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Appeals Court of Massachusetts.

Bodhisattva SKANDHA v. Linda FARAG.


Decided: April 12, 2021

By the Court (Milkey, Kinder & Sacks, JJ.1)


The plaintiff, Bodhisattva Skandha, an inmate at the Massachusetts Correctional Institution at Norfolk, appeals from the judgment dismissing his complaint against the defendant, an employee of the Wellpath Corp. (Wellpath), for an alleged violation of the public records law (PRL), G. L. c. 66, § 10. Although the complaint was dismissed based on insufficient service of process, on appeal Skandha urges us not to lose sight of the merits of his PRL claim. Accepting that invitation, we conclude as a matter of law that the defendant is not subject to the PRL and thus that Skandha's complaint failed to state a claim upon which relief may be granted, an alternative ground for dismissal. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Therefore, any error in dismissing the complaint for insufficient service of process was harmless.

Background. Skandha's purported public records request was directed at the defendant, an employee of Wellpath. The request sought the records of the “[n]ames of all officers, agents, and employees of the corporation, which has a contract with the Department [o]f Correction to provide medical services to prisoners in the Commonwealth of Massachusetts.” The defendant allegedly denied the request.

Skandha then filed this action alleging that the defendant had violated her legal duty by refusing his request. The defendant moved to dismiss the complaint for insufficient service of process; a motion judge denied the motion “at this time” but ordered Skandha to make proper service within twenty days. Skandha amended the complaint to add a claim that the defendant had committed fraud by “scribbl[ing] a signature on the certified mail routing card,” causing Skandha's proof of service to be rejected. But Skandha still did not make proper service, the defendant renewed her motion, the judge allowed it, and this appeal followed.

Discussion. The PRL generally allows access to “any public record as defined in clause twenty-sixth of section 7 of chapter 4.” G. L. c. 66, § 10 (a). That definition, as relevant here, is limited to records “made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose.” G. L. c. 4, § 7, Twenty-sixth.

“The public records law [is] applicable to documents held by public entities, not private ones.” Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 751 (2006). Skandha cites no authority, nor do we know of any, to support his contention that Wellpath, by providing services under contract to the Department of Correction, was transformed into one of the public entities subject to the PRL. Skandha relies on West v. Atkins, 487 U.S. 42 (1988), which discusses whether a physician under contract to provide medical services to prisoners is acting under color of State law for purposes of a claim under 42 U.S.C. § 1983. But Skandha does not explain why Wellpath's status under that Federal statute governs whether Wellpath is subject to the PRL, a State statute serving quite different purposes.2

Skandha also errs in relying on Attorney Gen. v. Assessors of Woburn, 375 Mass. 430 (1978). There the court held that a local governmental board was required to comply with a public records request, directed to the board, for copies of documents furnished to it by a private contractor. Id. at 430-431, 434. Here, in contrast, Skandha seeks to enforce the PRL against a private contractor itself, not against a public entity to whom that contractor may have furnished the desired records.3

Accordingly, the complaint failed to state a PRL claim against the defendant. It also failed to state a fraud claim. Even if the scribbled signature on the certified mail card constituted a false representation, its only consequence was to delay Skandha's pursuit of what we have determined was a meritless PRL claim. This was insufficient harm to support the fraud claim.

Conclusion. Any error in dismissing the complaint for insufficient service of process was harmless, because in any event the complaint failed to state a claim upon which relief could be granted.

Judgment affirmed.


2.   Similarly, Skandha draws our attention to Wellpath's statement, in Superior Court litigation involving a separate party, that “the medical personnel were the functional equivalent of public officials.” We take judicial notice that the complaint in that case asserted claims under § 1983 for violations of the Eighth and Fourteenth Amendments to the United States Constitution. Thus we fail to see the relevance of the statement to Wellpath's status under the PRL.

3.   Skandha has included in his record appendix a copy of a PRL request he made to the Department of Correction, seeking the same records he sought from Wellpath, along with the Department's response stating that it did not keep such records.

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