Opinion
No. 10–P–1674.
2012-07-2
Moises A. MORALES v. SHERIFF OF BRISTOL COUNTY & others.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Despite numerous motions and notices of appeal filed by the plaintiff throughout the Superior Court litigation, the only appeal properly before us from the Superior Court proceedings is the appeal from a December 21, 2006, contempt judgment. In addition, the plaintiff appeals the order of a single justice of this court denying his motion to file a nonconforming brief. We affirm.
The plaintiff's first complaint, filed in September, 2004, concerned a request to transfer from the Bristol County house of correction, a claim that the institution “stole” his canteen funds when charges were illegally deducted therefrom, and an amorphous claim concerning the inadequate general education development (GED) and other programs at the jail. The plaintiff also alleged inadequate medical treatment, and interference with his access to the courts. Shortly after the filing of his complaint, the plaintiff was transferred to the medical unit. As a result, the plaintiff's property was collected from his cell and that which was permitted him in the medical unit was sent there; the rest was put in storage. The plaintiff then filed a motion seeking an order requiring the defendant sheriff of Bristol County (sheriff) to return confiscated legal papers and other materials. On December 22, 2004, the plaintiff received an order requiring the sheriff to return his legal papers. On January 10, 2005, the plaintiff filed a motion seeking to hold the defendants in contempt for failure to return his legal papers. At a hearing in April, 2005, the sheriff agreed to provide additional legal papers, but this does not appear to have resolved the contempt issue, as a judge scheduled a hearing on the contempt motion. After additional affidavits were filed by the sheriff, the contempt hearing was cancelled with the following endorsement by the judge: “The ruling on the motion for contempt is hereby vacated in light of the affidavits that have been filed. If the Plaintiff still believes that his property has not been returned, a new verified complaint for contempt may be filed.”
On October, 21, 2005, the plaintiff filed the new verified complaint for contempt that is the subject of this appeal, alleging that the documents he sought never were returned. An evidentiary hearing was held on the contempt matter on September 19, 2006. In his findings and rulings, the contempt judge found that the plaintiff had failed to prove that the sheriff had not returned all of his papers, documents, articles, and books, and the judge did not credit the plaintiff's testimony to the contrary. The plaintiff filed a timely notice of appeal from the judgment on the contempt complaint.
All of the other aspects of the case having previously been resolved, the defendants moved for the entry of final judgment, which was allowed, and final judgment entered on June 27, 2007. On August 15, 2007, the Superior Court's office returned to the plaintiff his notice of appeal from the judgment as it was not timely filed. He filed two additional “amended” notices of appeal purporting to appeal from the entire case.
The plaintiff previously had been transferred to another facility and a prior ruling in this action determined his medical care was adequate. The plaintiff since has been released and is no longer incarcerated.
The notice of appeal from the final judgment appears to be untimely and neither the plaintiff's initial brief nor his supplemental brief argues otherwise. Accordingly, the only appeal from the Superior Court properly before us is the appeal from the December 21, 2006, contempt judgment concerning the return of his papers and books.
As to the contempt proceedings, the plaintiff does not argue that the judge's findings were clearly erroneous. Rather he argues a number of evidentiary issues, none of which have merit. The plaintiff assigns error to the denial of subpoenas for certain witnesses and the exclusion of the testimony of certain inmate witnesses. As to the inmate witnesses, the record does not reflect that such subpoenas were sought or that any such testimony was offered. Any argument concerning this issue has been waived by the failure to raise it below. As to the other witnesses sought, it does not appear that they earlier were disclosed and they could have been excluded on that basis alone. Accordingly, there was no error in the contempt judge's refusal to permit the evidence.
The plaintiff also argues that the contempt judge erred by failing to sequester witnesses as earlier ordered by a previous judge. However, it does not appear that the plaintiff informed the contempt judge of the prior order before the contempt proceedings commenced, nor did the plaintiff object or otherwise raise the issue until late in the trial, after many of the witnesses already had testified. Any such claim is, accordingly, waived.
The plaintiff purports to raise another issue concerning an earlier order requiring the sheriff to present evidence that the plaintiff's papers were returned to him. This order appears to relate to a procedural hearing to determine whether the prior contempt proceeding need be tried. This order had no relation to the contempt judgment at issue here, which was based on a subsequently filed contempt complaint.
The plaintiff also appears to argue that the contempt judge was bound by a different judge's earlier order on the show cause proceedings to find the defendants in contempt. Such an argument is without merit, especially in light of the subsequent order vacating the show cause order on the defendants' satisfactory showing that the plaintiff's documents had been returned.
We note that the plaintiff's claim that the contempt judge erred in refusing to recuse himself is wholly without merit. The judge's statement at trial that the plaintiff had not “established yet the items that were taken from” his cell exhibited no bias and there is nothing in the transcript to substantiate the plaintiff's diatribe in his second supplemental brief, which accuses the judge of bias, racial prejudice, corruption, and suffering from Alzheimer's disease.
As to the single justice appeal, the plaintiff was permitted to file a supplemental brief after the defendants filed a supplemental appendix containing a transcript of the contempt proceedings, which apparently the plaintiff had been unable to obtain from the trial court. The plaintiff's second supplemental brief, filed after he was released from incarceration, is entirely handwritten and completely nonconforming. It rightly could have been rejected on that basis alone. However, it appears that the single justice rejected it for the reason that it was not accompanied by a certificate of service and there had been prior complaints from the defendants that the plaintiff was not serving them with papers he filed with the court. The plaintiff does not dispute the fact that it was not served, he merely claims that he did not have access to a copier to make additional copies to serve. We review an order of a single justice for abuse of discretion. See Lawrence Sav. Bank v. Garabedian, 49 Mass.App.Ct. 157, 161 (2000); Troy Indus. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 582 (2010). There was no such abuse here.
Contempt judgment entered December 21, 2006, affirmed.
Order of single justice affirmed.