Opinion
21-P-830
04-11-2022
Edward G. WRIGHT v. Thomas TURCO, Third, & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2018 the pro se prisoner plaintiff brought a civil action against the Department of Correction and Steven Silva, the superintendent of the Souza-Baranowski Correctional Center, in his official capacity, seeking declaratory and injunctive relief against the implementation of a "standard operating procedure" (SOP) for processing inmate mail that, the plaintiff alleged, violated the Constitution of the United States, and had been adopted unlawfully without complying with the Administrative Procedures Act, G. L. c. 30A, §§ 1 - 5. That lawsuit ultimately was successful. A judge of the Superior Court held that the SOP was in conflict with prevailing regulations, and that its provisions could not be implemented unless adopted through an amendatory regulation promulgated in compliance with the Administrative Procedure Act. Wright v. Mass. Dep't of Corr., Mass. Sup. Ct, No. 1884CV03232 (Suffolk County September 22, 2020). The judge did not reach the constitutional claim, concluding that doing so was unnecessary to her resolution of the case.
The pro se plaintiff subsequently brought the complaint in this matter seeking money damages under 42 U.S.C. § 1983, against Thomas Turco, Third, the Commissioner of the Massachusetts Department of Correction, Nelson Alves, the Director of the Policy Development and Compliance Unit of the Massachusetts Department of Correction, and Steven Silva, again, the Superintendent of the Souza-Baranowski Correctional Center, all in their individual capacities. The defendants moved to dismiss this action, and the Superior Court judge allowed that motion. She concluded that the lawsuit was barred as a matter of claim preclusion. The plaintiff has appealed. We review the dismissal of the complaint de novo. Dunn v. Genzyme Corp., 486 Mass. 713, 717 (2021).
As the Supreme Judicial Court has described, "Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259 (1998), quoting Blanchette v. School Comm. Of Westwood, 427 Mass. 176, 179 n.3 (1998). The defendants correctly note that "The invocation of claim preclusion requires three elements: ‘(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.’ " Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005), quoting Daluz v. Department of Correction, 434 Mass. 40, 45 (2001).
There was a previous final judgment on the merits, and we may assume without deciding that the causes of action are the same. But the defendants’ assertion that this action is barred as a matter of claim preclusion flounders at the first step. At first blush, it may appear that there is identity or privity of the parties to this and the prior action. However, the prior action was brought against the Department of Correction and against defendant Silva in his official capacity; a suit against a public official sued only in his official capacity is a suit "against the official's office." O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 141 n.13 (1993). By contrast, this action is brought against the defendants in their individual capacities.
The Supreme Judicial Court recently reiterated that " ‘[T]here is no generally prevailing definition of privity which can be automatically applied to all cases.’ Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 214 (1909), aff'd, 225 U.S. 111 (1912)." DeGiacomo v. Quincy, 476 Mass. 38, 43 (2016). In the context of that case, "the determination whether a nonparty is in privity with a party depends on the nature of the nonparty's interest, whether that interest was adequately represented by a party to the prior litigation, and whether binding the nonparty to the judgment is consistent with due process and common-law principles of fairness." Id. at 43-44. As to suits involving parties in different capacities, the Supreme Judicial Court long ago held, "A verdict against a man suing in one capacity will not estop him when he sues in another distinct capacity and, in fact, as a different person in law" (citation and quotation omitted). McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 570 (1914). And, importantly, if a party in one capacity "would not have been bound" by a judgment rendered against him or her in another capacity, neither may that party "take advantage of a determination" in favor of the latter. McCarthy v. Daggett, 344 Mass. 577, 580 (1962). The Restatement thus takes the position that "a party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity." Restatement (Second) of Judgments § 36 (2) (1980).
Many Federal courts, applying laws of various jurisdictions, have reached the conclusion that government officials, sued in their individual capacities, are not in privity with the government. See, e.g., Mitchell v. Chapman, 343 F.3d 811, 823 (6th Cir. 2003) ("the rule of differing capacities generally operates to allow a subsequent individual capacity suit against a government official even where a prior suit alleged an official capacity claim against the same official"); Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir. 1988) ("courts do not generally consider an official sued in his personal capacity as being in privity with the government"); Roy v. Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983) ("Under well-established rules of res judicata, recognized in Maine, an action brought against an individual in one capacity does not bar a later action brought against the same individual in a different capacity").
State courts have reached the same conclusion. Thus, for example, the New Hampshire Supreme Court concluded that there was no privity between a government entity and its employee sued in his individual capacity because such a rule "would run counter to the rule of res judicata, that ‘a party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.’ Restatement Second of Judgment § 36 (2). Thus, ‘a judgment against a government does not bind its officials in subsequent litigation that asserts a personal liability against officials. And ... an official who has litigated in his official capacity is not precluded from relitigation in his personal capacity.’ 18 C. Wright and A. Miller, Federal Practice and Procedure § 4458 (1981)." Daigle v. City of Portsmouth, 129 N.H. 561, 573 (1987) (Souter, J.).
Although there is no decision of our appellate courts addressing this issue, the United States Court of Appeals for the First Circuit held in Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013), that an individual-capacity defendant is not in privity as a matter of Massachusetts law with the government entity with which he or she is associated. It reiterated that conclusion clearly in a decision handed down during the pendency of this appeal, Alston v. Town of Brookline, 997 F.3d 23, 37-38 (1st Cir. 2021).
Although of course we are not bound by the Federal court's construction of Massachusetts law, we are persuaded in light of the great weight of authority with respect to the question and agree with the conclusion reached by the First Circuit in Goldstein and Alston. Consequently, because the defendants sued in their individual capacities were not in privity with the defendants in the prior action, claim preclusion does not apply. The judgment therefore is reversed.
There is no question of issue preclusion here as it could apply only if in the prior case the constitutional issue had been "actually litigated and determined by a valid and final judgment, and the determination [was] essential to the judgment" (citation omitted). Mullins v. Corcoran, 488 Mass. 275, 281 (2021).
Judgment reversed.