MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, at the relevant time a pretrial detainee of the defendant Bristol County Sheriffs Office (BCSO) being held at the Bristol County House of Correction, who is not disabled, was housed in what he describes as the “handicap cell” in “Unit HB” at the house of correction. The facts, as articulated in an inmate grievance he filed, are that he had been housed in that cell since approximately February or March 2019. On August 9, 2019, Lieutenant John Ledo called the unit and told Corrections Officer Rodriguez to move the plaintiff out of the handicap cell and into another cell so that another inmate, Andre, who used a wheelchair, could be moved in. On three prior occasions when disabled inmates had been moved into the cell, the plaintiff had just moved his mattress to the top bunk and the disabled person was housed on the bottom bunk. Prison authorities, however, refused to allow that procedure, and told the plaintiff that he would be taken to segregation if he refused to move his property out of the handicap cell and into another cell.
On two previous occasions when inmate Andre had been moved into the cell, the plaintiff had been permitted to reside with him there. There were no security issues between the plaintiff and Andre, nor was Andre on a “house alone” order. The plaintiff alleged that Judith Borges, an administrator at the BCSO, and Lieutenant Ledo moved him out of the cell to prevent him from residing with Andre in retaliation for the many grievances he filed against the BCSO and its employees over the previous years. He also argued that the move was designed to prevent him from providing inmate Andre with legal assistance. Although it is not alleged in the complaint, apparently the plaintiff had previously assisted Andre with grievances when they were housed together, resulting in the installation of bars to assist disabled persons using the toilet in the cell. The plaintiff asserted there was no legitimate penological reason for his forced move and filed a grievance seeking that he be moved back into the handicap cell and that he be compensated for a willful and knowing violation of his rights as he alleged was permitted under BCSO policy 13.02.05(B)(1)(m and n).
The plaintiffs grievance was rejected as non-grievable. The grievance coordinator wrote, “Housing assignments are classification, medical, and security decisions and are non-grievable. You were not threatened, intimidated, or coerced but simply told the consequences of failure to comply to a lawful order.”
Following the rejection of his grievance, the plaintiff filed the instant lawsuit in the Superior Court. In count one, he sought judicial review, under G. L. c. 30A, § 14, of the rejection of his grievance, alleging that the grievance decision was unlawful. In count two, he alleged violation of his rights under G. L. c. 12, §§ 11H and 11I. In count three, he alleged a violation of his Federal constitutional rights in violation of 42 U.S.C. § 1983. In count four, he sought a declaratory judgment. In his complaint, the plaintiff realleged the facts alleged in his grievance, but added that he later learned that Borges and Lieutenant Ledo were keeping Murphy and Andre apart so that Murphy could not provide Andre with legal assistance. He alleged that Andre asked if he could have a cellmate and was told he could have any cellmate. Andre told Officer Rodriguez that he wanted Murphy as his cellmate. Murphy was moved back into the handicap cell, but a week later Ledo called Rodriguez and stated, “I thought I told you to move Murphy out of the Handicap Cell,” and told Rodriguez that Andre could indeed have any cellmate he wanted except the plaintiff.
The plaintiff moved for judgment on the pleadings with respect to his G. L. c. 30A, § 14 claim. In his memorandum in support of that motion he stated that his other claims should go to trial. The defendants opposed the motion. In their brief in opposition, the defendants asserted a number of facts that are neither in the administrative record nor in the complaint. In particular, they asserted that Andre had been placed in the handicap cell on May 2, 2019, with Murphy. Four days later, Andre filed a grievance noting that the cells toilet did not have bars for the disabled and that he had to rely on Murphy to lift him up to and off from the toilet. In response to the grievance, on May 17, 2019, bars to assist the disabled were installed in the cell. Andre insisted that they were not sufficient and that Murphy still had to assist him in and out of bed. The defendants stated that although the grievance was signed by Andre, Andre admitted that it was drafted by Murphy.
The defendants further asserted in their opposition that Andre could not be placed in the handicap cell if he needed the assistance of another inmate. Although Andre was returned in May to the “GC unit” described by the defendant as large, wide open housing that formerly contained a gymnasium, on August 1, 2019, he was transferred to “medical [HSU Unit] for an assessment as to whether he could return to HB unit.” There is no explanation in the opposition for why he would have needed to return to HB unit if he had previously been placed in GC unit. The opposition stated without citation:
“Medical decided that he could be returned to HB Unit on August 9, 2019 as long as he could function without needing the assistance of another inmate. To insure that Andre was able to function without the assistance of Murphy, Murphy was moved out of HB Unit. When the medical staff was assured that Andre could function on his own, Murphy was moved back to the HB cell on August 16, 2019.”
Although no discovery had been taken and no evidentiary hearing or trial held, the motion judge dismissed the complaint and endorsed the motion for judgment on the pleadings as follows:
“Plaintiffs motion is denied. Treating the defendants opposition as a cross-motion, Judgment shall enter in favor of the defendants. Plaintiff has identified no adverse action that would serve as the basis for any of his claims. He has no right to be housed in a particular cell of his choosing; the defendant has articulated legitimate, unrebutted reasons for moving Murphy out of the cell for a brief period; and Murphy was returned to the cell after 7 days, when it was shown that the cell mate could function without another inmates assistance.”
The plaintiff moved for reconsideration, arguing that Superior Court Standing Order 1-96 (5) requires a hearing to be held on a motion for judgment on the pleadings seeking judicial review under G. L. c. 30A, § 14. The judge allowed the motion for reconsideration “to the extent that a hearing on the Cross-Motions for Judgment on the Pleadings will be held on Feb. 14, 2020 @ 8am.” Following the hearing, the motion judge entered an order providing that:
“After a hearing, the motion is denied. Plaintiff filed this action pursuant to G. L. c. 30A and a motion for judgment on the pleadings pursuant to Standing Order 1-96. Therefore, he is not correct that the Court must accept his allegations as true when considering the cross-motions. Moreover, plaintiffs claim that he was moved out of his cell because the defendant wanted to keep him away from inmate Andre is refuted by the fact that, after a short period, plaintiff was returned to his cell and resided with Mr. Andre. Finally, plaintiff has not identified any adverse action against him.”
The plaintiff timely filed a notice of appeal.
3
Discussion. Review under G. L. c. 30A, § 14 is generally limited to the administrative record. See G. L. c. 30A, §§ 14 (4)-(6). In this case, the administrative record included only the grievance filed by the plaintiff. The disposition of the grievance, on the ground that it was not grievable, was based on accepting the allegations as true. For purposes of our review of the dismissal of the G. L. c. 30A, § 14 claim, we too accept the allegations of the grievance as true.
With respect to the dismissal of the other claims, we take the allegations of the complaint as true and draw every reasonable inference therefrom in favor of the plaintiff. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
As to the applicable law, it is, of course, true that a prisoner has no right to an assignment to any particular cell. See Hastings v. Commissioner of Correction, 424 Mass. 46, 50 (1997). Nonetheless, no adverse action may be taken against an inmate in retaliation for the exercise of constitutional rights. See McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (allegation that prison officials transferred inmate to another facility in retaliation for exercising his First Amendment right to petition courts established valid 42 U.S.C. § 1983 claim). The right to file grievances and lawsuits is protected by the First Amendment to the United States Constitution. See id. Likewise, the provision of legal advice by a “jailhouse lawyer” is an inmate-to-inmate communication accorded the same First Amendment protection normally accorded prisoners’ speech. See Shaw v. Murphy, 532 U.S. 223, 228-232 (2001). Because of the reduced strength of the First Amendment right in the context of lawful incarceration, however, the test to be employed for determining whether there has been an unlawful infringement of a First Amendment right is that articulated in Turner v. Safley, 482 U.S. 78, 89 (1987), which asks whether the restriction was reasonably related to legitimate penological interests. See Shaw, 532 U.S. at 229. In addition, it is impermissible to deny a so-called jailhouse lawyer the ability to provide legal assistance to another inmate. See Johnson v. Avery, 393 U.S. 483, 488-490 (1969).
As is the case here, a prisoner may file a grievance objecting to actions taken in retaliation for the exercise of constitutional rights. See G. L. c. 127, § 38E (c) (“Grievances that may be brought by inmates ․ shall include all grievances arising out of or resulting from a condition of or occurrence during confinement”). See also 103 Code Mass. Regs. § 491.11(1) (listing issues that are not grievable). Being placed in a less desirable cell may be an unlawful adverse action when done in retaliation for the exercise of constitutional rights. See Schofield v. Clarke, 769 F. Supp. 2d 42, 47 (D. Mass. 2011) (“the transfer of a prisoner to another facility, if made by reason of the prisoners exercise of his First Amendment rights, may be an ‘adverse action’ ”).
With this as background, we conclude that with respect to the plaintiffs claim under G. L. c. 30A, § 14, the defendants were not entitled to judgment on the pleadings because the denial of the plaintiffs grievance was based on a legal error, i.e., the conclusion that a housing assignment could never be grievable. Rather, the judge should have allowed the plaintiffs motion for judgment on the pleadings, set aside the agency decision, and remanded the plaintiffs G. L. c. 30A, § 14 claim back to the BCSO for an evidentiary hearing to resolve whether the purpose of the move was, as the defendants contend, to serve a valid penological interest that justified his removal from the cell on this occasion while Andre was in it; or, as the plaintiff contends, at least in part to retaliate for past grievances or to prevent him from providing assistance to Andre in filing further grievances or lawsuits. We express no opinion on the merits of this question.
With respect to the plaintiffs claims under § 1983, we must take the allegations in the complaint as true. To prove a retaliation claim, the plaintiff must demonstrate that “(1) he engaged in constitutionally protected conduct, (2) prison officials took an adverse action against him (3) with the intent to retaliate against him for engaging in the constitutionally protected conduct, and (4) he would not have suffered the adverse action ‘but for’ the prison officials’ retaliatory motive.” Partelow v. Massachusetts, 442 F. Supp. 2d 41, 51 (D. Mass. 2006), citing Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). Further, the retaliation claim “must be premised on an adverse act of a kind that would deter persons of ‘ordinary firmness’ from exercising their constitutional rights in the future.” Starr v. Dube, 334 Fed. Appx. 341, 342 (1st Cir. 2009). The facts alleged in the complaint suffice to meet these elements, and therefore, we conclude that the plaintiffs complaint states a claim upon which relief may be granted. It may well be that summary judgment will prove appropriate in this case, something on which we express no opinion, but the defendants cannot obtain dismissal of the complaint by alleging facts contrary to those in the complaint that are not in the record, nor may the judge accept those facts as true.
4
Finally, as to the G. L. c. 12, § 11I claim, the defendants argue that there were no “threats, intimidation or coercion” alleged that would bring the claim within the ambit of the Commonwealths civil rights statute. Bally v. Northeastern University, 403 Mass. 713, 717 (1989), quoting G. L. c. 12, § 11H (plaintiff bringing § 11I claim “must prove that (1) his exercise or enjoyment of rights secured by the Constitution or laws of either the United States or the Commonwealth (2) has been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation, or coercion’ ”). Of course, the defendants are correct that describing the consequences of a failure to obey a lawful order is not a threat. See Klaucke v. Daly, 592 F. Supp. 2d 222, 224-225 (D. Mass. 2009) (section 11I claim denied where police officers implied or explicit threat to arrest plaintiff for refusing to provide identification was not improper and did not cross constitutional line). However, if in fact the order was retaliatory in violation of the plaintiffs constitutional rights, the order was unlawful. Because there is a factual question about the presence of a legitimate penological interest, dismissal of the plaintiffs G. L. c. 12, § 11I claim was error.
The judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
vacated and remanded
FOOTNOTES
3
. We treat the final order of the motion judge, denying the plaintiffs motion for reconsideration, as the entry of a new judgment. As the motion judge recognized in her order allowing the motion for reconsideration, judgment could not properly enter on the motion for judgment on the pleadings in the absence of the hearing required by the courts standing order. The judge held that hearing on February 14, 2020, and issued her final order on the same date. Because the final judgment could not have entered until after the hearing was held, and because the judge had already allowed the motion for reconsideration in order to schedule the hearing on the merits of the motion for judgment on the pleadings, her order of February 14, 2020, must be treated as an order re-entering the previously improperly entered judgment.
4
. For this same reason, the judges decision does not, as the defendants argue, render the plaintiffs G. L. c. 30A, § 14 claim moot.