Skandha v. Bonner

99 Mass.App.Ct. 1119

167 N.E.3d 897 (Table)

Bodhisattva SKANDHA

v.Charlene BONNER & others.¹

20-P-567

Appeals Court of Massachusetts.

Entered: April 12, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff is an inmate at the Massachusetts Correctional Institution at Norfolk. In 2019, he brought the underlying action against the defendants, members of the Massachusetts Parole Board (board), alleging that the defendants breached a "fiduciary duty" to the plaintiff by (1) concealing documents during a 1992 parole revocation hearing, and (2) taking nine months to issue a decision on the plaintiff's 2017 parole review. The plaintiff appeals from the judgment dismissing his complaint for failure to state a claim. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). We affirm.

Background. We draw the facts from the complaint and documents appended thereto, taking the allegations as true and drawing all reasonable inferences in the plaintiff's favor. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We do not consider legal conclusions cast as factual allegations. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).

At some unspecified time, the plaintiff requested that the defendants provide him with documents relating to his 1992 parole revocation hearing which resulted in the plaintiff's reincarceration.³ The plaintiff claims that the documents, which are not described in the complaint, prove he did not violate the terms of his parole. According to the plaintiff, the defendants concealed the documents notwithstanding a "fiduciary duty" to exercise reasonable care to avoid causing harm to others. The plaintiff further alleged that these actions caused him to lose his "Old Age Pension."⁴ Attached to the complaint is a 1992 parole violation report detailing the plaintiff's admissions to his parole officer that (1) he had consumed alcohol, and (2) he moved without notifying the parole officer, both violations of the conditions of his parole.

Discussion. "We review the allowance of a motion to dismiss de novo," Harrington v. Costello, 467 Mass. 720, 724 (2014), to determine whether the facts contained in the complaint plausibly suggest an entitlement to relief. See Flagg v. AliMed, Inc., 466 Mass. 23, 26-27 (2013) ; Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

The complaint alleges that the defendants tortiously injured the plaintiff in connection with a 1992 parole board hearing. Even assuming the truth of those allegations, public employees are not personally liable for "injury ... caused by [their] negligent or wrongful act or omission while acting within the scope of [their] office or employment." G. L. c. 258, § 2. The plaintiff's conclusory assertion that the defendants were acting outside the scope of their employment, unsupported by any factual allegations regarding "whether the conduct in question is of the kind the employee is hired to perform, whether it occurs within authorized time and space limits, and whether it is motivated, at least in part, by a purpose to serve the employer," Clickner v. Lowell, 422 Mass. 539, 542 (1996), does not raise the plaintiff's claim above the speculative level. See Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (to withstand motion to dismiss, "[f]actual allegations must be enough to raise a right to relief above the speculative level").

Next, the plaintiff seeks damages for the defendants’ failure to issue a decision regarding the plaintiff's October 3, 2017 parole review hearing until July of 2018. There is no question that the defendants undertook this action in their official capacities and for the purpose of their employment. Therefore, they cannot be personally liable for unintentional tortious conduct. See G. L. c. 258, § 2. To the extent the complaint can be read to allege a violation of 120 Code Mass. Regs. § 301.06(6) (2001), as the plaintiff contends for the first time on appeal, and to the extent that the regulation can be read to impose a time limit on the board's duty to render a decision,⁵ the complaint nevertheless fails to state a claim because "that regulation does not create a private remedy for damages." Skandha v. Savoie, 811 F. Supp. 2d 535, 541 (D. Mass. 2011), citing Loffredo v. Center for Addictive Behaviors, 426 Mass. 541 (1998). "The remedy for failure to adhere to regulations ... is an action in the nature of certiorari under G. L. c. 249, § 4," Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1128 (1989), which must be brought "within sixty days next after the proceeding complained of." G. L. c. 249, § 4. The plaintiff's action, filed in 2019, was not timely.

Finally, even if we consider the plaintiff's complaint to have alleged intentional torts for which the individual defendants do not have immunity under G. L. c. 258, § 10 (b ), see Howcroft v. Peabody, 51 Mass. App. Ct. 573, 596 (2001), there was no error in the order of dismissal. As members of the Massachusetts Parole Board, the defendants exercised a quasi-judicial function, see Crowell v. Massachusetts Parole Bd., 477 Mass. 106, 109 (2017) (parole board hearing is quasi-judicial...