Rayan Toby v. Greater Boston Legal Services.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-252

RAYAN TOBY

vs.

GREATER BOSTON LEGAL SERVICES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Rayan Toby, appeals from a Superior Court

judgment dismissing his complaint against the defendant, Greater

Boston Legal Services (GBLS). We affirm.

Background. 1. Prior action. In March 2022, the

plaintiff filed a complaint (prior action) against the director

of GBLS, Jacquelynne Bowman, for declining to represent him in a

variety of matters and for violating his civil rights in so

doing. On or about September 21, 2022, the prior action was

dismissed pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754

(1974), for failure to state a claim. The plaintiff did not

appeal therefrom.

2. Present action. On September 23, 2022, the plaintiff

filed a new complaint in the Superior Court against GBLS

(present action). Although difficult to decipher, the plaintiff
appears to claim that by denying him legal representation, GBLS

violated his human and civil rights under 22 U.S.C. § 2304

(human rights and security assistance), 42 U.S.C. § 1983 (civil

action for deprivation of rights), and G. L. c. 93, § 102

(Massachusetts Equal Rights Act).

GBLS filed a motion to dismiss the present action under

rule 12 (b) (6), contending that the complaint is based on

identical claims to the complaint in the prior action, and is

thus barred by principles of res judicata. GBLS also argued

that the complaint in the present action failed to state a

plausible claim against GBLS.

In November 2022, a Superior Court judge (motion judge)

determined that the claims and parties in the present action are

the same as those in the prior action in which judgment had

entered. Accordingly, she concluded that the present action is

barred based on res judicata, dismissed the complaint in the

present action, and entered judgment on behalf of the defendant.1

The plaintiff now appeals therefrom.

Discussion. The plaintiff essentially argues that the

motion judge erred in allowing the motion to dismiss because

1 The judge also ordered that the plaintiff shall be required to
obtain approval from the Superior Court Regional Administrative
Justice before the clerk's office may accept any new action by
the plaintiff against the defendant.

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access to legal representation is a fundamental human and

constitutional right. The argument suffers from myriad

shortcomings. First, the plaintiff cites no legal authority to

support the proposition that GBLS violated 22 U.S.C. § 2304, 42

U.S.C. § 1983, or G. L. c. 93, § 102, by declining to provide

legal services to him. Second, the plaintiff's complaint failed

to allege the fundamental elements of a Massachusetts Civil

Rights Act claim, as he made no allegation that GBLS

discriminated against him based on sex, race, color, creed, or

national origin. Third, in his brief the plaintiff raises

alleged counts of intentional infliction of emotional distress,

"Unconstitutional Policy/Custom/Negligence," "harassment,

intimidation, negligence, interference," "Failing to comply with

the laws," violation of G. L. c. 12, § 11I, as well as claims

for violations of the Federal and State constitutions. None of

these enumerated violations in the brief appear in the

plaintiff's complaint. Fourth, the plaintiff does not address

the issue of res judicata -- the basis for the dismissal of the

complaint in the present action -- in his brief. Thus, the

claim is waived. See Mass. R. A. P. 16 (a) (9) (A), as

appearing in 481 Mass. 1628 (2019) ("appellate court need not

pass upon questions or issues not argued in the brief"). See

also Galiastro v. Mortgage Elec. Registration Sys., Inc., 467

Mass. 160, 174 (2014) (claim waived where appellant made no

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appellate argument concerning dismissal under rule 12 [b] [6]).2

For these reasons, the plaintiff's claims are unavailing. See

Gabbidon v. King, 414 Mass. 685, 686 (1993) ("[i]t is well

established that, on appeal, we may consider any ground apparent

on the record that supports the result reached in the lower

court").

Judgment affirmed.

By the Court (Meade, Neyman &
Hand, JJ.3),

Assistant Clerk

Entered: March 7, 2024.

2 In any event, on the record before us we cannot say that the
judge erred in determining that the plaintiff's claims are
barred under the doctrine of res judicata. The record reflects
identity or privity of parties to the present and prior actions,
identity of the causes of action, and a final judgment on the
merits in the prior action. See Kobrin v. Board of Registration
in Med., 444 Mass. 837, 843-844 (2005); Heacock v. Heacock, 402
Mass. 21, 23 n.2 (1988) ("claim preclusion" or res judicata
"prohibits the maintenance of an action based on the same claim
that was the subject of an earlier action between the same
parties or their privies"). See also Mass. R. Civ.
P. 41 (b) (3), as amended, 454 Mass. 1403 (2009) ("any dismissal
not provided for in this rule, other than a dismissal for lack
of jurisdiction, for improper venue, or for failure to join a
party under Rule 19, or for improper amount of damages . . .
operates as an adjudication upon the merits").
3 The panelists are listed in order of seniority.

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