Opinion
13-P-1893
02-13-2015
SCOTT DARRIN DRURY v. TOWN OF TEMPLETON & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Scott Darin Drury, appeals from a judgment entered in the Superior Court, dismissing his complaint against the town of Templeton (town), its chief of police and fire chief, and the Commonwealth on multiple grounds, including immunity, qualified immunity, and lack of presentment.
In separate litigation commenced in 2008 (a District Court action), the Commonwealth brought two criminal complaints against Drury, the first alleging that he set a fire in the open air in violation of G. L. c. 48, § 13, and the second alleging that he stored eleven unregistered motor vehicles on his property in violation of art. XI of the municipal by-laws of the town. On the Commonwealth's motion pursuant to G. L. c. 277, § 70C, both complaints were converted to civil infractions. On January 13, 2009, after a bench trial before a District Court judge, Drury was found responsible on all counts of each complaint, assessed twenty dollars for each instance of keeping an unregistered motor vehicle on his property (a total of $220), and ordered to pay costs of suppression of the fire, determined at a subsequent hearing to be $2,429.08. After a hearing on April 28, 2009, Drury was incarcerated for failure to comply with the court's prior payment order.
Drury's attempts to appeal, both before and after the assessment hearing, were thwarted. Ultimately, a single justice of the Supreme Judicial Court allowed what essentially was Drury's petition under G. L. c. 211, § 3, and referred the matter to this court to determine whether a party may appeal to this court from a judgment in a case converted under G. L. c. 277, § 70C, and if so, whether Drury's notice of appeal was late. In Commonwealth v. Drury, 79 Mass. App. Ct. 843, 845-849 (2011), decided on July 26, 2011, this court concluded that an appeal to this court did lie, and that Drury's notice of appeal was timely filed and sufficient. This court remanded the District Court action to the Appellate Division of the District Court for consideration of the merits of Drury's appeal.
According to Drury, that appeal is still pending. To the extent that some issues alleged in the present complaint overlap those raised of necessity in the District Court action, Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008), respecting prior pending actions may be relevant, although not expressly invoked by the parties here.
On April 15, 2011, while the foregoing appeal was pending in this court, Drury filed the present pro se complaint against the town, its police and fire chiefs, and the Commonwealth. The complaint provides, in relevant part:
"Defendants denied Plaintiff due process and right of appeal, falsely imprisoned plaintiff, falsely arrested plaintiff, gave perjured false testimony against Plaintiff as witness against Plaintiff at trial on January 13, 2009, filed false complaint and maliciously prosecuted Plaintiff in said trial, filed false complaint on April 18, 2008 on Plaintiff, filed fraudulent claims and monetary damages against Plaintiff, denied Plaintiff consti[tu]tional rights guaranteed by the Constitution for the United States of America and denied Plaintiff rights in the bill of Rights in Constitution for the Commonwealth of Massachusetts, inflicted cruel and unusual punishment relentlessly pursued a false conviction for almost three years against Plaintiff and apparently in the future, gave false evidence at trial[.]"The complaint incorporated a two-page attachment containing many of the same allegations.
Both the Commonwealth and the town defendants filed motions to dismiss. In allowing the motions, the judge stated:
"I find that the plaintiff's complaint as to each of the named defendants, amounts to a series of labels and conclusions which fails to assert any actual grounds for relief . . . . To the extent that any colorable claim may
be construed at all, I also give full credit to the contentions made in the alternative regarding immunity, qualified immunity, and presentment."
On appeal, Drury, pro se, puts forth several assertions, all of which are unsupported by the record, and thus they cannot provide him any relief. He makes much of his success in the prior Commonwealth v. Drury case, supra, which afforded him the procedural relief he sought (the right to appeal the judgment in the District Court case). That decision, however, merely resolved an initial procedural issue.
The short answer is that he has not established a violation of any right on the merits, or any claim arising therefrom, much less a colorable one.
Accordingly, based substantially on the reasoning set out in the briefs by the Commonwealth and the town defendants, we affirm.
Judgment affirmed.
By the Court (Rubin, Brown & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 13, 2015.