United States District Court, D. Massachusetts
ORDER ON MOTION TO DISMISS (DOC. NO. 16)
Sorokin United States District Judge.
Angel Rodriguez is suing Boston Public Schools
(“BPS”) and Shaun Harrison, a former BPS
employee, for harm he suffered when Harrison solicited him to
sell drugs to other students at school and later shot him in
the back of the head. BPS has moved to dismiss all claims
against it, which include the claims asserted against
Harrison in his “official capacity.” Rodriguez
opposed. For the reasons expressed herein, the motion to
dismiss is ALLOWED IN PART and DENIED IN PART.
operates the English High School in Boston, Massachusetts.
Doc. No. 14 ¶ 6. From January to March 2015, BPS
employed Harrison as Dean of Academies at the English High
School, where he was responsible for “overseeing the
education, supervision, and discipline” of the
students. Id. ¶ 7. In the five years prior to
hiring Harrison to the Dean of Academies position, BPS
employed Harrison for contract work at Excel High School, as
a Community Field Coordinator at Boston Green Academy, and as
a paraprofessional at Orchard Gardens Pilot School.
Id. ¶¶ 11, 14, 27.
November 2012, while Harrison was employed as a Community
Field Coordinator at Boston Green Academy, a female student
“reported Harrison for physically assaulting her and
throwing an object at her.” Id. ¶ 15.
Thereafter, “BPS disciplined Harrison by issuing him a
written warning after an investigation of the incident by the
Headmaster at Boston Green Academy.” Id.
¶ 16. “BPS issued Harrison another written warning
during the same school year when the Headmaster at the Boston
Green Academy found that Harrison made inappropriate
statements to two  students that involved Harrison
endorsing recreational drug use with the students.”
Id. ¶ 20. Harrison appealed this second warning
to the Board of Trustees, but it was upheld. Id.
¶¶ 21, 22. At the end of the 2013-14 school year,
the Boston Green Academy “dismissed Harrison for poor
performance.” Id. ¶ 23.
to his contract, BPS “immediately placed Harrison in a
paraprofessional position at another school within the BPS
system, the Orchard Greens Pilot School” for the
2014-15 school year. Id. ¶ 27. Harrison
remained in that position from August 2014 until January
2015, when he was promoted to Dean of Academies at the
English High School. Id. ¶ 28. Harrison was
hired by the Headmaster, Assistant Headmaster, and two Deans
of the English High School. Id. ¶ 30.
plaintiff, Rodriguez, was a freshman at the English High
School during the 2013-14 school year. Id.
¶ 34. In his role as Dean of Academies, Harrison was
responsible for “identify[ing] appropriate supports for
students with academic, behavioral, and emotional needs,
” including students with individualized education
plans (“IEPs”). Id. ¶ 32. This
included Rodriguez, who was granted an IEP in February 2014.
Id. ¶ 34. In fact, “BPS assigned and
directed Harrison to supervise and monitor Mr. Rodriguez at
school, ” and instructed Rodriguez “to work with
Harrison for ‘everything' while at school.”
Id. ¶ 37.
January 2015, Rodriguez “experienced distraction and
upset during his classes” following the physical attack
of his girlfriend. Id. ¶¶ 42-43. He was
consequently “referred by his teacher to meet
one-on-one with Harrison for mentorship and
counseling.” Id. ¶ 42. Thereafter,
Rodriguez met with Harrison alone a number of times.
Id. ¶¶ 45, 47. In one of these meetings,
“Harrison asked Mr. Rodriguez if he wanted ‘to
make money.'” Id. ¶ 48. When
Rodriguez asked for clarification, Harrison “told Mr.
Rodriguez he would supply drugs for Mr. Rodriguez to sell at
school, and that's how they both could make money off the
student population at the English High School.”
Id. ¶ 50. The two entered into an agreement
wherein Harrison provided Rodriguez with drugs which
Rodriguez sold to other students at the school, giving the
money from the sales to Harrison and receiving drugs as
payment. Id. ¶¶ 50-55.
point, Harrison accused Rodriguez of taking two bags of
drugs, which Rodriguez denied. Id. ¶ 57.
Harrison demanded that Rodriguez return all the drugs he had,
and Rodriguez agreed to do so. Id. ¶ 58. That
same day, Rodriguez was attacked by another student, which
Rodriguez believed “to be connected to Harrison's
demand to return his drugs made earlier.” Id.
¶ 62. After Rodriguez met with the principal and police
about the fight, “Harrison approached him, urging Mr.
Rodriguez to keep quiet about their illegal drug
dealing.” Id. ¶ 63. When a female student
approached the two during this conversation, Harrison
“threatened her by saying ‘I will smack the shit
out of you!'” Id. ¶ 65.
the same day, Harrison texted Rodriguez to meet him at 7:00
that evening. Id. ¶ 66. Rodriguez obliged,
and when the two met, Harrison told Rodriguez “he was
taking him to meet some girls, and to a party.”
Id. ¶ 67. As the two were walking,
“Harrison shot Mr. Rodriguez at close range in the back
of the head, leaving Mr. Rodriguez to bleed to death, and
then ran away.” Id. ¶ 68. Fortunately,
Mr. Rodriguez did not die from his injuries. Id.
¶ 69. On May 31, 2018, Harrison was convicted of a
number of crimes in state court arising from these events and
is currently serving the resulting prison sentence. Doc. No.
27, 2018, Rodriguez served the statutorily required
presentment letter to the Massachusetts Attorney
General's Office and the Executive Officer of BPS. Doc.
No. 14 ¶ 71. On January 17, 2019, Rodriguez filed a
complaint in this Court. Doc. No. 1. After an initial motion
to dismiss, Rodriguez amended his complaint, adding
additional claims. Doc. No. 14. The amended complaint asserts
eight claims against BPS: (1) Count I for violations of 42
U.S.C. §1983; (2) Count II for violations of Title IX;
(3) Count III for violations of the Commonwealth of
Massachusetts Declaration of Rights; (4) Count IV for
negligence; (5) Count V for negligent retention; (6) Count VI
for negligent transfer; (7) Count VII for intentional
infliction of emotional distress; and (8) Count VIII for
negligent infliction of emotional distress. Id. BPS
moved to dismiss all claims in the amended complaint, as
asserted against BPS or Harrison in his official capacity.
Doc. No. 16. Rodriguez opposed. Doc. No. 18. The Court heard
argument from the parties on July 19, 2019.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain sufficient factual allegations to “state a
claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In evaluating a complaint, the court must accept all
factual allegations in the complaint as true and construe all
reasonable inferences in the plaintiff's favor.
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
The tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions and “threadbare recitals of the elements of
a cause of action.” Iqbal, 556 U.S. at 678. A
reviewing court must conduct a “context-specific”
assessment of the pleadings by drawing on “its judicial
experience and common sense.” Maldonado v.
Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (quoting
Iqbal, 556 U.S. at 663-64). A complaint must be
dismissed for failure to state a claim when it lacks
“factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory.”
Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.
moves to dismiss the five tort claims against the City,
Counts IV-VIII based on the fact that Rodriguez did not make
presentment until June 27, 2018, which BPS argues is outside
the two-year requirement under the Massachusetts Tort Claims
Act (“MTCA”). Rodriguez argues that the two-year
requirement under ...