Opinion
15-P-6
03-30-2016
REINALDO PRADO v. MIDDLESEX COUNTY JAIL.
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 inmate, Reinaldo Prado, appeals from a summary judgment in favor of the defendant, Middlesex County Jail (jail). We affirm.
Background. On April 2, 2010, a leak in the jail's ceiling caused a puddle to form on the floor. Prado slipped in the water, fell, and fractured his foot. After receiving no response from his presentment letter, see G. L. c. 258, § 4, on March 30, 2012, Prado filed a complaint in the Superior Court alleging negligence on the part of the jail. In its answer, the jail did not raise as an affirmative defense Prado's failure to exhaust his administrative remedies, but explicitly reserved the right to assert any affirmative defense that became known to it during discovery. The jail later moved for summary judgment, citing Prado's failure to exhaust his administrative remedies. The judge agreed and granted summary judgment in favor of the jail, despite Prado's argument that the defense had been waived. In so doing, the judge treated the jail's motion as implicitly including a motion to amend its answer.
On appeal, Prado renews his waiver argument and challenges the judge's implicit allowance of a motion to amend. He further contends that he was disenfranchised because he is a Brazilian national who understands little English, and the written grievance procedures he received were in English only.
Discussion. "As a general rule, parties are required to resort to available administrative remedies before they may seek judicial relief." Puorro v. Commonwealth, 59 Mass. App. Ct. 61, 64 (2003). As concerns inmates, the language of G. L. c. 127, § 38F, requires an inmate to seek relief through the grievance procedure of G. L. c. 127, § 38E, prior to filing a claim in the courts. See Ryan v. Pepe, 65 Mass. App. Ct. 833, 835 (2006). It is undisputed that Prado did not file a grievance; nor does he argue that his particular claim is excused from the mandates of § 38F.
As to the motion judge's allowance of an implicit motion to amend, an affirmative defense properly may be raised for the first time on summary judgment. See Shea v. Bay State Gas Co., 383 Mass. 218, 219 n.3 (1981); Smyth v. Field, 40 Mass. App. Ct. 625, 629 n.7 (1996). Furthermore, Prado has shown neither that the jail's grievance procedures are "seriously inadequate," nor that his claim is "so novel, recurrent, or affecting the public interest" that we should bypass the administrative requirements. Puorro v. Commonwealth, supra at 67.
Finally, Prado's appellate brief, deposition testimony, and presentment letter belie his argument that he was disenfranchised by his limited command of the English language.
For instance, our review of the transcript of the deposition, which was conducted in English, reveals that Prado had no difficulty understanding questions or responding to them. In addition, he was able to spell words for the court reporter when necessary.
Judgment affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 30, 2016.