Robinson v. Com.

• Decision Date: 26 February 1992
• Docket Number: No. 90-P-830,90-P-830
• Parties: , 71 Ed. Law Rep. 1104 Yancy H. ROBINSON v. COMMONWEALTH et al. 1
• Court: Appeals Court of Massachusetts

Page 636

584 N.E.2d 636

32 Mass.App.Ct. 6, 71 Ed. Law Rep. 1104

Yancy H. ROBINSON v. COMMONWEALTH et al. ¹

No. 90-P-830.

Appeals Court of Massachusetts Hampshire.

Argued Oct. 16, 1991.

Decided Jan. 17, 1992.

Further AppellateReview Denied Feb. 26, 1992.

Meade G. Burrows, Northampton, for plaintiff.

Deirdre Heatwole, Boston, for defendants.

Before ARMSTRONG, SMITH and PORADA, JJ.

PORADA, Justice.

After the final game of the 1986 World Series in which the New York Mets beat the Boston Red Sox, the plaintiff, a black student at the University of Massachusetts in Amherst, claims that he was beaten by a group of white students because of his race. He brought an action in the Superior Court against the Commonwealth under the Massachusetts Tort Claims Act for its negligence in failing to provide adequate security to protect him (Count I) and against the Chancellor, the Vice-Chancellor for Student Affairs, and the Director of Public Safety of the University of Massachusetts in their official capacities for a violation of the Federal Civil Rights Act, 42 U.S.C. § 1983 (1988), in failing adequately to train and supervise the university police force in crowd control and in selectively denying him protective services on the basis of his race (Count II). ² The defendants filed a motion to dismiss the negligence claim (Count I) on the grounds that the plaintiff had failed to make a proper presentment of his claim under G.L. c. 258, § 4, as amended through St.1988, c. 217, and that the Commonwealth was exempt from liability because the alleged negligent acts constituted a "discretionary function" under G.L. c. 258, § 10(b ). They also filed a motion to dismiss the § 1983 claim (Count II) on the ground that officials of the university were not subject to suit in their official capacities. The plaintiff then filed a motion for leave to amend his complaint to bring suit against the university officials in their individual capacities. The judge denied the motion to amend and allowed the motion to dismiss the complaint. We affirm the dismissal.

1. The claim under the Massachusetts Tort Claims Act. The issue presented by this aspect of the case is who was the proper party to receive presentment of a claim against the University of Massachusetts. ³ The plaintiff claims that he made presentment of his claim to the proper public officials--the Chairman of the Board of Trustees, the President, and the Chancellor of the University of Massachusetts. The Commonwealth argues that presentment should have been made to the Attorney General.

General Laws c. 258, § 4, prohibits the institution of a civil claim for damages against a public employer "unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose...." Section 1 of G.L. c. 258, as appearing in St.1978, c. 512, § 15, defines "executive officer of a public employer" as "the secretary of an executive office of the commonwealth, or in the case of an agency not within the executive office, the attorney general; ... and, in the case of any other public employer, the nominal chief executive officer or board." The parties agree that the University of Massachusetts is not within an executive office of the Commonwealth. See G.L. c. 6A, § 2. Consequently the question is whether the University of Massachusetts is "an agency not within the executive office," as the Commonwealth contends, or "any other public employer," as the plaintiff contends.

We note that G.L. c. 258, § 4, does not contain a definition of the word "agency." The approved usage of the word in common parlance as "a governmental bureau or ... administrative division" has been ruled inapplicable in interpreting its meaning under G.L. c. 258, § 4. Kinan v. Trial Court, 400 Mass. 582, 584, 511 N.E.2d 341 (1987). Instead, in determining whether an office or institution should be considered an agency of the Commonwealth, the courts have focused on its function, Lodge v. District Attorney for the Suffolk Dist., 21 Mass.App.Ct. 277, 281-282, 486 N.E.2d 764 (1985), its significant connections to the Commonwealth, id. at 282-283, 486 N.E.2d 764, and the fulfilment of the purposes of the presentment requirement, Kinan v. Trial Court, 400 Mass. at 585-586, 511 N.E.2d 341. There is no question that the University of Massachusetts functions as a State educational institution within the Department of Education but not subject to the department's control. G.L. c. 75, § 1. The University also has significant connections to the Commonwealth. It is dependent upon the Legislature for its operating budget. G.L. c. 75, § 8. Its employees are considered State employees. G.L. c. 75, § 14. Its trustees manage and administer all property, real and personal, belonging to the Commonwealth and occupied or used by the university, G.L. c. 75, § 12, and have the authority to sell and lease land in the name of the Commonwealth, G.L. c. 75, §§ 25-27. Finally, designating the Attorney General as the proper person for presentment comports with the purposes of the presentment requirement. Lodge v. District Attorney for the Suffolk Dist., 21 Mass.App.Ct. at 283, 486 N.E.2d 764. The Attorney General's office is designated to defend the Commonwealth in all actions brought under the Massachusetts Tort Claims Act. G.L. c. 258, § 1. In addition, the Attorney General is required to defend any official or employee within the Department of Education at his or her request in any action alleging an intentional or unintentional tort or violation of the civil rights of any person arising out of his or her official duties and is given the statutory authority to adjust or settle any such action prior to, during or after trial. G.L. c. 12, § 3E. Accordingly, we conclude that the University of Massachusetts is an agency of the Commonwealth under G.L. c. 258. Our conclusion is buttressed by the Supreme Judicial Court's statement by way of dictum, in McNamara v. Honeyman, 406 Mass. 43, 47, 546 N.E.2d 139 (1989), that the University of Massachusetts is an agency of the Commonwealth. Thus, presentment should have been made to the Attorney General.

The plaintiff also argues that his claim should not be dismissed for lack of proper presentment, because the Attorney General most probably was aware of the claim through the widespread publicity given the incident. He argues that he should have been given the opportunity to conduct discovery to determine the Attorney General's awareness of the claim. However, constructive notice is not sufficient to meet the presentment requirements of G.L. c. 258, § 4. Weaver v. Commonwealth, 387 Mass. 43, 47-48, 438 N.E.2d 831 (1982). An actual presentment must be made by the plaintiff to the executive officer designated under G.L. c. 258, § 4. Id. It is irrelevant that the defendant may not have suffered any prejudice by reason of the lack of actual notice. Vasys v. Metropolitan Dist. Commn., 387 Mass. 51, 57 n. 6, 438 N.E.2d 836 (1982). Johnson v. Trustees of Health & Hosps. of Boston, 23 Mass.App.Ct. 933, 935, 500 N.E.2d 1362 (1986). Compare Carifio v. Watertown, 27 Mass.App.Ct. 571, 573-576, 540 N.E.2d 1341 (1989) (presentment of claim to the town clerk, with copy mailed by the claimant to the town manager, who was the executive officer under G.L. c. 258, deemed sufficient).

Since we hold that recovery under the negligence claim is barred by the defective presentment, we need not determine whether the actions of the university officials were "discretionary functions" which were exempt from liability under G.L. c. 258, § 10(b ). See, however, Cady v. Plymouth-Carver Regional Sch. Dist. 17 Mass.App.Ct. 211, 216, 457 N.E.2d 294 (1983); Wightman v. Methuen, 26 Mass.App.Ct. 279, 280, 526 N.E.2d 1079 (1988) (management of student imbroglios, student discipline, and school decorum deemed discretionary functions under the Massachusetts Tort Claims Act).

2. Claim under the Federal Civil Rights Act, 42 U.S.C. § 1983. The plaintiff's initial claim against the university officials was dismissed on the ground that they were not amenable to suit in their official capacities under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989). The plaintiff does not challenge this dismissal. His appeal is based on the denial of his motion to amend his complaint to allege a claim against the university officials in their individual capacities. In determining the propriety of this ruling, we shall examine the proposed amended complaint to determine whether it sets forth a cause of action. Jessie v. Boynton, 372 Mass. 293, 295-296, 361 N.E.2d 1267 (1977). Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 321 n. 3, 446 N.E.2d 681 (1983). In doing so, we apply Federal law. Harris v. Board of Trustees of State Colleges, 405 Mass. 515, 519, 542 N.E.2d 261 (1989).

To establish a cause of action under § 1983, a plaintiff must allege deprivation of a Federal right by a person acting under color of State law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 664-665, 88 L.Ed.2d 662 (1986). Here, the plaintiff claims that he was denied due process and equal protection under both the Federal and State constitutions.

We first address the due process claim. The plaintiff asserts that the individual defendants' gross negligence or deliberate indifference, in failing to train and supervise the university's police force in crowd control and to provide adequate police protection in residential areas when the defendants knew or should have...