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Appeals Court of Massachusetts.



Decided: April 09, 2021

By the Court (Sullivan, Desmond & Singh, JJ.2),


The plaintiff, John J. Sullivan, appeals from a single justice order requiring him to pay the an appellate entry fee of $300 in accordance with G. L. c. 261, § 27C (6).3 The plaintiff contends that the single justice erroneously relied upon G. L. c. 261, § 29, when denying his motion to waive the entry fee, and that he was entitled to a hearing on the motion. We affirm the order of the single justice.

Background. The plaintiff is an inmate at Massachusetts Correctional Institution at Shirley who has filed an action against the superintendent. After his appeal was entered, the plaintiff moved to waive the required entry fee, and submitted a supporting affidavit of indigency. On January 6, 2020, after considering the plaintiff's affidavit, his prison account statement, and prison account activity for the preceding six months, the single justice denied the motion and ordered the plaintiff to pay a $300 entry fee.4

Following this order, the plaintiff moved for rehearing, or in the alternative, to have his motion treated as an appeal from the single justice's order. The plaintiff argued that his prison account statement and activity should not have been considered because motions to waive appellate filing fees must be “evaluated under G. L. c. 261, § 27B, using the same criteria as the court would for a non-prisoner” and not under the “heightened inmate standard of G. L. c. 261, § 29.” On February 3, 2020, the single justice allowed the motion to reconsider, but reiterated that the plaintiff's prison account statement and activity had been properly considered, because G. L. c. 261, § 29, controls inmate requests for waiver of court fees and costs due to indigency. The single justice did not disturb her original order but allowed the plaintiff additional time in which to pay the fee. Alternatively, she treated his motion as a notice of appeal. The plaintiff did not pay the fee and pursued the appeal.

Discussion. This appeal presents a question of statutory interpretation, which we review de novo. See Worcester v. College Hill Props., LLC, 465 Mass. 134, 138 (2013). The waiver of court costs and fees for indigent parties is governed by G. L. c. 261, §§ 27A–29. Although §§ 27A–B apply to most parties seeking a waiver of court costs and fees, § 29’s more exacting requirements apply when an inmate brings “an action in a court of the commonwealth against a state or county agency, official[,] or employee ․ arising out of or resulting from a condition of or occurrence during confinement,” and requests “waiver of filing fees or court costs due to indigency.” G. L. c. 261, § 29 (a), (c). The purpose of § 29’s stricter requirements is to curb “frivolous prisoner litigation by instituting economic costs for prisoners wishing to file civil claims.” Longval v. Superior Court Dep't of the Trial Court, 434 Mass. 718, 719 (2001), quoting Murray v. Dosal, 150 F.3d 814, 816 (8th Cir. 1998). Therefore, an inmate's prison account statement and activity may be considered on appeal when determining whether a filing fee should be paid.

The plaintiff contends that G. L. c. 261, § 29, only applies to inmate waiver requests made in the trial court. The statute does not make this distinction. A civil appeal brought by an inmate from an adverse judgment on the inmate's suit concerning prison conditions is an action “against a state or county agency, official[,] or employee ․ arising out of or resulting from a condition of or occurrence during confinement.” G. L. c. 261, § 29 (a), (c). The plaintiff correctly notes that Commonwealth v. De'Amicis, 450 Mass. 271, 277 (2007), held that § 29 did not apply to an inmate appeal in a sexually dangerous person proceeding. However, this distinction is limited to the context where “the inmate does not bring such an action but seeks to commence an appeal in an action brought against him.” Id. The present suit, and the appeal that derives from it, is an action brought by the inmate, not against him. Section 29 therefore applies. Because G. L. c. 261, § 29 controls, the plaintiff was not entitled to a hearing on his motion. See Cepulonis v. Superintendent, Mass. Correctional Inst., Cedar Junction, 61 Mass. App. Ct. 699, 703 (2004). The order of the single justice is affirmed.

So ordered.



3.   Sullivan's appeal from a Superior Court judgment dismissing his complaint on the pleadings, see Sullivan vs. Superintendent, Mass. Correctional Inst., Shirley, Appeals Court, No. 19-P-1734, is stayed pending resolution of his current challenge to the single justice order.

4.   The plaintiff does not challenge the amount of the filing fee.

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Docket No: 20-P-167

Decided: April 09, 2021

Court: Appeals Court of Massachusetts.

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