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
23-P-1187
PETER J. CHONGARLIDES, SR.
vs.
THOMAS M. HODGSON & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Peter J. Chongarlides, Sr., appeals from a
Superior Court judge's dismissal of his complaint after allowing
the defendants' motion to dismiss. The plaintiff argues that
the judge erred because the defendants were "time barred" from
filing their motion to dismiss and that his complaint should not
have been dismissed as moot and inadequate to state a claim.
The plaintiff further argues that the judge erred in not
recusing herself from presiding over this matter and in not
granting his motion to strike. We disagree and affirm the
dismissal.
1Steven J. Souza; Joseph Oliver, Third; Robert Horta; and Kenneth Souza. 1. Motion to dismiss. Chongarlides claims that the judge
erred in allowing the defendants' motion to dismiss because it
was not timely filed. He incorrectly asserts that the
defendants were ordered to file their motion on or before
November 18, 2022, but they did not do so. "We review the
allowance of a motion to dismiss de novo." Curtis v. Herb
Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
Examination of the docket reflects that the defendants were
to serve their motion to dismiss by November 18, 2022, and they
did so pursuant to Superior Court Rule 9A. The defendants
subsequently filed their motion and memorandum on December 2,
2022, in compliance with the bundling requirement of Rule 9A and
within the time allowed by Rule 9A. The defendants' service and
filing of their motion were neither untimely nor time barred.
See Rule 9A (b) of the Rules of the Superior Court (2023).
Thus, we discern no error in the judge's allowance of the
defendants' motion to dismiss.
2. Mootness. Chongarlides further claims that the
Superior Court erred in dismissing his complaint as moot. "A
case becomes moot when 'no actual controversy remains, or the
party claiming to be aggrieved "ceases to have a personal stake
in its outcome."'" Fannie Mae v. Branch, 494 Mass. 343, 347
(2024), quoting DiMasi v. Secretary of the Commonwealth, 491
Mass. 186, 190 (2023). For instance, an inmate's case for
2 sentencing credits is moot once that inmate has been released.
See Commonwealth v. Anastos, 438 Mass. 846, 849 (2003).
Mootness is a question of law which we review de novo. See
Caputo v. Moulton, 102 Mass. App. Ct. 251, 253 (2023).
In his complaint, Chongarlides sought injunctive relief and
"the award of earned good conduct credits, that he [maintains
he] earned [from the Bristol County House of Correction], and
was not awarded during 2021 while serving a sentence." However,
it appears that Chongarlides's sentence ended in June 2021, but
he filed his civil complaint in June 2022. 2 In other words, he
was no longer serving that sentence at the Bristol County House
of Correction when he filed his civil lawsuit. "[L]itigation is
considered moot when the party who claimed to be aggrieved
ceases to have a personal stake in its outcome. A party no
longer has a personal stake in a case where a court can order no
2 In June 2019, Chongarlides was sentenced to a two-year term in the Bristol County House of Correction and three years of probation on docket number 1833-CR-004475. On March 19, 2021, Chongarlides's sentence was revised to fifteen months with 101 days good time credit. Accordingly, his sentence was completed by June 6, 2021.
In July 2020, Chongarlides was held on $1,000 bail on docket number 2033-CR-002241. From late 2020 through January 2023, Chongarlides was held in pretrial detention, G. L. c. 276, § 58A, on numerous cases, in both the District and Superior Courts. Thus, Chongarlides may have been in custody of the Bristol County House of Correction when he filed his lawsuit, but he was not serving his sentence at that time.
3 further effective relief" (quotations and citation omitted).
Troila v. Department of Correction, 490 Mass. 1013, 1014 (2022).
Therefore, there was no error in dismissing all claims for
declaratory and injunctive relief as moot where Chongarlides had
no remaining personal stake in its outcome. 3
3. Failure to state a claim. 4 Chongarlides asserts that
the judge erred in dismissing his claims which asserted that the
defendants, in their official and individual capacities,
violated his rights guaranteed by 42 U.S.C. § 1983. We review
de novo the sufficiency of a complaint. See Curtis, 458 Mass.
at 676.
To properly state a claim under § 1983, a plaintiff must
plead that the defendant's conduct "deprived [the plaintiff] of
rights, privileges, or immunities secured by the Constitution or
laws of the United States." Appleton v. Hudson, 397 Mass. 812,
818 (1986). As pertinent here, "[t]here is no constitutional
3 Chongarlides complains that his lawsuit is not moot because when he was released from the Bristol County House of Correction in January 2023, he was still on probation and if he violates the terms of his probation he could be put back into custody. However, there is insufficient information in the complaint for us to verify the term of his probation.
4 To the extent Chongarlides challenges his treatment under the Americans with Disabilities Act, we need not address this argument because it does not rise to the level of adequate appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Similarly, Chongarlides's argument that the judge erred in denying his motion to strike does not rise to the level of adequate appellate argument.
4 right to good time credits." Haverty v. Commissioner of
Correction, 440 Mass. 1, 5 (2003). General Laws c. 127, § 129D,
"unambiguously gives the commissioner discretion whether or not
to award earned good time credits for participation in
rehabilitative programs." Piggott v. Commissioner of
Correction, 40 Mass. App. Ct. 678, 684 (1996). See G. L.
c. 127, § 129D. "A prisoner does not have any entitlement to
earned good time until the commissioner acts." Commonwealth v.
DeWeldon, 80 Mass. App. Ct. 626, 632 (2011). 5 In other words,
Chongarlides has failed to plead a deprivation of a
constitutional right where, as here, the commissioner has not
acted. See Haverty, supra at 5-6. We thus discern no error in
dismissing the § 1983 claim against the individual and official
capacity defendants.
4. Recusal. For the first time on appeal, Chongarlides
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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
23-P-1187
PETER J. CHONGARLIDES, SR.
vs.
THOMAS M. HODGSON & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Peter J. Chongarlides, Sr., appeals from a
Superior Court judge's dismissal of his complaint after allowing
the defendants' motion to dismiss. The plaintiff argues that
the judge erred because the defendants were "time barred" from
filing their motion to dismiss and that his complaint should not
have been dismissed as moot and inadequate to state a claim.
The plaintiff further argues that the judge erred in not
recusing herself from presiding over this matter and in not
granting his motion to strike. We disagree and affirm the
dismissal.
1Steven J. Souza; Joseph Oliver, Third; Robert Horta; and Kenneth Souza. 1. Motion to dismiss. Chongarlides claims that the judge
erred in allowing the defendants' motion to dismiss because it
was not timely filed. He incorrectly asserts that the
defendants were ordered to file their motion on or before
November 18, 2022, but they did not do so. "We review the
allowance of a motion to dismiss de novo." Curtis v. Herb
Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
Examination of the docket reflects that the defendants were
to serve their motion to dismiss by November 18, 2022, and they
did so pursuant to Superior Court Rule 9A. The defendants
subsequently filed their motion and memorandum on December 2,
2022, in compliance with the bundling requirement of Rule 9A and
within the time allowed by Rule 9A. The defendants' service and
filing of their motion were neither untimely nor time barred.
See Rule 9A (b) of the Rules of the Superior Court (2023).
Thus, we discern no error in the judge's allowance of the
defendants' motion to dismiss.
2. Mootness. Chongarlides further claims that the
Superior Court erred in dismissing his complaint as moot. "A
case becomes moot when 'no actual controversy remains, or the
party claiming to be aggrieved "ceases to have a personal stake
in its outcome."'" Fannie Mae v. Branch, 494 Mass. 343, 347
(2024), quoting DiMasi v. Secretary of the Commonwealth, 491
Mass. 186, 190 (2023). For instance, an inmate's case for
2 sentencing credits is moot once that inmate has been released.
See Commonwealth v. Anastos, 438 Mass. 846, 849 (2003).
Mootness is a question of law which we review de novo. See
Caputo v. Moulton, 102 Mass. App. Ct. 251, 253 (2023).
In his complaint, Chongarlides sought injunctive relief and
"the award of earned good conduct credits, that he [maintains
he] earned [from the Bristol County House of Correction], and
was not awarded during 2021 while serving a sentence." However,
it appears that Chongarlides's sentence ended in June 2021, but
he filed his civil complaint in June 2022. 2 In other words, he
was no longer serving that sentence at the Bristol County House
of Correction when he filed his civil lawsuit. "[L]itigation is
considered moot when the party who claimed to be aggrieved
ceases to have a personal stake in its outcome. A party no
longer has a personal stake in a case where a court can order no
2 In June 2019, Chongarlides was sentenced to a two-year term in the Bristol County House of Correction and three years of probation on docket number 1833-CR-004475. On March 19, 2021, Chongarlides's sentence was revised to fifteen months with 101 days good time credit. Accordingly, his sentence was completed by June 6, 2021.
In July 2020, Chongarlides was held on $1,000 bail on docket number 2033-CR-002241. From late 2020 through January 2023, Chongarlides was held in pretrial detention, G. L. c. 276, § 58A, on numerous cases, in both the District and Superior Courts. Thus, Chongarlides may have been in custody of the Bristol County House of Correction when he filed his lawsuit, but he was not serving his sentence at that time.
3 further effective relief" (quotations and citation omitted).
Troila v. Department of Correction, 490 Mass. 1013, 1014 (2022).
Therefore, there was no error in dismissing all claims for
declaratory and injunctive relief as moot where Chongarlides had
no remaining personal stake in its outcome. 3
3. Failure to state a claim. 4 Chongarlides asserts that
the judge erred in dismissing his claims which asserted that the
defendants, in their official and individual capacities,
violated his rights guaranteed by 42 U.S.C. § 1983. We review
de novo the sufficiency of a complaint. See Curtis, 458 Mass.
at 676.
To properly state a claim under § 1983, a plaintiff must
plead that the defendant's conduct "deprived [the plaintiff] of
rights, privileges, or immunities secured by the Constitution or
laws of the United States." Appleton v. Hudson, 397 Mass. 812,
818 (1986). As pertinent here, "[t]here is no constitutional
3 Chongarlides complains that his lawsuit is not moot because when he was released from the Bristol County House of Correction in January 2023, he was still on probation and if he violates the terms of his probation he could be put back into custody. However, there is insufficient information in the complaint for us to verify the term of his probation.
4 To the extent Chongarlides challenges his treatment under the Americans with Disabilities Act, we need not address this argument because it does not rise to the level of adequate appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Similarly, Chongarlides's argument that the judge erred in denying his motion to strike does not rise to the level of adequate appellate argument.
4 right to good time credits." Haverty v. Commissioner of
Correction, 440 Mass. 1, 5 (2003). General Laws c. 127, § 129D,
"unambiguously gives the commissioner discretion whether or not
to award earned good time credits for participation in
rehabilitative programs." Piggott v. Commissioner of
Correction, 40 Mass. App. Ct. 678, 684 (1996). See G. L.
c. 127, § 129D. "A prisoner does not have any entitlement to
earned good time until the commissioner acts." Commonwealth v.
DeWeldon, 80 Mass. App. Ct. 626, 632 (2011). 5 In other words,
Chongarlides has failed to plead a deprivation of a
constitutional right where, as here, the commissioner has not
acted. See Haverty, supra at 5-6. We thus discern no error in
dismissing the § 1983 claim against the individual and official
capacity defendants.
4. Recusal. For the first time on appeal, Chongarlides
asserts that the motion judge was unfairly biased and should
have recused herself because she presided over his previous jury
5 "While prisoners do not have any right to receive earned good time, [the Department of Correction (DOC)] has implemented a regulation which provides that '[d]eductions from sentence under [G. L. c. 127, § 129D], once earned, shall not be forfeited.' . . . Thus, prisoners have regulatory and constitutional protection for earned good time which DOC has awarded them, but such protection does not arise until DOC actually makes an award." DeWeldon, 80 Mass. App. Ct. at 632 n.10.
5 trial. This argument is waived since it was not raised below.
See Boss v. Leverett, 484 Mass. 553, 562-563 (2020).
Even were we to consider this argument, "[t]he matter of
recusal is generally left to the discretion of the trial judge,
and an abuse of that discretion must be shown to reverse a
decision not to allow recusal" (citation omitted). Haddad v.
Gonzalez, 410 Mass. 855, 862 (1991). The record reveals the
judge acted impartially, and well within her discretion.
Moreover, the fact that the motion judge may have learned
damaging information about Chongarlides during a previous jury
trial does not mandate her recusal. See Commonwealth v.
Campbell, 5 Mass. App. Ct. 571, 587 (1977). We discern no
error.
Judgment of dismissal affirmed.
By the Court (Massing, Englander & D'Angelo, JJ. 6),
Clerk
Entered: June 4, 2025.
6 The panelists are listed in order of seniority.