MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On April 16, 2020, the Commissioner of Correction (commissioner) denied a petition for medical parole filed by Terry Abercrombie, a prisoner housed at the Massachusetts Treatment Center. Abercrombie brought a certiorari action against the commissioner and Department of Corrections (jointly, defendants) and, following two remands and subsequent denials by the commissioner, a Superior Court judge denied Abercrombies final motion for remand and allowed the defendants’ motion for judgment on the pleadings. Abercrombie now appeals from the judgment. We affirm.
Background. Abercrombie is currently serving an eighteen-to-twenty-year sentence for a 1992 aggravated rape, to which he pleaded guilty in 2014. On February 4, 2020, Abercrombie filed a petition for medical parole. At the time, he was fifty-seven years old and had been diagnosed with AIDS, end-stage renal disease requiring dialysis, Hepatitis-C, arteriosclerotic cardiovascular disease with hypertension, and had a history of infected arteriovenous grafts. The Superintendent of the Massachusetts Treatment Center (superintendent), where Abercrombie was and is currently incarcerated, recommended that Abercrombies petition be denied, and the Suffolk County District Attorneys Office opposed the petition. The commissioner ultimately denied Abercrombies petition. Abercrombie filed a certiorari action, which was transferred to the Superior Court.
On September 30, 2020, the judge remanded the case to the commissioner and ordered the creation of a medical parole plan and reconsideration of Abercrombies petition for medical parole “based on his current medical condition.” The commissioner again denied Abercrombies petition. Abercrombie then sought to supplement the Superior Court record with the administrative record of the commissioners reconsideration and requested “Judgment on the Pleadings on Facts as Argued.” The defendants cross-moved for judgment on the pleadings.
While the motions were pending, Abercrombie suffered a cardiac episode and filed a request with the commissioner for an administrative reconsideration. The judge granted Abercrombies motion to supplement the record and ordered expedited reconsideration by the commissioner, concluding “that the interests of justice and considerations of judicial efficiency require [the trial court] to await the Commissioners reconsideration decision before ruling on the merits of the cross-motions for judgment on the pleadings.” The order required the commissioner to, inter alia, “consider the new medical information and issue a ruling on the pending motion for reconsideration.” The commissioner again denied Abercrombies petition for medical parole, finding that Abercrombie was not “terminally ill or permanently incapacitated as defined in G. L. c. 127, § 119A (a)” and “would still pose a public safety risk” if released.
Abercrombie then moved for “Remand for Specific Findings of Fact, Review of Surveillance Videotapes, and Comparison with Other Inmates Granted Medical Parole, Both by Race and by Ability to Walk with Assisting Device” (motion for remand).
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After hearing, the judge denied Abercrombies motion for remand and motion for judgment on the pleadings and allowed the defendants’ motion for judgment on the pleadings. In denying the motion for remand, the judge noted that “the purpose of Abercrombies request for remand [was] not to have the Commissioner make findings of fact necessary to her decision under the medical parole statute. Rather, his request, in essence, [was] that DOC produce discovery to enable him to submit to this Court evidence to support his allegations” that the commissioner engaged in improper, inconsistent, and discriminatory decision-making. The judge concluded that “such extra-record materials [are] simply beyond the limited scope of certiorari review.”
The judge further reasoned that he was “concerned by the Commissioners failure to expressly address [ ] contradictory” medical assessments “concerning the degree to which Abercrombie [was] incapacitated.” He concluded, however, that “[t]his deficiency in the Commissioners decision is not fatal” because “[t]he Superintendents recommendation and the record as a whole furnish a rational explanation for the Commissioners determination that despite multiple chronic medical conditions impairing his functioning, Abercrombie poses some public safety risk if released.” Abercrombie raises various arguments on appeal.
Discussion. 1. Motion for remand. Abercrombie first contends that “nothing in the plain language of [G. L. c. 249, § 4,] prohibits a judge from ordering the Commissioner to provide additional information to the court in the medical parole context” and, therefore, the judge was wrong to conclude that the “extra-record materials” sought here were “beyond the limited scope of certiorari review.” This argument is unavailing.
General Laws c. 249, § 4, governs certiorari review, allowing for the “correct[ion of] errors in proceedings” that are not otherwise reviewable, and providing that “[t]he court may enter judgment quashing or affirming [the proceedings complained of] or such other judgment as justice may require.” Certiorari is a “limited procedure reserved for correction of substantial errors of law apparent on the record created before a judicial or quasi judicial tribunal” (citation omitted). Indeck v. Clients’ Sec. Bd., 450 Mass. 379, 385 (2008). “On a writ of certiorari, the courts review ‘is confined to the record and is for the purpose of correcting legal error ․’ ” Bielawski v. Personnel Admr of the Div. of Personnel Admin., 422 Mass. 459, 464 (1996), quoting Gloucester v. Civil Serv. Commn, 408 Mass. 292, 297 (1990).
Here, after obtaining two orders of remand from the Superior Court and receiving three substantive denials of medical parole from the commissioner, Abercrombie again moved for remand. He sought, for the first time, the production and consideration of new evidence not previously requested before the commissioner or on prior motions for remand before the Superior Court. See note 2, supra. We are not persuaded by Abercrombies argument that the judge erred as a matter of law in concluding that the materials Abercrombie sought were “beyond the limited scope of certiorari review.” See Board of Selectmen v. Civil Serv. Commn, 37 Mass. App. Ct. 587, 588 n.4 (1994) (“As review in the nature of certiorari is limited to the record before the governmental body or officer that made the order complained of, the taking of fresh evidence in the Superior Court [is] not appropriate”); Superior Court Standing Order 1-96(5) (under certiorari review, “[n]o testimony or other evidence shall be presented at the hearing, and the review shall be confined to the record”). To the extent our caselaw permits consideration of extra record evidence upon the showing of a cognizable constitutional claim, see Goldies Salvage, Inc. v. Selectmen of Walpole, 31 Mass. App. Ct. 726, 734 n.12 (1992), citing Stetson v. Selectmen of Carlisle, 369 Mass. 755, 758 (1976) (noting possible exception to bar on extra record evidence in some circumstances, e.g., where “plaintiff made cognizable constitutional claims based on facts extrinsic to the record”), no such showing has been made here.
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Further, Abercrombie waived such a motion where he did not seek this evidence before the commissioner or on prior motion for remand and did not explain his failure to do so.
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See generally New York & Mass. Motor Serv., Inc. v. Massachusetts Commn Against Discrimination, 401 Mass. 566, 579 (1988) (“As a general rule, a party is not entitled to raise an argument on appeal if the claim could have been raised, but was not raised, before the administrative agency” [citation omitted]); Superior Court Standing Order 1-96(3) (under certiorari review, “[a]ny party failing to serve [a motion for leave to present testimony of alleged irregularities in procedure or leave to present additional evidence] within the prescribed time limit, or within any court-ordered extension, shall be deemed to have waived any such motion (unless relating to jurisdiction) and the case shall proceed solely on the basis of the record”). Thus, we see no error or abuse of discretion in the denial of the motion for remand.
2. Arbitrary and capricious. Abercrombie next argues that the commissioners conclusion that he posed a threat to the public was arbitrary and capricious and an abuse of discretion. He contends that “[t]he [c]ommissioners basis for finding Mr. Abercrombie a threat to public safety relied heavily on stale assessments” and “placed undue weight on the nature of Mr. Abercrombies 2014 conviction despite the fact that the actual offense occurred 30 years ago.” This argument is also unavailing.
We “examine whether the commissioners decision was arbitrary and capricious such that it constituted an abuse of [her] discretion.” See Frawley v. Police Commr of Cambridge, 473 Mass. 716, 728 (2016). “In an appeal from a Superior Court determination in a certiorari action asserting, inter alia, abuse of discretion ․, we review the record to determine whether the [commissioner]’s decision is arbitrary or capricious ‘without giving the view of the Superior Court judge any special weight.’ ” Northboro Inn, LLC v. Treatment Plant Bd. of Westborough, 58 Mass. App. Ct. 670, 673-674 (2003), quoting Doe v. Superintendent of Sch. of Stoughton, 437 Mass. 1, 5 (2002).
Under the medical parole statute:
“[i]f the commissioner determines that a prisoner is terminally ill or permanently incapacitated such that if the prisoner is released the prisoner will live and remain at liberty without violating the law and that the release will not be incompatible with the welfare of society, the prisoner shall be released on medical parole.”
G. L. c. 127, § 119A (e). The commissioners determination is informed by, inter alia, “an assessment of the risk for violence that the prisoner poses to society” conducted by the superintendent of the correctional facility housing the prisoner. G. L. c. 127, § 119A (c) (1). Here, the commissioner “f[ound] that if released on medical parole, Mr. Abercrombie would still pose a public safety risk.”
We are not persuaded by Abercrombies argument that the commissioners decision was arbitrary and capricious for reliance “on stale and irrelevant evidence.” In reaching her conclusion, the commissioner relied on the superintendents March 2, 2020, risk assessment -- which in turn drew upon, inter alia, a July 25, 2019 “classification report.”
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Where the commissioner relied on a recent assessment and report, we cannot say it was arbitrary or capricious for reliance on stale evidence.
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Furthermore, where the commissioner pointed to a lengthy criminal history, including recent disciplinary infractions, we cannot say that the commissioner placed “undue weight” on the nature of Abercrombies thirty-year-old offense. See Doe v. Superintendent of Sch. of Stoughton, 437 Mass. 1, 6 (2002) (under arbitrary and capricious standard, reversal warranted only if decision “lacks any rational explanation that reasonable persons might support” [citation omitted]). Thus, Abercrombie has not met his burden of demonstrating that the denial of medical parole was arbitrary or capricious.
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Judgment affirmed.
FOOTNOTES
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. Abercrombie sought, inter alia, orders requiring the commissioner to: produce a list of “those prisoners not confined fulltime to a wheelchair who have been found sufficiently debilitated to qualify for medical parole” and “how many were/are African-American”; “review and report how many African-American petitioners have applied for medical parole, and how many times medical parole has been granted”; produce “record[s] of all communication ․ between the Commissioner and her counsel with Wellpath [medical] staff and with the Superintendent regarding Mr. Abercrombie”; “provide every instance where, as here, medical staff changed diagnosis, description, and prediction to a petitioners detriment following communication from the Commissioner and her counsel, or following communication on the topic between Commissioner and her counsel with institutional staff”; and “review and enter into the administrative record the surveillance videorecording of one day in the life of this prisoner ․”
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. Abercrombie asserts that “[j]ustice requires that the reviewing court be able to evaluate allegations of racial bias.” He does not, however, raise a constitutional claim under 42 U.S.C. § 1983 or otherwise.
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. Even assuming arguendo that the judge erred by concluding that he had no discretion to order a remand, we review the same record as the judge, without giving any special deference to his decision, see Northboro Inn, LLC v. Treatment Plant Bd. of Westborough, 58 Mass. App. Ct. 670, 673-674 (2003), and we conclude that no discretionary remand is warranted here.
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. The “classification report” documented Abercrombies criminal and disciplinary history and designated his security level at “medium.” Abercrombies criminal history included convictions for manslaughter, breaking and entering, indecent assault and battery on a person over the age of fourteen, drug offenses, firearm offenses, a further assault and battery, and failing to register as a sex offender, as well as revocation of parole and a probation violation. While serving his current sentence, Abercrombie received thirteen disciplinary sanctions, including, most recently: fighting with another inmate in February 2018; three instances of unauthorized use of drugs between August and September 2018; and refusing a direct order in March 2019.
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. Even accepting Abercrombies contention that one element of the evidence, reference to a 2014 “Compass Risk/Needs Assessment,” was stale is not fatal where the commissioners decision was supported by the more recent classification report and the superintendents independent assessment.
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. We also conclude that the commissioner did not act arbitrarily or capriciously in deciding that Abercrombie was not terminally ill or incapacitated within the meaning of G. L. c. 127, § 119A, despite “contradictory” medical assessments “concerning the degree to which Abercrombie [was] incapacitated.” An initial assessment of Abercrombies medical condition concluded that it was “likely that he has a life expectancy of 18 months or less,” and “[h]e is permanently incapacitated with very limited ability to perform basic activities of daily living.” However, subsequent medical assessments concluded that “Abercrombie had multiple serious but not lethal problems” and “when pressed to provide statistics etc., it was not possible to support a conclusion of probable death within 18 months.” The later reports concluded that “Abercrombie unquestionably does not have a life expectancy of 18 months or less nor does [he] have a medical condition which has not been able to be navigated well enough to preserve the quality of his life.” The final medical assessment noted that Abercrombies “recent bout of life-threatening coronary artery disease was extremely successfully treated.” Where the judge twice ordered the commissioner to reconsider Abercrombies medical parole petition based on his “current medical condition,” it was not arbitrary or capricious for the commissioner to adopt the conclusions of the subsequent and updated medical assessments. See Conservation Commn of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 739 n.3 (2000) (“ ‘[I]f the question is fairly debatable,’ we cannot substitute our judgment for that of the commission[er]” [citation omitted]). Nor was the commissioner required to explain why she did not rely on the initial assessment; the desirability of relying on the most recent assessments, which included input from more medical personnel, is sufficiently obvious. Further, the judge did not see any record evidence that the commissioner routinely pressures medical staff to alter medical parole assessments that are favorable to an inmate, nor do we see any evidence that the commissioner did so here.