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 , ther efore , 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 pre cedent. See Chace v. Curran , 71 Mass. App. Ct. 258 , 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21

- P

- 1118

ADAM JAMES BRADLEY

vs

.

C OMMONWEALTH OF MASSACHUSETTS & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Adam Bradley , an inmate serving a life sentence , filed t his

pro se civil action , claiming that while he was in custody and

awaiting trial for murder , he was physical ly attacked on four

separate occasions by members of law enforcement

. He further

alleged that defendants employed by the Middlesex Sheriff ' s

Office conspired with members of law enforcement to cover up the

assaults by failing to process his inmate grievances

.

1 Roy Frost , Deputy Chief of the Billerica Police Department ; Anthony De L ucia , Massachusetts State Police Trooper ; Peter Koutoujian , Middlesex Sheriff; Shawn Jenkins , Superintendent of the Middlesex House of Correction ; Frank Bourgeo i s , Deputy Ch ie f of Middlesex House of Correction ; John MacMillan , Assistant Deputy Superintendent of the Middlesex House of Correction ; and the t own of Billerica . All defendants were sued in their o fficial and individual c apacities. As is our usual practice , we take the parties ' names and capacities as they appear in the operative complaint.2

T he defendants filed motions to dismiss pursuant to Mass.

R. Civ. P. 8 (a) , 365 Mass. 749 (1974) ; Mass. R. Civ. P. 12 (b)

(6) , 365 Mass. 754 (1 974) ; and Mass. R. Civ. P. 12 (b) (9) , as

amended , 450 Mass. 1403 (2008)

. A judge of the Superior Court

allowed the defendant s ' motions to dismiss , reasoning , in part ,

that because Bradley had previously filed several lawsuits

arising from the same underlying facts , the present complaint

constituted claim splitting , a practice barred by Mass. R. Civ.

P. 12 (b) (9)

. The judge further reason ed that dismissal was

warranted pursuant to Tinsley v. Framingham , 485 Mass. 760

(2020) , and Mass. R. Civ. P. 12 (b) (6)

. We affirm the

judgment

.
Operative f acts of Bradley ' s c omplaint

. I n December 201 3

Bradley was charged with murd e r in the first degree and in

February 2014 held in custody at the Middlesex h ouse of

c orrection as a pretrial detainee

. On February 5 , 2019 ,
Bradley , acting pro se , filed this civil action against the

defendants and , i n January 2020 , filed an amended complaint ,
which became the operative complaint . In the complaint he

assert ed twenty

- one separate counts against eight named

defendants alleging that on four separate occasions he was3

physically assaulted by the defendants Frost and De Lucia

. 2 We

briefly describe each alleged assault and battery.

1. The alleged f irst a ttack

. Bradley ' s complaint alleges

th at on August 7 , 2012 , he was at the Middlesex Superior Court

in Woburn waiting to testify before the g rand j ury investigating

the homicide of Quentin Koehler. Bradley alleges that while at

the court house , he overheard a conversation between two unnamed

employees of Salem Hospital and defendant s Billerica Police

Deputy Chief Roy Frost , State Trooper Anthony De L ucia , and an

assistant district attorney. Bradley heard the hospital

employees tell the defendants that the hospital had already

provided video surveillance and medical records of one of the

suspects to the police without a subpoena and that the

investigators should send them a subpoena now " so n o one knows

what we did. " Bradley alleges he heard the prosecutor respond

that she would get rid of the originals and wanted it to look

" official. " After this conversation , Bradley alleges that

De L ucia and Frost place d him under arrest and handcuff ed him

.
According to Bradley , Frost told Bradley to " forget " what he had

just heard and seen . Bradley refused to remain silent about the

2 Bradley subsequently narrowed the scope of the complaint , stating th at the action was brought " for only the assault and beatings incident " and explained that statements in his complaint about the homicide investigation and his conviction were only meant to explain the reason why the beatings occurred.4

alleged corruption by law enforcement. Bradley claims that

while he was handcuffed , Frost repeatedly punched him in the

stomach . Frost then allegedly told Bradley that he (Frost)

would track down Bradley and his family and kill them unless he

promise d never to mention what Bradley had just seen and heard

.
Bradley , fearful of the defendants , agree d not to speak about

the incident and " for good measure " Frost punched him in the jaw

while defendant De L ucia held his arms. Bradley alleges that he

was then let out of handcuffs and left the court house without

testifying before the grand jury. Bradley claims that at his

criminal trial the medical records (as well as other fabricated

evidence) were admitted in evidence and used against him ,
resulting in his conviction.

2. The alleged s econd a ttack

. O n April 23 , 2015 , Bradley ,

who was detained at the Billerica h ouse of c orrection awaiting

trial on murder charges , filed a citizen ' s complaint about the

alleged 2012 beating by defendants Frost and DeLucia at the

court house

. Five days later , Bradley was told to report to the

visitors ' roo m to meet with his attorney. Bradley alleges that

i nstead of his attorney waiting for him , the defendants Frost

and De L ucia were waiting for him. Bradley further alleges that

Frost and De L ucia told him that he was not to file any

complaints or talk about what happened at the court house and

w hen Bradley told them he planned on filing a civil lawsuit ,5

Frost and De L ucia physically assaulted him , causing a chipped

tooth , black eye , bloody nose , and fat lip.

3. Th e alleged t h ird a ttack

. O n July 10 , 2015 , Bradley

mailed a civil complaint against Frost and De L ucia to the

Superior Court

. He claims that he was told that his civil

complaint was confiscated and deemed to be contraband. Brad le y

al leges that subsequently , o n July 24 , 2015 , Frost and De L ucia

again met him in the visitor s ' room and beat him and threatened

to kill his daughters if he tried to file the civil action ,
grievances , or attempt ed to expose them

.

4. The alleged f ourth a ttack

. Bradley claims that Frost

and De L ucia returned to the Billerica h ouse of c orrection in

November of 2017 , and Frost choked him until he became

unconscious.

5. Other allegations related to the alleged attacks

.
Bradley further alleged that the d efendants Jenkins , Bourgeois ,

and MacMillan , all employed at the Middlesex h ouse of c orrection

( h ouse of c orrection defendants) , violated his constitutional

rights by failing to properly process Bradley ' s inmate

grievances about the assaults. 3

3 We note that in th e complaint , Bradley also claims that Superintendent Jenkins violated his rights by monitoring his mail. However , as noted in footnote 2 , Bradley subsequently clarified that his civil action was " for only the assault and beatings ," so we do not address the claim relating to the monitoring of his mail.6

Discussion

. We review a motion to dismiss under the de

novo standard

. See Okoli v. Okoli 81 Mass. App. Ct. 381 (2012).

Dismissal of an action under Mass. R. Civ. P. 12 (b) (9) is

appropriate where the parties and the issues are the same as

those in a prior action still pending in the Commonwealth. The

purpose of the rule is to prevent the " long

- barred practice of

claim

- splitting. " M.J. Flaherty Co

. v. United States Fid. &

Guar. Co

. , 61 Mass. App. Ct. 337 , 339 (2004). " Dism issal under

[ rule 12 (b) (9) ] is proper when the same parties are involved

in two actions , one begun before the other , and [i]t is apparent

from the face of the present complaint

. . . that all the

operative facts relied on to support the present action had

transpired prior to the commencement of the first action "

(emphasis added; quotation and citation omitted). Gold Star

Homes , LLC v. Darbouze , 89 Mass. App. Ct. 374 , 377 (2016)

. A

case is considered pending when an appeal is still viable at the

time when the subsequent action is filed. See Keen v. Western

New England College , 23 Mass. App. Ct. 84 , 85 n.2 (1986).

Claim splitting and claim preclusion are closely related

but " distinct concepts. " Jinks v. Credico (USA) LLC , 488 Mass.

691 , 70 8 n.20 (2021). " The test for claim splitting is not

whether there is finality of judgment , but whether the first

suit , assuming that it were final , would pre clude the second

suit. " Id

. quoting Katz v. Gerardi , 655 F.3d 1212 , 1218 (10th7

Cir. 2011)

. A dismissal on the grounds of claim splitting

" generally occurs while ' the dismissed party is involved in

another pending suit regarding the same subject matter against

the same defendants. '" Jinks , supra , quoting Katz , supra at

1219. Claim preclusion " is a ramification of the policy

considerations that underlie the rule against splitting a cause

of action and is ' based on the idea that the party to be

precluded has had the incentive and opportunity to litigate the

matter fully in the f irst lawsuit. '" Massaro v. Walsh , 71 Mass.

App. 562 , 565 (2008) , quoting Heacock v. Heacock , 402 Mass. 21 ,

23 (1988) . The rule against claim splitting extinguishes a

claim " even though the claimant is prepared in the second action

to present different evi dence or legal theories to support his

claim. " Massaro , supra , quoting Heacock , supra

.
Prior pending cases

. We turn now to examine the prior

actions that Bradley filed and were pending before he filed this

action. Bradley filed the first complaint ( Bradley I ) in 2018

.
Bradley I assert ed 655 counts against thirty

- one defendants

concerning his pretrial detention , prosecution , and conviction

for murder while he was incarcerated at the Middlesex h ouse of

c orrection bet ween February 2014 and December 2017. All of the

defendants named in the present underlying action are also named

defendants in Bradley I

.8

T he defendants in Bradley I had filed motions to dismiss

that complaint , and , while those motions were pending , Bradley

filed a motion for leave to file a third amended complaint in

the present underlying action

. In it , he alleged that after he

was convicted of murder and transferred to state prison ,

defendant Sheriff Koutoujian v isited him in July 2019 , attempted

to convince Bradley to dismiss the civil lawsuit , and when

Bradley refused to do so , Koutoujian assaulted him . The motion

to amend the complaint was denied as being both prejudicial and

futile as it was not materially different from the operative

amended complaint

.
Despite detailed and voluminous claims of wrongdoing by the

defendants during his pretrial detention , Bradley I fails to

contain any allegations that Frost and DeLucia assaulted Bra dley

in order to prevent Bradley from disclosing their alleged

manipulation of the evidence in his murder trial

. And Bradley

did not a ttempt to amend the complaint in Bradley I to allege

assault and batter y by defendants Frost and DeLucia. 4

Bradley file d a second action o n February 5 , 2019 ( Bradley

II ). Bradley II contains the same factual allegations giving

4 While a portion of Bradley I was dismissed in 2020 , the case against some of the defendants was pending when the motion judge made his ruling in this case. See R.A. App. I at 277

- 2 98; 321

- 322.9

rise to the present complaint , with one distinction

. Bradley II

does not contain any allegations of a physical attack by De L ucia

and Frost that day or any subsequent retaliatory attacks for

refusing to remain quiet about the alleged illegal conduct by

the prosecution team as it related to his murder trial

. 5

T he complaint in th e present action simply reallege s and

regurgitates the fact s and claims that Bradley had previously

set forth in or were part of the same transaction or series of

connected transactions as those set forth in Bradley I and

Bradley II

. See Mancuso v. Kinchla , 60 Mass. App. Ct. 558 , 570

-

57 2 ( 2004). All four assaults alleged in the present underlying

action occurred prior to the filing of both Bradley I and

Bradley II

.

Moreover , as it relates to Bradley ' s claim that the h ouse of

c orrection defendants conspired to prevent Bradley from filing

grievances about the beatings , we compare the allegations in

5 Bradley II was ultimately dismissed , but an appeal , filed by Bradley , is currently pending. We also note that on the same day that he filed th e present underlying action ( Bradley III ) , Bradley filed a separate civil action in Middlesex Su perior Court against defendant Frost and other s ( Bradley I V ) , alleging a similar conspiracy related to his conviction for murder as set forth in Bradley II

. However , since Bradley I V was filed on the
exact same day as the present action , we cannot construe Bradley
I V as pending at the time of the filing of the present action. Finally , in April 2019 , Bradley filed a civil action against defendant Frost and other t own of Billerica defendants ( Bradley
V ) in Suffolk Superior Court. Bradley filed a motion to voluntarily dismiss Bradley V without prejudice because he had filed the same claim , Bradley I V , in Middlesex Superior Court.10

Bradley I to that of the complaint at issue here . T he complaint

in Bradley I alleges that the conditions of his confinement

violated his rights and that the h ouse of c orrection defendants

worked in concert with the prosecution team to convict him of

murder by planting evidence and by denying him access to the

grievance process. All of the operative facts in the present

complaint relating to the alleged conspiratorial actions of the se

defendants also t ranspir ed before the commencement of filing in

Bradley I and are based upon the same claims o r alleged efforts by

the defendants to prevent him from his right to file an inmate

grievance. See Zora E nters

. , Inc

. , v. Burnett , 61 Mass. App. Ct.

341 , 346

- 347 (2004) ( " [I] t is apparent from the face of the

complaint

. . . that all of the operative facts relied on to

support the present action had transpired prior to the commencement

of the first action [quotation and citation omitted] )

.

It is clear from analyzing the facts and claims alleged in

the complaints , t he central issues of Bradley I and Bradley I I

pertain to the alleged intentional and illegal actions by the

defendants during the criminal investigation of Bradley , his

pretrial detention , and subsequent prosecution for murder. Final

judgments in those case would bar the claims asserted here. See

Jinks , 488 Mass. at 70 8 n.20 ; Mancuso , 60 Mass. App. Ct. at 570

-11

572

. We therefore agree with the motion judge that this case

presents improper claim splitting and dismissal was warranted. 6

Judgment affirmed

.
By the Court (Sacks , Singh & Walsh , JJ. 7 ) ,

Assistant Clerk

Entered: May 31, 2024.

6 Because we have found that dismissal was appropriate under Mass. R. Civ. P. 12 (b) (9) , we need not reach the merits of dismissal under Tinsley v. Framingham , 485 Mass. 760 (2020) , r ule 12 (b) (6) , and Mass. R. Civ. P. Rule 8 ( a ).

7 The panelists are listed in order of seniority.