Opinion
13-P-1954
01-14-2015
SEAN MURPHY v. MASSACHUSETTS STATE POLICE & 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 action arose out of property damage incurred by certain customers of Northshore Movers of Lynn (Northshore) and its owner, Sean Murphy, during the execution of a search warrant.
At all times relevant to this action, Murphy has been incarcerated at various Massachusetts and Federal facilities and has proceeded pro se.
The confusing nature of the proceedings is the result of Murphy's decision to pursue the same claims and arguments contemporaneously in multiple forums. We set forth only so much of the tortuous procedural history of these proceedings as is necessary to decide the issues that are properly before us.
Shortly after Murphy commenced this action in Essex Superior Court, a judge, sua sponte, dismissed it. See Essex Superior Court docket number ESCV2011-01578 (1578 action). Murphy filed a timely notice of appeal from the judgment of dismissal.
This was the second related action commenced by Murphy. The first action was dismissed for failure to prosecute. See Essex Superior Court docket number ESCV2010-02521.
Ten days later, having corrected the pleading deficiencies identified by the motion judge, Murphy commenced another action, asserting the same allegations against the same defendants. See Essex Superior Court docket number ESCV2011-01826 (1826 action). While the 1578 appeal was pending, a judge in the 1826 action allowed the motions of the Attleboro police department to dismiss and of the Mansfield police department for judgment on the pleadings. The same judge also denied as futile Murphy's motion to amend his complaint and his supplemental motion to amend seeking to add more defendants (individual officers and municipalities) as well as civil rights claims. On October 15, 2012, a judgment dismissing the claims against the Attleboro and Mansfield police departments entered.
Murphy's original complaints in both the 1578 and 1826 actions named only the police departments as defendants.
On reconsideration, a judge vacated the inadvertent denial of Murphy's notice of appeal of these rulings and judgment. We note that to the extent that Murphy maintains that the court has failed to assemble the record in the 1826 action, there is no evidence that he has fulfilled the duties of the appellant in this regard. See Mass.R.A.P. 9(c)(2), as amended by 437 Mass. 1602 (2002), and the parties' joint designation of the record in this appeal.
In an unpublished decision issued on February 7, 2013, this court affirmed the ruling dismissing the complaint in the 1578 action. See Murphy v. Massachusetts State Police, 83 Mass. App. Ct. 1112 (2013). However, unaware of the commencement of the 1826 action and Murphy's two unsuccessful efforts to amend his complaint therein, this court gave Murphy leave to file an amended complaint. This order was inconsistent with the rulings and the judgment in the 1826 action. Murphy took full advantage of this opportunity and filed the amended complaint at issue in this appeal. That complaint is substantially similar to the second proposed amended complaint rejected by the motion judge in the 1826 action as futile.
Ruling on the motions of the remaining defendants for judgment on the pleadings in the 1826 action, a judge subsequently dismissed the action based upon the pendency of the prior identical proceeding. See Mass.R.Civ.P. 12(b)(9), as amended by 450 Mass. 1403 (2008); Keen v. Western New England College, 23 Mass. App. Ct. 84, 85 n.2 (1986); Harvard Community Health Plan, Inc. v. Zack, 33 Mass. App. Ct. 649, 652 (1992).
The issue properly before us in this particular appeal is the propriety of a September 25, 2013, ruling dismissing Murphy's amended complaint in the 1578 action on res judicata and collateral estoppel grounds. See Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999); Siles v. Travenol Labs., Inc., 13 Mass. App. Ct. 354, 354 n.1 (1982) (appellate consideration is limited to issues designated in the notice of appeal). We review that ruling de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
As explained to Murphy by this court on prior occasions, pro se litigants are held to the same standards and procedural rules as professionally represented litigants. See International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983). In this case, Murphy's appellate brief contains no analysis supported by citation to proper authority concerning the doctrine of prior adjudication. Even if some leniency is in order, Murphy's appellate argument falls far short of minimum requirements. See Mass.R.A.P. 16(a)(4), as amended by 367 Mass. 921 (1975); Tynan v. Attorney General, 453 Mass. 1005 (2009). We need go no further.
Were we to reach the merits, we would conclude as to the Attleboro and Mansfield defendants, that the case was properly dismissed on claim preclusion grounds. See Kobrin v. Board of Registration in Medicine, 444 Mass. 837, 843 (2005); Korn v. Paul Revere Life Ins. Co., 83 Mass. App. Ct. 432, 436-438 (2013).
Although the applicability of the law of prior adjudication to the action against the remaining defendants is unclear, we think that the amended complaint was properly dismissed for a different reason. See Kelley v. Iantosca, 78 Mass. App. Ct. 147, 150 (2010). We conclude that the amended complaint, as presented and on its face, failed to pass muster under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Beyond his conclusory assertion in his brief that his amended complaint stated a claim for relief, Murphy failed to identify the precise claims and causes of action as to the discrete defendants. To the extent that he also argued that his amended complaint contained a "variety of additional claims for relief not contained in the original complaint," he again failed to identify them. See Kelley v. Cambridge Historical Commn., 84 Mass. App. Ct. 166, 173 (2013). Having independently examined the document, we conclude that the specific "factual allegations in the [amended] complaint are [not] sufficient, as a matter of law, to state a recognized cause of action or claim, and . . . such allegations [do not] plausibly suggest an entitlement to relief." Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 374 (2012), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). By suing so many defendants with no specific allegations of wrongdoing by any of them, he does not state a claim against any of them, directly or under a theory of respondeat superior.
His claims of judicial bias and disparate treatment (i.e., being held to a higher standard of proof than required under Massachusetts law) are entirely unsupported. The motion judge did not violate Murphy's due process rights by moving forward with the hearing on the two pending motions to dismiss on September 24, 2013. On Murphy's motion, filed on or about May 10, 2013, the 1578 proceedings were stayed for ninety days while he was out-of-State being resentenced in a Federal proceeding. No stranger to the legal system, Murphy did not seek an extension of the stay, which expired on August 19, 2013. Given his knowledge of the pendency of the motions to dismiss, the onus was on Murphy to monitor the status of the proceedings and if necessary to seek an extension of the ninety-day period he had requested and been granted. In these circumstances, absent communication or action from Murphy, the holding of the hearing in Murphy's absence did not violate his due process rights.
We also note that (1) Murphy's contention that he was still in Federal custody on the date of the hearing is not established on this record, and (2) Murphy failed to move for reconsideration of the ruling or for a new hearing based on the lack of opportunity to be heard.
Judgment affirmed.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
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Clerk
Entered: January 14, 2015.