FORD v. CLARKE

e differed significantly from those of a prisoner serving a sentence. Absent evidence that Ford engaged in sanctionable behavior while in detention or otherwise posed a serious risk requiring pretrial confinement in the DDU, his placement there violated his constitutional rights. F. Procedural Due Process

The parties have also moved for summary judgment on Ford's claims that Bender violated his right to procedural due process by confining him in the DDU as a pretrial detainee without a hearing and by retaining him in the DDU without any process following his April 2008 conviction. For the reasons detailed below, this court finds that Bender's failure to provide Ford with any procedural protections in 2007, at the time he was returned to the DDU as a pretrial detainee, or in 2008, at the time he was placed in the DDU as a convicted prisoner, violated the plaintiff's constitutional rights.

Specifically, both parties are seeking summary judgment on Ford's claim that Bender, acting in both his individual and official capacities, deprived him of his right to procedural due process under the Fourteenth Amendment. (Count III). The DOC defendants also are seeking summary judgment on Ford's claim that Bender violated his right to procedural due process under Articles 1, 10 and 12 of the Massachusetts Declaration of Rights. (Count IV). The parties agree that the same standards govern the federal and state constitutional claims.

Existence of a Protected Interest

"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.ct. 2384, 2393, 162 L. Ed. 2d 174 (2005). The DOC defendants contend that Ford is not entitled to due process protection because he has not established that he had a liberty interest in avoiding confinement in the DDU. (Def. Mem. (Docket No. 92) at 17). This argument is without merit. As an initial matter, "[p]retrial detainees, unlike convicts, have a liberty interest in avoiding punishment — an interest that derives from the Constitution itself." Surprenant, 424 F.3d 13 (noting that Sandin court's holding that 30-day period of punitive segregation imposed on a convict could be levied without due process "applies only to those convicted of crimes — not to pretrial detainees"). Therefore, Ford "as a pretrial detainee retained a liberty interest in freedom from disciplinary confinement without due process[.]" Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996). See also Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999) ("although it is permissible to punish a pretrial detainee for misconduct while in pretrial custody, that punishment can be imposed only after affording the detainee some sort of procedural protection").

Additionally, this court finds that Ford has shown that he had a constitutionally protected liberty interest in avoiding DDU confinement even after he pled guilty and was sentenced in 2008. In the case of convicted prisoners, "the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement." Wilkinson, 545 U.S. at 221, 125 S.ct. at 2393. Nevertheless, "a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations" where the challenged conditions impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 222-23, 125 S.ct. at 2393-94 (quoting Sandin, 515 U.S. at 484, 115 S.ct. at 2300). There can be no serious challenge to the conclusion that confinement in the DDU at Cedar Junction for the lengthy period involved in this case constituted an atypical or significant hardship as compared to the ordinary incidents of prison life. See Wilkinson, 545 U.S. at 223-24, 125 S.ct. at 2394-95 (finding that placement in maximum security prison with highly restrictive conditions imposed atypical and significant hardship "under any plausible baseline" where duration of placement was indefinite and assignment to facility disqualified inmates from parole consideration); Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (holding that 305 days in solitary confinement cell of segregated housing unit was "a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin"); Magluta v. Samples, 375 F.3d 1269, 1282 (11th Cir. 2004) (allegations that plaintiff was confined in solitary confinement under extremely harsh conditions with minimal human contact for more than 500 days supported a liberty interest under Sandin). This conclusion is consistent with the DOC's own regulations, which provide that inmates be afforded notice and a hearing by a Special Hearing Officer before they may be sentenced to the DDU as a sanction for misconduct. See DuPont v. Comm'r of Corr., 448 Mass. 389, 392-93, 861 N.E.2d 744, 747-48 (2007), and regulations cited. In sum, Ford had a liberty interest in avoiding confinement in the DDU which entitled him to procedural due process.

This conclusion is even more compelling in light of the opinion of the plaintiff's expert that "[t]he DDU at Cedar Junction presents a particularly harsh and psychologically punishing condition of solitary confinement." (Pl. Ex. A ¶ 10.b).

Adequacy of Process

Having determined that Ford had a liberty interest in avoiding confinement in the DDU, the issue becomes whether the plaintiff was provided with all the process that was constitutionally due.See Wilkinson, 545 U.S. at 224, 125 S.ct. at 2395 (once a liberty interest has been established, court turns to question of what process is due). In Wolff v. McDonnell, 418 U.S. 539, 94 S.ct. 2963, 41 L. Ed. 2d 935 (1974), the Supreme Court set forth the minimum procedural safeguards required to satisfy due process in the context of prison disciplinary proceedings. See Surprenant, 424 F.3d at 18 (" Wolff has long established the level of due process required before a pretrial detainee can be deprived of a liberty interest in a disciplinary hearing");Mitchell, 75 F.3d at 525 ("The elements of due process in a prison disciplinary hearing have long been established by Wolff"). Those safeguards include

1) advance written notice of the charges at least 24 hours before the hearing; 2) the opportunity to appear at the hearing, to call witnesses and to present rebuttal evidence; and 3) a written statement by the factfinders as to the evidence relied on for their decision and the reasons for the prison committee's action.

Orwat v. Maloney, 360 F. Supp. 2d 146, 162 (D. Mass. 2005) (citing Wolff, 418 U.S. at 564-66, 94 S.ct. at 2978-80). In the instant case, Ford is not challenging his 2003 DDU hearing for which he had received notice, even though he did not attend the hearing and was not represented, despite having requested counsel. It is undisputed that no further

The DOC defendants, relying on Torres, argue that "the Supreme Judicial Court has already held that the process provided by the disciplinary proceedings resulting in a DDU sanction is sufficient for due process purposes." (Def. Mem. (Docket No. 92) at 19). However, Ford is not challenging the adequacy of the available administrative procedures. Rather, Ford's argument is "that he was never afforded the protection of those procedures . . . prior to his detention in the DDU first as a pretrial detainee and later as a sentenced inmate." (Pl. Reply Mem. (Docket No. 114) at 9).

proceedings occurred before Ford was placed in the DDU as a pretrial detainee in January and again in March 2007, or before he was placed in the DDU following his 2008 conviction. (See PF ¶¶ 12, 24, 29, 33; DR ¶¶ 12, 24, 29, 33; Def. Ex. F; Pl. Supp. Ex. H). Therefore, the issue is whether the 2003 DDU hearing was sufficient to provide Ford with all of the process that was due. This court finds that based on the undisputed facts presented in this case, reliance on the 2003 hearing was insufficient.

Since Ford is no longer challenging his transfer to DOC custody under Section 52A, or the related administrative procedures, this court will not address the DOC defendants' arguments on these points.

As detailed above, Ford cannot be held in the DDU as a pretrial detainee as punishment for an infraction of disciplinary rules which occurred while he was serving a sentence that had since been concluded. Under the facts presented here, this would constitute punishment for a crime which had not yet been proven, in violation of his substantive due process rights. It follows, then, that if the DOC was holding Ford in the DDU for the safety and security of the institution, he was entitled to a hearing to assess his current threat level. The threat he had posed in 2003 did not necessarily still exist in 2007, especially since he had spent the intervening years in isolation. The failure of the DOC defendants to provide Ford with any hearing before he was placed in the DDU as a pretrial detainee violated his rights to procedural due process. See Boulanger v. Dir. U.S. Bureau of Prisons, Civil No. 06-cv-308-JD, 2006 WL 3694548, at *5 (D.N.H. Dec. 12, 2006) (unpub. op.) ("It goes without saying that a pretrial prisoner who is denied any hearing at all prior to the imposition of punishment was denied the due process guaranteed by Wolff").

Even assuming, arguendo, that the record was unclear as to whether Ford was being held as punishment for the 2003 events or for security reasons, a hearing should have been held. "Because the same conduct may be the basis for either nonpunitive, regulatory restrictions or punitive sanctions, it is often important to distinguish between nonpunitive measures and the punitive measures that are subject to due process restrictions."Rapier, 172 F.3d at 1005. "[A] due process hearing helps to ensure that disciplinary punishment is what it purports to be, rather than punishment in advance of conviction for the crime that led to detention. . . ." Mitchell, 75 F.3d at 524 n. 4. Again, the absence of a hearing before Ford was kept in the DDU as a pretrial detainee violated his procedural due process rights.

Ford was also entitled to a hearing at the time he began serving a sentence in 2008. As detailed above, the sanctions imposed on Ford in 2003 ended when his status changed to a pretrial detainee. Therefore, his incarceration in the DDU in 2008, after his conviction on the Assault Charges, was, in effect, a disciplinary sanction imposed on a new prisoner. The length of time the DOC sought to keep Ford in the DDU — the entire length of his sentence — implicated a liberty interest as it is "beyond the normally expected incidents of prison life."Rapier, 172 F.3d at 1004 (with respect to convicted prisoners, "[t]he Due Process Clause simply guarantees [them] the right to be free of punishment that is beyond the normally expected incidents of prison life."). Therefore, Ford was entitled to a hearing.

There is nothing in the record to indicate when, if ever, Ford's 10 year disciplinary sanction was reviewed.

"The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'"Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.ct. 893, 902, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.ct. 1187, 1191, 14 L. Ed. 2d 62 (1965)). The DOC defendants' reliance on a hearing that took place more than five years earlier, while Ford was serving a prior sentence, to justify the plaintiff's continuing confinement in the DDU is not sufficient to meet this standard. Compare Shoats v. Horn, 213 F.3d 140, 147 (3d Cir. 2000) (holding that monthly reviews of inmate's confinement in administrative custody, during which inmate had opportunity to present his views, satisfied minimal constitutional standards for due process). Taken to its logical extreme, the defendants' position that the remainder of a DDU sanction may be imposed at any time in the future, unchecked by further procedural review, would mean that an inmate could return to DOC custody a decade or more after the completion of his original sentence, and be subjected to DDU confinement without an opportunity to challenge the appropriateness of his placement. This is entirely inconsistent with the requirement to provide an "opportunity to be heard at a meaningful time and in a meaningful manner." Mathews, 424 U.S. at 333, 96 S.ct. at 902 (quotations and citation omitted). As detailed more fully above, it also negates the distinction between the "civil" disciplinary sanction and the criminal sentence for the crime charged. Accordingly, this court concludes that Ford was deprived of procedural due process when he was placed in the DDU in 2008 without any meaningful opportunity to be heard.

The defendants' reliance on unpublished opinions of the Massachusetts Appeals Court does not compel a different conclusion. In the case of In re Pridgett, 57 Mass. App. Ct. 1114, 785 N.E.2d 427, 2003 WL 1524678 (Mass. App. Ct. Mar. 25, 2003) (unpub. op.), a prisoner's 10 year DDU sentence of disciplinary confinement exceeded his original criminal sentence and continued into a consecutive sentence for a subsequent conviction. The court stated that the continuation of a DDU sanction was permissible because prison discipline is a civil proceeding, and "the terms and conditions of a disciplinary sanction (including assignment to the DDU) are independent and distinct from the imposition of punishment reflected in sentences of incarceration imposed following convictions for criminal offenses." In re Pridgett, 2003 WL 1524678, at *1. Significantly, however, in Pridgett, there was no break in the inmate's status as a convicted inmate and the disciplinary sanction ran coterminously with the inmate's criminal sentence. Consequently, even if Pridgett had any precedential value, it does not address the issues raised in connection with Ford's due process claim.

In Commonwealth v. Karnes, 68 Mass. App. Ct. 1118, 864 N.E.2d 1259, 2007 WL 1217695 (Mass. App. Ct. Apr. 25, 2007) (unpub. op.), a pretrial detainee moved to dismiss criminal charges pending against him on the grounds that his trial on charges stemming from the same conduct for which he had been sentenced to the DDU for five years would subject him to double jeopardy. Karnes, 2007 WL 1217695, at *1. Although Karnes' alleged misconduct occurred during his prior conviction, his DDU hearing took place during the time he was in pretrial detention. Id. The court, noting that "double jeopardy . . . does not generally forbid both prison discipline and criminal punishment for the same inmate misconduct" and that "prison disciplinary proceedings are civil in nature and do not bar subsequent criminal prosecution for the same wrongful conduct[,]" determined that Karnes had not established a violation of the double jeopardy clause. Id. at *5-6 (quotations and citations omitted). Significantly, however, the court expressly did not reach the issue whether incarceration in the DDU as a pretrial detainee as a result of a prior disciplinary sentence violated the inmate's constitutional rights. Id. at *6 ("To the extent Karnes contends that the conditions of his detention do not meet constitutional standards for pretrial detainees, his remedy is to bring a civil action against the commissioner of correction, where an appropriate factual record can be developed for judicial review.") (internal quotation and punctuation omitted). Therefore, nothing in these cases alters this court's conclusion that Bender violated Ford's constitutional right to procedural due process.

Official Capacity Claim Against Bender

Ford also claims that Bender should be held liable in his official capacity for depriving the plaintiff of procedural due process. "A suit against a public official in his official capacity is a suit against the governmental entity itself."Surprenant, 424 F.3d at 19. Therefore, Ford's claim against Bender in his official capacity constitutes a claim against the DOC. In order to hold the DOC liable, Ford must show that "the entity itself is a moving force behind the deprivation; thus, in an official-capacity suit the entity's policy or custom must have played a part in the violation of federal law." Kentucky v. Graham, 473 U.S. 159, 166, 105 S.ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (quotations and citations omitted).

In the instant case, it is undisputed that Ford's placement in the DDU as a pretrial detainee without adequate process occurred pursuant to a DOC custom. In particular, the record shows that when a pretrial detainee held by the DOC under Section 52A has time remaining on a DDU sanction imposed during the term of a prior criminal sentence, it is the DOC's practice to confine the detainee in the DDU based on the pre-existing sanction. (PF ¶ 25). It is also undisputed that Ford's placement in the DDU as a convicted prisoner in 2008, without a hearing, was consistent with the DOC's ordinary practice of confining inmates to the DDU to complete DDU sentences imposed during a prior period of incarceration. (PF ¶ 35). Therefore, Ford is entitled to summary judgment with respect to his official capacity claim against Bender.

G. Qualified Immunity

The defendants contend that Bender and St. Amand have qualified immunity for their violation of Ford's substantive due process rights and that Bender has qualified immunity for his violation of Ford's procedural due process rights. This court finds that the defendants are not entitled to qualified immunity with respect to their placement of Ford in the DDU as a pretrial detainee, but Bender is entitled to qualified immunity with respect to Ford's placement in the DDU following his conviction on the Assault Charges.

"The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 129 S.ct. 808, 815, 172 L. Ed. 2d 565 (2009) (quotingHarlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). "Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id. (quotations and citations omitted).

The determination whether an official is entitled to qualified immunity requires an assessment as to whether the facts alleged or shown by the plaintiff "make out a violation of a constitutional right" and, if so, "whether the right at issue was clearly established at the time of defendant's alleged misconduct." Id. at 815-16 (quotations and citations omitted). "[T]he second, `clearly established,' step of the qualified immunity analysis . . . in turn, has two aspects." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). As the First Circuit has described:

One aspect of the analysis focuses on the clarity of the law at the time of the alleged civil rights violation. To overcome qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. The other aspect focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights. Indeed, it is important to emphasize that this inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.

Id. (quotations, citations and alterations omitted). Thus, "the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (quotations, citations and alterations omitted).

In support of their qualified immunity defense, the DOC defendants argue that Ford cannot satisfy either aspect of the "clearly established" step of the analysis. This court disagrees. In order to establish that the law was clearly established at the time the conduct in question occurred, "a plaintiff need not show that the conduct of which he complains is an exact replica of conduct that previously has been held unlawful." Bergeron v. Cabral, 560 F.3d 1, 12 (1st Cir. 2009). Rather, a plaintiff need only show "that the relevant legal principles were both specific enough and sufficiently well-established that the unlawfulness of the defendant's conduct ought to have been apparent." Id. Ford's pretrial detention took place in 2007. By then, it was firmly established that pretrial detainees, unlike convicted prisoners, have a constitutionally-protected liberty interest in avoiding punishment. In addition, it was clearly established that, as a result of their status, pretrial detainees are entitled to a hearing or some form of procedural protection before they can be housed in disciplinary confinement.See Surprenant, 424 F.3d at 13, 17. See also Bell, 441 U.S. at 535, 538-39, 99 S.ct. at 1872-74; Lyons, 838 F.2d at 29. As detailed more fully above, since the defendants arranged for Ford to be kept in the DDU without any assessment of any threat he may pose, but simply as a continuation of his 10 year disciplinary sanction, it was clearly punishment and, therefore, unconstitutional. It is undisputed that Ford was not given any new hearing in 2007. The defendants' actions in maintaining Ford in the DDU were deliberate and considered. Ford has established both that the "contours of the right [is] sufficiently clear so that a reasonable official would understand that what he is doing violates that right" and that under the facts of this case "a reasonable defendant would have understood that his conduct violated the [plaintiff's] constitutional rights."Maldonado, 568 F.3d at 269.

The continuation of the DDU sanction after Ford's conviction on the Assault Charges without a new hearing, however, poses a different issue. No cases on point have been cited by the parties. At the time of the challenged conduct, it was recognized that a disciplinary sanction was not duplicative of a criminal sentence, and that the two could run concurrently. See, e.g.,Sandin, 515 U.S. at 485, 115 S.ct. at 2301 ("Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law."). The Massachusetts Appeals Court had also ruled that a disciplinary sanction could extend beyond the original sentence and continue through a consecutive sentence. See In re Pridgett, 2003 WL 1524678, at *1. While these cases do not address the instant situation, where the inmate's detention is interrupted and his status is changed to that of a pretrial detainee for an extended period of time, it cannot be said that the facts of Ford's case were so clearly different than these cases so that Bender should have known that he was violating Ford's rights when he continued the DDU sanction into the plaintiff's subsequent term of incarceration without a new hearing. Therefore, Bender is entitled to qualified immunity regarding Ford's period of incarceration in the DDU.

G. Equal Protection

The DOC defendants have moved for summary judgment on Ford's claims that Mass. Gen. Laws ch. 276, § 52A, both on its face and applied to him, violates the Equal Protection Clause of the Fourteenth Amendment and Articles 1 and 12 of the Massachusetts Declaration of Rights because it allows pretrial detainees who have served a felony sentence in Massachusetts state prison to be transferred to DOC custody to await trial, but does not authorize such transfers of detainees who have served a felony sentence in a state or federal correctional institution outside of Massachusetts. (See Am. Compl., Counts Seven and Eight). Because there is a question of fact as to whether the two classes of persons identified by the plaintiff are similarly situated for purposes of equal protection, the defendants' motion for summary judgment is denied with respect to these claims.

The relevant language of Section 52A provides that persons held in jail for trial "if they have been previously incarcerated in a correctional institution of the commonwealth under sentence for a felony, may, with the approval of the district attorney, be removed by the commissioner of correction to a correctional institution of the commonwealth. . . ." The statute contains no such provision for pretrial detainees who have been previously held under sentence for a felony in a state or federal correctional institution outside the Commonwealth of Massachusetts.

"The Equal Protection Clause of the Fourteenth Amendment requires that persons who are similarly situated be treated alike." Restucci v. Clarke, 669 F. Supp. 2d 150, 158 (D. Mass. 2009). See also Dupont, 448 Mass. at 399, 861 N.E.2d at 752. If a law challenged on equal protection grounds "neither burdens a fundamental right nor targets a suspect class, [the court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 631, 116 S.ct. 1620, 1627, 134 L. Ed. 2d 855 (1996). Thus, "[w]hen a non-suspect classification is involved, a plaintiff may establish an equal protection claim by showing that similarly situated individuals were intentionally treated differently without a rational relationship to a state purpose."Restucci, 669 F. Supp. 2d at 158. In the instant case, Ford contends that "Section 52A irrationally differentiates between similarly-situated pretrial detainees based on the happenstance of whether `they have been previously incarcerated in a correctional institution of the commonwealth under sentence for a felony.'" (Pl. Opp. Mem. (Docket No. 108) at 40-41 (quoting Section 52A)).

Because the legal standards applicable to Ford's state law equal protection claims are the same as the legal standards that are applicable to his Fourteenth Amendment claim for purposes of the defendants' motion for summary judgment, this court has not distinguished between the two.

The DOC defendants have not attempted to articulate a rational basis for the legislation's disparate treatment of former felons who have been incarcerated in Massachusetts correctional institutions and those who have been incarcerated elsewhere. Instead, they argue that equal protection does not apply because the classes of pretrial detainees identified by the plaintiff are not similarly situated. (Def. Reply Mem. (Docket No. 111) at 2-3). Specifically, the DOC defendants contend that the two categories of pretrial detainees are distinguishable because, in contrast to individuals who have served felony sentences in Massachusetts, the DOC's lack of prior experience with inmates who have previously served prison time in another state, and its lack of knowledge regarding the housing needs, behaviors and dangers posed by such individuals, would render it unprepared to house them. (Id.). Accordingly, the DOC defendants argue that Ford has not satisfied a necessary prerequisite to the equal protection analysis.

"The dissimilar treatment of dissimilarly situated persons does not violate equal protection." DuPont, 448 Mass. at 400, 861 N.E.2d at 752 (quotations and citations omitted). However, the defendants have not established dissimilarity as a matter of law.

As the First Circuit has explained,

The formula for determining whether individuals or entities are "similarly situated" for equal protection purposes is not always susceptible to precise demarcation. . . . As we have explained, however, the test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer's art of distinguishing cases, the `relevant aspects' are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.

Barrington Cove Ltd. P'ship v. R.I. Hous. Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001) (internal quotations, citations and punctuation omitted). Given the imprecise nature of the relevant test, it is hardly surprising that "[a]s a general rule, whether individuals are similarly situated is a factual question for the jury."McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). Here, a reasonable jury could conclude that individuals such as Ford, who have previously been incarcerated for a felony in a Massachusetts correctional institution are "roughly equivalent" to individuals who have previously been incarcerated for a felony in another jurisdiction, and that the DOC's experience or lack of experience with such classes of individuals does not render them dissimilar for purposes of equal protection. Moreover, there may be information about prisoners from other jurisdictions which can be obtained to provide the DOC with similar information to that which it has about prisoners previously incarcerated in Massachusetts. Therefore, this court concludes that a question of fact precludes summary judgment for the defendants on Ford's equal protection claims.

To the extent the DOC defendants are seeking qualified immunity with respect to Ford's equal protection claims, their motion is also denied. Because there is a question of fact as to whether the relevant classes of individuals were similarly situated, this court cannot determine, as a matter of law, whether "it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Maldonado, 568 F.3d at 269 (quotations and citations omitted). Accordingly, the question of qualified immunity cannot be resolved on summary judgment at this time.

H. Infamous Punishment

Finally, both Ford and the DOC defendants are seeking summary judgment on Ford's claim that his confinement at MCI-Cedar Junction as a pretrial detainee subjected him to "infamous punishment" in violation of Article 12 of the Massachusetts Declaration of Rights since he had not been tried by a jury at the time of his return to Cedar Juntion. (See Am. Compl., Count Nine). This court finds that even if there was such a constitutional violation, the DOC defendants would be entitled to qualified immunity.

Ford's motion seeks summary judgment on his individual capacity claim against Bender, while the DOC defendants' motion seeks summary judgment on behalf of both Bender and St. Amand.

Article 12 of the Massachusetts Declaration of Rights provides in relevant part that "the legislature shall not make any law, that shall subject any person to a capital or infamous punishment . . . without trial by jury." Mass. Constitution, Pt. 1, Art. XII. It is undisputed that incarceration in the state prison is considered an "infamous punishment," and that MCI-Cedar Junction is the Massachusetts state prison. (See Def. Mem. (Docket No. 92) at 35; Pl. Mem. (Docket No. 95) at 19). See also Brown v. Comm'r of Corr., 394 Mass. 89, 94, 474 N.E.2d 1059, 1062 (1985) (confirming that "the State prison retains the `character of infamy'" for purposes of infamous punishment under Article 12) (citation omitted); Mass. Gen. Laws ch. 125, § 1(o) (defining "state prison" as MCI-Cedar Junction). Thus, the dispositive issue for purposes of the parties' motions for summary judgment is whether Ford's pretrial detention at MCI-Cedar Junction following indictment but "without trial by jury" is sufficient to constitute "punishment" within the meaning of Article 12. As detailed briefly below, this issue has not been decided by the Massachusetts courts.

Cases Addressing Infamous Punishment

Ford relies on Brown to support his claim that his confinement at MCI-Cedar Junction before he had the opportunity to be tried by a jury or to waive his right to a jury subjected him to infamous punishment. That case involved the transfer of an inmate from MCI-Concord to MCI-Cedar Junction (which was known at the time as MCI-Walpole) even though he had never been indicted for the offenses for which he was incarcerated, but instead had been convicted on the basis of a criminal complaint.Brown, 394 Mass. at 90, 474 N.E.2d at 1060. The SJC, relying on Jones v. Robbins, 8 Gray 329, 74 Mass. 329 (1857), ruled that "Article 12 prohibits the sentencing of a criminal defendant to State prison without indictment," and precludes the Commissioner of Correction from transferring such a defendant to the state prison even for the purpose of "maintain[ing] security, safety and order[.]" Id. at 92-93, 474 N.E.2d at 1061 (quotations and citation omitted). It also reaffirmed the rule announced inJones that "the State prison retains the `character of infamy'" which makes punishment there infamous punishment.Id. at 94, 474 N.E.2d at 1062 (quotingJones, 74 Mass. at 349). Significantly, theBrown court stated that "the Jones court's explication of art. 12 of the Declaration of Rights led it `to a

strong conclusion of the general understanding of the legislators and jurists of Massachusetts, that punishment in the state prison is an infamous punishment, and cannot be imposed without both indictment and trial by jury.'" Id. at 92, 474 N.E.2d at 1061 (quoting Jones, 8 Gray at 349) (emphasis added). However, the Brown decision did not further address the significance of the jury trial, and did not address the situation of a detainee who had been indicted but not yet tried.

Subsequent cases either do not address or leave the relevant issues open. See, e.g., Commonwealth v. Smith, 444 Mass. 497, 499, 829 N.E.2d 1090, 1092 (2005) (noting that "a person may not be sentenced to State prison unless `afforded the right to indictment or presentment by a grand jury'") (quoting Brown, 394 Mass. at 91-92, 474 N.E.2d at 1061); Commonwealth v. Barbosa, 421 Mass. 547, 549, 658 N.E.2d 966, 968 (1995) ("Article 12 requires that no one may be convicted of a crime punishable by a term in the State prison without first being indicted for that crime by a grand jury") (footnote omitted). In MacDougall v. Commonwealth, 447 Mass. 505, 508-10, 852 N.E.2d 1080, 1083-84 (2006), the SJC held that a pretrial detainee's transfer to Cedar Junction's disciplinary area without judicial authorization was consistent with Mass. Gen. Laws ch. 276, § 52A. However, the court left open the question whether "the conditions of [the plaintiff's] detention (at Cedar Junction or at any other State correctional facility) do not meet constitutional standards for pretrial detainees," noting that "the petitioner's argument is not insignificant." Id. at 511 n. 11, 852 N.E.2d at 1085 n. 11. Thus, the SJC acknowledged the existence of an issue with respect to detaining pretrial detainees at Cedar Junction but gave no indication as to its resolution.

Of final relevance, in the unpublished opinion of the Massachusetts Appeals Court in Commonwealth v. Flynn, 74 Mass. App. Ct. 1126, 909 N.E.2d 1194, 2009 WL 2195332 (July 24, 2009), the Court addressed the issue whether "the principle of double jeopardy bars [the defendant's] trial because he spent approximately one hundred days in pretrial detention . . . based on a misapprehension of law." Id. at *1. In rejecting the defendant's argument, the court stated, "`[i]nfamous punishment' does not arise from pretrial detention in State prison but rather only from the serving of a sentence in State prison." Id. (citing Jones v. Robbins, 74 Mass. 329, 8 Gray 329, 349 (1857)). However, Jones did not address the status of a pretrial detainee versus a convicted prisoner; it only addressed confinement as a result of trial by a police court instead of a jury. See Jones, 8 Gray at 349 ("Now, it seems to us that, whether we consider the words `infamous punishment' in their popular meaning, or as they are understood by the Constitution and laws, a sentence to the state prison, for any term of time, must be considered as falling within them."). Therefore, it cannot be said that the unpublished Appeals Court decision inFlynn finally resolves the issue whether an indicted pretrial detainee can be housed at Cedar Junction prior to his trial.

The uncertainty of the state of the law on this issue mandates the conclusion that the DOC defendants are entitled to qualified immunity. See Longval v. Comm'r of Corr., 448 Mass. 412, 418-19, 861 N.E.2d 760, 765-66 (2007) (describing qualified immunity analysis under Massachusetts law). Thus, the question whether the defendants are entitled to qualified immunity on Ford's infamous punishment claims depends upon whether Ford's rights under Article 12 were sufficiently established in 2007, when he was detained at MCI-Cedar Junction, that it would have been "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 419, 861 N.E.2d at 766 (quotations and citations omitted). Because the law remains unclear to this day, Ford has failed to establish that a reasonable official in the defendants' position would have known that confinement in MCI-Cedar Junction could not be imposed on a pretrial detainee who had not been afforded the opportunity for a trial by jury.

Ford does not contend that the defendants are liable in their official capacities. Moreover, this court notes that the DOC defendants argue, in a footnote, that Ford's claim for infamous punishment, as well as his other claims for violations of his state constitutional rights, should be dismissed because there is no private right of action for money damages under the Massachusetts Constitution. As the First Circuit has repeatedly held, "arguments raised only in a footnote or in a perfunctory manner are waived." Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 60 n. 17 (1st Cir. 1999). Therefore, this court declines to address this argument further.

IV. CONCLUSION

For all the reasons detailed above, both the "DOC Defendants' Motion for Summary Judgment" (Docket No. 90) and "Plaintiff Albert Ford's Motion for Partial Summary Judgment" (Docket No. 94) are ALLOWED IN PART and DENIED IN PART as follows:

1. Without objection, all claims against the Department of Correction, Harold Clarke and Kenneth Nelson are dismissed.

2. Without objection, Counts V, VI, X and XI are dismissed.

3. Without objection, Counts III and IV are dismissed as to defendant Peter St. Amand only.

4. In accordance with this Memorandum of Decision, this court holds that James Bender and Peter St. Amand violated Ford's substantive due process rights (Counts I and II) by confining Ford in the DDU as a pretrial detainee as punishment for his 2003 conduct. The defendants' liability is in an individual and official capacity.

5. In accordance with this Memorandum of Decision, this court holds that James Bender violated Ford's procedural due process rights (Counts III and IV) by confining Ford in the DDU without a hearing as a pretrial detainee and, later, as a convicted felon serving a sentence. The defendant's liability is in an individual and official capacity.

6. In accordance with this Memorandum of Decision, this court holds that James Bender and Peter St. Amand are not entitled to qualified immunity with respect to Ford's confinement as a pretrial detainee, but that James Bender is entitled to qualified immunity with respect to Ford's subsequent confinement in the DDU as a convicted felon.

7. In accordance with this Memorandum of Decision, this court holds that defendants' motion for summary judgment as to the equal protection claims (Counts VII and VIII) is denied as there are material facts in dispute.

8. In accordance with this Memorandum of Decision, this court holds that the defendants' motion for summary judgment as to the "infamous punishment" claim (Count IX) is allowed as the defendants are entitled to qualified immunity.

9. In accordance with this Memorandum of Decision, this court holds that the defendants' motion for summary judgment as to Ford's claims for money damages against the defendants in their official capacities is allowed.