Rosado v. Commissioner of Correction, et al. (Lawyers Weekly No. 11-062-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-680 Appeals Court CHRISTIAN ROSADO vs. COMMISSIONER OF CORRECTION & another.[1] No. 16-P-680. Middlesex. February 7, 2017. – May 22, 2017. Present: Green, Meade, & Agnes, JJ. Imprisonment, Safe environment. Constitutional Law, Imprisonment. Administrative Law, Judicial review. Practice, Civil, Relief in the nature of certiorari, Motion to dismiss. Due Process of Law, Prison regulation. Libel and Slander. Civil action commenced in the Superior Court Department on May 11, 2015. A motion to dismiss was considered by Kenneth J. Fishman, J. Christian Rosado, pro se. Katherine W. Briggs for the defendants. GREEN, J. The pro se plaintiff, an inmate in the custody of the Department of Correction, appeals from a judgment of the Superior Court, dismissing his complaint against the defendants, the Commissioner of Correction and the chief of the office of investigative services (investigative services chief). In his complaint, the plaintiff asserted various claims stemming from the defendants’ designation of him as a member of the “Latin Kings,” a “security threat group” (STG). The plaintiff denies that he is a member of the Latin Kings, and that his false designation as such subjects him to various harms entitling him to relief. We agree with the judge that the plaintiff’s claim for certiorari relief, pursuant to G. L. c. 249, § 4, does not lie because the designation was a discretionary administrative decision rather than an adjudicatory or quasi adjudicatory one, and that his due process claim fails because his designation as a member of an STG does not infringe upon a protected liberty interest.[2] We accordingly affirm the judgment of dismissal. Background. “We review the allowance of a motion to dismiss de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), and cases cited. We may also consider exhibits attached to the complaint and items appearing in the record. Melia v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012), citing Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).” Lipsitt v. Plaud, 466 Mass. 240, 241 (2013). As we observed in the introduction, the plaintiff is an inmate in the custody of the Department of Correction.[3] In November, 2014, a search of his cell uncovered pictures of a number of […]
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Commonwealth v. Rosado (Lawyers Weekly No. 11-109-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1778 Appeals Court COMMONWEALTH vs. JESUS M. ROSADO. No. 11‑P‑1778. Hampden. May 10, 2013. ‑ August 30, 2013. Present: Grasso, Kantrowitz, & Sikora, JJ. Search and Seizure, Automobile, Reasonable suspicion. Constitutional Law, Search and seizure, Reasonable suspicion. Practice, Criminal, Motion to suppress. Complaint received and sworn to in the Holyoke Division of the District Court Department on January 3, 2011. A pretrial motion to suppress evidence was heard by Bethzaida Sanabria‑Vega, J. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Katherine E. McMahon for the Commonwealth. Merritt Schnipper for the defendant. GRASSO, J. Before us is the Commonwealth’s interlocutory appeal from an order of a District Court judge allowing the defendant’s motion to suppress evidence seized during a warrantless stop of a motor vehicle. After an evidentiary hearing at which Massachusetts State Trooper David Pinkham was the sole witness, the judge concluded that Pinkham lacked constitutional justification to (1) open the door to the defendant’s vehicle, (2) seize an item that was not an illegal weapon, and (3) remove the defendant from the vehicle and restrain him. We conclude that the judge erred in applying the law to the facts found and reverse. 1. Background. Charged with various drug and other offenses, the defendant moved to suppress the evidence seized during a motor vehicle stop that occurred in the early morning hours of January 2, 2011, in Holyoke. The defendant contended that Pinkham (1) impermissibly opened the door to his vehicle based on the observation of an item Pinkham believed was an illegal weapon, (2) improperly removed the defendant from the vehicle, and (3) used more force than the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights permit in a Terry stop.[1] 2. Facts. In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).[2] The assessment of witness credibility is […]