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Appeals Court of Massachusetts.

Bodhisattva SKANDHA v. Steven BIANCHINI.


Decided: April 20, 2021

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


The plaintiff, Bodhisattva Skandha, is a practicing Buddhist currently incarcerated at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk). As part of his faith, Skandha adheres to a strict vegan diet.2 On March 27, 2019, Skandha brought the current action against the food services director at MCI-Norfolk, alleging that he was served food that interfered with his religious practices or that otherwise harmed him.3 A Superior Court judge allowed the defendant's motion to dismiss, and judgment entered in the defendant's favor on February 12, 2020. On Skandha's appeal, we affirm.

The defendant's motion to dismiss, which was filed pursuant to Mass. R. Civ. P. 12 (b) (9), as amended, 450 Mass. 1403 (2008), was based on the existence of a prior pending action. The motion to dismiss was lodged on October 29, 2019, but because it was at that point tardy, the defendant filed an accompanying motion to file the motion to dismiss late. By order entered on December 3, 2019, a Superior Court judge (first judge) allowed the defendant to file the motion to dismiss late. By separate order docketed that same date, the first judge allowed Skandha to file a response to the motion to dismiss by January 2, 2020. Skandha did not respond to the merits of the motion to dismiss by that deadline, or otherwise.4 On February 12, 2020, a different Superior Court judge (second judge) allowed the motion to dismiss as “unopposed,” citing Skandha's failure to file an opposition by the deadline set in the first judge's December 3, 2019 order.

On appeal, Skandha argues in effect that the second judge misread the first judge's December 3, 2019, order. According to Skandha, in that order, the first judge “did not order [him] to file an Opposition to the defendant's Motion to Dismiss.” While that contention, strictly speaking, is accurate -- Skandha was not affirmatively required to file an opposition to the motion to dismiss -- the December 3, 2019, order plainly indicated that any opposition to the motion to dismiss needed to be filed, if at all, by January 2, 2020. The fact remains that Skandha never filed a timely opposition to the motion to dismiss. The motion to dismiss was not allowed because Skandha violated the December 3, 2019, order, but because the motion was in substance “unopposed.” Discerning no error, we affirm.5

So ordered.



2.   Because this case was resolved on a motion to dismiss, we accept all of Skandha's factual allegations as true.

3.   Skandha alleged that the defendant from time to time intentionally would serve him food that included meat. He also alleged that certain vegan meals he was served did not appear on the official “Religious Vegan Menu,” were improperly prepared, or included ingredients that made him sick.

4.   Skandha had on November 7, 2019, filed what was styled as a “motion to strike for insufficient defense.” In that motion, he argued that the motion to dismiss was procedurally improper because it was not filed by the office of the Attorney General. That motion was denied on December 3, 2019, and a motion to reconsider was denied on January 3, 2020.

5.   In his reply brief, Skandha for the first time argues the merits of the rule 12 (b) (9) motion to dismiss. The merits, however, are waived. Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) (“An issue not raised or argued below may not be argued for the first time on appeal”).

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