Opinion
No. 11–P–1210.
2012-06-15
Ira JONES, administratrix, v. OFFICE OF THE SUFFOLK COUNTY DISTRICT ATTORNEY & others.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case comes before us on an appeal from the allowance of a motion for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). A Superior Court judge allowed the defendants' motion for judgment on the pleadings, finding that the defendants were immune from suit under G.L. c. 258, §§ 10( b ) and 10( j ), two provisions of the Massachusetts Torts Claims Act (MTCA). We affirm.
We review de novo an appeal from the judgment entered following an order allowing a motion for judgment on the pleadings; our review is based on the same record as was before the motion judge. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635–636 (2008); Professional Fire Fighters of Mass. v. Commonwealth, 72 Mass.App.Ct. 66, 73 (2008). We treat the allegations of the complaint as true and determine if a defendant is entitled to judgment as a matter of law. See Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 596, 600–601 (2010). The amended complaint alleges as follows. Fourteen year old Chauntae Renee Jones (Chauntae) had been involved in a Juvenile Court proceeding in which a judge had suggested that defendant Kyle Bryant be charged with statutory rape; Bryant had admitted to fathering Chauntae's unborn child. The district attorney did not charge or prosecute Bryant. Thereafter, Chauntae was murdered and her body was “recovered from the grounds of the Boston State Hospital in Mattapan.” Lord Hampton and Kyle Bryant were charged with her murder.
The plaintiff, the administratrix of Chauntae's estate, then filed a wrongful death action under the MTCA against the office of the Suffolk County district attorney, the Suffolk County probation department, and the Commonwealth of Massachusetts, alleging that that but for the negligence of the Commonwealth defendants, Chauntae would be alive.
The defendants asserted the defense of immunity. See G.L. c. c. 258, § 10( b ) & ( j ).
The plaintiff also sued Bryant and Hampton. The claims against these defendants play no part in this appeal.
The claims against the district attorney. The plaintiff argues that the district attorney negligently failed to prosecute Bryant for statutory rape, and that had Bryant been prosecuted, he would likely have been incarcerated and therefore unable to murder Chauntae. This claim is barred as a matter of law by two provisions of G.L. c. 258 § 10. General Laws c. 258, § 10( j ), immunizes the district attorney from any claim of an alleged failure to prevent a third party from doing harm to another. See Brum v. Dartmouth, 428 Mass. 684, 695 (1999). The discretionary function exception, G.L. c. 258, § 10( b ), provides the district attorney with immunity from claims for discretionary decisions made in his policy making and planning capacity. See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992); Serell v. Franklin County, 47 Mass.App.Ct. 400, 402 (1999). Despite the plaintiff's arguments that a failure to take action is not an exercise of judgment, decisions regarding whether, when, how, and whom to prosecute are discretionary and fall within the discretionary functions exception to the waiver of sovereign immunity codified in the MTCA. Sena v. Commonwealth, 417 Mass. 250, 256–257 (1994). “The authority vested in [the district attorney] by law to refuse on his own judgment alone to prosecute a complaint or indictment enables him to end any criminal proceeding without appeal and without the approval of another official.” Manning v. Municipal Ct. of Roxbury Dist., 372 Mass. 315, 318 (1977), quoting from Attorney Gen. v. Tufts, 239 Mass. 458, 489 (1921).
Claims against the probation department Count II of the plaintiff's amended complaint alleges only that the probation department did “not take any action upon learning of an evident violation of the law.” The plaintiff makes no argument on appeal as to why or how the motion judged erred in dismissing this claim under G.L. c. 258, § 10( b ). The plaintiff's argument does not “rise to the level of appellate argument .... Therefore, we do not consider it.” Adams v. Adams, 459 Mass. 361, 392 (2011). See Commonwealth v. Bowler, 407 Mass. 304, 310 (1990) (defendant's assertion not supported by reasoned theory or citation of authority).
Claims against the Commonwealth. The amended complaint alleged that the Commonwealth was negligent in its duty to Chauntae to properly police and maintain the hospital grounds. The Commonwealth is immune from suit pursuant to (1) G.L. c. 258, § 10( h ), for claims for failure to provide adequate police protection, see Ford v. Grafton, 44 Mass.App.Ct. 715, 723–724 (1998); (2) G.L. c. 258, § 10( b ), for claims challenging the discretionary decisions made regarding the allocation of security resources in State-owned property, see Wheeler v. Boston Hous. Authy., 34 Mass.App.Ct. 36, 40 (1993); and (3) G.L. c. 258, § 10( j ), see Brum v. Dartmouth, supra. Lastly, the amended complaint is devoid of any factual allegations of any negligent act, and warrants dismissal on that basis as well. Iannacchino v. Ford Motor Co., 451 Mass. at 636.
The plaintiff argues that the amended complaint should be judged under the more lenient standard of Nader v. Citron, 372 Mass. 96, 98 (1977). In Iannacchino, supra, the court expressly disapproved the language in Nader v. Citron upon which plaintiff relies. Regardless, the complaint would be deficient under the Nader v. Citron standard as well.
Judgment affirmed.