Opinion
No. 11–P–613.
2012-06-18
Bruce ANDERSON v. COMMISSIONER OF CORRECTION & others.
By the Court (BERRY, KAFKER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the dismissal of a certiorari complaint filed pursuant to G.L. c. 249, § 4, by the pro se plaintiff, an inmate at MCI–Shirley. The complaint generally alleges violations of State and Federal due process rights and other claims in connection with seven different prison disciplinary proceedings. The judge dismissed the claims relating to four of the disciplinary proceedings on the grounds that the certiorari complaint as to these four proceedings was not timely filed.
In this appeal, the plaintiff challenges the dismissal as to two of the four disciplinary cases that were dismissed as untimely. We affirm. 1. Timeliness.General Laws c. 249, § 4, requires certiorari actions to be brought within sixty days after the complained of proceedings. See McLellan v. Commissioner of Correction, 29 Mass.App.Ct. 933, 934 (1990). In this case, the proceedings for disciplinary cases nos. 153439 and 159470 were concluded on April 9, 2009, and April 30, 2009, respectively. The plaintiff sought review of those disciplinary cases by way of a Superior Court complaint filed on December 7, 2009. The plaintiff's certiorari complaint regarding those disciplinary cases was, therefore, untimely, and properly dismissed.
Of the claims related to the remaining three disciplinary proceedings, two were dismissed for failure to exhaust administrative remedies, and one was decided against the plaintiff on the merits. The plaintiff did not appeal from the disposition of these claims.
The plaintiff protests dismissal, contending that the certiorari deadlines should have been tolled because he had originally filed timely complaints in Superior Court challenging disciplinary proceedings nos. 153439 and 159470. However, on November 10, 2009, the plaintiff filed a motion to voluntarily dismiss those timely complaints, which was allowed.
The plaintiff later filed the complaint here, which sought to combine the claims regarding the two dismissed disciplinary cases (nos. 153439 and 159470) with claims regarding five other disciplinary cases. The defendants moved to dismiss. The judge determined that the plaintiff's claims as to four of the seven disciplinary cases were time barred. Two of the time barred disciplinary cases, nos. 153439 and 159470, are the subjects of this appeal.
The plaintiff argues that the sixty-day time limit for certiorari actions should be considered as tolled because, as a pro se prisoner, he should have been held to a less stringent standard, and his motion for a voluntary dismissal of the complaints should be considered an attempt to consolidate his various claims in one complaint. As a pro se litigant, the plaintiff was “bound by the same rules of procedure as a litigant with counsel.” Commonwealth v. Barnes, 399 Mass. 385, 392 (1987).
Our determination that the plaintiff's claim associated with disciplinary report no. 153439 is time barred makes it unnecessary to consider whether, as the plaintiff suggests, the defendants failed to adhere to certain prison regulations, giving rise to an implied private right of action. Even were the claim timely advanced, it would be without merit.
The plaintiff's claim that he was deprived of due process is similarly without merit. We note that the judge addressed the due process claim (even though time barred). The judge found the proceedings afforded the plaintiff notice of the disciplinary infraction at issue, and an opportunity to be heard at a hearing. After this hearing, the prison disciplinary board issued written findings. These steps were sufficient to satisfy due process. See Ciampi v. Commissioner of Correction, 452 Mass. 162, 170–171 (2008). See also Torres v. Commissioner of Correction, 427 Mass. 611, 618 (1998).
In sum, the two disciplinary cases in the certiorari complaint that are the subject of the appeal were not timely filed and were correctly dismissed.
Judgment affirmed.