Home RICHARD D. BOSTWICK vs. 44 CHESTNUT STREET, WAKEFIELD, MASS., & others. [Note 1]

488 Mass. 1016

November 23, 2021

Records And Briefs:

SJC-13061

Amended January 21, 2022.

Appeals Court. Civil Rights, Availability of remedy. Americans with Disabilities Act. Immunity from Suit. Practice, Civil, Motion to dismiss.

The plaintiff, Richard D. Bostwick, brought this civil action in the Superior Court in 2015 against multiple defendants, including the Appeals Court, alleging various claims relating to property situated at 44 Chestnut Street in Wakefield. Three judges in the Superior Court dismissed the claims against all defendants through rulings on a series of motions, and the plaintiff appealed to the Appeals Court. [Note 2] The plaintiff objected to the Appeals Court deciding the claims against it, and in service of "the efficient administration of justice," the Appeals Court reported to this court "that part of the appeal concerning the claims against the Appeals Court" pursuant to G. L. c. 211A, § 12. See Bostwick

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v. 44 Chestnut Street, Wakefield, Mass., 99 Mass. App. Ct. 1107 (2021). [Note 3] For the reasons discussed infra, we affirm the judgment of the Superior Court judge dismissing the claims against the Appeals Court.

"We review the allowance of a motion to dismiss de novo" (citation omitted). Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 457 (2017). "In deciding whether a count in the complaint states a claim under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we accept as true the allegations in the complaint, draw every reasonable inference in favor of the plaintiff, and determine whether the factual allegations plausibly suggest an entitlement to relief under the law." Id. at 457-458.

The relevant pleading in this case is the plaintiff's first amended complaint, filed on December 2, 2015. The claims against the Appeals Court fall into two basic categories: (1) claimed violations of various Federal rights pursuant to 42 U.S.C. § 1983; and (2) claimed violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq. For both categories of claims, the plaintiff seeks monetary damages.

The plaintiff's § 1983 claims require little discussion. The Superior Court properly dismissed these claims because the Appeals Court is not a "person" amenable to suit under that statute. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). Moreover, sovereign immunity bars suits for damages against a State or its agencies under § 1983. Id. at 67; Lopes v. Commonwealth, 442 Mass. 170, 178 (2004).

The plaintiff's ADA claims against the Appeals Court also fail, but for different reasons. Under the ADA, a State court, such as the Appeals Court, may be held liable for violating a duty to accommodate a person with a disability in cases "implicating the fundamental right of access to the courts." Tennessee v. Lane, 541 U.S. 509, 533-534 (2004).

Viewing the allegations in the light most favorable to the plaintiff, the Superior Court judge correctly concluded that the complaint did not suggest a plausible claim for relief under the ADA. [Note 4]

To state a claim under Title II of the ADA, a plaintiff must allege "(1) that he [or she] is a qualified individual with a disability; (2) that he [or she] was either excluded from participation in or denied the benefits of some public entity's

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services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability." Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000). Here, the complaint is devoid of factual allegations to support a conclusion that the actions of which the plaintiff complains constituted discrimination by or exclusion from access to the Appeals Court on the basis of a disability. [Note 5]

In sum, we affirm the order of the Superior Court judge dismissing all claims against the Appeals Court.

So ordered.

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The case was submitted on briefs.

Richard D. Bostwick, pro se.

Maura Healey, Attorney General, & Abigail Fee, Assistant Attorney General, for the Appeals Court.

FOOTNOTES

[Note 1] Unknown future property owners of 44 Chestnut Street, Wakefield, Mass.; unknown future title insurance companies providing title insurance for 44 Chestnut Street; Santander Bank, N.A. (Santander); Federal National Mortgage Association (Fannie Mae); Orlans Moran PLLC; Leonard J. Sims, Leonard J. Sims Co., General Contractors, and Leonard J. Sims Custom Carpentry; The Classic Group, Inc., previous known as Class Restorations, Inc.; Kyle Barnard; Philip Bates; Richard F. Gantt; unknown officers and directors of The Classic Group, Inc.; unknown insurance policy entities/companies insuring The Classic Group, Inc., and their officers and directors; Massachusetts Department of Public Health; Paul N. Hunter, individually and as director of the Childhood Lead Poisoning Prevention Program in the Massachusetts Department of Public Health; Donna Levin; Warren M. Laskey; Massachusetts Appeals Court; and Middlesex Superior Court.

[Note 2] A more detailed summary of the procedural history of the case and the nature of plaintiff's claims against each of the defendants is contained in the Appeals Court's decision. See Bostwick v. 44 Chestnut Street, Wakefield, Mass., 99 Mass. App. Ct. 1107 (2021).

[Note 3] In its decision as to the remaining defendants, the Appeals Court remanded claims against two defendants (Santander and Fannie Mae) to the Superior Court for further proceedings, and otherwise affirmed the dismissals. See Bostwick, 99 Mass. App. Ct. 1107 .

[Note 4] The actions complained of include (1) the Appeals Court's dismissal of an appeal by the plaintiff for lack of prosecution, along with a single justice's decision not to vacate the dismissal, see Bostwick vs. Sims, Appeals Court, No. 2014-P-1277; (2) the Appeals Court's decision affirming a Superior Court judgment dismissing a civil action brought by the plaintiff, see Bostwick v. Sovereign Bank, 85 Mass. App. Ct. 1101 (2014); (3) the alleged statement of an Appeals Court clerk, in response to Bostwick's concern that his filing of an appeal in that court would violate the automatic stay imposed by Federal bankruptcy law, that "the [a]ppellate [c]lock under Rule 4 has started and there is no way to [s]top [i]t"; and (4) an occasion on which the Appeals Court "refused to take any papers" from him in connection with an appeal.

Among its other arguments, the Appeals Court contends that, to the extent Bostwick's claims under the ADA are based on judicial conduct, they are barred by the doctrine of absolute judicial immunity. Because resolution of this issue is not necessary to our disposition of this case, we leave that issue for another day.

[Note 5] In portions of the complaint, the plaintiff suggests that "discrimination" can be implied merely because the plaintiff is pro se and indigent, and because he is litigating against State agencies and large institutional defendants. We reject this blanket contention. To the extent that there are other claims against the Appeals Court that we have not addressed, we have not overlooked them; rather, they also fail to plausibly suggest a claim for relief, and we decline to discuss them.