423 Mass. 1007

July 30, 1996

The case was submitted on briefs.

Henry Martineau, pro se.

Philip W. Silva for the defendant.

The petitioner, a Massachusetts inmate, is the plaintiff in an underlying action in the Superior Court. In March, 1993, he filed a motion for summary judgment in that action, but the court did not act on his motion. He then filed several other motions seeking to elicit a ruling on his summary judgment motion. Those motions, however, were denied.

In August, 1995, the petitioner filed a petition in the county court pursuant to G. L. c. 211, s. 3 (1994 ed.), requesting an order compelling the Superior Court to act on his summary judgment motion. A single justice denied the petition without a hearing, and the petitioner appeals.

Relief under G. L. c. 211, s. 3, is properly denied when there are other adequate and effective remedies available to the petitioner. McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). Greco v. Suffolk Div. of the Probate & Family Court Dep't, 418 Mass. 153, 156 (1994). In this case, once the Superior Court had denied his emergency motion to expedite and his subsequent request for a prompt disposition of his summary judgment motion, the petitioner could have obtained review of those interlocutory orders from a single justice of the Appeals Court in accordance with G. L. c.231, s. 118, first par. (1994 ea.) Having failed to pursue that avenue, he was not entitled to relief under G. L. c. 211, s. 3. See Matthews v. D'Arcy, 422 Mass. 1012 (1996); Adams v. Cumberland Farms, Inc., 420 Mass. 807 (1995).

Even if we were to consider the merits of the petitioner's assertions, we would conclude that the single justice did not err or abuse his discretion in denying this petition. See Greco, supra ("It is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law"). Accord Kyricopoulos v. Richardson, 409 Mass. 1002 (1991); Fogarty v. Commonwealth, 406 Mass. 103, 106 (1989). The petition and supporting materials established that the motion for summary judgment had been pending in the Superior Court for approximately two and one-half years, despite the petitioner's repeated requests that it be acted on. However, the record was insufficient to demonstrate that the delay was unreasonable in the circumstances (which included the fact that the petitioner's case had been consolidated with a class action brought by other inmates raising the same or similar issues). The record also failed to establish how in particular the petitioner has been prejudiced by the delay.

Judgment affirmed.


[Note 1] The Superior Court Department of the Trial Court for the county of Suffolk, a nominal party.

Home HAROLD MURRAY & another [Note 1] vs. MOHAMMED YASIN KARZON & another; CHRISTOPHER K. O'NEILL, trustee, third-party defendant.

423 Mass. 1007

August 5, 1996

The case was submitted on the papers filed, accompanied by a memorandum of law.

Robert L. Hernandez for Harold Murray & another.

Page 1008

Supreme Judicial Court, Appeal from order of single justice, Superintendence of inferior courts. Practice, Civil, Appeal.

This is an appeal under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from an order of the single justice of this court denying a petition for relief under G. L. c. 211, s. 3 (1994 ed.). The plaintiffs sought relief from an order of the Housing Court authorizing an in camera review of Department of Social Services (DSS) records pertaining to them. The plaintiffs' petition to a single justice of the Appeals Court for relief under G. L. c. 231, s. 118, first par. (1994 ed.), had been denied.

The plaintiffs argue that, if the trial court is permitted to review confidential DSS records concerning them, they will be irreparably harmed because the confidentiality promised by G. L. c. 119, s. 51E (1994 ed.), will be breached, and that breach may be compounded by such distributions of the records as the trial court may authorize. They also contend that other individuals and families will be discouraged from cooperating with DSS, if the confidentiality of their communications is not guaranteed. When DSS initially refused to produce the records, the plaintiffs and defendant housing authority filed with the trial court an assented to order on the housing authority's motion to compel production which was substantially similar to the order ultimately entered by the trial judge. However, after reviewing the records, the plaintiffs, for the first time, objected to their disclosure.

A party could assert the type of hamm that the plaintiffs now claim in any proceeding where DSS records are at issue, and therefore extraordinary relief under G. L. c. 211, s. 3, is not warranted. See Soja v. T.P. Sampson Co., 373 Mass. 630, 631 (1977) ("Our cases have emphasized that relief under G. L. c. 211, s. 3, may not be sought merely as a substitute for normal appellate review"). The provisions of G. L. c. 119, s. 51E, and DSS regulations, 110 Code Mass. Regs. s. 12.00 (1993), contemplate situations in which DSS records and reports may be disclosed, including by order of a court of competent jurisdiction. See 110 Code Mass. Regs. s. 12.08(1)(c). Moreover, as crafted by the judge, the order allows the plaintiffs to request an in camera review of the records and is otherwise narrowly tailored to ensure that there is no unnecessary disclosure of confidential information. For these reasons, we conclude any error resulting from denial of relief in these circumstances may be corrected through the normal appellate process. Soja v. T.P. Sampson Co., supra at 632.

The single justice committed no error of law and did not abuse his discretion in denying this petition. Greco v. Suffolk Div. of the Probate & Family Court Dep't, 418 Mass. 153,156 (1994). Accordingly, the judgment denying the plaintiffs' request for interim relief is affirmed.

So ordered.


[Note 1] Christina Murray. The plaintiffs are each acting individually and on behalf of their four minor children.