Opinion
July 30, 1996.
Superintendence of inferior courts, Appeal from order of single justice.
The case was submitted on briefs.
Henry Martineau, pro se.
Philip W. Silva for the defendant.
The petitioner, a Massachusetts inmate, is the plaintiff in an underlying action in the Superior Court. In March, 1993, he filed a motion for summary judgment in that action, but the court did not act on his motion. He then filed several other motions seeking to elicit a ruling on his summary judgment motion. Those motions, however, were denied.
In August, 1995, the petitioner filed a petition in the county court pursuant to G.L.c. 211, § 3 (1994 ed.), requesting an order compelling the Superior Court to act on his summary judgment motion. A single justice denied the petition without a hearing, and the petitioner appeals.
Relief under G.L.c. 211, § 3, is properly denied when there are other adequate and effective remedies available to the petitioner. McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). Greco v. Suffolk Div. of the Probate Family Court Dep't, 418 Mass. 153, 156 (1994). In this case, once the Superior Court had denied his emergency motion to expedite and his subsequent request for a prompt disposition of his summary judgment motion, the petitioner could have obtained review of those interlocutory orders from a single justice of the Appeals Court in accordance with G.L. c. 231, § 118, first par. (1994 ed.) Having failed to pursue that avenue, he was not entitled to relief under G.L.c. 211, § 3. See Matthews v. D'Arcy, 422 Mass. 1012 (1996); Adams v. Cumberland Farms, Inc., 420 Mass. 807 (1995).
Even if we were to consider the merits of the petitioner's assertions, we would conclude that the single justice did not err or abuse his discretion in denying this petition. See Greco, supra ("It is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law"). Accord Kyricopoulos v. Richardson, 409 Mass. 1002 (1991); Fogarty v. Commonwealth, 406 Mass. 103, 106 (1989). The petition and supporting materials established that the motion for summary judgment had been pending in the Superior Court for approximately two and one-half years, despite the petitioner's repeated requests that it be acted on. However, the record was insufficient to demonstrate that the delay was unreasonable in the circumstances (which included the fact that the petitioner's case had been consolidated with a class action brought by other inmates raising the same or similar issues). The record also failed to establish how in particular the petitioner has been prejudiced by the delay.
Judgment affirmed.