Lost Property Complaints

The following information is for prisoners who have had their property lost or destroyed.

Prisoner property is frequently lost or destroyed by prison guards, either directly or because of failure to secure a cell properly. For example, a prisoner is transferred from one institution to another, and some or all of his property disappears in the process. Or a prisoner is sent to the hole, his property is packed up, and when he gets out some or all of it is missing. Until fairly recently, if you had receipts and property records, you could make a claim in court for the value of lost or destroyed property, using a law called the Massachusetts Tort Claims Act (MCTA), Massachusetts General Laws chapter 258. But recent decisions of the Massachusetts Appeals Court have eliminated the Tort Claims Act as a way to recover the value of property that has been lost or destroyed by guards. See Vining v. Commonwealth, 63 Mass.App.Ct. 690 (2005) and Locke v. Commissioner of Correction, 881 N.E.2d 171 (2008) (Rule 1:28 decision).

These decisions interpret a provision of the MTCA, G.L. c. 258 (section 10 (d)), to grant immunity to law enforcement officers, including correction officers, for the negligent loss or destruction of property. As a practical matter this makes the state immune from having to pay for the loss or destruction of prisoner property by guards directly or indirectly, indirectly meaning situations where guards fail to secure your property and other prisoners steal it. Without the legislature doing a thing, a well-established method for protecting prisoners’ property rights was “interpreted” out of existence by the courts. Therefore a suit under the MTCA against prison officials for the loss or destruction of property will now be dismissed.

Although it is now unclear how or whether you can recover the value of your property lost or destroyed because of guard negligence, Prisoners’ Legal Services believes that the best course of legal action is described below.

You Must Grieve Lost Property Claims

If your property is lost or destroyed and you want to be compensated, you first must grieve the loss of your property before you take the matter to court. Use the grievance procedure for the prison or jail you are in. In DOC prisons, the grievance policy is the regulation numbered 103 CMR 491. It requires that you file your grievance within 10 working days of the incident, or at least within ten days of the date that you find out that your property is lost or damaged. If the grievance is denied or you receive no response within 10 working days (no response after 10 working days is treated as a form of denial), you must appeal the denial of the decision to the superintendent. If you are a county prisoner, whether awaiting trial or sentenced, the jail or house of correction where you are will have a grievance procedure and (probably) a grievance form. Use it, even if you know that your grievance will be denied or not answered. Both state and federal law requires that a prisoner suing about almost anything that happens in prison must first “exhaust administrative remedies” by using available grievance procedures before filing suit. The federal law that requires this is the Prison Litigation Reform Act, 42 U.S.C. §1997e, and the state law that requires this is M.G.L. c. 127, §38F. You must grieve lost property claims and appeal grievances that are denied or grievances to which you do not receive a response within the time deadlines or you will not be able to sue. When it comes to lost property claims and the grievance procedure the rule is simple: use it or lose it.

PLS urges you to take the grievance procedure seriously. Although in some jails and prisons the grievance procedure is not effective, some grievance officers make a genuine effort to be fair, and the grievance procedure may be the best (and certainly can be the fastest) way to be compensated for your loss. If prison authorities fail or refuse to respond to grievances or fail to take the process seriously, you can point that out later in your papers for the court. PLS suggests filing copies of the receipts from your purchase of the property in question with your grievance and grievance appeal in order to show the value of your claim.

Getting Into Court

Assuming that you have fully grieved the loss or destruction of your property and appealed the denial of your grievance, you may seek review of the grievance decision under either G.L. c. 249 § 4, an Action in the Nature of Certiorari, or the Massachusetts Administrative Procedures Act, G.L. c. 30A § 14. [If you believe your property was intentionally destroyed or lost you can file a claim of civil conversion against the person who stole or destroyed your property.]

Keep in mind that the decision to go to court should not be taken lightly, because going to court is uncertain and expensive, especially for the average prisoner who has next to nothing in financial resources. Plus, to go to court, several things must be done quickly, because there is a lot to do to get into court and most of it needs to be done within thirty days of the denial of your grievance appeal.

Confusing Law

At this point in time there are two different laws that appear to provide a basis for judicial review of denial of a grievance. It is not clear which law your should use, because there is a direct contradiction between what the two laws say about which law to use. One law is the Massachusetts Administrative Procedure Act, G.L. c. 30A (“APA”). That law provides judicial review of two different kinds of agency decisions. The first sections of the law provide for review of the procedures, usually involving public hearings, by which agencies promulgate their regulations, generally called “rulemaking proceedings.” The later sections of the APA provide for review of “adjudicative” decisions that agencies make under their own regulations. An adjudicative decision is a decision deciding a claim in a particular case. A decision to grant or deny a prisoner grievance is an adjudicative decision. Although a decision on a prisoner grievance is an adjudicative decision of a state agency, there is a special section of the Administrative Procedure Act, § 1A, that specifically states that the Department of Correction is subject to the judicial review requirements of the Administrative Procedure Act only with respect to rulemaking proceedings. G.L. c. 30A, § 1A, which states: The department of correction shall be subject to sections one through eight, inclusive, and shall not otherwise be subject to this chapter, notwithstanding the exclusion of said department from the definition of the word “agency” in section one. This seems to mean that G.L. c. 30A can not to be used to obtain judicial review of a decision to deny a prisoner grievance.

Despite the fact that section 1A of the Administrative Procedure Act says that it cannot be used for review of DOC adjudicative decisions, there is another statute, G.L. c. 127, § 38H, which is part of a law governing Massachusetts prison grievance procedures and which requires exhaustion of grievance procedures before going to court. That section specifically says that “ [a] final decision with respect to a grievance shall be subject to judicial review in accordance with section 14 of chapter 30A, in the superior court for the county in which the inmate is incarcerated or otherwise being held, or in Suffolk county.” In other words, that section requires a prisoner to use the APA.

Sooner or later, a court or the legislature will straighten this contradiction out. And fortunately, it is not as big a problem as it may at first seem to be. This is because, assuming that you can use G.L. c. 127, § 38H, that statute explains what to do, and in the event that you cannot use G.L. c. 127, §38H, you can use an alternative, G.L. c. 249, § 4, an action in the nature of certiorari. The key is that the legal procedure required for a certiorari action is almost the same as what you have to do under the APA, so that it doesn’t much matter what you call it so long as you file all the necessary paperwork. There is one very important distinction between APA review and certiorari review, however: the statute of limitations for a certiorari action is sixty days from the date your grievance appeal is denied, but the statute of limitations for APA review is thirty days from the date your grievance appeal is denied. The way to avoid this problem is to title your complaint as one for “Review under the Administrative Procedure Act or in the Alternative, for Certiorari.” The court has the power to review your claim under one or the other of these statutes, and can pick either one, so long as you file your complaint within the shorter time limit, 30 days. If you miss the thirty day deadline and the court decides that the APA applies (and you can be sure that the DOC will argue that the APA applies), your case will be dismissed.

Procedure under G.L. c. 30A § 14 (APA): After receiving a final administrative decision on the grievance and appeal, you must then file for judicial review under G.L. c. 30A, ? § 14 (the Administrative Procedures Act). A prisoner lawsuit under c. 30A to challenge the outcome of a grievance is authorized by G.L. c. 127 § 38H. Remember that a complaint under G.L. c. 30A ? § 14 must be filed within 30 days of the final administrative decision. If you have not received a response to your grievance or appeal after 180 days, you can go ahead and file under c. 30A. Be sure to state in the complaint that you filed a grievance, that you appealed either the negative grievance decision or the failure of the prison to respond to the grievance, and that either the appeal was denied or you have not received any answer to your appeal, as the case may be. If you are a DOC prisoner, you can file your complaint in the superior court for the county in which you are incarcerated, or in Suffolk County. If you are a county prisoner, file in the superior court for the county in which you are held. A copy of the grievance, the decision on the grievance, your appeal, and the decision on the appeal (if you received a response) should be filed with the complaint, along with any receipts showing how much you paid for the property that was lost or destroyed.

Procedure under c 249 § 4 (Certiorari): After receiving a final administrative decision on the grievance and appeal, you may seek judicial review under G.L. c. 249 § 4, certiorari. A complaint under G.L. c. 249, § 4 must be filed within 60 days of the denial of your appeal. If you are a DOC prisoner, the complaint can be filed in the superior court for the county in which you are incarcerated, or in Suffolk County. If you are a county prisoner, you should file in the superior court for the county in which you are held. A copy of the grievance and all attachments (such as receipts), the decision on the grievance (if you received a response), your grievance appeal, and the final decision on the grievance appeal (if you received one) should be filed with the complaint.

Intentional Tort of Conversion claim: If you have direct evidence that your property was stolen or intentionally wrecked by correctional officers you may have a claim for civil conversion of your property. This type of claim must be made against the individual correctional officers or officials who stole your property, in their individual capacities. The claim cannot be made against the DOC, the “Commissioner,” or the Commonwealth. This means that you have to be able to prove who took or damaged your property.

As a practical matter such proof will be available only occasionally, in the form of testimony (such as from someone who saw a particular officer take or smash the property) or video from a security camera. In order to show conversion of your property you must show (1) that you had possession, or a right to immediate possession, of the personal property described in your complaint at the time when the defendant took, damaged, or destroyed it, (2) that the defendant converted the personal property to his own use by exercising control over it which was inconsistent with your rights, and (3) damage, which is the value of the property taken, damaged or destroyed. If you can prove these 3 elements you may consider a civil conversion complaint. You have 3 years from the loss or destruction of your property in which to file a civil conversion claim. The complaint can be filed in the superior court for the county in which you are incarcerated, or in Suffolk County.

Judicial Review of a Grievance is controlled by Superior Court Standing Order 1-96

The Superior Court has established a procedure specifically for handling applications to review agency adjudicative decisions. This procedure is called Superior Court Standing Order 1-96. It controls the procedural details of bringing lawsuits for review of administrative decisions, and it applies to both APA and certiorari complaints. It is so useful and so important to getting your grievance claim properly before the superior court that PLS reprints it here in full. Study it carefully.

Superior Court Order 1-96

Standing Order 1-96. Processing and Hearing of Complaints
for Judicial Review of Administrative Agency Proceedings

In order to facilitate and clarify the orderly processing and hearing of Complaints for Judicial Review of Administrative Agency Proceedings, it is hereby ORDERED, effective March 18, 2002, that:

1. Claims filed in the Superior Court seeking judicial review of administrative agency proceedings on the administrative record pursuant to the standards set forth in G.L. c. 30A, § 14, G.L. c. 249, § 4, or similar statutes, whether joined with a claim for declaratory relief under G.L. c. 231A, or any other claim, shall be heard in accordance with the following procedures.

2. The administrative agency whose proceedings are to be judicially reviewed shall, by way of answer, file the original or certified copy of the record of the proceeding under review (the record) within ninety (90) days after service upon it of the Complaint. Such record “shall consist of (a) the entire proceedings, or (b) such portions thereof as the agency and the parties may stipulate, or (c) a statement of the case agreed to by the agency and the parties.” G.L. c. 30A, § 14(4). Upon service of a Complaint, the agency shall notify all parties of procedures for acquiring a transcript of the hearing testimony. The agency shall also inform the parties of their obligation to provide a transcript, or portions thereof, to the court if alleging that an agency’s decision is not supported by substantial evidence or is arbitrary or capricious, or is an abuse of discretion. A request for a copy of the transcript must be made by a party within thirty (30) days after service of the Complaint, and such transcript or portion thereof shall be made part of the record. Any party seeking to defend the agency’s decision as supported by substantial evidence or as not arbitrary or capricious, or is not an abuse of discretion shall have an affirmative obligation to provide the court with a copy of the transcript or portion thereof in support of its position. The court may assess the expense of preparing the record as part of the costs in the case. G.L. c. 30A, § 14(4). Additionally, “the court may, regardless of the outcome of the case, assess any one unreasonably refusing to stipulate to limit the record, for the additional expenses of preparation caused by such refusal.” G.L. c. 30A, § 14(4). The court may require or permit subsequent corrections or additions to the record when deemed desirable. G.L. c. 30A, § 14(4). The time for filing the record may be enlarged, for good cause shown, upon allowance of an appropriate motion.

3. The following motions raising preliminary matters must be served in accordance with Superior Court Rule 9A not later than twenty (20) days after service of the record by the administrative agency.

(a) Motions authorized by Mass.R.Civ.P. 12(b) or 12(e).

(b) Motion for leave to present testimony of alleged irregularities in procedure before the agency, not shown in the record (G.L. c. 30A, § 14(5)).

(c) Motion for leave to present additional evidence (G.L. c. 30A, § 14(6)).

Any party failing to serve such a motion 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. Any such motion shall be promptly resolved in accordance with Superior Court Rule 9A. If the motion specified in (c) is allowed, all further proceedings shall be stayed until the administrative agency has complied with the provisions of G.L. c. 30A, § 14(6).

4. A claim for judicial review shall be resolved through a motion for judgment on the pleadings, Mass.R.Civ.P. 12(c), in accordance with Superior Court Rule 9A except as otherwise provided by this Standing Order, unless the Court’s decision on any motion specified in part 3 above has made such a resolution inappropriate. A plaintiff’s Rule 12(c) motion and supporting memorandum shall be served within thirty (30) days of the service of the record or of the Court’s decision on any motion specified in part 3 above, whichever is later. A defendant’s response shall be served within thirty (30) days after service of the plaintiff’s motion and memorandum. The plaintiff shall then promptly file the motion materials in accordance with Superior Court Rule 9A. The Court may grant an extension of time to file for good cause shown. Memoranda shall include specific page citations to matters in the record.

5.  The Clerk or her/his designee will schedule a hearing date after receiving the motion materials. No pre-trial conference will be held, and no pre-trial memorandum filed, unless specifically ordered by the Court. No testimony or other evidence shall be presented at the hearing, and the review shall be confined to the record. A party may waive oral argument and submit on the brief by filing a written notice. Such waiver by a party shall not affect the right of any other party to appear and present oral argument.

End of Text of Superior Court Standing Order 1-96

Comment: PLS would like to direct your attention to paragraph 2 of this standing order, which contains the heart of the procedure. Note that it provides that the entire administrative record, or those parts of the administrative record that the agency thinks are necessary to decide the case, is supposed to be attached by the agency (in prisoner cases here that will be the DOC or a sheriff) that is the defendant to its answer to the complaint. This requirement can be helpful to a prisoner challenging denial of a grievance if his copies of the paperwork are lost or unavailable to him. However, PLS recommends that if you have the administrative record (grievance, denial of grievance, appeal, denial of appeal, and any associated documents (such as a request to view video or for witnesses) you nevertheless attach a copy of all of that material to your complaint. When you get the answer, review it carefully to be sure that all of the grievance documentation that you think is important is attached either to the complaint or the answer, so that the court will have all the documents necessary to get a fair view of your claim.

A note about transcripts. A transcript is an audio or written record of a hearing. Although disciplinary proceedings often involve hearings, grievances almost always do not. If there was no hearing, there is no transcript. The paperwork associated with a typical claim of lost property is minimal – grievance, receipts to show the value of the property, perhaps a written statement in support of your grievance from a witness or two, or a request to review a tier video, etc.
                 
If you think that important evidence necessary to proper decision of your grievance was not presented during the grievance process, you can move within 20 days of service of the defendants’ Answer and record, for leave to present additional evidence pursuant to G.L. c. 30A, § 14(6), which reads:

If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision.

The administrative record for grievance proceedings will generally be less than ten pages, and should be very easy for a court to digest and decide. In APA or certiorari cases challenging denial of a lost property grievance, the superior court often can decide the matter “on the papers,” without oral argument (referred to in the Standing Order 1-96 as “judgment on the pleadings”). You can ask the court for oral argument if you wish. Do not ask for oral argument unless you think it is important for the judge to hear from you directly. If you do argue the matter, you cannot introduce any new evidence (information not in the written record attached to the answer and the complaint) at the hearing, and must limit your argument strictly to what is in the grievance and the grievance appeal.

Remedies

There is a real question about what the court can do if it decides that you are right and that your grievance was not handled properly. The most likely outcome in such a case is that the court will simply order the DOC to rehear the grievance. The DOC might in such a situation decide to settle your claim rather than go through the grievance procedure (and probable appeal) twice. Another possibility is that the court will make a declaratory judgment that says that the grievance procedure was not followed properly, or that certain evidence should have been considered that was not considered, etc.

What the court will not do is order the DOC to pay you for your lost property. That is because it has already been decided by the Appeals Court that because the DOC is a state agency, it is immune from paying for prisoner property that is lost or damaged by guard negligence. To put it another way, you cannot get an order for damages against the DOC by using the APA or certiorari that you cannot get through the Tort Claims Act. This may lead to some very frustrating situations. For example, you could “win” the APA review case and get an order for the DOC to rehear the grievance. The DOC might rehear the grievance and deny it again. Even if you win the grievance on rehearing the DOC does not have to pay you the value of the property lost or destroyed . In such a situation the remedy is unclear, and you should consult with PLS or another attorney before proceeding further.