NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC-12935 STEPHEN FOSTER1 & others2 vs. COMMISSIONER OF CORRECTION & others3 (No. 2). June 2, 2020. Commissioner of Correction. Parole. Commissioner of Public Safety. Governor. Imprisonment, Safe environment. Constitutional Law, Sentence, Imprisonment, Cruel and unusual punishment. Due Process of Law, Sentence, Commitment. Practice, Criminal, Sentence, Execution of sentence. Practice, Civil, Civil commitment. In Foster v. Commissioner of Correction (No. 1), 484 Mass. , (2020) (Foster [No. 1]), we denied the plaintiffs' motion for a preliminary injunction and transferred the case to the Superior Court for a final adjudication on the merits. In this opinion, we address the motions brought by the Governor and the chair of the parole board (parole board) to dismiss the claims against them. For the reasons that follow, we allow the Governor's motion and we allow in part and deny in part the parole board's motion. Discussion. 1. Allegations of the complaint. In deciding the motions to dismiss, we accept as true the factual 1 On behalf of himself and all others similarly situated. 2 Michael Gomes, Peter Kyriakides, Richard O'Rourke, Steven Palladino, Mark Santos, David Sibinich, Michelle Tourigny, Michael White, Frederick Yeomans, and Hendrick Davis, on behalf of themselves and all others similarly situated. 3 Chair of the parole board, Secretary of the Executive Office of Public Safety and Security, and the Governor. 2 allegations of the complaint and the reasonable inferences that can be drawn from those facts in the plaintiffs' favor. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008). We do not address, let alone attempt to resolve here, the truth of those allegations; that is, whether in fact the conditions of confinement during the COVID-19 pandemic comport with State and Federal constitutional requirements, and whether the defendants have in fact "acted or failed to act with deliberate indifference." Foster (No. 1), 484 Mass. at . Instead, our narrow focus is on whether the plaintiffs' complaint adequately "state[s] a claim upon which relief can be granted" against the Governor and the parole board,"4 Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974); in other words, whether the allegations, if true, plausibly suggest an entitlement to any relief against these defendants. Iannacchino, supra at 635-636. The complaint alleges that, by confining the plaintiffs "under conditions that put them in grave and imminent danger of contracting the COVID-19 virus, and failing to implement an effective mechanism to reduce the incarcerated population to a safe level, [the] [d]defendants are deliberately indifferent to the substantial risk of serious harm suffered by [the] [p]laintiffs." They allege that each of the defendants is (1) violating the plaintiffs' right to be free from cruel or ...
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