RAYMOND WILSON THIRD v. DEPARTMENT OF TRANSPORTATION (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Claiming he was subjected to racial discrimination by a Massachusetts Department of Transportation (MassDOT) employee, Raymond Wilson (plaintiff or appellant) sued the agency under the Massachusetts Torts Claims Act, G. L. c. 258, for its failure to respond to three subpoenas seeking personal information about people he had sued. A judge of the Superior Court dismissed the suit for failure to state a claim. We affirm.

The Massachusetts Rules of Appellate Procedure require that the appellant's brief contain, among other things, a statement of issues, statement of the case, statement of facts, argument and summary of argument, citation to cases that support the argument, and citation to the portions of the record on which the appellant relies. Mass. R. A. P. 16, as appearing in 481 Mass. 1628 (2019). “The fact that the appellant is a pro se litigant does not excuse him from complying with the basic requirements of appellate procedure.” Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 1014 (1988), citing Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184 (1994). The plaintiff's brief, a one-page document with no legal or factual citations, does not comply with these requirements, and his failure to guide us through his argument and the facts and law supporting that argument means that the argument is waived. Mass. R. A. P. 16 (a) (9) (A); Toney v. Zarynoff's, Inc., 52 Mass. App. Ct. 554, 564 n.10 (2001). See Patel v. Amresco SBA Holdings, Inc., 69 Mass. App. Ct. 192, 197 (2007) (“We can only repeat the well-established rule that it is the obligation of appellate counsel and not the court to structure an analysis, supported by citation to authorities, that will assist the court in reaching a decision”).

Even if we were to address the plaintiff's claims on the merits, we would reach the same result. As the judge correctly ruled, the plaintiff's complaint, alleging that a MassDOT employee intentionally did not respond to a subpoena, failed to state a claim under the Massachusetts Torts Claims Act. See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 626 (2012), citing G. L. c. 258, § 10 (c) (“The Act expressly exempts intentional torts from its provisions, and therefore a public employer cannot be sued for the intentionally tortious conduct of its employee”). Where the basis for the plaintiff's claim is the employee's failure to respond to a subpoena under Mass. R. Civ. P. 45, as amended, 470 Mass. 1401 (2015), the remedy for the violation -– if there was a violation -– is found in rule 45. See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549 (2002) (duty imposed by subpoena enforced under rule governing subpoenas).

Judgment affirmed.