AINOOSON v. RUSSO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Justice Ainooson, appearing pro se, appeals from the dismissal of his certiorari complaint challenging a disciplinary action imposed by the Massachusetts Correctional Institution-Concord. We affirm.

The plaintiff's request for certiorari review was filed more than sixty days after the superintendent's denial of the internal appeal, and was therefore untimely. See G. L. c. 249, § 4; Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245, 256-257 (2009); Pishev v. Somerville, 95 Mass. App. Ct. 678, 687-688 (2019). The Department of Correction (department) filed a motion to dismiss on this basis, and a judge of the Superior Court dismissed the complaint. On motion for reconsideration, the plaintiff raised, for the first time, the claim that he had timely mailed the appeal, and that the institution had failed to mail it for a period of several months.³ See Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 147 n.1 (2018), citing Commonwealth v. Hartsgrove, 407 Mass. 441, 446-447 (1990). The motion judge who had heard the motion to dismiss denied the motion for reconsideration.

The denial of a motion for reconsideration is reviewed for an abuse of discretion. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 313 (2009); Merchants Ins. Group v. Spicer, 88 Mass. App. Ct. 262, 271 (2015). The motion judge did not abuse her discretion. The department moved to dismiss the case on the grounds of timeliness. The defendant opposed the motion on the grounds that the department had withheld documents from the administrative record. He did not address the grounds on which the motion was brought. Only after his case was dismissed did the plaintiff address the basis of the motion to dismiss. “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” (quotation and citation omitted). Merchants Ins. Group, supra. See Commissioner of Revenue, supra at 312.

Judgment affirmed.

FOOTNOTES

3.   The department argues on appeal that such a claim is patently incredible. This is not a proper argument on a motion to dismiss, where issues of credibility may not be resolved.