Opinion
10-P-2250
02-21-2012
G. SAIF SABREE v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, NORFOLK & others. [FN1]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, a long-time prisoner housed at MCI Norfolk, alleges that he did not receive adequate medical care after he slipped and fell in an area of the prison being mopped by another inmate. In essence, he contends that despite submitting multiple sick slip requests, he was not seen by medical personnel or otherwise adequately treated. The plaintiff filed the instant action against the superintendent of MCI Norfolk, the deputy superintendent, the medical facility with which MCI Norfolk has contracted to provide medical services, and the doctor in charge. In filing the suit, the plaintiff represented to the court that he was indigent, and the court originally entered an order that the matter proceed on a significantly reduced entry fee.
The medical defendants filed a motion to dismiss, which was allowed by a motion judge for the reasons provided by the medical defendants in their moving papers. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). In addition, the judge made various findings to the effect that the plaintiff had lied repeatedly, under oath, in the present and various other proceedings, when making representations regarding his indigency status. Relying primarily on G. L. c. 261, § 29(e), the judge dismissed the plaintiff's claims against the medical defendants. A judgment of dismissal entered in favor of the medical defendants.
Generally, governing actions filed by prison inmates and providing, in relevant part, that the court . . . may dismiss a claim if [it] finds that the allegation of indigency is untrue.
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Meanwhile, the department defendants also filed a rule 12(b) motion to dismiss. A second motion judge ordered the plaintiff to respond by a certain date. When the plaintiff did not respond to the motion, the judge dismissed his remaining claims for failure to respond to the motion to dismiss and for the reasons set forth by the department defendants in their motion papers.
1. Indigency status of the plaintiff. The plaintiff argues that the motion judge improperly dismissed his claims against the medical defendants. The basis of the claim is his allegation that the judge demonstrated prejudice against him by sua sponte vacating his status as an indigent plaintiff. The judge's findings, substantiated in the record (see the supplemental appendix at 70, incorporating by reference findings made in a different case, reproduced at supplemental appendix 72-78), are not clearly erroneous. In essence, the judge found that the plaintiff, over the course of many different actions (including the present action) consistently misrepresented to the court his financial status and means. The judge generally concluded that:
Mr. Sabree has 'sentiently set in motion (an) unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier.' . . . In other words, where Mr. Sabree has created and presented false evidence in support of a claim, he has perpetrated a fraud upon the Court. . . . There is more than the mere presence of fraud here. . . . Mr. Sabree has engaged in a pattern or scheme to defraud. . . . Finally, I specifically find that this pattern or scheme to defraud was proven by clear and convincing evidence. . . . By clear and convincing evidence, I find that Mr. Sabree has committed multiple frauds upon this Court for which there is only one appropriate sanction: dismissal of his complaint [as to the medical defendants only].
After review of the record and the briefs, we discern no basis for the plaintiff's claim of error.
2. Alleged conversion of rule 12 (b) motion. We also find no merit to the plaintiff's contention that the judge improperly converted the departmental defendants' rule 12(b) motion into one for summary judgment. We note that the defendants' motion was explicitly titled to Dismiss, or in the Alternative . . . for Summary Judgment. We note, further, that the plaintiff, despite a specific order to respond to the motion, failed to file an opposition and failed to address in any way the underlying merits of the motion. Accordingly, substantially on the reasoning and authorities set out in the department's brief, we affirm the dismissal under G. L. c. 261, § 29(e).
Judgment of dismissal in favor of University of Massachusetts correctional health defendants affirmed.
Order dismissing complaint against department defendants affirmed.
By the Court (Graham, Brown & Meade, JJ.),