Opinion
No. 12–P–1469.
2013-07-3
Eliahu MAZIN v. TOWN OF NORWOOD & another.
By the Court (RUBIN, FECTEAU & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff brought this suit against the town of Norwood and its police department alleging failure to train and excessive use of force (and perhaps deliberate indifference to his medical needs while he was held in custody, though that is not clear from the material before us). The case was dismissed for failure to comply with G.L. c. 258, § 4, inserted by St.1978, c. 512, § 15, which requires presentment before one may bring “a claim for damages under this chapter” against a “public employer.” The complaint in this case, however, explicitly indicates that it was brought under 42 U.S.C. § 1983, and in his brief before us, the plaintiff refers to that statute and also to 42 U.S.C. §§ 1981 and 1985.
By its terms, the presentment requirement of G.L. c. 258, § 4, applies only to claims brought under G.L. c. 258. It has no applicability to Federal causes of action. The judgment of the Superior Court therefore is reversed, and the case is remanded for further proceedings consistent with this decision.
Although the plaintiff failed to include the complaint in the record appendix, it may, nonetheless, be considered on appeal. Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997) (“The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts”). See Sparrow v. Demonico, 461 Mass. 322, 324 n. 4 (2012) (court reviewed pleadings not included in record appendix); Guardianship of Pollard, 54 Mass.App.Ct. 318, 322 (2002) (court reviewed report of guardian ad litem not included in record). We have examined a copy of the complaint filed in the Superior Court, which is entitled, “Memorandum of Mr. Eliahu Mazin pursuant to Rule 9A in support of his motion for a hearing regarding usage of excessive force, failure to train by the town of Norwood as an employer of Norwood police department brought under Section 1983.” Curiously, neither the motion to dismiss nor the judge's ruling on it made any reference to § 1983.
So ordered.