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Lopez v. City of Somerville

United States District Court, D. Massachusetts

June 21, 2018

MARVIN LOPEZ, et al., Plaintiffs,
v.
CITY OF SOMERVILLE, et al., Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE

         On July 22, 2016, plaintiffs Marvin Lopez (“Lopez”), Cecilia Lopez, and Marvin Lopez, Sr., filed a complaint in state court against the City of Somerville and various individuals (collectively “Somerville”), [1] alleging, among other claims, sex discrimination, negligence, and loss of consortium, arising from Lopez's sexual assault at a sports camp in 2013 and the aftermath of that incident. Doc. Nos. 1-1; 21. Somerville removed the suit to this Court, Doc. No.1, [2] and now moves for summary judgment on all claims against them, Doc. No. 36.

         The Lopezes oppose Somerville's motion with respect to Counts I-VII but not Counts VIII-XII. Doc. No. 42 at 1. Accordingly, the Court ALLOWS Somerville's motion for summary judgment as to Counts VIII-XII as UNOPPOSED. That leaves for resolution Somerville's motion on Counts I-VII.

         I. BACKGROUND

         The facts, based upon the undisputed facts before the Court, the Lopezes' factual submissions even where disputed, and those facts established by drawing all reasonable inferences in the Lopezes' favor, are set forth below.

         In August 2013, Lopez began his freshman year at Somerville High School. Doc. No. 43-P at ¶ 3.[3] From August 23-26, 2013, he attended an overnight, off-campus athletics camp (“the camp”), which was a prerequisite to participate in Somerville High School's soccer program. Id. at ¶ 5; Doc. No. 43-D at ¶ 1. Lopez attended the camp with the permission of his parents Cecilia Lopez and Marvin Lopez, Sr. Doc. No. 43-D at ¶ 1.

         A. Somerville High School's Anti-Hazing Policy

         Somerville High School has an anti-hazing policy. Id. at ¶ 77. The policy was in force in 2013 and was printed in the Somerville High School student handbook, which all student athletes are required to sign, indicating receipt and acknowledgement of the policy. Id. at ¶¶ 77-78.

         Nevertheless, before arriving at camp, Lopez had heard stories about upperclassman campers “pulling the shower curtain open when someone was showering or kicking the door open when someone was using the bathroom” and had heard to “keep[] the door locked because of pranks.” Id. at ¶¶ 18-19. According to one camper, in previous years at the camp, “if a person was showering, other guys would . . . get in the shower and . . . spank him” and that “there was putting Icy Hot [cream] on other players' genitals.” Pl. Ex. No. 15 at 17. Additionally, in 2012, one student reported to the soccer coaches that freshman campers were running into freshman showers while other freshman were showering. Doc. No. 43-D at ¶ 98.

         Before the August 2013 session of the camp, Joseph Curatone, the mayor of Somerville and an assistant coach of Somerville High School's football team, spoke to the Somerville High School athletes. Id. at ¶ 2. He warned the athletes that hazing would not be tolerated at the soccer camp. Id.

         B. The 2013 Camp

         Once Lopez arrived at the camp, he was assigned to a freshman cabin. Id. at ¶ 3. The coaches' cabin was adjacent to Lopez's cabin, and he and the other campers were instructed to come to the coaches' cabin if they needed anything. Id. at ¶¶ 8-9. At least five soccer coaches from Somerville High School attended the camp with the Somerville High School student athletes. Id. at ¶ 12. They did not chaperone the campers while the campers were in their cabins, id. at ¶ 15, and, on several nights, drank beer outside in front of the coaches cabin. Id. at ¶ 26.

         Between August 23 and August 24, 2013, several incidents of hazing occurred at the camp, including “putting Icy Hot on genitals.” Doc. No. 43-P at ¶ 27.

         C. The Assault in the Cabin

         On Sunday August 25, 2013, some of the students and coaches, including Head Soccer Coach George Scarpelli, left the campsite for an off-site varsity scrimmage game. Doc. No. 43-D at ¶¶ 34, 37-38. About thirty students remained at the camp, and two coaches stayed behind with them. Id. at ¶¶ 38-39; Doc. No. 43-P at ¶ 28.[4] That morning, after breakfast, the students remaining at the campsite took a mid-morning break, and Lopez and his freshman cabin-mates returned to their cabin. Doc. No. 43-D at ¶ 40. At this time, three upperclassmen entered the freshman cabin, yelling “freshman beat down.” Id. at ¶ 41. Lopez went to the bathroom, while one of the upperclassman “touch[ed] [a second freshman] underneath his shorts.” Id. at ¶ 44. When Lopez came out of the bathroom, an upperclassman grabbed him and “set him in the middle of the cabin facing the door and forc[ed] him to choose either getting a broomstick in his butt right now or later get[ing] [Icy Hot cream] rubbed over his genitals.” Id. at ¶ 45. Lopez said “he did not want either.” Id. at ¶ 46. One of the upperclassmen then told Lopez that he had received “Icy Hot last year and that it burned for the rest of the night and the next day.” Id. Lopez continued to resist, but ultimately bent down and pulled down his shorts. Id. at ¶ 47. Then, one or more of the upperclassman thrust a broom up Lopez's anus, causing Lopez to bleed. Id. Hurt, Lopez ran to the bathroom. Id. One of the upperclassmen then offered to bring Lopez ice, and one or more warned Lopez not to tell anyone about the incident. Id. at ¶ 49. The upperclassmen then left the cabin and did not return with ice. Id. at ¶ 48.

         D. The Remainder of Camp

         After the assault, Lopez sat on the toilet, bleeding. Id. at ¶ 51. He asked another camper to take a photo[5] so that he could see how bad his injury was. Id. Lopez was “shocked” by the blood, and lay on his bed for a time to ease the pain. Id.; Pl. Ex. No. 1 at 44. He then “went about [his] day” and participated in scheduled soccer practice without incident. Pl. Ex. No. 1 at 44; Doc. No. 43-D at ¶ 51.

         By lunchtime, all campers and coaches had returned to the campsite. Doc. No. 43-D at ¶ 53. That night, the campers and coaches participated in a team bonfire. Id. at ¶ 54. At the bonfire, Coach Scarpelli asked the freshman to share what the camp meant to them. Id. at ¶ 56. When it was Lopez's turn to share, he said, “pain.” Id. One of the upperclassman asked Lopez “good pain or bad pain?” Id. To which, Lopez responded “bad pain.” Id. The upperclassman then said, “if it was bad pain, why did you ask for it twice?” Id. Coach Scarpelli heard this exchange but did not follow up. Id.

         E. The Aftermath

         Once Lopez was home, Cecilia Lopez, his mother, noticed that he was sad and quiet, but Lopez did not say anything to her about what had happened to him at camp. Id. at 52; Pl. Ex. No. 7 at 12. He then “went to his bedroom to rest” and “laid down and he didn't get up.” Pl. Ex. No. 7 at 12.

         On August 27, 2013, the Tuesday following camp, the soccer team held practice with all of the players. Doc. No. 43-P at ¶ 54. Lopez did not attend. Id. That same day, a parent of a camp attendee reported Lopez's assault to one of the assistant soccer coaches. Id. at ΒΆ 55. When Coach Scarpelli learned that a ...


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