Opinion
No. 11–P–1256.
2012-07-2
Bernadine SMITH v. DISTRICT COURT DEPARTMENT OF the TRIAL COURT & another.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from a judgment of dismissal, the pro se plaintiff claims error in the allowance of the defendants' motion to dismiss for failure to state a claim and challenges an order removing a prior default entered against the defendants. The case arises from an incident in the Springfield division of the District Court Department, where, in April, 2008, the plaintiff appeared as a plaintiff on a restraining order matter and was arrested on an outstanding warrant for failure to appear for jury duty.
The plaintiff claims the defendant judge refused to listen to her explanation that she had, in fact, appeared for jury duty, and refused her request to call her son to obtain documentation from her home to substantiate her assertion. The plaintiff then filed a multi-count Superior Court complaint against both the hearing judge and the District Court in April, 2010. The overlapping counts generally alleged claims for false imprisonment, civil rights violations, negligence, infliction of emotional distress, and a count for the creation of false documents (relating to an alleged deletion of testimony from the audio recording of the District Court hearing
The restraining order matter for which the plaintiff appeared was a hearing requested by the plaintiff's brother, against whom the plaintiff had a restraining order. The plaintiff's brother was seeking to be allowed entry into the plaintiff's residence, then part of their parents' estate, to remove his belongings.
). The complaint was served on the defendants on May 25, 2010, which would have required a responsive pleading by June 15, 2010. See Mass.R.Civ.P. 12(a)(1), 365 Mass. 754 (1974).
The hearing transcript apparently contains no reference to her claim that she told the judge that she had, in fact, appeared for jury duty.
On June 17, 2010, the plaintiff filed a request to default the defendant District Court and a default entered one week later on June 24, 2010. Counsel for the District Court entered his appearance on June 30, 2010, and filed a notice of intent to file a motion to remove the default. The motion, filed without an opposition from the plaintiff, was initially rejected for failure to include the certificate required by rule 9A of the Rules of the Superior Court (2009). Upon the submission of an amended affidavit of compliance with rule 9A, the motion to remove the default was allowed on July 26, 2010.
The plaintiff's motion to reconsider the removal of the default was subsequently denied.
Both defendants were represented by the same attorney from the Attorney General's office. That attorney entered his notice of appearance for the defendant judge on July 29, 2010, after the District Court's default had been removed.
Thereafter, the defendants moved to dismiss the complaint. The plaintiff apparently filed her opposition directly with the court, and failed to comply with rule 9A by submitting her opposition to the defendants. In addition, the plaintiff did not appear at the subsequent hearing on the motion, which was allowed on October 13, 2010, for the reasons stated in the defendants' motion.
The plaintiff has appealed from the ensuing judgment.
The defendants' motion to dismiss states that the defendants “are entitled to absolute judicial immunity for the actions alleged in the Plaintiff's Complaint.” In granting the dismissal motion, the judge incorporated by reference the reasons set forth in that memorandum in support of the dismissal motion.
The plaintiff's arguments are drafted in a confused manner, are stated mostly by means of questions, and do not set forth any coherent form of appellate advocacy. Moreover, her appendix contains only the first page of the pleadings she submitted, so it is difficult to discern the predicates for her claims. As a pro se litigant, the plaintiff is held to the same standards and bound by the same rules of procedure as a litigant with counsel. See Commonwealth v. Barnes, 399 Mass. 385, 392 (1987); Solimine v. Davidian, 422 Mass. 1002 (1996). Thus, given these failures, the judgment below could be affirmed on the basis that the appeal was not properly presented under Mass.R.A.P. 16, as amended, 428 Mass. 1603 (1999).
Even if we were to excuse the plaintiff's failure to brief the appeal properly, the plaintiff's claims, so far as we can make them out, lack merit. First, as to the trial judge's allowing the removal of the default, our review is controlled by the abuse of discretion standard. See Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 289–290 (1984); Cicchese v. Tape Time Corp., 28 Mass.App.Ct. 72, 74 (1989). We see no abuse of discretion in allowing the default to be removed given the brief delay in the defendant District Court's appearance and filing of a responsive pleading, the lack of demonstrable prejudice to the plaintiff, and a meritorious defense. Compare Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 430–431 (1979).
Second, there was no error in the judge's allowance of the defendants' motion to dismiss for failure to state a claim, under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635–636 (2008). The plaintiff's claims against the defendant judge were properly dismissed based on absolute judicial immunity for actions taken from the bench. See Allard v. Estes, 292 Mass. 187, 189–190 (1935); DeLoach v. Tracy, 352 Mass. 135, 136–137 (1967). Moreover, all of the plaintiff's claims, as to both defendants, were based on the exercise of a discretionary function on the part of the defendant judge while she was acting within the scope of her office, and were, therefore, barred by the discretionary function exclusion to the Tort Claims Act. See G.L. c. 258, § 10( b ); Tryon v. Lowell, 29 Mass.App.Ct. 720, 723–724 (1991) (exemption from tort liability extends to functions of public employers or employees which involve exercise of discretion).
Judgment affirmed.