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Appeals Court of Massachusetts.

Bodhisattva SKANDHA v. Lori COSTA & another.1


Decided: October 12, 2021

By the Court (Meade, Shin & Walsh, JJ.2)


The plaintiff, a pro se inmate serving a sentence in the custody of the Department of Correction (DOC), filed this civil action against Lori Costa and Steven Silva, employees of the DOC. The action began as an informal grievance. The plaintiff filed a complaint when his tofu chicken nuggets were served in “an open Styrofoam [t]ray” instead of being “hermetically sealed.” He describes this incident as religious persecution. When his informal grievance was denied, the plaintiff filed suit in the Superior Court, claiming that the grievance procedure violated his rights under the Massachusetts and United States Constitutions, and seeking damages against the defendants personally. The defendants filed a motion to dismiss for failing to serve them in compliance with Mass. R. Civ. P. 4 (d), as amended, 370 Mass. 918 (1976), and 4 (j), as appearing in 402 Mass. 1401 (1988). A judge allowed the defendants’ motion and a judgment of dismissal entered. We affirm.

Procedural Background. The plaintiff filed this action on October 25, 2019. In January 2020, an order issued allowing the plaintiff to serve the defendants by first class mail. On May 27, 2020, the defendants filed a motion to dismiss, claiming that the plaintiff failed to personally serve them within ninety days as required by Mass. R. Civ. P. 4 (j). The plaintiff responded by requesting until July 15, 2020, to perfect service. In his motion for an enlargement of time, the plaintiff indicated that he served the defendants at DOC headquarters in Milford, addressing the letters to Treasurer Barbara Baker. He also agreed to have the court dismiss the complaint and to have the matter heard as an administrative appeal within the DOC. Rather than dismiss the action at that time, the judge allowed the plaintiff until July 16, 2020, to file an opposition to the motion to dismiss. The plaintiff did not file any further oppositions or responses. As a result, the judge dismissed the action without prejudice.

Discussion. We review a trial judge's allowance of a motion to dismiss under Mass. R. Civ. P. 4 (j) for an abuse of discretion. See Shuman v. Stanley Works, 30 Mass. App. Ct. 951, 953 (1991).

Upon the commencement of a civil action, service must be made by delivering a summons and copy of the complaint to each of the named defendants. See Mass. R. Civ. P. 4 (d) (1). It is undisputed that the plaintiff did not mail the summons and complaint to the defendants’ personal addresses or even to their known business address at the Massachusetts Correctional Institution at Norfolk. Instead, the plaintiff claims he sent the summons and complaint to the Attorney General's office and to Barbara Baker, who works at the DOC administrative office in Milford. Neither forms of service constituted personal service in compliance with Mass. R. Civ. P. 4 (d) (1).

The plaintiff's reliance on G. L. c. 12, § 3, which requires the Attorney General to take over representation in certain actions involving the Commonwealth, is misplaced. See Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154, 162 (1975). The statute does not transform the Attorney General into an agent for service of process where Commonwealth employees are sued in an individual capacity. See G. L. c. 12, § 3. Furthermore, the plaintiff's reliance on Mass. R. Civ. P. 4 (d) (3), which permits service on the Attorney General when an agency of the Commonwealth is sued, is likewise improper because he sued the defendants personally and did not sue the DOC.

Thus, the judge did not abuse his discretion in allowing the motion to dismiss, especially where he gave the plaintiff ample opportunity to serve the defendants and the plaintiff did not. The burden lies with the plaintiff to show good cause for why service was not effectuated in the period set by the rule. See Shuman, 30 Mass. App. Ct. at 953. The good cause standard is a “stringent” one. Id., quoting Davis–Wilson v. Hilton Hotels Corp., 106 F.R.D. 505, 509 (E.D. La. 1985). When assessing whether a plaintiff had good cause, a reviewing court must focus on the “reasonableness and diligence” of the plaintiff's efforts. Shuman, supra. The plaintiff has not provided any reason for his failure to serve the defendants. He has therefore failed to show that his efforts to make proper service were reasonable and diligent.

Judgment of dismissal affirmed.

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