Opinion
19-P-768
06-01-2020
TONY B. GASKINS v. WILLIAM DEVINE & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff is an inmate who resides at the Massachusetts Correctional Institution at Concord (MCI-Concord). He appeals from a judgment on the pleadings that dismissed without prejudice his complaint against the defendants. See Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). The plaintiff sued the defendants individually and in their capacities as employees of the Department of Correction (DOC). We affirm.
The claims of a coplaintiff, Jay Darosa, were dismissed as moot following his release from incarceration; he is not a party to this appeal.
Background. We draw the facts from the pleadings and the administrative record. "Skullcandy" manufactures headphones and offers a lifetime warranty on its products. The plaintiff purchased Skullcandy headphones from the commissary at MCI-Concord for $37.12. Keefe Canteen Corp. (Keefe) is a private company that runs the commissary pursuant to a contract with DOC.
In the past, inmates with broken Skullcandy headphones have taken them to the commissary, where Keefe sent the headphones to Skullcandy for repair or replacement and received the returned product on the inmate's behalf. The inmate would then retrieve the repaired or replaced product from the commissary at no additional cost. At some point, however, Keefe decided to stop honoring Skullcandy's warranty. When the plaintiff sought to return his broken headphones to Skullcandy, Keefe declined. In or around April 2015, the plaintiff asked William Devine and Lois Russo for permission to send the headphones directly to Skullcandy and was told that, while he could send the headphones out, DOC regulations aimed at preventing the introduction of contraband into the institution prohibited the receipt of a replacement back from Skullcandy, because Skullcandy is not an approved DOC vendor. See 103 Code Mass. Regs. § 403.13 (3) (2001) ("Any item available for purchase at the institutional inmate canteen or through approved vendors shall not be authorized to enter" institution). When the plaintiff was advised to purchase new headphones from Keefe, he filed an institutional grievance, which was denied by Marcelo Silva. The plaintiff's appeal from Silva's decision was denied by Russo.
The substance of this regulation now appears at 103 Code Mass. Regs. § 403.13(4) (2017).
On April 27, 2015, the plaintiff filed a Superior Court complaint alleging that, in these circumstances, the defendants' enforcement of the above-quoted regulation violated the plaintiff's rights under the consumer protection act, G. L. c. 93A, because it deprived him of his rights under the Skullcandy lifetime warranty. The plaintiff sought damages as well as injunctive relief. The defendants moved for judgment on the pleadings or, alternatively, for summary judgment. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). On March 19, 2019, after a hearing, a judge of the Superior Court allowed the defendants' motion for judgment on the pleadings, denied the plaintiff's request for injunctive relief, and dismissed the complaint without prejudice. In a margin endorsement, the judge noted the unfairness of a process that prevented the plaintiff from availing himself of the lifetime warranty, but concluded that the plaintiff was not entitled to relief because his "substantial rights . . . were not prejudiced nor was there a property deprivation giving rise to a constitutional violation."
The complaint also alleged that these actions violated G. L. c. 231A; G. L. c. 12, §§ 11H and 11I; and 42 U.S.C. § 1983. None of these claims is pressed on appeal, and we do not address them.
Standard of review. "Entry of judgment on the pleadings under Mass. R. Civ. P. 12 (c) means that the complaint fails to state a claim upon which relief can be granted" (quotation omitted). Frankston v. Denniston, 74 Mass. App. Ct. 366, 371 n.6 (2009). "In reviewing a judgment on the pleadings, the appellate court takes the facts from the plaintiff's complaint and reviews the issues de novo." Id. See Jarosz v. Palmer, 436 Mass. 526, 529 (2002).
Discussion. To state a claim under the consumer protection act, a plaintiff must allege facts sufficient to establish that the defendant (1) committed an unfair or deceptive act or practice, (2) "in the conduct of any trade or commerce," (3) which caused the plaintiff to suffer injury. Rafferty v. Merck & Co., 479 Mass. 141, 161 (2018). See G. L. c. 93A, § 2 (a). Setting aside the first element, we conclude that the complaint in this case was properly dismissed because the defendants were not engaged in trade or commerce when they enforced the DOC regulation at issue, and that the defendants' conduct did not cause the plaintiff's injury.
A defendant engages in "trade or commerce" when it acts in a business context. Peabody N.E., Inc. v. Marshfield, 426 Mass. 436, 439 (1998). Here, the defendants are alleged to have enforced a government regulation while acting in their capacities as government employees. "[I]t is well established that governmental entities are not amenable to suit under [G. L.] c. 93A when they have engaged in governmental activity rather than trade or commerce." M. O'Connor Contracting, Inc. v. Brockton, 61 Mass. App. Ct. 278, 284 (2004). The plaintiff does not claim that the defendants were engaged in buying, selling, or trading in headphones (or any other item), see Rafferty, 479 Mass. at 162 (failure to warn did not take place "in the conduct of any trade or commerce" because defendant "never advertised, offered to sell, or sold" product at issue), or that the defendants were motivated by personal considerations when they denied the institutional grievance. The consumer protection act "does not apply to parties motivated by legislative mandate, not business or personal reasons" (quotation omitted). Peabody N.E., Inc., supra at 440.
At oral argument, we raised with the parties the possibility that Skullcandy could issue Keefe a credit pursuant to the plaintiff's lifetime warranty, enabling Keefe to issue the plaintiff a new pair of headphones from its stock. See, e.g., Puleio v. Timberland Corp., 94 Mass. App. Ct. 1118 (2019), in which a different panel of this court was presented with similar issues.
Judgment affirmed.
By the Court (Milkey, Lemire & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 1, 2020.