Opinion
No. 11–P–1036.
2012-06-11
Trevor HOWELL v. COMMONWEALTH.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff filed an action alleging that Department of Correction officials damaged his music “keyboard” while he was incarcerated. A Superior Court judge granted the Commonwealth's motion to dismiss, and judgment entered in the Commonwealth's favor on May 21, 2010. The plaintiff did not appeal that judgment. Instead, over eight months after judgment entered, the plaintiff filed a motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). He now seeks to appeal the denial of that motion. We affirm.
The plaintiff has presented no persuasive argument as to how the judge abused her discretion in denying the motion. In fact, through his rule 60(b) motion, the plaintiff in essence sought merely to reargue the issues that were already before the judge on the Commonwealth's motion to dismiss. This was not a proper use of the rule. See Harris v. Sannella, 400 Mass. 392, 395 (1987) (rule 60[b] “may not be used as a substitute for a timely appeal”), quoting from Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986).
Order denying motion for relief from judgment affirmed.