Opinion
16–P–860
02-08-2017
Carlos HENRIQUEZ v. COMMISSIONER OF DEPARTMENT OF CORRECTION & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Carlos Henriquez, appeals from a Superior Court judgment dismissing his amended complaint for civil contempt and from the order denying his motion for reconsideration. We affirm.
Background . Henriquez, a prisoner in the custody of the Department of Correction (DOC), commenced the underlying matter after he was involved in an accident while being transported by DOC authorities. On September 19, 2014, the parties agreed, and the court ordered, that Thomas Abruzzese, an attorney representing the Commissioner of the DOC, would "produce and provide to plaintiff certified copies of the subject medical records of services and treatment rendered" within thirty days. Attorney Abruzzese did not produce the records within thirty days. Henriquez filed a complaint for civil contempt against the Commissioner and Attorney Abruzzese on November 21, 2014. On December 11, 2014, Attorney Abruzzese mailed a copy of the medical records directly to Henriquez, explaining that there had been "some confusion" on the part of the "medical people" that he had instructed to send the records. Henriquez filed an amended complaint for contempt on January 20, 2015, asserting that the records were late, incomplete, and generally deficient.
The complaint was not acted on by the court.
Thereafter, a Superior Court judge conducted a hearing at which Attorney Abruzzese explained that he had asked the medical providers to send the records directly to Henriquez; when he learned that they had not done so, he took immediate steps to obtain the records himself and forward them to Henriquez. The judge dismissed Henriquez's complaint, reasoning that "[n]either the 24 day delay in providing the records nor their alleged deficiencies can be attributed to contumacious conduct of the defendants or their counsel" and concluding that "[w]hatever remedy there may be regarding the alleged deficiencies of the records, it is not found in this complaint for contempt."
A judgment of contempt requires a finding, based on clear and convincing evidence, that the defendant engaged in "a clear and undoubted disobedience of a clear and unequivocal command." Birchall, petitioner , 454 Mass. 837, 851 (2009) (quotation omitted). Where "disobedience is doubtful, there cannot be a finding of contempt." Id . at 852 (quotation omitted). Here, Attorney Abruzzese's uncontested explanation for the delayed production demonstrated reasonable, good faith efforts to comply with the parties' agreement and resulting order. Moreover, where the amended complaint did not allege a clear and undoubted disobedience of a clear and unequivocal command, we discern no error in the judge's dismissal thereof.
A discovering party in receipt of a deficient document production may file a motion to compel further production under Mass.R.Civ.P. 37(a)(2), 365 Mass. 797 (1974).
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Judgment affirmed .
Order denying motion for reconsideration affirmed .