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SJC-13247

JAMES CARVER vs. COMMISSIONER OF CORRECTION & another.1

Essex. September 9, 2022. - April 3, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Parole. Imprisonment, Parole. Commissioner of Correction.

Practice, Civil, Action in nature of certiorari.

Civil actions commenced in the Superior Court Department on 

January 29 and March 11, 2021.

After consolidation, the cases were heard by Jeffrey T. 

Karp, J., on motions for judgment on the pleadings.

The Supreme Judicial Court granted an application for 

direct appellate review.

Sharon L. Sullivan-Puccini for the plaintiff.

Scott McLean for the defendants.

Mara Voukydis, Committee for Public Counsel Services, Tatum 

A. Pritchard, Jacob Addelson, David Milton, Lauren Petit, & Ada 

Lin, for Prisoners' Legal Services of Massachusetts & others, 

amici curiae, submitted a brief.

1 Superintendent, Old Colony Correctional Center.
2

CYPHER, J. James Carver, the plaintiff, currently is

serving fifteen life sentences for murder in the second degree. 

Commonwealth v. Carver, 33 Mass. App. Ct. 378, 379, 389 (1992). 

In 2020, the plaintiff submitted a petition requesting medical 

parole pursuant to G. L. c. 127, § 119A (§ 119A or statute). 

The Commissioner of Correction (commissioner) denied the 

petition, after receiving a recommendation in support of denial 

from the superintendent of the Old Colony Correctional Center

(superintendent). The commissioner subsequently denied two 

additional requests for release.

In this opinion, we consider whether the commissioner's 

decision to deny the plaintiff medical parole was arbitrary or 

capricious. In McCauley v. Superintendent, Mass. Correctional 

Inst., Norfolk, 491 Mass. , (2023), we determined that 

501 Code Mass. Regs. § 17.02 (2019) does not impermissibly

narrow the scope of the statute. With that in mind, and after 

consideration of the facts of the present case, we conclude that 

the commissioner's determination that the plaintiff would pose a 

public safety risk on release is supported by the record.2

Background. 1. Petition for medical parole. On September 

30, 2020, the plaintiff filed a petition for medical parole, 

2 We acknowledge the amicus brief submitted by Prisoners' 

Legal Services of Massachusetts, the Disability Law Center, and 

the Committee for Public Counsel Services.
3

pursuant to § 119A. The plaintiff indicated that the reasons 

for the request were that he has many comorbidities, he is 

confined to a wheelchair, and he has family willing to care for 

him. His petition included a medical parole plan.

On October 21, 2020, the superintendent recommended against 

medical parole for the plaintiff. He recognized the plaintiff's 

proposed plan for medical parole, and the completed medical 

assessment of the plaintiff. The superintendent submitted a 

risk assessment and a classification report, as required by the 

statute, but did not include a medical parole plan aside from 

discussing the plaintiff's plan. The superintendent opined that 

the plaintiff did not meet the criteria for medical parole, 

citing his ability to transfer independently to and from his 

wheelchair, his relatively young age, his mobility, a 

physician's opinion that the plaintiff was not permanently 

incapacitated or terminally ill, improvement in his prostate 

cancer diagnosis, the seriousness of his offenses, his minimal 

recent programming, and a 2019 disciplinary report as indicators 

that he "would pose a major risk to public safety if released."

The plaintiff's risk assessment, conducted in 2009, 

indicated that he had been arrested or charged three or more 

times with a new crime while on pretrial release. It noted that 

he has received serious or administrative disciplinary 

infractions for fighting or threatening other inmates or staff. 
4

The plaintiff's drug screen resulted in a score of zero, 

indicating a low risk of substance use disorder. The assessment 

categorized his needs as low for criminal involvement and 

noncompliance history, and high for violence history and current 

violence. Despite finding the plaintiff's needs high for 

violence-related concerns, the assessment characterized his 

violence and recidivism risks as low.

The plaintiff received a score of two on his classification 

report, suggesting that he should be placed in minimum custody 

or below. He received a score of six for the severity of his 

current offense; scores of zero for severity of convictions 

within the last four years, history of escape or attempts to 

escape, prior institutional violence within the last three 

years, and number of disciplinary reports within the last year; 

and scores of negative two for his age, which was fifty-six at 

the time, and his program participation or work assignment, 

indicating that he satisfied all of his program requirements. 

Due to his conviction of a crime resulting in loss of life, 

Department of Correction (department) policy did not permit 

minimum security, and because of the need for alternate 

placement "following conflicts" at the Massachusetts 

Correctional Institution at Shirley (MCI-Shirley), medium 

custody level was recommended in July 2020.
5

On November 3, 2020, the district attorney's office wrote a 

letter to the commissioner opposing the plaintiff's petition. 

The district attorney's office pointed to the medical assessment 

stating that he was at "high risk" to become "permanent[ly] 

incapacitat[ed]," but that he currently was not permanently 

incapacitated such that he does not pose a public safety risk.

On December 4, 2020, the commissioner denied the 

plaintiff's petition for medical parole. The commissioner 

recognized his numerous medical conditions but stated that the 

medical assessment did not opine that the plaintiff currently 

was "terminally ill" or "permanently incapacitated" within the 

meaning of the statute, and she concluded that his medical 

condition was not "so debilitating that [he did] not pose a 

public safety risk."

Shortly after the commissioner released her decision, the 

plaintiff's attorney requested preservation of video footage 

(video) from an incident (use of force incident) relied on in 

the commissioner's decision, which was not part of the 

administrative record. The attorney sent a letter requesting 

reconsideration of the petition for medical parole, along with 

another letter requesting that the commissioner watch the video 

of the incident.3 On January 29, 2021, before receiving a 

3 The plaintiff's attorney dated the letters January 15, 

2020. It appears, however, that the accurate date would have 
6

response from the commissioner, the plaintiff filed a complaint 

in the nature of certiorari in the Superior Court challenging 

the commissioner's denial.

Awaiting a response from the commissioner, the plaintiff's 

attorney sent her another letter on February 2, 2021, 

reiterating the attorney's request that the video be preserved. 

On February 9, the plaintiff sent the commissioner additional 

medical and mental health records. In response, counsel for the 

commissioner told the plaintiff's attorney "that the 

administrative record on reconsideration is limited to those 

materials that [the commissioner] deems relevant to her decision 

making." The district attorney's office sent an updated 

opposition, and an updated medical parole assessment was 

provided to the commissioner.

On March 1, 2021, the commissioner denied the plaintiff's 

request for reconsideration. She indicated that she considered 

the updated medical information, the incident reports relating 

to the use of force incident, supplemental letters, and a 

renewed opposition from the district attorney's office, but made 

no mention of the video. She noted that there was no 

"significant and material change" to the plaintiff's medical 

been January 15, 2021, as she refers in the letters to an 

incident occurring in June 2020 and the commissioner's December 

2020 decision.
7

condition and that she did not believe that he would live and 

remain at liberty without violating the law.4 She opined that 

his release would be incompatible with the welfare of society. 

The commissioner claimed that, although the updated medical 

assessment stated that the plaintiff has "multiple risk factors 

for mortality and morbidity" and "debilitating medical 

conditions with permanent mobility and other functional 

incapacitation," it did not assert that he was either 

"terminally ill" or "permanently incapacitated" within the 

meaning of the statute.

The plaintiff then filed another complaint in the nature of 

certiorari in the Superior Court seeking review of this 

subsequent denial, and the cases were consolidated. Both 

parties filed a motion for judgment on the pleadings, and the 

plaintiff filed a motion to strike the administrative record 

submitted by the department and replace it with a record to 

include the video of the use of force incident. After a 

hearing, a Superior Court judge ordered the commissioner to 

4 In Harmon v. Commissioner of Correction, 487 Mass. 470, 

477 (2021), we held that the mandatory language of G. L. c. 127, 

§ 119A (c) (1), prohibited the department from requiring "a 

significant and material decline in medical condition" for a 

petitioner to submit a new petition. Consequently, we do not 

consider this reason in the commissioner's decision when 

analyzing whether she abused her discretion.
8

review the video and issue a "revised decision" on the 

plaintiff's medical parole petition.

On August 17, 2021, the commissioner issued a new decision 

denying the plaintiff's petition for medical parole. She

explicitly reviewed the video, as well an updated medical 

assessment, and a written statement from the district attorney's 

office. After describing the district attorney's position on 

the video in detail, the commissioner indicated that she agreed 

with it and opined that the plaintiff did not meet the criteria 

for medical parole. She found that he did not meet the criteria 

for "permanent incapacitation, as he [did] not have a physical 

or cognitive incapacitation that [was] so debilitating that he 

[did] not pose a public safety risk." The commissioner stated 

that his medical conditions were all stable, and that he 

required a wheelchair for mobility, "but only due to an unsteady 

gait and tremors, as opposed to physical weakness." She noted 

that independently he was able to "perform a number of 

activities of daily living," cited the severity of his offense, 

and observed that "[i]n his current physical condition, [he was]

certainly still capable of committing a similar crime." She 

further stated that nothing in the video demonstrated that the 

plaintiff was either terminally ill or permanently 

incapacitated.
9

On December 17, 2021, after submission of new filings 

incorporating the commissioner's latest decision, a Superior 

Court judge held a hearing on the motions for judgment on the 

pleadings. At the hearing, the judge asked the plaintiff 

whether the statute required the commissioner to consider the 

medical parole plan in determining whether a petitioner was 

permanently incapacitated. Initially, the plaintiff's counsel 

responded, "I don't think so. . . . [S]he has to find those 

three things, and then he should be released in the process, and 

then they could look at the plan." Subsequently, counsel said 

that the commissioner would consider the medical parole plan in 

determining whether the plaintiff was a safety risk. In a 

written decision, the judge denied the plaintiff's motion for 

judgment on the pleadings, and a judgment was entered affirming 

the commissioner's decision. The plaintiff filed a timely 

notice of appeal, and we granted his application for direct 

appellate review.

2. Criminal case. A jury convicted the plaintiff of 

fifteen counts of murder in the second degree and one count of 

burning a dwelling house stemming from an early morning fire set

on July 4, 1984, at a rooming house in Beverly. Carver, 33 

Mass. App. Ct. at 379. On December 1, 1989, he was sentenced to 
10

several consecutive life sentences in prison with the 

possibility of parole.5

An investigator determined that the fire started in an 

alcove adjacent to the front entrance to the building and was 

set with a stack of newspapers found next to the door and 

hydrocarbon accelerant. Carver, 33 Mass. App. Ct. at 379-380. 

During the night before the fire, the plaintiff confronted a man 

who lived in the rooming house and was dating the plaintiff's 

former girlfriend. Id. at 380. The plaintiff warned the man 

that if he continued to date her, the plaintiff would kill him 

and burn down his house. Id. On the morning of the fire at 

around 1:15 A.M., the plaintiff told a friend that he was upset 

because of his breakup and that he wanted his girlfriend back. 

Id. Between 3 A.M. and 4 A.M., a taxicab driver observed the 

plaintiff standing in front of the rooming house, and a 

newspaper delivery woman saw a man standing in the entryway to 

the rooming house leaning over a stack of newspapers.6 Id. The 

fire started at 4:18 A.M. Id. Although the plaintiff's parents 

testified that he was home and asleep at that time, the 

5 Including the above charges, the plaintiff has had twentyfour adult arraignments. These resulted in seventeen 

convictions, including sixteen convictions of offenses against 

the "person" and one of a "property" offense.

6 Another man in the area at the time saw a man smoking a 

cigarette in the doorway of the rooming house and stated that it 

was not the defendant. Carver, 33 Mass. App. Ct. at 380.
11

plaintiff made numerous incriminating statements, and admitted 

to two friends that he had started the fire. Id. Fifteen 

people died. Most of the victims died from smoke inhalation 

combined with severe burns, but one victim died jumping from an 

upper window trying to escape the burning building.

Based on the "official version" of the offenses retained by 

the department, a week after the fire the plaintiff began to 

make "harassing" telephone calls to his former girlfriend and 

appeared at her work in an emotional state. As he was leaving, 

he yelled out the window, "[T]his is the next place I will 

burn." Later, he emotionally confessed to his friend that he 

had lit the fire, but that he had not meant to kill people. The 

plaintiff disagrees with this version of events.

The plaintiff has filed numerous motions for a new trial,

and he has appealed from the denial of his motions. He became 

parole eligible in 2018, but he chose to postpone his parole 

hearing.

3. Plaintiff's medical condition. On October 9, 2020, 

Dr. John Straus and Despina Kiely, a nurse practitioner, of the 

department's medical provider, performed a medical parole 

assessment of the plaintiff. He has been diagnosed with rightsided acoustic neuroma or vestibular schwannoma,7 causing chronic 

7 "Neuroma" is a "[g]eneral term for any neoplasm derived 

from cells of the nervous system." Stedman's Medical Dictionary 
12

dizziness and vertigo. He has moderate to severe hearing loss 

in his left ear. He was diagnosed with prostate cancer in 2015, 

and he declined an offer for a radical prostatectomy. He has a 

history of stable angina,8 coronary artery disease,9 atrial 

fibrillation10 with stable rate control, hypertension, 

dyslipidemia, gastroesophageal reflux disease, skin cancer, 

neurogenic bladder,11 and epilepsy. He suffers from essential 

tremors. He is dependent on a wheelchair (and has been provided 

one since 2006), but he is able to transfer independently. 

Straus and Kiely opined that the plaintiff has "multiple risk 

factors for mortality and morbidity" and has "debilitating 

conditions with high risk for permanent incapacitation."

1311 (28th ed. 2006). "Schwannoma" is a "benign, encapsulated 

neoplasm in which the fundamental component is structurally 

identical to the syncytium of Schwann cells." Stedman's Medical 

Dictionary 1730.

8 "A severe, often constricting pain or sensation of 

pressure, usually referring to a. pectoris." Stedman's Medical 

Dictionary 85.

9 "[N]arrowing of the lumen of one or more of the coronary 

arteries, usually due to atherosclerosis." Stedman's Medical 

Dictionary 554.

10 Atrial fibrillation is a condition "in which the normal 

rhythmic contractions of the cardiac atria are replaced by rapid 

irregular twitchings of the muscular wall." Stedman's Medical 

Dictionary 722-723.

11 "Neurogenic" is defined as "[o]riginating in, starting 

from, or caused by, the nervous system or nerve impulses." 

Stedman's Medical Dictionary 1310.
13

On January 25, 2021, Straus completed an updated medical 

parole assessment for the plaintiff, which provided additional 

information with respect to his medical conditions. The

plaintiff had an occipital craniotomy in November 2005 to 

address his vestibular schwannoma. He suffers from tinnitus12

and leg neuropathy and is incontinent for urine and stool. He 

requires catheterization for his coronary artery disease. He 

has experienced hypertension since he was the age of eight, and 

epilepsy since the age of sixteen. He has had numerous 

surgeries, ranging from upper back surgery to surgery to address 

skin cancer. He is overweight and experiences microcytic 

anemia.13 The plaintiff, at the time of the report, was being 

evaluated for congestive heart failure. Straus opined that the 

plaintiff has "debilitating medical conditions with permanent 

mobility and other functional incapacitation." He stated that 

the plaintiff was expected to survive the next eighteen months, 

"but at significant risk."

On July 29, 2021, Straus and Michelle Mulvey-Sylvia, a 

nurse practitioner, performed another medical parole assessment 

on the plaintiff. This assessment conveyed much of the same 

12 "Perception of a sound in the absence of an environmental 

acoustic stimulus." Stedman's Medical Dictionary 1992.

13 "[I]n which the average size of circulating erythrocytes 

is smaller than normal." Stedman's Medical Dictionary 79.
14

information as the first two assessments. It further indicated 

that he suffers from presbyopia14 and seborrhea.15 The assessment 

confirmed that the plaintiff must use a wheelchair "for 

movement" and that he has "multiple chronic medical 

condition[s]." Although the plaintiff has to use a wheelchair, 

he "is able to utilize the bathroom independently . . . , feed 

himself independently, shower independently, dress himself 

independently, and voice his needs without issue." Although 

Straus and Mulvey-Sylvia opined that his conditions "may 

contribute to a shortened lifespan," the plaintiff's chronic 

conditions were "stable" and he was expected to live for longer 

than eighteen months.

The July 2021 assessment specified various reasons that the 

plaintiff is provided his accommodations: he uses a wheelchair 

for "unsteady gait and tremors"; since 2013 he has been provided 

a bottom bunk for "seizures"; he is housed in a twenty-four hour 

health staff facility because it is "handicap accessible"; he is 

prescribed briefs and condom catheters for his "urinary 

incontinence"; and he is provided compression stockings for his 

"neuropathy." When he leaves the prison, he is transported by a 

14 "The physiologic loss of accommodation in the eyes in 

advancing age, said to begin when the near point has receded 

beyond 22 cm (9 inches)." Stedman's Medical Dictionary 1556.

15 "Overactivity of the sebaceous glands, resulting in an 

excessive amount of sebum." Stedman's Medical Dictionary 1738.
15

wheelchair van, and he has a peer assistant who pushes his 

wheelchair. The plaintiff is able to stand only with support. 

He has been provided with extra pillows since 2006 and hearing 

aids since 2011. He is able to administer the catheter supplies

himself. He is prescribed an extensive list of medications.

On at least one occasion in December 2020, the plaintiff 

was evaluated after he reported that he fell while transferring 

from his wheelchair to his bed, resulting in an injury to his 

ribs. Despite blood being found in the plaintiff's urine in 

January 2021, he refused to see a urologist. He stated to 

Kiely, who was performing his evaluation, that he would "not go 

no[] matter how hard [Kiely] tr[ied] to convince [him], [he 

felt] fine, [he had] no major issues, just the swelling." 

During that same evaluation, Kiely noted that, with his 

wheelchair, he was able to "self-propel[] up and down the ramp." 

The plaintiff reported that he felt "pretty good, no breathing 

issues, no heart issues," but he reported difficulty getting his 

medical supplies and swelling in his ankles and feet.

The plaintiff also has a documented mental health history, 

dating back to before he was incarcerated. Since his teenage 

years, the plaintiff has suffered from depression. In the 

1980s, when he found out that he was being charged with the 

murders and arson, he attempted suicide, for which he was 

hospitalized for psychiatric treatment. At that same time, he 
16

was diagnosed with major depressive disorder with melancholic 

symptoms. In 1989, he was sent to Bridgewater State Hospital

(hospital) due to threats to "hang himself if he was convicted 

of the crimes [with which] he was charged."

He was diagnosed with adjustment disorder in 2020, and 

depressive disorder due to another medical condition, with 

depressive features. He has had several suicide attempts in the 

recent past. On May 20, 2020, the defendant was injured due to 

such an attempt and again was sent to the hospital. He had 

similar attempts in June and July 2020, when he attempted to use 

a bed sheet and a towel, respectively, for hanging. Also in 

2020, the plaintiff experienced two hospitalizations for further 

psychiatric care due to "ongoing delusional thought patterns," 

as "[h]e believed that his family was in danger and he was being 

targeted by gang members because of the crimes [for which] he 

was convicted." The plaintiff believed that the only way to 

protect his family was to end his life, and he was "unable or 

unwilling to engage in reality testing." As of an evaluation 

completed on September 9, 2020, there are no further documented 

attempts to take his own life.

During an evaluation in January 2021, the plaintiff 

indicated that he was afraid to be admitted to a hospital, and 

that his primary methods of coping with his stressors were 

"becoming difficult due to lack of tablet and differing 
17

recreation times." Although he reported that he was feeling 

hopeless, he denied any intent to harm himself or others.

4. Plaintiff's disciplinary history. The plaintiff has 

accumulated an extensive disciplinary record, but also has held 

jobs and completed programming. While he was incarcerated at 

the Massachusetts Correctional Institution at Norfolk (MCINorfolk), during his early years of incarceration he received 

four disciplinary reports for fighting, threatening staff, not 

standing for a count, and lying. During his ten years at MCINorfolk, he held several jobs as a janitor and attended stress 

management classes, health awareness, and church services.

On June 25, 2001, the plaintiff was transferred to the 

Souza-Baranowski Correctional Center (SBCC) because he lied to 

staff about another inmate. While he was there, he received 

three disciplinary reports for fighting with another inmate and

possession of contraband (both in November 2006) and threatening 

another inmate (March 2007). At SBCC, he worked as a "runner"

and a property worker.

On May 29, 2007, the plaintiff was transferred to MCIShirley, where he remained for thirteen years. During his time 

there, he received three disciplinary reports for removing a 

blade from a razor (June 2007), missing a scheduled appointment

(November 2011), and, most recently, being out of place and 

refusing a direct order (April 2019). He completed a computer 
18

skills program and intermittently worked as a housing unit 

runner.

In May 2020, he was transferred for psychiatric treatment 

to the hospital units at Old Colony Correctional Center

following his suicide attempt at MCI-Shirley. On June 18, he 

returned to MCI-Shirley; after twelve days, he again was 

committed to the hospital due to "paranoid beliefs and suicidal 

ideation." He is not permitted to return to MCI-Shirley because 

of a "newly identified conflict" with another inmate.16

On the morning of June 21, 2020, during his brief return to 

MCI-Shirley, the plaintiff attempted "to use his bed sheet as a 

ligature," which led to a use of force by correction officers.17 

Several correction officers wrote reports regarding this 

incident. The lieutenant who used force against the plaintiff 

stated that he was taking property from the plaintiff's cell 

because of the plaintiff's being placed on a fifteen-minute 

mental health watch. According to the lieutenant, the plaintiff 

threw his watch toward the lieutenant, "narrowly missing," and 

"followed that with an awkward open hand punch to the chest." 

At that point, the lieutenant grabbed the plaintiff in his upper 

16 The plaintiff's classification report indicates that he 

has an "active" enemy due to false allegations made by the 

plaintiff.

17 As part of our review, we watched the prison footage 

depicting this incident, which is discussed infra.
19

body area "to subdue him," during which the plaintiff wrapped 

his legs around a leg of the lieutenant and tried to twist the 

lieutenant's left wrist. The lieutenant gave the plaintiff 

several orders to release the lieutenant's leg and hand; when 

the plaintiff did not respond, the lieutenant struck him with a 

closed fist in the back, causing him to release the lieutenant's 

hand. The lieutenant twisted the plaintiff's arm behind his 

back to get him to release the lieutenant's leg, and he was put 

in restraints by two other correction officers. The officers 

removed the plaintiff's boxer shorts, and a security smock was 

given to him. When a sergeant attempted to remove the leg 

restraints from the plaintiff, the plaintiff tried to kick him. 

At that point, staff left the cell and returned approximately 

one minute later to move the plaintiff onto his back.

The accounts of the other officers present during the 

incident support the lieutenant's account. Another lieutenant 

indicated that while holding the plaintiff on his side, he

"continu[ed] his verbal beratement of staff and would not cease 

this behavior." An officer stated that they were removing the 

plaintiff's belongings because he was on mental health watch for 

his safety. As they were doing so, the plaintiff "refused [to 

surrender his clothing and belongings], became combative, and 

assaulted" the lieutenant. Another officer indicated that she 

assisted the plaintiff onto his side to prevent positional 
20

asphyxia while waiting for medical help to arrive, but the 

plaintiff refused medical assistance and became combative, so 

she was directed to leave the cell. A third officer reported 

that he saw the plaintiff assault the lieutenant and that, prior 

to the lieutenant's use of force, he noticed and reported to his 

supervisor that the plaintiff was fashioning a noose with his 

bed sheet by "tying the sheet into the vent on two separate 

occasions." A sergeant wrote that the plaintiff tried to kick 

him during the incident, which was supported by another officer. 

A responding nurse noted swelling to the plaintiff's left elbow. 

A captain, in a letter to the interim superintendent, stated 

that her review of this incident determined that it was in 

compliance with the use of force policies set out in 103 Code 

Mass. Regs. § 505. She wrote that the plaintiff became 

noncompliant by refusing to have property removed from his cell, 

and that he escalated the situation by becoming aggressive and 

assaultive toward security staff.

Discussion. 1. Standard of review. As discussed in 

McCauley, 491 Mass. at , where the decision of the 

commissioner to grant or deny medical parole is one of 

administrative discretion, we apply "the 'arbitrary or 

capricious' standard." Mederi, Inc. v. Salem, 488 Mass. 60, 67 

(2021), quoting Revere v. Massachusetts Gaming Comm'n, 476 Mass. 

591, 605 (2017). "A decision is not arbitrary and capricious 
21

unless there is no ground which 'reasonable [persons] might deem 

proper' to support it." Garrity v. Conservation Comm'n of 

Hingham, 462 Mass. 779, 792 (2012), quoting T.D.J. Dev. Corp. v. 

Conservation Comm'n of N. Andover, 36 Mass. App. Ct. 124, 128 

(1994). Keeping in mind our determination in McCauley that 501 

Code Mass. Regs. § 17.02 does not impermissibly narrow the 

statute, we analyze the commissioner's decision in the present 

case.

2. Medical parole plan. The plaintiff argues that the 

statute places a burden on the superintendent to prepare a 

comprehensive medical parole plan for the prisoner. He asserts 

that the medical parole plan is a factor for the commissioner to 

consider in making the determination whether a prisoner 

qualifies for medical parole, and the fact that the 

superintendent failed to propose a plan in his case, along with 

the absence of an application for interstate transfer of parole, 

created a substantial error of law affecting his rights. The 

defendants argue that, because the plaintiff proposed a detailed 

medical plan, there was no need for the superintendent to 

develop one and that, even assuming there was such a 

requirement, the provision of a department-authored medical 

parole plan would not have influenced the commissioner's 

decision here where she determined that he was not permanently 

incapacitated.
22

General Laws c. 127, § 119A (a), defines "[m]edical parole 

plan" as

"a comprehensive written medical and psychosocial care plan 

specific to a prisoner and including, but not limited to:

(i) the proposed course of treatment; (ii) the proposed 

site for treatment and post-treatment care; (iii)

documentation that medical providers qualified to provide 

the medical services identified in the medical parole plan 

are prepared to provide such services; and (iv) the 

financial program in place to cover the cost of the plan 

for the duration of the medical parole, which shall include 

eligibility for enrollment in commercial insurance, 

Medicare or Medicaid or access to other adequate financial 

resources for the duration of the medical parole."

The statute indicates that "[t]he superintendent shall transmit 

with the recommendation: . . . a medical parole plan," in 

addition to a written diagnosis by a physician and the risk for 

violence assessment. G. L. c. 127, § 119A (c) (1).18

Originally, before the regulations were amended, 501 Code 

Mass. Regs. § 17.03(3)-(4) (2019) required a petitioner to 

develop a medical parole plan that detailed the information 

mentioned in the statute.19 In Buckman v. Commissioner of 

18 The statute has equivalent requirements for a sheriff.

G. L. c. 127, § 119A (d) (1). Throughout this opinion, we 

discuss the statute and the regulations as applied to a 

superintendent, but our discussion is applicable equally to a 

sheriff.

19 The medical parole plan was required to discuss the 

proposed course of treatment; level of care required and the 

site for treatment; availability of medical care and 

documentation indicating that qualified medical providers were 

prepared to provide treatment; and the financial program in 

place to cover the cost of the plan. 501 Code Mass. Regs. 

§ 17.03(4) (2019).
23

Correction, 484 Mass. 14, 29-30 (2020), we voided the above 

regulations in addition to several other regulations "to the 

extent that they declare[d] that the medical parole plan or 

written diagnosis by a licensed physician must be provided by 

the petitioner." The court reasoned that "the Legislature did 

not intend to place this burden on those so poorly able to bear 

it" and held that "the superintendent bears the burden" of 

preparing a medical parole plan and a written diagnosis. Id. at 

29. This determination was made based on the Legislature's 

intent "to trigger a collaborative process whereby the health 

care provider for the institution, reentry staff, and the 

prisoner . . . work together" to prepare the required documents. 

Id.

The current version of 501 Code Mass. Regs. § 17.03(4), as 

amended in 2022, indicates that "[a] proposed medical parole 

plan may be submitted along with the petition, but, where not 

submitted by the petitioner, said proposed plan shall be 

developed by the superintendent prior to transmitting the 

petition to the [c]ommissioner." Similarly, the current version 

of 501 Code Mass. Regs. § 17.04(4) states that the 

superintendent shall transmit a recommendation to the 

commissioner, along with several other documents, including "a 

proposed medical parole plan" and "an updated clinical review of 

the prisoner by a licensed physician."
24

In Malloy v. Department of Correction, 487 Mass. 482, 494 

(2021), this court discussed the obligation of the department in 

identifying appropriate placements in a medical parole plan

"[a]t least for inmates without family home-care options." 

"[W]ithin twenty-one days of a petition for medical parole, a 

prison superintendent must submit a recommendation to the 

commissioner accompanied by a medical parole plan." Id. at 493. 

Recognizing the "contingencies at the conclusion of this process 

when medical parole is granted," the court stated that the 

department's proposed medical parole plan must be comprehensive. 

Id. at 495.

Neither Buckman nor Malloy discussed whether a 

superintendent must submit an additional medical parole plan 

where a prisoner has drafted his or her own. Here, the 

plaintiff included a medical parole plan in his petition, which 

indicated that he would live with his daughter, her husband, 

their children, and the plaintiff's father if he were to be 

released. The plan described the floor plan of the home, which 

is wheelchair accessible and has a chair lift; indicated where 

the plaintiff would receive medical care and who his primary 

care doctor would be; and specified that his care would be 

funded by public health insurance. The superintendent's 

recommendation incorporated and detailed the medical parole plan 

submitted by the petitioner.
25

The inclusion of the plaintiff's medical parole plan, where 

the superintendent did not indicate that he found the plan 

inadequate, was sufficient to satisfy the requirement that 

"[t]he superintendent shall transmit with the recommendation: 

. . . a medical parole plan." G. L. c. 127, § 119A (c) (1). 

The plaintiff's medical parole plan satisfied most of the 

statutory requirements. Although it did not detail explicitly 

the proposed course of treatment or provide documentation 

regarding his proposed physician, it specified the location of 

the medical facility where he would receive "medical care 

services," including for "emergencies," and identified his 

expected primary care doctor. See G. L. c. 127, § 119A (a) (i)-

(iii). It further indicated where and with whom he would live, 

stated that his family would help him to ensure his services 

were obtained, and described the home he would live in, 

indicating that it is wheelchair accessible. Taking into 

consideration the many "contingencies" in the medical parole 

process, "including changes in the medical condition of the 

prisoners, availability of beds in care facilities, and 

conditions imposed by the parole board," along with COVID-19, it 

would be difficult, if not impossible, for a proposed medical 

parole plan to be precise regarding the particular course of 

treatment that the petitioner will undergo on release from 

prison, especially where many prisoners, including the 
26

plaintiff, suffer from numerous ailments requiring various forms 

of treatment. Malloy, 487 Mass. at 495. Additionally, the 

plaintiff's medical parole plan, referred to by the 

superintendent, provided that his treatment would be funded by 

public health insurance. See G. L. c. 127, § 119A (a) (iv). It 

would make little sense to require the superintendent to create 

an additional medical parole plan where the plaintiff has 

provided a comprehensive plan, and where the superintendent does 

not voice his or her disagreement with the plan. Because the 

superintendent included this plan in his recommendation, he 

fulfilled his requirement to submit a medical parole plan to the 

commissioner.

The Superior Court judge found that this reference did not 

fulfill the superintendent's obligation because the information 

in the petition failed to satisfy fully the statutory 

requirements. The judge cited Malloy in support, where this

court referenced a superintendent's medical parole plan that

only included information provided by the petitioner, and stated 

"this paragraph appears to be the entirety of the medical parole 

plan submitted to the commissioner." Malloy, 487 Mass. at 488. 

Malloy is not determinative in this case. First, the plan in 

Malloy was significantly less detailed than the plaintiff's 
27

medical parole plan.20 It failed to mention the proposed course 

of treatment, the proposed site for treatment and posttreatment 

care, and documentation that medical providers were willing to 

provide him medical services. Indeed, his plan only satisfied 

the statute in that it indicated the financial program in place 

to cover the costs of his health care. G. L. c. 127, 

§ 119A (a) (iv). Second, Malloy did not discuss whether the 

superintendent's submission describing the petitioner's plan was 

inadequate, as the petitioner already had been released on 

medical parole, so his appeal was moot. Malloy, supra at 500.

We do not condone the statutory insufficiency of the 

medical parole plan submitted to the commissioner by the 

superintendent here, and of course, we do not fault the 

plaintiff for that insufficiency. Where a petitioner submits 

his or her own medical parole plan, and there are gaps in the 

information required by the statute, the superintendent should 

work with the petitioner in a "highly collaborative process" to 

20 The medical parole plan in Malloy stated in its entirety:

"[The petitioner's attorney] states that if released on 

medical parole, [Malloy] would be willing to live any place 

that is agreeable to the Department of Correction[]. 

[Malloy] has been accepted to handicapped accessible 

section 8 housing in Worcester and has documentation for 

it. His financial source of payment would be through 

Mass[H]ealth Medicare."

Malloy, 487 Mass. at 488.
28

ensure it is complete. Malloy, 487 Mass. at 500. But where, as 

here, the petitioner submits a comprehensive, yet statutorily 

insufficient plan, detailing where and with whom he will live, 

describes the home and its accessibility for his wheelchair, 

indicates who his caregivers will be, who will "work to ensure 

all medical and mental health services are obtained," discusses 

the insurance that would fund his medical care, indicates where 

he will receive medical services, for both everyday care and 

emergencies, and indicates who his primary care doctor will be, 

it would be senseless for a superintendent to start from scratch 

to create an alternative medical parole plan. Because the 

superintendent fully detailed this thorough plan in his 

submission to the commissioner, he complied with the statute 

with the exception of the provision of documentation regarding 

the proposed physician and a description of the proposed course 

of treatment. As discussed infra, we do not think these minute 

deficiencies had an impact on the commissioner's decision.

Our decision in McCauley, 491 Mass. at , remanding the 

petition to the commissioner for the completion and 

consideration of a standardized risk assessment, does not compel 

a different result. First, in McCauley, there was no attempt to 

provide a standardized risk assessment required by the 

regulation. Id. at . Here, the plaintiff submitted a 

comprehensive medical parole plan largely complying with 
29

statutory requirements, which the superintendent then forwarded 

to the commissioner. Second, in McCauley, the standardized risk 

for violence assessment would have been important for the 

commissioner to consider in the first instance with respect to 

whether the prisoner would pose a risk to the safety of the 

public on release; it could not have been changed or 

supplemented were the commissioner to determine that the 

prisoner should be released. In contrast, the medical parole 

plan here, as the plaintiff admits, "accounted for his medical 

and mental health needs and supervision." The plan addressed 

where he would stay, who would supervise him, and who would 

ensure that his medical needs were addressed. Indeed, the 

commissioner described the medical parole plan in her decision 

without indicating that she considered it to be inadequate. Any 

of its inadequacies could have been accounted for through the 

imposition of conditions by the parole board were the 

commissioner to decide that the plaintiff was permanently 

incapacitated or terminally ill as defined by the statute. See 

G. L. c. 127, § 119A (e) ("parole board shall impose terms and 

conditions for medical parole that shall apply through the date 

upon which the prisoner's sentence would have expired"); Malloy, 

487 Mass. at 494-495 (stressing importance of plan setting out 

proposed site for placement, but acknowledging parole board may 

change proposed plan, including potential addition of 
30

"electronic monitoring, supervision for drugs and alcohol, 

visitation by parole officers, and no-contact orders" among 

other conditions to protect public safety).

3. Denial of petition for medical parole. The plaintiff 

argues that his medical conditions are so debilitating that he 

does not pose a public safety risk, as his current medical 

conditions demonstrate irreversible permanent incapacitation. 

He asserts that the medical assessment from January 2021 opined 

that he was permanently incapacitated, and that the statute does 

not require complete absence of independent functioning. He 

points to the 2009 risk assessment, which he asserts 

demonstrated that he is of low risk for violence and substance 

use disorder, and argues that the majority of his disciplinary 

reports are dated and precede his incapacity, highlighting that 

he has participated in programs. He also argues that the 

commissioner's review of the video of the use of force incident 

is inaccurate. Finally, he argues that maintaining his 

innocence should not be considered as a factor in denying him 

medical parole.21

The defendants argue that the commissioner's decision was 

supported properly by the plaintiff's ability to perform 

21 In his reply brief only, the plaintiff "joins [Martin 

McCauley's] argument that the regulation is void." As discussed 

in McCauley, 491 Mass. at , we have concluded that it is not.
31

activities of daily living independently, as discussed by 501 

Code Mass. Regs. § 17.02, the seriousness of the crimes that

resulted in his incarceration and his ability to carry out a 

similar act, and his involvement in the recent use of force 

incident, as both depicted in the video and discussed in the 

reports.

We cannot say that the commissioner's decisions denying the 

plaintiff medical parole are arbitrary and capricious such that 

there is "no ground which 'reasonable [persons] might deem 

proper' to support [them]." Garrity, 462 Mass. at 792, quoting 

T.D.J. Dev. Corp., 36 Mass. App. Ct. at 128. The commissioner 

relied on appropriate factors in making her determination that 

the plaintiff does not qualify for medical parole.

"Permanent incapacitation" is defined as "a physical or

cognitive incapacitation that appears irreversible, as 

determined by a licensed physician, and that is so debilitating 

that the prisoner does not pose a public safety risk." G. L. 

c. 127, § 119A (a).22 The commissioner shall order release on 

medical parole where she determines that a prisoner is 

"permanently incapacitated such that if the prisoner is released 

the prisoner will live and remain at liberty without violating 

22 We discuss permanent incapacitation, as the plaintiff 

does not allege that he is terminally ill within the meaning of 

the statute.
32

the law and that the release will not be incompatible with the 

welfare of society." G. L. c. 127, § 119A (e). As discussed in 

McCauley, 491 Mass. at , the definition of "debilitating 

condition" in the regulation does not impermissibly narrow the 

class of persons who qualify for medical parole. Title 501 Code 

Mass. Regs. § 17.02, as in effect at the time of the plaintiff's 

petition, stated:

"A physical or cognitive condition that appears 

irreversible, resulting from illness, trauma, and/or age, 

which causes a prisoner significant and serious impairment 

of strength or ability to perform daily life functions such 

as eating, breathing, toileting, walking or bathing so as 

to minimize the prisoner's ability to commit a crime if 

released on medical parole, and requires the prisoner's 

placement in a facility or a home with access to 

specialized medical care."

In the initial medical parole assessment submitted to the 

commissioner, Straus and Kiely opined that the plaintiff had 

debilitating conditions and was at "high risk for permanent 

incapacitation," but currently was not physically incapacitated. 

In the January 2021 updated assessment by Straus, he opined that 

the plaintiff had "debilitating medical conditions with 

permanent mobility and other functional incapacitation." 

Therefore, at that point, Straus had determined that the 

plaintiff suffered from "a physical . . . incapacitation that 

appears irreversible." G. L. c. 127, § 119A (a). The

commissioner appeared to conflate the two prongs of § 119A (a):

(1) a finding by the physician indicating "irreversible" 
33

incapacitation and (2) evidence that the condition is so 

debilitating that the prisoner does not pose a public safety 

risk.23 Nonetheless, it is clear, in light of the factors that 

she considered, that the commissioner ultimately determined that 

his medical conditions did not so debilitate him such that he no 

longer posed a public safety risk. The commissioner's 

determination that the plaintiff's release would pose a public 

safety risk was within her discretion based on the factors that

she properly considered.

The commissioner properly considered the plaintiff's 

ability to perform independently a significant number of 

activities of daily living as a factor in her determination that 

he does not qualify for medical parole in each of her decisions. 

As Straus opined, and as indicated supra, the plaintiff has 

numerous debilitating conditions that cause permanent mobility 

concerns and result in other forms of functional incapacitation. 

The plaintiff is dependent on a wheelchair.24 Despite his 

23 For example, in the March 2021 decision, the commissioner 

wrote: "Dr. Straus does not opine that [the plaintiff] is 

currently 'terminally ill' or 'permanently incapacitated' within 

the meaning of the medical parole statute . . . . Accordingly, 

I do not find that [the plaintiff's] current medical condition 

is 'so debilitating that [he does] not pose a public safety 

risk.'"

24 The plaintiff takes issue with the commissioner's finding 

that his requirement for a wheelchair was only due to "unsteady 

gait and tremors" as opposed to "physical weakness." The July 

2021 medical parole assessment opined that the plaintiff uses a 
34

dependence, however, he is able to transfer independently. He 

requires catheterization, but he is able catheterize himself. 

He is able to "utilize the bathroom independently . . . , feed 

himself independently, shower independently, dress himself 

independently, and voice his needs without issue." The 

superintendent's recommendation indicated that the plaintiff has 

a peer assistant to push his wheelchair, but his medical records 

indicate that in January 2021 during an evaluation he was able 

to "self-propel[] up and down the ramp." The plaintiff is 

correct that complete absence of independent functioning is not 

required by either the statute or the regulation. As discussed 

in McCauley, 491 Mass. at , although it is just one factor to 

be considered in the comprehensive evaluation of a petitioner, 

consideration of ability to perform independently the vast

majority of activities of daily living is a relevant factor, as 

set out by 501 Code Mass. Regs. § 17.02, that is pertinent to 

the definition of permanent incapacitation in the statute.

The commissioner's decision properly discussed additional 

factors in determining that the plaintiff, if released, would 

wheelchair for "unsteady gait and tremors"; thus, the 

commissioner's finding that the plaintiff's gait and tremors 

require him to use a wheelchair is grounded in the record. It 

is difficult to understand how that in itself does not 

constitute "physical weakness." Nonetheless, this distinction 

did not have an impact on the commissioner's decision where she 

recognized that "[h]e requires a wheelchair."
35

not "live and remain at liberty without violating the law" and 

that his release "would be incompatible with public safety and 

the welfare of society." Another factor that she considered was 

the plaintiff's 2009 risk assessment.25 See 501 Code Mass. Regs. 

§ 17.04 (2022). The risk assessment noted that the plaintiff 

had been arrested or charged three or more times with a new 

crime while on pretrial release. It noted that the plaintiff 

has received serious or administrative disciplinary infractions 

for fighting or threatening other inmates or staff. In the 

section entitled "Criminogenic Need Scales," the assessment 

indicated that both his violence history and current violence 

were "high." Despite this indication, the assessment concluded, 

without explanation, that his violence and recidivism risk were

"low."

Further, the plaintiff's crimes for which he was 

incarcerated were a proper factor to consider, and the 

commissioner did not give them undue weight. The facts of the 

plaintiff's crimes were highly violent and resulted in fifteen 

convictions of murder in the second degree for his setting fire 

to a rooming house in the early hours of the morning and killing 

25 The plaintiff protests that the commissioner "states 

nothing" about the risk assessment in her latest decision. 

Nonetheless, her first decision mentions the assessment, 

including its conclusion that he is a "low risk for violence and 

recidivism." Thus, the commissioner was aware of its contents 

and considered it in making a decision.
36

fifteen people. Carver, 33 Mass. App. Ct. at 379-380. The 

facts of the plaintiff's convictions were indicated in the 

superintendent's recommendation to the commissioner, which is 

contemplated by both the statute and the regulation. See G. L. 

c. 127, § 119A (c) (1); 501 Code Mass. Regs. § 17.04 (2022). As 

discussed in McCauley, 491 Mass. at , the statute does not 

require that the commissioner limit consideration to whether a 

petitioner is capable of committing the same or a similar

offense to that resulting in his or her incarceration; the 

inquiry is more general and centers around concern for public 

safety as set out in the statute. Nonetheless, that the 

plaintiff physically is capable of setting fire to a building is 

relevant to the danger he may pose to the public on release.26

The plaintiff's disciplinary reports also were an 

appropriate factor to consider in determining whether he 

qualified for medical parole, as mentioned in his classification 

report and the superintendent's recommendation.27 See G. L. 

c. 127, § 119A (c) (1); 501 Code Mass. Regs. § 17.04 (2022). 

26 As discussed in McCauley, 491 Mass. at , the 

plaintiff's refusal to admit guilt should not have been counted 

against him. In the context of all the other factors the 

commissioner considered in making a determination here, her 

reference to his assertion of innocence does not invalidate the 

commissioner's decision.

27 The commissioner also recognized the plaintiff's 

"moderate programming history," noting that most of it "occurred 

two decades ago."
37

The commissioner recognized that "most of [the plaintiff's] 

disciplinary reports of a serious nature are remote in time," 

but their age does not render them wholly irrelevant to the 

safety of the public on his release where he has a history of 

fighting, threatening staff and other inmates, lying, possessing 

contraband, and removing a blade from a razor. The plaintiff is 

not permitted to return to MCI-Shirley because of a "newly

identified conflict" with another inmate.

The commissioner most heavily relied on the use of force 

incident in her discussion of the plaintiff's disciplinary 

history. The plaintiff disputes the commissioner's 

characterization of the incident. The reports and the video 

were appropriate for the commissioner to consider in determining 

whether the plaintiff qualified for medical parole as they bear 

on the plaintiff's physical ability to engage in a struggle. 

See G. L. c. 127, § 119A (a) (defining permanent incapacitation 

as physical or cognitive condition that is "so debilitating that 

the prisoner does not pose a public safety risk" [emphasis 

added]). Further, in the plaintiff's counsel's affidavit to the 

Superior Court judge, she indicated that the incident was 

referenced by the superintendent in his materials sent to the 

commissioner as a part of his recommendation.

At the outset, given that the commissioner deemed the 

reports surrounding the use of force incident relevant, review 
38

of the video, which readily was available, was appropriate. We 

agree with the Superior Court judge who heard the plaintiff's 

motion to strike the administrative record that "where the 

[c]ommissioner has . . . deemed reports describing the . . . 

incident relevant, it is difficult to understand how video 

evidence of the incident would not also be relevant." The video 

was within the control of the department, as it was sent to the 

plaintiff's counsel and received in January 2021. It should not 

have taken an order from a judge for the commissioner to review 

video of an incident that was accessible and heavily relied on 

in the decision to deny the plaintiff medical parole.

Our review of the video reveals that it corroborates, or at 

the very least, does not refute, the statements in the reports. 

The video of this incident depicted the plaintiff's attempt to 

hang a sheet on the wall of his cell, until he was interrupted 

by correction officers. The officers began to remove everything 

from the plaintiff's cell, and the plaintiff lunged on his bed 

to try to grab his wheelchair before they removed it. There is 

no audio to the video, but it appears that the plaintiff argued

with the officers as they removed things from his cell. As 

officers attempted to pull the sheets off the bed, the plaintiff 

pulled them back in a struggle with the officers. He took off 

his watch and threw it; the watch landed on the ground beside 
39

one of the officers, and another officer picked it up.28 Next, 

the plaintiff made a motion toward an officer, and the officers 

pinned him to the bed.29 As the lieutenant held down the 

plaintiff on the bed, the plaintiff wrapped his legs around the 

lieutenant's leg. The lieutenant punched the plaintiff during 

the struggle. Eventually, six officers responded to this 

incident, and four tried to secure the plaintiff's hands and 

feet. The officers removed the plaintiff's clothes and held him 

down on his side. After a few minutes, it appeared that an 

officer tried to take off the plaintiff's foot restraints. In 

response, the plaintiff kicked his feet and struggled with the 

officers again. The officers then left the plaintiff 

restrained, placed him flat on his stomach, and closed the door 

to his cell. A little over a minute later, officers went back 

into the plaintiff's cell, turned him over, and put over him 

what appeared to be a blanket. The plaintiff's face suggested

that he was in pain. Throughout this video, the plaintiff did

not rise from his bed, and continued to speak with officers.30

28 The report states that the plaintiff threw his watch 

toward the officers and missed.

29 Because of the angle of the video and where the officers 

were standing, it is not possible to see what the plaintiff did 

to the officer. The report claims that the plaintiff threw "an 

awkward open hand punch to the [lieutenant's] chest."

30 The reports indicate that the plaintiff berated staff and 

was aggressive throughout the incident.
40

The commissioner's discussion of the use of force incident 

is not contradicted by anything that appeared in the video. The 

commissioner failed to note that the plaintiff never stood up 

throughout the incident. Nonetheless, the plaintiff's legs were

seen wrapping around the lieutenant's leg, and it took four 

officers to secure the plaintiff. When an officer attempted to 

remove his foot restraints, the plaintiff kicked at the officer. 

This incident was recent, as it happened in June 2020. This 

lends support to the commissioner's determination that the 

plaintiff is not so debilitated that he does not pose a risk to 

public safety.

This incident happened as a result of the plaintiff's 

attempts to harm himself during a mental health crisis. This 

was not the first time that the plaintiff tried to take his own 

life. Leading up to this incident, in May, the plaintiff 

attempted suicide and was sent to the hospital, and soon after, 

in July, he made a similar attempt. The plaintiff argues, in 

one paragraph and without citing case law for support, that "the 

[c]ommissioner could not have discriminated based on [his] 

mental state in denying medical parole without violating the 

Americans with Disabilities Act." The plaintiff does not 

explain how the commissioner discriminated against him based on 

his mental state, nor does he assert conclusively that she did. 

As a result, his briefing on this issue does not rise to the 
41

level of appellate argument. See Commonwealth v. Beverly, 485 

Mass. 1, 16 (2020); Mass. R. A. P. 16 (a) (9) (A), as appearing 

in 481 Mass. 1628 (2019).

Nonetheless, the commissioner referenced the plaintiff's 

mental health history in her original decision without 

indicating that it had an impact on her determination, and in 

her March 2021 decision, she stated that the plaintiff's

attorney "indicate[d] that [the plaintiff's] mental health is 

stable, and I have not received any information to the 

contrary." Therefore, it does not appear that she treated his 

mental health history as a factor suggesting that he would pose 

a danger on release. Contrast Crowell v. Massachusetts Parole 

Bd., 477 Mass. 106, 112-113 (2017) (where board "indicated its 

awareness both of the plaintiff's disability and of how symptoms 

stemming from that disability could affect his behavior . . . on 

parole," board should have considered risk reduction programs). 

Although the commissioner did not reference that the use of 

force incident was in response to a mental health crisis, she 

considered the incident for its depiction of the plaintiff's 

physical ability to be combative and violent, not for the 

motivations behind the plaintiff's physical actions. This was 

not discriminatory.

We do not think that the absence of two statutory 

requirements in an otherwise comprehensive medical parole plan
42

influenced the commissioner's decision, given her extensive 

discussion of other factors and her brief reference, only in the 

first decision, to the plaintiff's medical parole plan, in 

addition to the reasons discussed supra.31 This further is 

evidenced by the commissioner's decision in Malloy, 487 Mass. at 

489, where she granted the appellant's petition and allowed 

release "conditional on a suitable home care plan." This 

suggests that the commissioner is willing to grant release, even 

where she believes that the initial home care plan is 

inadequate, and that the department will work with a prisoner to 

ensure an appropriate plan is established prior to release.32

The plaintiff set fire to a building and killed fifteen 

people. Carver, 33 Mass. App. Ct. at 379. Although he suffers 

from numerous serious medical conditions, and Straus's second 

medical evaluation opined that he has "permanent mobility and 

other functional incapacitation," he is able to perform 

activities of daily living including feeding, showering, 

dressing, and voicing his needs independently, and he is able to 

31 For the same reason, we do not think that the failure of 

the department to prepare an Interstate Compact for Adult 

Offender Supervision application was fatal in this case.

32 In addition, in response to questioning at oral argument 

in McCauley, 491 Mass. at , counsel for the commissioner 

provided several decisions where the commissioner determined 

that a petitioner was permanently incapacitated, despite an 

inadequate proposed plan.
43

administer his catheter supplies himself. He is able to 

maneuver his wheelchair on his own, as indicated in a medical 

evaluation. See McCauley, 491 Mass. at (consideration of 

ability to perform majority of activities of daily living 

appropriate). His chronic medical conditions are "stable." He 

has received disciplinary reports for fighting, threatening 

people, lying, removing a razor from a blade, and possession of 

contraband. During a mental health crisis, as correction 

officers tried to remove items from his cell to protect him, he 

struggled with the officers, wrapping his legs around a 

lieutenant's leg, requiring four officers to secure him. 

Considering the above factors, and additional factors discussed 

supra, the commissioner's determination that the plaintiff is 

not so debilitated that he does not pose a public safety risk 

was not arbitrary or capricious.

Conclusion. Because we see no reason to disturb the 

decisions of the commissioner, we affirm the judgment of the 

Superior Court denying the plaintiff's request for relief.

So ordered.