Opinion
16-P-1210
04-04-2017
A.S. v. N.O.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, a prison guard, sought a harassment prevention order against the defendant, a former inmate of the facility where she worked. See G. L. c. 258E, § 3. This request was based on the plaintiff's allegations that the defendant had become obsessed with her, falsely claimed that they had had a romantic relationship, "attempted to show [her] his genitals," at "other times ... became inappropriate and offensive," had hired an investigator to seek out her home address, and had attempted to contact her at the address he believed was hers. At an ex parte hearing held on December 7, 2015, a District Court judge issued the requested order.
These allegations were set forth in the plaintiff's affidavit and then adopted by her in her testimony at the initial hearing.
When the order was issued, the defendant was incarcerated in a segregation unit in a Federal prison in Maryland, complicating service of the order on him. As is uncontested, he finally received in-hand service of the ex parte order on January 15, 2016. That same day, the defendant wrote a letter to the court expressing his strong desire to be heard on the matter. This letter also notified the court that the defendant would be represented by a particular lawyer (his current appellate counsel) at the hearing scheduled for January 26, 2016, on whether the ex parte order should be extended. Four days later, on January 19, 2016, the defendant wrote a second letter to the court requesting a continuance of the scheduled hearing, citing difficulties in contacting his lawyer from the segregation unit. This letter specifically pointed out that the matter had already been continued three times prior to his being served. At the scheduled hearing, the judge acknowledged the defendant's request for a continuance. However, the judge summarily denied this request and extended the order for one year.
In the interim, the ex parte order had been extended three times because of the service issues.
In the interim, the order issued on January 26, 2016, has expired by its own terms, and the defendant reported at oral argument that it has not been extended further or made permanent. This does not moot the current appeal as the order was not vacated. See Seney v. Morhy, 467 Mass. 58, 62 (2014).
On appeal, the defendant claims that the judge abused his discretion in denying his request for a continuance. Commonwealth v. Faulkner, 418 Mass. 352, 364-365 (1994) (error to deny continuance where there was "justifiable reason for delay"). Under the particular circumstances presented, we agree.
We therefore vacate the order issued on January 26, 2016. We remand this matter for the judge to "notify the appropriate law enforcement agency in writing [that the January 26, 2016,] order is vacated and [to] direct the agency to destroy all record of such vacated order and such agency shall comply with that directive." G. L. c. 258E, § 9, third par., inserted by St.2010, c. 23.
With this relief in place, the defendant will have received all of the relief to which he could be entitled, and any remaining issues are moot. See Allen v. Allen, 89 Mass. App. Ct. 403, 405-406 (2016) ; Quinn v. Gjoni, 89 Mass. App. Ct. 408, 414 (2016). For this reason, we do not reach the defendant's claim that there was insufficient evidence presented for a judge to have found, by a preponderance of the evidence, that the defendant had committed three acts of harassment. See O'Brien v. Borowski, 461 Mass. 415, 425-428 (2012). For the sake of completeness, we note that were we to reach this issue, we would reject the defendant's argument.
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So ordered.
Vacated and remanded.