Opinion
19-P-394
03-31-2020
S.G. v. BELMONT POLICE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following the dismissal of his complaint in the Superior Court for failure to state a claim upon which relief could be granted, the plaintiff filed with the single justice a motion to file a late notice of appeal. After a hearing, the single justice denied that relief on the ground that the plaintiff had not demonstrated a meritorious issue on appeal. See Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379 (1975). We have before us the plaintiff's appeal from that order. Seeing no abuse of discretion or other error of law in the single justice's denial of the motion, we affirm.
Having read with care the plaintiff's filings, we recognize, as did the single justice, that the plaintiff is deeply injured by the loss of his wife and by other events involving himself and his family. We agree with the single justice, though, that the law does not provide relief for the facts the plaintiff alleges in his complaint and the statement attached thereto, which the Superior Court judge deemed incorporated into that complaint.
The plaintiff seeks compensation for what he alleges is his false arrest on January 22, 2016. While he was in custody following that arrest, his gravely ill wife was taken from their house, where he had been her primary caretaker, to the Massachusetts General Hospital emergency department. She died eighteen days later with the plaintiff at her side. The complaint also alleges that his false arrest hastened the death of his wife.
The Massachusetts Tort Claims Act, G. L. c. 258, § 10 (c ), provides that public employers such as the Belmont Police Department shall not be liable for injury, loss of property, personal injury, or death caused by the wrongful acts of public employees while acting within the scope of their office or employment in "any claim arising out of an intentional tort, including ... false arrest ...." G. L. c. 258, § 10 (c ). See G. L. c. 258, § 2. Both the claim for injury to himself and for the alleged acceleration of the death of his wife "aris[e] out of" an alleged intentional tort, specifically false arrest. This statute therefore bars those claims.
As for the plaintiff's final claim, that the Belmont Police Department, despite information he had given them, improperly failed to further investigate, arrest, or charge his wife's brother-in-law for a crime that the plaintiff alleges the brother-in-law committed in 2000, specifically the rape of the plaintiff's wife, and of which the plaintiff alleges he gave evidence to the police, it is not barred by the Massachusetts Tort Claims Act because it is not a claim for money damages. Rather, the plaintiff seeks a court directive ordering the Belmont Police Department to take action with respect to the brother-in-law's alleged crime.
"As a threshold matter we note that the plaintiff does not have standing. ‘[T]he rights asserted by the [plaintiff] are not private but are in fact lodged in the Commonwealth as it may proceed to enforce its laws. ... "[I]n American jurisprudence ... a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." ’ Manning v. Municipal Court of the Roxbury Dist., 372 Mass. 315, 317-318 (1977), quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)." Shepard v. Attorney Gen., 409 Mass. 398, 400 (1991) (suit brought by wife seeking prosecution in death of husband given that there was probable cause to believe crime committed). Even if an individual could bring such a suit, separation of powers principles would prevent this panel from ordering the police or prosecutors to take further action, even if, as the plaintiff seems to allege, there is an admission of guilt by the brother-in-law, and the death of the victim, the plaintiff's wife, does not foreclose prosecution. "This court has recognized that prosecutors (district attorneys and the Attorney General) have broad discretion in deciding whether to prosecute. Manning[, supra at 318 ]. Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154, 163 n. 6 (1975). See Opinion of the Justices, 354 Mass. 804, 809-810 (1968) ; Commonwealth v. Dascalakis, 246 Mass. 12, 18 (1923) ; Attorney Gen. v. Tufts, 239 Mass. 458, 537-538 (1921) ; Commonwealth v. Tuck, 20 Pick. 356, 364 (1838). Judicial review of decisions which are within the executive discretion of the Attorney General ‘would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights.’ Ames v. Attorney Gen., 332 Mass. 246, 253 (1955)." Shepard, supra at 401.
Order of single justice affirmed.