3

housed with another inmate, as would be required to give him 

standing to sue.3 Thus, the plaintiff did not meet his burden to

allege facts "'plausibly suggesting (not merely consistent 

with)' an entitlement to relief." See Iannacchino v. Ford Motor 

Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 557 (2007).4

The plaintiff also contends that he has the constitutional 

right to a single occupancy cell. This argument also fails, as 

there is no constitutional right to a single cell. Bell v. 

Wolfish, 441 U.S. 520, 542 (1979) ("We disagree . . . that there 

is some sort of 'one man, one cell' principle lurking in the Due 

Process Clause of the Fifth Amendment").

Finally, the plaintiff appeals from the judge's denial of 

his motion for reconsideration. "[W]e review the judge's denial 

of a motion for reconsideration only for abuse of discretion." 

Merchants Ins. Group v. Spicer, 88 Mass. App. Ct. 262, 271 

3 Nor do the population figures that we requested and that the 

defendants provided in their post-argument letter give us reason 

to believe the statute is currently being violated at MCINorfolk.

4 The defendants cite several Federal District Court cases for 

the proposition that that there is no private cause of action to 

enforce G. L. c. 127, § 22. See Smitherman vs. Stevenson, U.S. 

Dist. Ct., No. 13-10161 (D. Mass. July 12, 2017); Scott vs. 

Dickhaut, U.S. Dist. Ct. No. 10-11348 (D. Mass. Aug. 1, 2013);

Cryer vs. Spencer, U.S. Dist. Ct. No. 11-10654 (D. Mass. Mar. 

15, 2012). We need not address and do not reach whether there 

are no circumstances where a plaintiff may bring a private cause 

of action under G. L. c. 127, § 22.
4

(2015). The plaintiff offered nothing new in his motion for 

reconsideration, merely asserting that the judge's decision was 

"baseless" and stating that she "should not have dismissed" his 

claim. We discern no abuse of discretion in the judge's denial 

of the motion.

Judgment of dismissal and 

order denying motion for 

reconsideration affirmed.

By the Court (Sacks, 

Brennan & D'Angelo, JJ.5),

Clerk

Entered: December 11, 2023.

5 The panelists are listed in order of seniority.