United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE
Diane Smith ("Smith") and Trustees of Boston
University ("BU") seek dismissal of Plaintiff
Friedrich Lu's amended complaint, filed pro se,
which alleges that Smith and BU violated 42 U.S.C. §
1983, the Massachusetts Civil Rights Act, Mass. Gen. L. c.
12, § 111 ("MCRA"), and engaged in fraud under
Massachusetts common law. D. 5 ¶¶ 3a-3c. BU and
Smith seek dismissal on all three counts. D. 12. Lu opposes
the motion, having filed a one-page motion to strike, D. 17.
For the reasons set forth below, Defendants Smith and
BU's motion is GRANTED in part and DENIED in
Standard of Review
consideration of a motion to dismiss, the Court “must
assume the truth of all well-plead[ed] facts and give the
plaintiff the benefit of all reasonable inferences
therefrom.” Ruiz v. Bally Total Fitness Corp.,
496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v.
Menino, 175 F.3d 75, 77 (1st Cir. 1999)); Gargano v.
Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48
(1st Cir. 2009)). Thus, the Court accepts all non-conclusory
factual allegations listed in the complaint as true.
Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011). Still, the Court does not
have to consider “bald assertions” or
“unsupported conclusions.” Doyle v. Hasbro,
Inc., 103 F.3d 186, 190 (1st Cir. 1996). When a
plaintiff files a complaint pro se, the Court
applies a liberal reading to his pleadings. Kruskall v.
Sallie Mae Serv., Inc., No. 15-cv-11780, 2016 WL
1056973, at *1 (D. Mass. Mar. 14, 2016) (quoting Green v.
Com. Of Mass., 108 F.R.D. 217, 218 (D. Mass. 1985)). A
pro se plaintiff, however, must still comply with
procedural and substantive law and “dismissal remains
appropriate . . . when the complaint fails to even suggest an
actionable claim.” Overton v. Torruella, 183
F.Supp.2d 295, 303 (D. Mass. 2001).
Count I: 42 U.S.C. § 1983 Claim
Count I, Lu alleges that all defendants, including BU and
Smith, violated 42 U.S.C. § 1983 by “contravening
[his] rights secured under due process and equal protection
clauses of the Fourteenth Amendment.” D. 5 ¶
(3)(a). BU and Smith move for dismissal of this claim on
multiple grounds: that BU and BU police officers are not
state actors subject to § 1983; that Lu does not allege
an equal protection violation; and that Lu does not allege
either a substantive or procedural due process violation. D.
13 at 8-13.
state a § 1983 claim, Lu must demonstrate (1) that the
conduct complained of transpired under the color of state law
and (2) as a result, Lu suffered a deprivation of rights
protected by the Constitution or the laws of the United
States. Klunder v. Brown Univ., 778 F.3d 24, 30 (1st
Cir. 2015); Rinsky v. Trs. of Boston Univ., 2010 WL
5437289, at *4-5 (D. Mass. Dec. 27, 2015). As to the first
prong, Lu must allege “that the conduct complained of
transpired under color of state law.” Klunder,
778 F.3d at 30. For BU or Smith to have acted under color of
state law, it must be fair to characterize BU or Smith as
state actors. Id. (quoting Estades-Negroni v.
CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir.
2005)). To assess whether a private party conducted itself as
a state actor, the Court examines three distinct inquiries.
Id. at 5; Malachowski v. City of Keene, 787
F.2d 704, 710 (1st Cir. 1986). First, under the state
compulsion test, the Court addresses whether the state
“has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the
[challenged conduct] must in law be deemed to be that of the
State.” Id. (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982)) (alteration in
original). Second, under the nexus test, a private party can
be considered a state actor when the circumstances
demonstrate that the state has “so far insinuated
itself into a position of interdependence with the [private
party] that it was a joint participant” in the alleged
wrongdoing. Rinsky, 2010 WL 5437289, at *4 (quoting
Estades-Negroni, 412 F.3d at 5). Third, the Court
applies the public function test, in which “a private
party is viewed as a state actor if the plaintiff establishes
that, in engaging in the challenged conduct, the private
party performed a public function that has been
‘traditionally the exclusive prerogative of the
State.'” Estades-Negroni, 412 F.3d at 5
(quoting Blum, 457 U.S. at 1005).
the state compulsion test, Lu fails to allege how BU or Smith
performed as state actors. Lu has alleged no facts that
“even suggest that either BU or its personnel were
acting pursuant to any governmental influence.”
Rinsky, 2010 WL 5437289, at *3;
Estades-Negroni, 412 F.3d at 5 (concluding that
appellant failed to allege facts that showed how the state
coerced or encouraged appellees to participate in her
involuntary commitment). The complaint alleges that BU police
officers act “under color of statute, regulation,
policy, custom, or usage of BU police department, ” D.
5 ¶ I(8), but this alone does not cure the deficient
complaint. This Circuit has found that self-governance by an
educational institution does not qualify as state action.
See Klunder, 778 F.3d at 31-32. Lu also fails to
allege facts that support a plausible finding under the nexus
test, because Lu provides no allegations that demonstrate
that a state actor was in a position of interdependence with
BU or its officers such that it functions as a joint
participant with pervasive entwinement. See Rinsky,
2010 WL 5437289, at *4 (concluding that plaintiff failed to
establish the nexus test because her complaint provided no
reason to think that the town had insinuated itself into the
college's programming and curriculum).
Smith, Lu's claim may survive under the public function
test: where the private party performed a public function
that is traditionally in the exclusive province of the state.
Under the pubic function test, it is not enough for the
plaintiff to show that the private actor performed a public
function, but instead that the private entity “assumed
powers ‘traditionally exclusively reserved to the
State.'” Barrios-Velazquez v. Asociacion de
Empleados del Estado Libre Asociado de Puerto Rico, 84
F.3d 487, 493-94 (1st Cir. 1996) (quoting Rockwell v.
Cape Cod Hosp., 26 F.3d 254, 256 (1st Cir.1994)
(internal quotation omitted). The activities that fall within
the public function test “are few and far
between” and “are characterized by exclusivity
born of pervasive government involvement.” Santiago
v. Puerto Rico, 655 F.3d 61, 69 (1st Cir. 2011). Lu
makes three allegations that could be construed together to
allege state action under the public function theory: that
Smith stated that the BU officers “are equivalent to
state police, ” D. 5 ¶ I(1), that Smith told Lu
that he could be arrested for trespass because he is on
Boston University property, D. 5 ¶ I(2)(a), and that
“[a]ll BU police officers . . . are appointed special
state police troopers.” D. 5 ¶ I(6)(a). Defendants
argue that appointment as a special state police officer does
not change this analysis for Boston University Police
Department (“BUPD”) officers, and that no state
action exists here. D. 13 at 12-13. For the purposes of the
motion to dismiss where the Court must assume the truth of
the allegations in the complaint, however, Lu has plausibly
alleged that Smith performs a public function that is the
exclusive prerogative of the State.
it does not appear that there is any First Circuit precedent
directly on point, some courts have ruled that a delegation
of power from state police meant that campus officers were
acting under the color of state authority. Henderson v.
Fisher, 631 F.2d 1115, 1118-19 (3d Cir. 1980) (holding
that the delegation of municipal police powers to the campus
police supported the conclusion that the campus police act
under the color of state authority); Stokes v. Nw.
Mem'l Hosp., No. 89 C 2352, 1989 WL 84584, at *4
(N.D. Ill. July 20, 1989) (ruling that “when the state
gives a private party exactly the same powers as the police .
. . and the private party exercises these powers and uses
them to infringe upon the constitutional rights of another,
there is state action sufficient to hold the private
individual liable under § 1983”). At the very
least, the well pled allegations in the complaint preclude
granting the motion to dismiss as to Smith. See
Klunder, 2011 WL 2790178, at *5-7 (denying summary
judgment as the university's police officers) and
BU, however, Lu's claim must fail. “[T]ort theory
of respondeat superior does not allow imposition of
supervisory liability under § 1983” and
“§ 1983 liability cannot rest solely on a
defendant's position of authority.”
Ramírez-Lluveras v. Rivera-Merced, 759 F.3d
10, 19 (1st Cir. 2014) (citing Grajales v. P.R. Ports
Auth., 682 F.3d 40, 47 (1st Cir. 2012);
Guadalupe-Báez v. Pesquera, 819 F.3d 509,
514-15 (1st Cir. 2016) (citing
Ramírez-Lluveras, 759 F.3d at 19). Instead,
Lu is required to provide a “causal connection between
the supervisor's conduct and the constitutional
violation.” Ramírez-Lluveras, 759 F.3d
at 19 (citing Feliciano-Hernández v.
Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011)).
This showing requires presenting allegations that the
supervisor or supervising entity's conduct led to the
constitutional violation at issue, id. at 19-20
(quoting Hegarty v. Somerset Cnty., 53 F.3d 1367,
1380 (1st Cir. 1995)), and that “the supervisor's
liability [is] premised on his own acts or omissions.”
Guadalupe-Báez, 819 F.3d at 515 (internal
citations omitted). This can be shown through “direct
participation” or “condonation or tacit
authorization” of the misconduct. Jones v.
Han, 993 F.Supp.2d 57, 67 (D. Mass. 2014). Here, Lu
provides no allegations that show either direct participation
or tacit authorization of Smith's behavior to Lu. Thus,
Count I must be dismissed against BU.
that Smith was acting as a state actor, § 1983 claims
additionally require Lu to allege that he was deprived of a
right secured by the Constitution or the laws of the United
States. Lu has not plausibly alleged an equal protection or
substantive due process violation. The equal protection
clause “prohibits a state from treating similarly
situated persons differently because of their classification
in a particular group.” Pollard v. Georgetown Sch.
Dist., 132 F.Supp.3d 208, 222-23 (D. Mass. 2015)
(quoting Mulero-Carrillo v. Roman-Hernandez, 790
F.3d 99, 105-06 (1st Cir. 2015)). To plead a § 1983
claim based on an equal protection violation, Lu “must
allege facts plausibly demonstrating that compared with
others similarly situated, ” the plaintiff was
“selectively treated . . . based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.” Harrington v.
City of Attleboro, 15-cv-12769-DJC, 2016 WL 1065804, at
*6 (D. Mass. Mar. 16, 2016) (quoting
Mulero-Carrillo, 790 F.3d at 106). This showing of
disparate treatment is a “threshold requirement”
of any equal protection claim. Ayala-Sepulveda v.
Municipality of San German, 671 F.3d 24, 32 (1st Cir.
2012). Here, Lu has provided no allegations that he was
treated differently from others similarly situated, and his
amended complaint does not make mention of the treatment of
others. D. 5. Moreover, even if Lu was asserting an equal
protection clause violation under a “class of
one” theory, his claim is not sufficiently stated for