Wright v. Demoura, 18-P-1184

• Decision Date: 20 November 2019
• Docket Number: 18-P-1184
• Parties: EDWARD G. WRIGHT v. DOUGLAS DEMOURA & others.
• Court: Appeals Court of Massachusetts

EDWARD G. WRIGHT v. DOUGLAS DEMOURA¹ & others.²

18-P-1184

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

November 20, 2019

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Edward G. Wright, appeals from a Superior Court judgment on the pleadings dismissing his complaint. Concluding that the plaintiff failed to show a timely appeal from the judgment, and that the plaintiff has not shown that the judge abused her discretion in denying his motion for reconsideration, we affirm.

1. Notice of appeal. Judgment against the plaintiff, an incarcerated prisoner, entered on November 10, 2017. On November 27, 2017, the plaintiff filed a motion to reconsider. On January 22, 2018, the judge denied the motion. On January31, 2018, the plaintiff filed a notice of appeal, claiming an appeal to both the judgment and the denial of the motion to reconsider.

Pursuant to Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013),³ a notice of appeal must be filed within thirty days of entry of judgment unless, among other things, any party filed a motion "to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, if either motion is served within ten days after entry of judgment." The plaintiff's motion is dated November 20 (ten days after entry of judgment), but (at least as presented by the plaintiff in the appendix) contains no certificate of service.

By order dated September 26, 2019, we directed the plaintiff to "provide the court with a certificate stating on what day he served on the defendants his November 2017 motion for reconsideration of allowance of judgment on the pleadings by depositing the copy of⁴ the defendants with the prison's internal mail system." See Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990) (pro se inmate's notice of appeal considered "filed" when defendant placed in institutionalmailbox). In response, the plaintiff certified that he deposited a copy addressed to the clerk of the Superior Court on November 20, 2017, but declined to comply with our order and certify when (or if) he served the defendants. As the plaintiff has failed, despite invitation to do so, to establish that he served his motion to reconsider within ten days of judgment, the plaintiff's appeal from the dismissal of his complaint is untimely and is not properly before us. See Franchi Mgt. Co. v. Flaherty, 93 Mass. App. Ct. 418, 424 (2018).

Nonetheless, the plaintiff did file a timely notice of appeal from the denial of his motion to reconsider. Accordingly, the plaintiff's appeal from the denial of that motion is properly before us.

2. Standard of review. Because a motion to alter or amend a judgment pursuant to Mass. R. Civ. P. 59, 365 Mass. 827 (1974), must be served within ten days of entry of judgment, a motion to reconsider served more than ten days after entry of judgment is construed as a motion pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). See Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 682 (2007). "A motion for relief under rule 60(b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion." Haffey v. Rock, 75 Mass. App. Ct. 686, 690 (2009), quoting Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764,775 (2006). "[W]e examine whether 'the judge made "a clear error of judgment in weighing" the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives.'" von Schönau-Riedweg v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 484 n.20 (2019), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

3. Substantial evidence. Review of a prison disciplinary decision "is confined to the administrative record of the proceedings, which viewed in its entirety must demonstrate substantial evidence of the plaintiff's guilt under a preponderance of the evidence standard." Santiago v. Russo, 77 Mass. App. Ct. 612, 613-614 (2010). "The hearing officer's findings and determinations of credibility are final and may not be set aside by the reviewing court unless there appears no basis for them in the record." Id. at 614. Here, the plaintiff stated to a correctional officer, "If I am forced to enter the general population here, I can tell you that it will not end well." When asked what he meant by that, he responded, "You know what it means." Having explicitly invited the officer to adopt the officer's own understanding of his meaning -- which was that it was a threat to hurt himself or others -- the plaintiff cannot now claim that there is no substantial evidence to support that construction, much less that the judge erred in not reconsidering that conclusion.

4. Answer to complaint. Superior Court Standing Order 1-96 (2017) (standing order) directs an administrative agency facing a claim for judicial review of administrative agency proceedings to, "by way of answer, file the original or certified copy of the proceeding under review (the record) within ninety (90) days after service upon it of the Complaint." The standing order applies "whether [the claim for review is] joined with a claim for declaratory relief under G. L. c. 231A, or any other claim." Standing order 1-96, supra. The Supreme Judicial Court has approved the use of this method of answer, even where the plaintiff raised an additional complaint about a violation of constitutional rights. See Magazu v. Department of Children & Families, 473 Mass. 430, 435 (2016). See also Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 541 n.10 (2014) (disapproving use of Mass. R. Civ. P. 12 [b] [6], 365 Mass. 754 [1974],...