JASON LATIMORE v. DEPARTMENT OF CORRECTION & Others.

• Court: Massachusetts Appeals Court
• Decided: January 17, 2024
• Docket: 22-P-0740
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-740

JASON LATIMORE

vs.

DEPARTMENT OF CORRECTION & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

According to his complaint, the plaintiff, Jason Latimore,

injured his toe while he was an inmate at a Massachusetts

prison. On April 25, 2019, Latimore filed a complaint alleging

inadequate medical treatment for his injuries. Named as

defendants were the Department of Correction (DOC), the

Massachusetts Partnership for Correctional Healthcare, two

private medical entities, two DOC officials, sixteen identified

medical professionals, and nine unidentified professionals

listed as Jane or John Doe. By an amended judgment entered on

1 Massachusetts Partnership of Correctional Healthcare; Correct Care Solutions, LLC; Wellpath LLC; Stephanie Y. Collins; James O'Gara, Jr.; Linda Farag; Charles King; Vanessa Rattigan; Stephanie Perry; Jane Doe nurses one through four; John Doe nurses one through four; Jenny Vieira; Herbert Ddungu; Ayshe Hameed; Cindy Cutting; Rebeca Pitre; Emily Morse; Emily Holmes; Susan Milliken; Kiely Despina; Rebecca Lubelczyk; John Doe physical therapist; Lindsey Pellegrini; and Chantell Santos. April 9, 2020, a Superior Court judge dismissed the complaint

based on insufficiency of service. Latimore filed a notice of

appeal on May 11, 2020. Over one year later, the defendants

moved to dismiss that appeal for failure to prosecute. By order

entered on September 10, 2021, a second Superior Court judge

allowed that motion. Latimore appealed the second judge's order

and filed a motion for relief therefrom, pursuant to Mass. R.

Civ. P. 60, 365 Mass. 828 (1974) (rule 60 [b]), which a third

Superior Court judge denied by order dated October 29, 2021.

Latimore then filed another notice of appeal and asked that the

appeals be combined. It does not appear that the request was

acted on in the Superior Court, but seeing as one record was

assembled for both appeals and a single justice of this court

treated the appeals as consolidated, we conclude that we are

called on to decide whether the second judge abused her

discretion in allowing the motion to dismiss Latimore's first

appeal (of the underlying amended judgment), and whether the

third judge abused his discretion in denying Latimore's motion

for relief from the second judge's decision. 2 We affirm.

The motion to dismiss the appeal for failure to prosecute

cited Latimore's "inexcusable neglect," Mass. R. A. P. 10 (c),

2 As clarified in two orders by the single justice, dated July 22, 2022, and August 3, 2022, whether the first judge erred in allowing the motion to dismiss the complaint is not before us.

2 as appearing in 481 Mass. 1618 (2019), in not complying with

Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1611

(2019), and was served pursuant to the 2021 version of Superior

Court Rule 9A, which required at subsection (b) (4) (i) that

once service is made, the nonmoving party must serve on the

moving party the opposition to the motion within ten days.

Latimore did not serve the defendants with a timely opposition,

and the defendants therefore accurately filed and identified

their motion as unopposed. Nevertheless, Latimore was given an

additional forty days to respond to the motion to dismiss by

order entered on June 9, 2021, and he was given another thirty

days by order entered on July 15, 2021. Thus, despite

Latimore's failure to abide by Superior Court Rule 9A, he was

allowed an additional seventy days to oppose the motion to

dismiss his first appeal. He did not take that opportunity, and

the motion to dismiss thus remained unopposed. The second judge

allowed the motion on that basis on September 10, 2021. Because

Latimore did not file any opposition to the motion to dismiss

despite his having been given over two additional months to do

so, the second judge plainly did not abuse her discretion.

In his rule 60 (b) motion, which sought relief from the

order of dismissal of his first appeal, Latimore claimed that he

in fact had filed an opposition to the motion to dismiss and

that the second judge "made a mistake" in concluding otherwise.

3 As the third judge observed, this simply is not true.

Latimore's "opposition to defendants' joint opposition to papers

#35-38" was directed at, and filed in response to, the

defendants' opposition to Latimore's requests for copies of

documents in the file, the numbers of court rooms in which

certain hearings occurred so he could order transcripts, and

forms for ordering transcripts along with an extension of time

to do so. Though Latimore gave an "explanation for his neglect"

in requesting transcripts and cited to Mass. R. A. P. 10 (c),

and though we look to the substance of pleadings rather than the

title, Latimore's filing did not ask that the motion to dismiss

be denied or address the merits of the motion by showing that

Latimore had (1) cured the procedural defect or (2) a

meritorious issue for appeal, and therefore was not in substance

or title an opposition to that motion. Thus, the rule 60 (b)

motion was based on a false premise, and relief could have been

denied on that ground alone.

Even were Latimore's arguments viewed with the utmost

leniency, he still would not have shown that the third judge

abused his discretion in denying the rule 60 (b) motion. He

maintains that his prosecution of the underlying appeal of the

amended judgment depended on his acquiring transcripts of

4 certain court hearings. 3 Although it is uncontested that he was

extremely tardy in ordering such transcripts, he asserts that

his tardiness was excused by operation of the cure provision

included in Mass. R. A. P. 10 (c), see Neuwirth v. Neuwirth, 85

Mass. App. Ct. 248, 256 (2014), and by practical difficulties he

faced as a result of the COVID-19 pandemic and his

reincarceration. At the time the motion to dismiss was acted

on, Latimore was engaged in some efforts to obtain the hearing

transcripts. Based on the fact that the docket would have

revealed those efforts, he argues in effect that the third judge

should have treated them as tantamount to his having filed an

opposition to the motion to dismiss. Even assuming arguendo

that the third judge could have accepted such an argument and on

that basis excused Latimore's failure to submit an actual

opposition to the motion to dismiss, Latimore cites nothing that

required the judge to do so. Accordingly, we conclude that the

third judge did not abuse his discretion in denying the rule 60

(b) motion. See Owens v. Mukendi, 448 Mass. 66, 71 (2006)

(recognizing discretionary nature of rule 60 decisions to

accomplish task of "balancing the competing needs for finality

3 For example, according to Latimore, a Superior Court judge instructed him at one hearing not to serve his complaint for the time being.

5 and flexibility to be certain that justice is done in light of

all the facts" [citation omitted]).

Order entered on September 10, 2021, dismissing appeal, affirmed.

Order entered on October 29, 2021, denying rule 60 (b) motion, affirmed.

By the Court (Wolohojian, Milkey & D'Angelo, JJ. 4),

Assistant Clerk

Entered: January 17, 2024.

4 The panelists are listed in order of seniority.