WRIGHT v. DEPARTMENT OF CORRECTION (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff Edward G. Wright is an inmate at the Massachusetts Correctional Institute -- Norfolk. His wife sent him eighteen photographs of herself. Prison officials initially withheld the photos from Wright pursuant to State contraband regulations because they contain sexually explicit pictorial material or material that features nudity. See 103 Code Mass. Reg. §§ 403.00 (inmate property), 481.00 (inmate mail) (2016). After Wright filed administrative appeals, all but four of the photos were released to him. Wright claims that two of the remaining four photos also should be released and that, in any event, he is entitled to damages pursuant to 42 U.S.C. § 1983 for temporarily being deprived of the photos that were eventually released. After a Superior Court judge allowed the defendants' motion for summary judgment, Wright failed to file a timely notice of appeal in the Superior Court. A single justice of this court denied Wright's motion -- filed pursuant to Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019) -- to file a late appeal. The single justice also denied a “renewed” motion and a motion for reconsideration. Now, on Wright's appeal from the single justice's orders,³ we affirm.

To prevail on a motion to file a late notice of appeal, a putative appellant must demonstrate both “good cause” for the failure to file a timely appeal, see Mass. R. A. P. 14 (a), as appearing in 481 Mass. 1626 (2019), and that the issue he seeks to present on appeal is “meritorious or substantial in the sense of presenting a question of law deserving judicial investigation and discussion.” Commonwealth v. Barclay, 424 Mass. 377, 379 (1997), quoting Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379 (1975). We review the denial of such a motion for error or law or abuse of discretion. Troy Indus. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010). The same standard applies to the denial of a motion for reconsideration. See id. “[T]he burden of showing an abuse of discretion is a difficult one to carry.” Id.

The single justice did not abuse his discretion or make an error of law in denying the plaintiff's motion. Passing over the question whether the plaintiff could show good cause for failing to file a timely appeal, we conclude that the plaintiff has failed to demonstrate that he had a meritorious appellate issue or an issue to be “worthy of consideration by an appellate court.” The Superior Court judge who allowed the defendants' motion for summary judgment issued a thoughtful twelve-page memorandum of decision explaining her reasoning in detail. The judge reviewed the four remaining photos in camera and concluded that each depicted the plaintiff's wife's genitalia or breast, and thus could be withheld under the applicable contraband regulation.⁴ The judge also explained why, as a matter of law, the plaintiff would not be entitled to damages for any photos that had been temporarily withheld.⁵ Because the plaintiff is unable to make any credible showing that the judge erred, the single justice did not make an error of law or abuse his discretion in denying the plaintiff's motions to file a late appeal, or in denying his motion for reconsideration.

Orders of single justice denying motion to file late appeal, denying renewed motion, and denying motion for reconsideration affirmed.

FOOTNOTES

3.   Wright does not appeal from the denial of his other posttrial motions, and so we do not address them here.

4.   We have no basis to second-guess the judge's conclusion.

5.   In fact, the judge expressed significant skepticism that the photos that were released to the plaintiff themselves had to be released. In other words, the judge concluded that the plaintiff, if anything, received more than he was entitled to.