Opinion
15-P-1455
02-17-2017
Louis LAURORE v. Kevin O'HEARN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Louis Laurore, a prisoner in the custody of the Department of Correction at the Massachusetts Correctional Institute, Norfolk (MCIN), appeals from the dismissal of his complaint. We affirm.
The plaintiff alleges that he was attacked by his cell mate and, as a result of his injuries, transferred to a Norwood hospital. While he was in the hospital, prison officials removed his personal possessions from his cell and packed them into seven boxes; they were then held by the property department of MCIN. When he returned to MCIN, the defendant received only three boxes of his possessions; he claims that eighteen items were missing. The plaintiff properly filed claims relating to the missing items through the internal grievance process; these grievances were, for the most part, denied. The plaintiff then filed a complaint with the Superior Court, pursuant to G. L. c. 127, § 3, seeking damages of $787 for the missing items, compensatory damages of $100 per day for the period March 2, 2011, through September 1, 2012, and punitive damages of $1,000 against each of the three defendants.
The defendant Kevin O'Hearn is a correction officer assigned to the MCIN property department.
The October 4, 2011, decision by the defendant Gary Roden indicates that the inmate grievance office will attempt to resolve "via a settlement agreement" the inadvertent destruction of the plaintiff's "excess books." The plaintiff's "roll up chess board" was returned, but the missing hot pot and footwear were considered contraband and, thus, not returnable.
The defendants moved to dismiss the complaint, asserting that G. L. c. 258, the Massachusetts Tort Claims Act (Act), barred the claims. The judge agreed, and dismissed the plaintiff's claims after a hearing, noting that the "outcome of this motion is controlled by the holding in Vining v. Commonwealth , 63 Mass. App. Ct. 690, 695 (2005). The Tort Claims Act supersedes G. L. c. 127, § 3." The plaintiff timely appealed.
We also rely on Vining in affirming the judge's allowance of the defendants' motion to dismiss, but we do so for a slightly different reason. The purpose of the Act is to waive sovereign immunity in certain situations, thereby granting subject matter jurisdiction to courts of the Commonwealth for certain claims against governmental entities. However, G. L. c. 258, § 10(d ), as amended by St. 1993, c. 495, § 57, provides some exceptions to that waiver, specifically for "any claim arising in respect of ... the lawful detention of any goods or merchandise by any law enforcement officer."
The plaintiff's claim arises, or originates, from his allegations that the defendants negligently detained, then subsequently destroyed, certain items of his personal property. However, under the § 10(d ) exception to the Act, a "law enforcement officer" is immune from such action. In Vining , we stated that the definition of a "law enforcement officer" should be interpreted expansively, and held that court officers are to be considered law enforcement officers under § 10(d ). Vining , supra at 694-695. Using the same reasoning, we conclude that a correction officer should also be considered a "law enforcement officer" for the purposes of the exception.
In making this determination, the Vining court looked to the Federal Circuit Courts of Appeals in its expansive reading of § 2680(c) of the Federal Tort Claims Act (28 U.S.C. §§ 2671 et seq. ) to include "federal law enforcement officers beyond those who assess taxes or collect customs duties." Vining , supra at 694 (quotation omitted).
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The word " ‘arise’ means ‘[t]o originate; to stem (from).’ " John Doe No. 4 v. Levine , 77 Mass. App. Ct. 117, 119 (2010), quoting from Black's Law Dictionary 122 (9th ed. 2009). Here, while the plaintiff argues that some items of property improperly were not returned to him, it is clear that the initial securing of his property while he was hospitalized was proper. For that reason, the complained of detention of his property arises out of that lawful action and therefore comes within the exception in the statute.
In Vining , supra at 693, we concluded, "if the crux of the plaintiff's complaint refers to an incident or occurrence that originated from the type of conduct delineated in § 10(d ), the action is barred." So, too, here, we are persuaded that the judge acted correctly in allowing the defendant's motion to dismiss.
Judgment affirmed .