MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
B. Gordon, Justice of the Superior Court.
Jason Brown, appearing pro se, has brought what
appears to be a three-claim complaint against the
owner-operator of the Woods Mullen Shelter, a public homeless
shelter located in Boston. All claims arise out of the
plaintiff's expulsion from the shelter on August 10,
2014, when Woods Mullen staff informed Mr. Brown that he
would not be permitted to enter the facility as a resident
with even medically prescribed marijuana. As a matter of
policy, the Boston Public Health Commission (which manages
the shelter) does not allow marijuana or other controlled
substances--whether for medical reasons or otherwise--onto
its property. According to Commission Director of Emergency
Shelter Services Elizabeth Henderson, " [t]he Commission
is constantly striving to monitor and remove substances from
the shelter, whether that is [sic] marijuana, alcohol, drugs,
unmarked prescription drugs and other similar substances. The
Commission treats marijuana of any nature as it does
alcohol and prohibits it from its shelters." (
Henderson Aff. at para. 6) (emphasis supplied).
Plaintiff refused to leave the shelter, and shelter staff
summoned the Boston Police. When efforts by the police to
escort plaintiff off of the site were unsuccessful, Mr. Brown
was arrested for trespassing.
has brought claims for negligence, negligent infliction of
emotional distress and unspecified " civil rights"
violations. These claims are addressed exclusively to Mr.
Brown's expulsion from the Woods Mullen Shelter by the
Boston Public Health Commission, and do not reach his arrest
at the hands of the Boston Police Department. The defendant
has moved for summary judgment on all counts. The Court
conducted a hearing in respect to this motion on August 28,
2017, at which hearing the plaintiff and counsel for Woods
Mullen Shelter/Boston Public Health Commission appeared and
presented arguments. For the reasons which follow, the
defendant's Motion for Summary Judgment shall be
ALLOWED IN PART and DENIED IN PART .
defendant's first contention is that the Complaint's
claims for negligence and negligent infliction of emotional
distress are barred by the plaintiff's failure to make
proper presentment of such claims to the Commission's
chief executive. The Court agrees.
G.L.c. 258, § 4, a tort claim against a public employer
must be presented to its " executive officer, "
defined in G.L.c. 258, § 1 as its " nominal chief
executive officer or board, " within two years after the
cause of action arose. In the case of the Boston Public
Health Commission, the chief executive officer for
presentment purposes is its Executive Director. See
Daveiga v. Boston Public Health Commission, 449
Mass. 434, 443, 869 N.E.2d 586 (2007) (affirming allowance of
motion to dismiss for lack of presentment to Executive
Director); Ballanti v. Boston Public Health
Commission, 70 Mass.App.Ct. 401, 402, 874 N.E.2d 439
(2007) (" Presentment of claims against the [C]ommission
is required to be made upon the [C]ommission's executive
case at bar, the record reflects that the plaintiff served a
demand letter on the Commission's " Legal
Department." Nothing in the record, however, refutes the
Commission's contention (in the Affidavit of Debra Paul)
that no presentment was ever made to its Executive Director.
Nor does the record contain evidence that, notwithstanding a
lack of presentment, the Commission's Executive Director
nevertheless had actual notice of the plaintiff's claim
during the two-year presentment period. See
Lopez v. Lynn Housing Authority, 440 Mass. 1029,
1030, 800 N.E.2d 297 (2003) (presentment requirement may be
deemed fulfilled if plaintiff can show that, despite
defective service, chief executive officer had actual notice
of the written claim); accord Bellanti, 70
Mass.App.Ct. at 407. Our appellate courts have consistently
held that " the actual notice exception is narrow . . .
[and] notice to the executive officer will not be inferred or
imputed from the fact that others with responsibility for
investigation and settlement of the dispute reviewed the
presentment letter and were in contact with the
plaintiff." Id. at 407-08. Accord
Coren-Hall v. Mass. Bay Transit Auth., 91
Mass.App.Ct. 77, 79, 71 N.E.3d 154 (2017) (same) (observing
that " [t]he statute is strict, requiring that
presentment be made to the proper executive officer in a
timely fashion, " and holding that presentment made to
MBTA Claims Department was insufficient).
record, therefore, and Coren-Hall being squarely on
point, the Court is constrained to conclude that plaintiff
has failed to make the pre-suit presentment required by
G.L.c. 258, § 4. The undersigned appreciates that this
lapse visits a severe consequence on a pro se
litigant. Nevertheless, this is the result our appellate
courts have dictated in these circumstances. As the Appeals
Court stated recently when dismissing the claims of a
litigant who, like Mr. Brown, had made presentment on a
public entity's Claims Department:
We recognize that this is a harsh result, particularly where
it may have made no practical difference to the agency that
[its chief executive officer], himself, was not notified of
the plaintiff's claim. In the context of presentment,
however, it has been held that it is irrelevant that the
defendant may not have suffered any prejudice by reason of
the lack of actual notice . . . We are not in a position to
change that rule.
Coren-Hall, 91 Mass.App.Ct. at 80 (citations and
foregoing reasons, the defendant's Motion for Summary
Judgment shall be allowed as to the plaintiff's claims
for negligence and negligent infliction of emotional
distress. These claims are hereby dismissed with prejudice.
next to the defendant's Motion for Summary Judgment
against the plaintiff's " civil rights" claims,
the Court is unable to conclude that the record
evidence--construed in the light most favorable to the
plaintiff--fails to present a viable cause of action. As set
forth ante, the record reflects that plaintiff was
excluded from a public homeless shelter, and then arrested by
the police when he refused to leave, for no reason other than
his possession of lawfully prescribed medical marijuana. The
Court finds that, in these circumstances, the pleaded facts
state a potentially viable claim for relief under the
Massachusetts Civil Rights Act (" MCRA"), G.L.c.
12, § § 11H and 11I.
establish a claim under the MCRA, a plaintiff " must
prove that (1) [his] exercise or enjoyment of rights secured
by the Constitution or laws of either the United States or
the Commonwealth, (2) have been interfered with, or attempted
to be interfered with, and (3) that the interference or
attempted interference was by threats, intimidation or
coercion." Sarvis v. Boston Safe Deposit & Trust
Co., 47 Mass.App.Ct. 86, 91, 711 N.E.2d 911 (1999)
(quoting Swanset Dev. Corp. v. Taunton, 423 Mass.
390, 395, 668 N.E.2d 333 (1996)). Each of these elements is
at least arguably present in the case at bar.
elements (1) and (2) together, the Complaint suggests that
the defendant's conduct interfered with Mr. Brown's
right as a medical marijuana patient to possess this now
lawful substance in a public place. In 2012, the
Massachusetts Legislature enacted " An Act for the
Humanitarian Medical use of Marijuana, " St. 2012, c.
369 (the " Act"). The Act permits citizens of the
Commonwealth with debilitating medical conditions to possess
up to a 60-day supply of marijuana for medical use. The Act,
however, is not without restrictions, and provides that none
of its terms " require[ ] any accommodation of any
on-site medical use of marijuana in any place of employment,