Opinion
20-P-1227
03-24-2022
LEE FRUZZETTI v. COMMONWEALTH & others.[1]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
The plaintiff, representing himself, appeals from an order denying his motion for reconsideration following the entry of judgment dismissing his complaint pursuant to Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974). We affirm.
The plaintiff's letter to the court regarding taking notice of certain dockets, construed as a motion to be heard at oral argument, is denied, as this appeal presents "no substantial question of law" and oral argument is therefore not required. Rule 23.0 of the Rules of the Appeals Court.
Background. We recite the relevant procedural background, reserving certain details for our later discussion. The plaintiff filed four documents styled as complaints in the Superior Court action. The plaintiff filed his original complaint on July 19, 2019, against the Commonwealth, the town of Easton (town), the Easton police, and his former defense counsel in a criminal matter, Paul Carlucci, alleging that the plaintiff was the subject of false "warrants, charges, [and] police reports" and that a press conference was held where false statements were made about the plaintiff.
A newspaper article was apparently affixed to the complaint but not provided in the record on appeal.
The plaintiff filed his first amended complaint on November 12, 2019, in the midst of the defendants filing their respective motions to dismiss. In that complaint, the plaintiff alleged that after an incident at a restaurant in January 2018, he was arrested without probable cause by Easton police officers, charged with assault with a dangerous weapon, and held in jail for 512 days before he was released on bail and ultimately acquitted of the charge. In light of the amended complaint, a Superior Court judge entered an order setting a briefing schedule on the motions to dismiss and advising the defendants that they may supplement their previously filed motions, if necessary.
Without seeking leave from the court to do so, the plaintiff filed his second amended complaint on December 23, 2019, seemingly, at least in part, as an omnibus opposition to the defendants' motions to dismiss. The plaintiff alleged therein that Attorney Carlucci violated the conflict of interest law, G. L. c. 268A, and rendered the plaintiff ineffective assistance of counsel. While not delineated as separate counts, the plaintiff also referenced claims for negligent and intentional infliction of emotional distress, malicious prosecution, false arrest, unjustified imprisonment, defamation, negligent hiring, training, and supervision, as well as claims under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 111, for violation of his constitutional rights. In support of these claims, the plaintiff alleged that Easton police officers "wrongfully caused his arrest and put him in [harm's] way and caused mental anguish" and "set up crime scenes, coerced witnesses and . . . provided false statements and concealed exculpatory evidence."
After a hearing, a different Superior Court judge entered a comprehensive written memorandum and order allowing the defendants' motions to dismiss the amended complaint. As the judge explained, she construed the plaintiff's original complaint and amended complaint to allege claims for malicious prosecution, false imprisonment, defamation, libel, as well as emotional distress and pain and suffering. The judge ultimately concluded that the plaintiff failed to state a claim on which relief may be granted against Attorney Carlucci or the Commonwealth; the Commonwealth was immune from suit; the town's police department was not a separate entity subject to suit but was an arm of the town; the plaintiff failed to make proper presentment under G. L. c. 258 for any negligence claims against the town; and the town is immune from suit for intentional tort claims pursuant to G. L. c. 258, § 10 (c) . On April 1, 2020, judgment entered dismissing the plaintiff's complaint. Thereafter, the plaintiff successfully sought an enlargement of time to respond to the judgment.
On July 10, 2020, the plaintiff filed a motion for reconsideration in which he requested that the court allow the motion "with sufficient added evidence and malicious intentional torts [and] violation of civil rights." In connection with that motion, the plaintiff filed his third amended complaint. In that complaint, the plaintiff sought to raise claims against the Easton police chief, several Easton police officers, the town clerk, and the town treasurer-collector, in their official and individual capacities. The plaintiff also sought to excuse certain defendants, including Attorney Carlucci and the Commonwealth. In his complaint, the plaintiff provided docket numbers for six criminal cases initiated against him between September 2017 and April 2018. The plaintiff alleged that five of those cases involved false charges, that he was subject to false arrest, and that the charges were the result of revenge and a personal vendetta by "dirty cops." The plaintiff also objected to the warrantless entry of a home in Brockton as well as the actions of Easton police officers after the plaintiff was rear-ended twice during a "road rage incident." The plaintiff sought relief under 42 U.S.C. § 1983 and the MCRA for violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. He also asserted intentional tort claims for malicious prosecution and intentional infliction of emotional distress as well as claims for negligent hiring, training, and supervision and negligent infliction of emotional distress.
The plaintiff later filed a motion to amend, on which the Superior Court judge took no action.
In the sixth case, the plaintiff was convicted of aggravated assault and battery with a dangerous weapon, and assault and battery with a dangerous weapon. Attorney Carlucci briefly represented the plaintiff in that action before the plaintiff dismissed him as counsel prior to the trial. The convictions were affirmed on appeal. See Commonwealth v. Fruzzetti, 100 Mass.App.Ct. 1111 (2021). See also Home Depot v. Kardas, 81 Mass.App.Ct. 27, 28 (2011) (court may take judicial notice of docket entries in separate cases).
On September 8, 2020, a third Superior Court judge denied the motion for reconsideration by margin endorsement. On September 23, 2020, the plaintiff timely filed a notice of appeal specifically referencing only that September 8 "endorsement on motion for reconsideration."
Discussion. At the outset, we note that the plaintiff was required to designate in his notice of appeal "the judgment, decree, adjudication, order, or part thereof appealed from." Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019). See Friedman v. Board of Registration in Med., 414 Mass. 663, 666 (1993) (pro se litigant "still bound to the same rules and requirements as one represented by counsel"). Where the notice of appeal specifically references only the order denying the plaintiff's motion for reconsideration, we confine our discussion to the propriety of that order and need not consider any argument pertaining solely to the judgment dismissing his complaint. See Robinson v. Boston, 71 Mass.App.Ct. 765, 771 (2008) (validity of orders not referenced in notice of appeal not properly before appellate court); West Springfield v. Olympic Lounge, Inc., 45 Mass.App.Ct. 923, 924 (1988) (notice of appeal from ruling on postjudgment motion not treated as appeal from judgment).
Even if we were to view the plaintiff's notice of appeal as bringing before us the correctness of the judgment dismissing his amended complaint, we would affirm that judgment, largely for the reasons stated in the judge's memorandum of decision. Whether a town's police department may not be named as a defendant, particularly in a suit in which the town itself is also a defendant, is a point that made no real difference to the judge's conclusions and one on which we express no view.
"[W]e review the judge's denial of a motion for reconsideration only for abuse of discretion." Merchants Ins. Group v. Spicer, 88 Mass.App.Ct. 262, 271 (2015). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) .
In his motion for reconsideration, the plaintiff sought to add new claims, new parties, and new allegations to his complaint. Because "[a] motion for reconsideration is not the 'appropriate place to raise new arguments inspired by a loss before the motion judge in the first instance, '" the judge did not abuse her discretion in denying the motion. Merchants Ins. Group, 88 Mass.App.Ct. at 271, quoting Commonwealth v. Gilday, 409 Mass. 45, 46 n.3 (1991).
To the extent the plaintiff argues that he should have been permitted to amend his complaint in the second and third instance to raise new allegations and new claims, including a 42 U.S.C. § 1983 claim, we disagree. The plaintiff was entitled to amend his complaint once as a matter of right. Thereafter, he was required to seek leave of the court to further amend his complaint pursuant to Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). He failed to do so when first raising his 42 U.S.C. § 1983 claim in his second amended complaint; thus, the judge acting on his motion to dismiss was not required to consider his new claims raised therein. Nor did the judge acting on his motion for reconsideration abuse her discretion in declining to permit an amendment to the complaint after it was dismissed. See DiVenuti v. Reardon, 37 Mass.App.Ct. 73, 77 (1994) (motion to amend may be denied if "no justification for the lateness of the motion is apparent . . . and . . . one or more of the nonmoving parties would be caught off balance by the proffered amendment").
The motion judge was entitled to treat that filing merely as an opposition to the motions to dismiss, and not as a complaint raising new claims, for the separate reason that it is unclear whether the plaintiff actually intended to amend his pleadings through its filing. As noted above, though styled in part as a complaint, the second amended complaint also appeared to be an omnibus opposition to the motions to dismiss.
Order dated September 8, 2020, denying motion for reconsideration, affirmed.
The panelists are listed in order of seniority.