HOWARD PAYNE v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION-SHIRLEY & Others. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1379
HOWARD PAYNE
vs.
SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION-SHIRLEY &
others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Superior Court judgment
dismissing his amended complaint. We affirm.
Background. As of the filing of this appeal, the
plaintiff, Howard Payne, was an inmate at the Massachusetts
Correctional Institution-Shirley. In his complaint and amended
complaint, both filed in the Superior Court, the plaintiff
alleged that much of his personal property was wrongly taken
1Raymond Marchilli, individually and in his capacity as
superintendent of Massachusetts Correctional Institution-Shirley
(MCI-Shirley); David Shaw, individually and in his capacity as
commander of the IPS (Inner Perimeter Security) at MCI-Shirley;
and Mark Richard, individually and in his capacity as a sergeant
of the IPS at MCI-Shirley.
from him by security officers. Despite filing multiple
grievances, some of which were approved in part, he alleged that
"almost all" of his personal property, including canteen
purchases, stamps, and other items, were not returned. The
plaintiff alleged that he appealed the denial of his grievances
to defendant Raymond Marchilli who never responded. Finally,
the plaintiff alleged that he was ridiculed and threatened by
defendants David Shaw and Mark Richard.
On September 21, 2016, the plaintiff filed the present
action in the Superior Court, seeking declaratory judgment,
injunctive relief, equitable relief, and damages for civil
rights and constitutional violations.2 On April 27, 2020, the
defendants filed a motion to dismiss or in the alternative for
summary judgment. On April 8, 2022, a Superior Court judge
allowed the motion. The judge ruled that "[u]pon review, and
because plaintiff failed to file a timely opposition, the
defendants' motion to [d]ismiss is unopposed . . . [and]
ALLOWED." The judge further ruled that "it appears that
plaintiff has not taken any action to prosecute this matter
except to seek an enlargement of time in July of 2020 and then
2 On June 16, 2017, a Superior Court judge allowed the
defendants' motion to dismiss as to defendant Marchilli but
denied the motion as to defendants Shaw and Richard. On June
29, 2017, the plaintiff filed an amended complaint in the
Superior Court.
2
failed to file any opposition." A judgment of dismissal
entered, and the plaintiff now appeals therefrom.3
Discussion. The plaintiff argues, in essence, that the
"evidence before the [S]uperior [C]ourt was adequate and
sufficient to warrant relief," and thus the judge erred in
dismissing the amended complaint. However, the plaintiff does
not address the central issue on appeal: whether the judge
abused her discretion by dismissing the amended complaint for
failure to prosecute and failure to file any opposition to the
defendants' motion to dismiss. Indeed, the plaintiff provides
no explanation whatsoever for his failure to prosecute the case
and failure to file any response to the defendants' motion
despite having had two years to do so.
Furthermore, our review is hampered by the plaintiff's
failure to comply with the Massachusetts Rules of Appellate
Procedure. In this regard, we first note that the plaintiff
does not cite to any legal authority to support the argument in
his appellate brief. An appellant's brief must contain "the
contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the
authorities and parts of the record on which the appellant
relies." Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass.
3 A single justice of this court allowed the plaintiff's
motion to docket appeal late.
3
1628 (2019). The rule "is more than a 'mere technicality. It
is founded on the sound principle that the right of a party to
have this court consider a point entails a duty; that duty is to
assist the court with argument and appropriate citation of
authority.'" Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86
(1995), quoting Lolos v. Berlin, 338 Mass. 10, 14 (1958).
In addition, the plaintiff filed an informal brief and
record appendix, which does not include a copy of the
defendants' "motion to dismiss or in the alternative for summary
judgment," other moving papers, or any portion of the summary
judgment record. It is "a fundamental and long-standing rule of
appellate civil practice" that the appellant has an obligation
"to include in the appendix those parts of the [record] which
are essential for review of the issues raised on appeal."
Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371,
372-373, (1991), S.C., 411 Mass. 807 (1992). See Mass. R. A. P.
18, as appearing in 481 Mass. 1637 (2019). Without these
documents, we are left to speculate as to the content and merits
of the motion. Consequently, on the record before us, we cannot
say that the judge abused her discretion in dismissing the
amended complaint. See Mass. R. Civ. P. 41 (b), 365 Mass. 803(1974). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014) (abuse of discretion occurs where judge made clear error
of judgment in weighing factors relevant to decision "such that
4
the decision falls outside the range of reasonable
alternatives").
Judgment affirmed.
By the Court (Neyman,
Desmond & Singh, JJ.4),
Clerk
Entered: October 25, 2024.
4 The panelists are listed in order of seniority.
5