Opinion
14-P-34
11-18-2014
ELIAHU MAZIN v. TOWN OF NORWOOD & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case returns to this court after further proceedings in the trial court as ordered in Mazin v. Norwood, 84 Mass. App. Ct. 1101 (2013). In that appeal, a prior panel determined that the plaintiff's case should not have been dismissed for failure to comply with G. L. c. 258, § 4, because the complaint explicitly asserts that it is brought under 42 U.S.C. § 1983, which is not governed by State presentment requirements. On remand, the town of Norwood (town) and the Norwood Police Department (department) again moved to dismiss, arguing that the complaint fails to state a claim under § 1983. The judge allowed the motion because the complaint did not allege any conduct by the town and its police department other than conduct of the arresting officers for which the town and the department are not vicariously liable. See Monell v. Department of Social Servs. of the City of N.Y., 436 U.S. 658, 690-691 (1978).
We agree that the claims against the town and the department were properly dismissed for the reasons stated by the judge. However, we disagree with the judge's assumption that the plaintiff has not also named and asserted claims against the arresting officers individually. Accordingly, we must return the case to the Superior Court yet again.
"All pleadings shall be so construed as to do substantial justice." Mass.R.Civ.P. 8(f), 365 Mass. 749 (1974). Here, the plaintiff's pro se complaint reasonably may be understood to assert claims against the individual officers pursuant to 42 U.S.C. § 1983. The complaint identifies the officers in the caption, which lists the defendants as: "1. Town of Norwood," and "2. Norwood police department (Officer Paul Leear and Officer Thomas Annino)." The complaint then generally describes the case as involving the "usage of excessive force" by the officers. The complaint's numbered paragraphs include specific allegations pertaining to the actions of Officers Leear and Annino, and paragraph 23 alleges "usage of excessive and unreasonable force during the arrest process" as "covered by Phaly Poy plaintiff vs. John Boutselis." The plaintiff's reference to the Poy case, in which an arrestee sought and recovered damages pursuant to § 1983 from an individual police officer for injuries inflicted during arrest, see Poy v. Boutselis, 352 F.3d 479 (1st Cir. 2003), indicates that the plaintiff is alleging the same type of claim.
The complaint in question was filed on February 14, 2012, in Essex Superior Court and resulted in the entry of Case No. ESCF2012-00290. The panel that heard the previous appeal obtained and reviewed the complaint despite the plaintiff's failure to include it in his record appendix. We therefore consider the complaint to be a matter of record in this court, even though the plaintiff again neglected to include it in the record appendix for this appeal.
In these circumstances, although the town and the department were entitled to the allowance of their motion to dismiss, final judgment should not have entered without resolution of the plaintiff's claims against the two officers. We therefore vacate the judgment and remand the case for further proceedings consistent with this memorandum and order.
On the limited record before us, we are unable to ascertain whether the remaining claims are in a posture to go forward or whether they, too, are subject to dismissal. This shall be determined in the trial court.
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So ordered.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 18, 2014.