FURTADO v. TOWN OF FALMOUTH (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judgment that dismissed his amended complaint pursuant to Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974). We affirm.

The amended complaint alleged as follows.³ On November 17, 2016, one of the defendants, Falmouth police officer Chad Leighton, stopped the plaintiff's vehicle in Falmouth. The alleged purpose of the stop was to check for warrants on the passenger -- the plaintiff's grandson, Michael Jester. There were no warrants, and the plaintiff thereafter “reported” Leighton to the Falmouth police. On February 7, 2017, Leighton allegedly stopped a vehicle driven by Jester's girlfriend for speeding in Falmouth. At that time, Leighton arrested Jester, who was a passenger in the car. The charges against Jester were ultimately dismissed. Jester's girlfriend's car was impounded for six months.

On October 12, 2017, the plaintiff received a parking ticket from another defendant, Falmouth police officer Samantha Soares, who, the plaintiff alleged, failed to take the plaintiff's advanced age into account. The plaintiff appealed the ticket to defendant and Falmouth parking ticket hearing officer Barbara Pratt. Following a hearing on November 29, 2017, Pratt denied the plaintiff's appeal -- unfairly, the plaintiff alleged -- and declined to void the parking ticket. Pratt provided the plaintiff with instructions on how to seek judicial review of the decision in the Superior Court in a letter dated December 4, 2017. The letter noted the thirty-day window to seek such review that is prescribed by G. L. c. 30A, § 14.

The plaintiff filed his civil action more than two years later, on February 4, 2020, in the Superior Court. The defendant, town of Falmouth (town), filed a motion to dismiss the action. On September 11, 2020, the judge allowed the motion, ruling that judicial review of an agency decision (i.e., the hearing officer's decision) was time barred, that the complaint failed to state a claim on which relief could be granted, and that the plaintiff failed to make a presentment as required by G. L. c. 258, § 4.

Discussion. We review the allowance of a motion to dismiss de novo. Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). “We accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). A “complaint must contain enough factual allegations ‘to raise a right to relief above the speculation level ․ [based] on the assumption that all the allegations in the complaint are true.’ ” Doherty v Admiral's Flagship Condominium Trust, 80 Mass. App. Ct. 104, 106 (2011), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

The plaintiff's amended complaint failed to state any claim against Leighton for any of the defendants’ alleged conduct. The amended complaint did not show or explain how Leighton either had violated any legal duty he owed to the plaintiff or was responsible for any such violation committed by any other defendant. We conclude that the amended complaint against Leighton was correctly dismissed under rule 12 (b) (6). Because the plaintiff's complaint was properly dismissed for failure to state a claim and for being untimely, we need not reach the issue of whether it was properly dismissed for failure to make a written presentment pursuant to G. L. c. 258, § 4. We further note that the plaintiff's appellate brief contains a reference to the town's alleged failure to promote him when he served as a police officer up until June of 2000; he further hints that he was discriminated against based on disability, age, and national origin. We see nothing in the amended complaint that mentions the alleged failure to promote or states claims as to such discrimination. “[I]ssues not raised below cannot be argued for the first time on appeal.” Boss v. Leverett, 484 Mass. 553, 563 (2020).

The plaintiff was sent notice of the hearing officer's decision denying his administrative appeal of the ticket on November 29, 2017, but did not file this action until February 4, 2020, long after the expiration of the statutorily required time for seeking judicial review.

Under G. L. c. 90, § 20A1/212 and G. L. c. 30A, § 14, the plaintiff could obtain such judicial review if he had commenced this action “within thirty days after receipt of notice of the final decision of the agency.” G. L. c. 30A, § 14 (1). A court lacks subject matter jurisdiction to hear a chapter 30A appeal if the plaintiff has failed to commence an action with that thirty-day period. See Friedman v. Board of Registration in Med., 414 Mass. 663, 664-665 (1993). Thus, the plaintiff's claim regarding the parking ticket was correctly dismissed under rule 12 (b) (1) (lack of subject matter jurisdiction).

Judgment affirmed.

FOOTNOTES

3.   We also consider documents mentioned in the amended complaint and attached to the defendants’ motion to dismiss. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).