COMMONWEALTH OF MASSACHUSETTS

Transcription

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. * * * * * * * * * * * * * * * * * * * * * * * * * * * * DAVID NATHANSON, ANDREW W. COWAN, ADRIANA CONTARTESE, MICHAEL CAREY, GATEWOOD WEST and BRENDA FRAZIER Plaintiffs, v. LOUIS S. SPENCER, COMMISSIONER OF CORRECTIONS Defendant * * * * * * * * * * * * * * * * * * * * * * * * * * * * COMPLAINT Plaintiffs bring this action for declaratory and injunctive relief to prevent the defendant from implementing a procedure pursuant to which drug detecting dogs would be used for visitor and attorney searches at state prison facilities. Plaintiffs entitlement to relief arises from the facts that the defendant s procedure violates existing regulations governing attorney searches and amounts to an amendment to existing regulations governing visitor searches. Under the circumstances the procedure can not be implemented unless and until defendant follows the steps set forth in the Administrative Procedures Act, M. G. L. c.. 30 (the APA. Because the defendant has not followed those steps the procedure can not be lawfully implemented and plaintiffs are entitled to an injunction.

2 1. Plaintiff David Nathanson is an attorney-at-law admitted to practice before the Supreme Judicial Court having a place of business at 227 Lewis Wharf, Boston, Massachusetts For the last 15 years attorney Nathanson has represented clients who are incarcerated at prison facilities which are under the defendant s supervision. Over this period of time he has visited inmates at defendant s institutions at least monthly. 2. Plaintiff Andrew W. Cowan is an attorney-at-law admitted to practice before the Supreme Judicial Court having a place of business at 228 Triangle Street, Amherst, MA Attorney Cowan concentrates his practice on representing clients in criminal cases and is frequently required to visit those clients at prison facilities which are under the defendant s supervision. 3. Plaintiff Adriana Contartese is an attorney-at-law admitted to practice before the Supreme Judicial Court having a place of business at 242 W. Broadway, Boston, MA Attorney Contartese regularly represents and visits clients who are incarcerated at state prison facilities which are under the defendant s supervision. 4. Plaintiff Gatewood West resides at 63 Creighton St., Cambridge, MA For the last six or seven years approximately ever two or three weeks she has visited persons who are incarcerated at state prison facilities which are under the defendant s supervision. 5. Plaintiff Michael Carey resides at 3 Fayette Park, Cambridge, MA For over five years he has regularly driven visitors to various correctional facilities which are under the defendant s supervision. During that time he has also visited with a number of inmates at those facilities, including, during the last several weeks, inmates at both Norfolk and Framingham. -2-

3 6. Plaintiff Brenda Frazier resides at 17 Wardman Road, Apartment 2, Roxbury, MA For the last four years she has visited inmates at the Souza Baranowski Correctional Center approximately twice a month. 7. Plaintiffs anticipate and intend that they will continue to visit defendant s correctional facilities in the future and they have an interest in minimizing the time and inconvenience associated with such visits. They are concerned that defendant s proposed policy will discourage visitation because of the inconvenience and intrusion associated with defendant s policy and because some visitors may be afraid of or allergic to dogs. They recognize that reduced visitation is universally regarded as having adverse effects on inmates and their post-release behavior. They object to being subject to any search or procedure that is not authorized in accordance with law. 8. Although plaintiff-attorneys Nathanson, Cowan and Contartese understand the need to prevent contraband another unauthorized items from being brought into state prison facilities, they believe that there are countervailing considerations that should be taken into account. These countervailing considerations include the deterrent effect on attorney visits and the resulting effect on the quality of representation, the effectiveness of the proposed procedure and the burden and inconvenience of the proposed procedure that is imposed upon them and other attorneys. They believe that the notice and opportunity to comment mandated by the APA will materially contribute to the appropriate balancing of the various interests. 9. Similarly plaintiffs West, Carey and Frazier understand the need to ensure that contraband another unauthorized items are not brought into state prison facilities, but they believe that there are countervailing considerations that should be taken into -3-

4 account. These countervailing considerations include the deterrent effect on visitation and the resulting loss of the universally recognized benefits of visitation, the effectiveness of the proposed procedure and the burden and inconvenience of the proposed procedure that is imposed upon visitors. They believe that the notice and opportunity to comment mandated by the APA will materially contribute to the appropriate balancing of the various interests Defendant Louis S. Spencer is the Commissioner of Corrections for the Commonwealth and has a place of business at 50 Maple St., #3, Milford, MA The defendant has announced that beginning the first full week in November his department will implement the use of drug detection dogs in certain state prison facilities for visitor searches. The searches will apply to anyone visiting those state prison facilities for any reason, including attorneys. 12. If the dog alerts its handler to the presence of drugs, the visitor or attorney will be asked to consent to a more thorough search. If the visitor or attorney refuses to consent, he or she will be denied entrance and barred from all Department of Corrections facilities. 13. In connection with the announcement of the foregoing new procedure the defendant has not followed the procedures contained in sections 3 or 4 of the APA. COUNT I - VIOLATION OF EXISTING REGULATIONS 14. Plaintiffs incorporation the allegations of Paragraphs 1-13 into this paragraph. 15. Subjecting attorneys to a search by narcotics detection dogs as a condition of their entering defendant s facilities violates defendant s existing regulations and in particular 103 CMR (4. -4-

5 COUNT II - NON-COMPLIANCE WITH THE APA 16. Plaintiffs incorporation the allegations of Paragraphs 1-15 into this paragraph. 17. Subjecting visitors to a search by drug detecting dogs as a condition of their entering defendant s facilities is not authorized by defendant s existing regulations. 18. Subjecting visitors to a search by drug detecting dogs as a condition of their entering defendant s facilities amounts to an amendment of defendant s existing regulations. 19. In order to implement a procedure pursuant to which visitors are subjected to a search by drug detecting dogs as a condition of their entering DOC facilities DOC must amend its regulations following the procedures set forth in the APA for amending regulations. WHEREFORE, plaintiffs request that (1 DOC be preliminarily enjoined from using drug detecting dogs at any of the facilities under its control; (2 the Court declare that using drug detecting dogs to search attorneys seeking to visit DOC facilities violates the regulations set forth at 103 CMR (4; (3 the Court declare that using drug detecting dogs to search visitors seeking to visit DOC facilities is not authorized by any presently existing regulations; (4 the Court declare that DOC may use drug detecting dogs to search visitors seeking to visit its facilities only in accordance with a regulation duly promulgated in accordance with the procedures set forth in the APA; and (5 the Court grant such other and further relief as it deems -5-

6 just and proper. PLAINTIFFS By their attorneys, Leonard M. Singer BBO Congress Street, Suite 600 Boston, Massachusetts James R. Pingeon BBO Bonita Tenneriello BBO Mass. Correctional Legal Services, Inc. 10 Winthrop Square, Third Floor Boston, MA ( Sarah R. Wunsch BBO American Civil Liberties Union 211 Congress Street Boston, MA (