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Brown v. Shelter

Superior Court of Massachusetts, Suffolk

August 28, 2017

Jason Brown
Woods Mullen Shelter et al


          Robert B. Gordon, Justice of the Superior Court.

         Plaintiff 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.[1] 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). [2] 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.

         Plaintiff 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.[3] 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 .


         The 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.

          Under 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 director").

         In the 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).[4]

         On this 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 quotations omitted).

         For the 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.

         Turning 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.

          To 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.

         Collapsing 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, ...

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