Opinion
No. 11–P–1937.
2013-03-19
Raymond P. VINNIE v. Agustus ENAW & others.
By the Court (FECTEAU, HANLON & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff, Raymond P. Vinnie, an inmate in custody of the Department of Correction (DOC) at Souza–Baranowski Correction Center (SBCC), appeals from the entry of summary judgment by a judge of the Superior Court dismissing his claims for medical malpractice and 42 U.S.C. § 1983 violations against the defendants, three medical contractors for the DOC–Dr. Agustus Enaw, Dr. Arthur Brewer, and John Crotty (collectively, the medical defendants), and the director of security at SBCC, Bruce Gelb.
In his complaint, Vinnie alleged that the medical defendants acted negligently and with deliberate indifference to a serious medical need in failing to diagnose and treat his stage III colon cancer (Counts I and II) and that Enaw and Gelb acted with deliberate indifference to a serious medical need in failing to take action following a patfrisk conducted by a prison guard with excessive force, which exacerbated Vinnie's medical condition (Count III). Vinnie further alleged that all defendants caused him mental and emotional harm (Count IV).
On November 25, 2009, a judge denied Vinnie's motion for judgment on the pleadings, and allowed motions for summary judgment in favor of Gelb and the medical defendants, except with respect to Enaw on Count I, which was denied. Another judge entered the following amended judgment on May 18, 2011: Vinnie's motion for judgment on the pleadings was denied; Brewer's, Crotty's, and Gelb's motions for summary judgment were allowed; and Enaw's motion for summary judgment was allowed as to Counts II, III, and IV, and denied as to Count I, but, as Vinnie failed to answer interrogatories pursuant to Mass.R.Civ.P. 33(a), as appearing in 436 Mass. 1401 (2002), judgment was entered for Enaw on Count I.
On appeal, Vinnie avers that his complaint was improperly dismissed based on numerous procedural errors. The thrust of Vinnie's contentions concern the procedural timing of the defendants' filings; specifically, Vinnie argues that (1) the medical defendants' answers and interrogatories predated the “commencement” of his lawsuit, rendering them invalid, and were otherwise insufficient; (2) the medical defendants' motion for summary judgment postdated the tracking order deadline based on Superior Court Standing Order 1–88, rendering it invalid; (3) Gelb failed to timely respond to the complaint, and otherwise improperly filed a motion for summary judgment before filing an answer; and (4) based on the above, he is entitled to a nil-dicit judgment
to prevent fraud on this court. We disagree. Vinnie lodges no argument related to the substantive merits of the summary judgment decision, but because he raises issues of timeliness or prematurity that he could have, but failed to, raise below, all of his claims on appeal focus on matters that are not properly before us. “Objections, issues, or claims—however meritorious—that have not been raised in the trial court are deemed to have been waived on appeal.” Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 674 (2000). Even if his claims were properly before us, he would fare no better.
Also termed a nihil dicit default judgment. A nil-dicit judgment may be entered against a defendant who “fails to file a timely answer, often after the defendant appeared in the case by filing a preliminary motion.” Black's Law Dictionary 480 (9th ed.2009). See Mass.R.Civ.P. 55, as amended, 423 Mass. 1402 (1996).
It is undisputed that Vinnie filed his complaint on May 3, 2004, together with an affidavit of indigency requesting a waiver of filing fees and court costs, which was allowed subject to the court's review.
See G.L. c. 261, § 27B. Vinnie timely paid the court-ordered reduced fee of five dollars on July 7, 2004. Vinnie contends, therefore, that the lawsuit commenced only upon his payment of the filing fee, and that any pleading or motion filed by the defendants beforehand is a nullity. See Mass.R.Civ.P. 3, as amended, 385 Mass. 1215 (1982) (“A civil action is commenced by ... (2) filing [the] complaint and an entry fee with [the] clerk [of the proper court]”). Where, as here, however, an affidavit of indigency is filed with the complaint, “the clerk shall receive the complaint ... and proceed as if all regular filing fees had been paid.” G.L. c. 261, § 27C(1), as amended by St.1980, c. 539, § 7. Accordingly, the action commenced, albeit conditionally, on May 3, 2004. The medical defendants' interrogatories (served on July 6, 2004) and answers to the complaint (filed on July 12, 2004) were neither premature nor void, as Vinnie suggests.
On May 13, 2004, the court ordered the commissioner of correction to provide certain information regarding Vinnie's inmate account, and on June 8, 2004, after reviewing Vinnie's affidavit of indigency and the statement of his inmate account, the court ordered Vinnie to pay five dollars in order to proceed.
Vinnie did not await the posting of the filing fee before he proceeded to serve process on the defendants, and returns of service for all defendants were filed on June 25, 2004. Thus, the medical defendants' answers, filed on July 12, 2004, were within the twenty-day limit prescribed by Mass.R.Civ.P. 12(a), 365 Mass. 754 (1974). To the extent that Vinnie argues that the medical defendants' answers were insufficient as they did not consider in detail the eighty-six pages of medical records appended to his complaint, we note that an answer need only “admit or deny the averments” of the complaint. See Mass.R.Civ.P. 8(b), 365 Mass. 749 (1974).
Furthermore, that the medical defendants served their interrogatories prior to the convening of the medical malpractice tribunal, the request for which was filed by the medical defendants on July 12, 2004, does not excuse Vinnie's failure to respond to those discovery requests. Although “the hearing before the tribunal ordinarily precedes discovery,” Gugino v. Harvard Community Health Plan, 380 Mass. 464, 468 (1980), “there is no statutory prohibition preventing the conduct of discovery prior to the convening of the tribunal.” Jacobs & Laurence, Professional Malpractice § 5.19 (2007). See O'Leary v. Nepomuceno, 44 Mass.App.Ct. 683, 686 (1998).
Vinnie correctly observes that the medical defendants' motion for summary judgment was filed on April 3, 2007, well beyond the March 29, 2005, court-imposed fast track deadline for motions under Mass.R .Civ.P. 56, 365 Mass. 824 (1974), as set out in Superior Court Standing Order 1–88(E). Irrespective of this deadline, however, Mass .R.Civ.P. 56(b) expressly provides that a defending party “may, at any time, move ... for a summary judgment in his favor[,]” and a judge may exercise his or her discretion to entertain such motions. See Bonnie W. v. Commonwealth, 419 Mass. 122, 123 n. 1 (1994) (rejecting a similar argument). See also Superior Court Rule 23. Moreover, Vinnie's contention that Gelb's motion for summary judgment was also untimely or premature similarly lacks merit. See Lammerding v. Shawmut Community Bank, N.A., 13 Mass.App.Ct. 601, 602 (1982) (Mass.R.Civ.P. 56[b] “has been interpreted to allow a defendant to move for summary judgment before filing a timely answer and also after the due date of an answer, if no answer has been filed”). In consideration of the above, Vinnie is not entitled to a default judgment in his favor.
Vinnie additionally contends that the medical defendants made an untimely request for court intervention with respect to his alleged discovery violations and that the Superior Court judges abused their discretion in using those violations as grounds upon which to dismiss his complaint. These contentions are without merit for the reasons already discussed.
Amended judgment affirmed.