Lu v. Smith, Civil Action No. 15-14081-DJC

FRIEDRICH LU, Plaintiff, v. DIANE SMITH et al., Defendants.

Civil Action No. 15-14081-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

September 2, 2016

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Defendants Diane Smith ("Smith") and Trustees of Boston University ("BU") seek dismissal of Plaintiff Friedrich Lu's amended complaint, filed pro se, which alleges that Smith and BU violated 42 U.S.C. § 1983, the Massachusetts Civil Rights Act, Mass. Gen. L. c. 12, § 11I ("MCRA"), and engaged in fraud under Massachusetts common law. D. 5 ¶¶ 3a-3c. BU and Smith seek dismissal on all three counts. D. 12. Lu opposes the motion, having filed a one-page motion to strike, D. 17. For the reasons set forth below, Defendants Smith and BU's motion is GRANTED in part and DENIED in part.¹

II. Standard of Review

In consideration of a motion to dismiss, the Court "must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)); Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009)). Thus, the Court accepts all non-conclusory factual allegations listed in the complaint as true. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Still, the Court does not have to consider "bald assertions" or "unsupported conclusions." Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir. 1996). When a plaintiff files a complaint pro se, the Court applies a liberal reading to his pleadings. Kruskall v. Sallie Mae Serv., Inc., No. 15-cv-11780, 2016 WL 1056973, at *1 (D. Mass. Mar. 14, 2016) (quoting Green v. Com. Of Mass., 108 F.R.D. 217, 218 (D. Mass. 1985)). A pro se plaintiff, however, must still comply with procedural and substantive law and "dismissal remains appropriate . . . when the complaint fails to even suggest an actionable claim." Overton v. Torruella, 183 F. Supp. 2d 295, 303 (D. Mass. 2001).

III. Discussion

A. Count I: 42 U.S.C. § 1983 Claim

In Count I, Lu alleges that all defendants, including BU and Smith, violated 42 U.S.C. § 1983 by "contravening [his] rights secured under due process and equal protection clauses of the Fourteenth Amendment." D. 5 ¶ (3)(a). BU and Smith move for dismissal of this claim on multiple grounds: that BU and BU police officers are not state actors subject to § 1983; that Lu does not allege an equal protection violation; and that Lu does not allege either a substantive or procedural due process violation. D. 13 at 8-13.

To state a § 1983 claim, Lu must demonstrate (1) that the conduct complained of transpired under the color of state law and (2) as a result, Lu suffered a deprivation of rights protected by theConstitution or the laws of the United States. Klunder v. Brown Univ., 778 F.3d 24, 30 (1st Cir. 2015); Rinsky v. Trs. of Boston Univ., 2010 WL 5437289, at *4-5 (D. Mass. Dec. 27, 2015). As to the first prong, Lu must allege "that the conduct complained of transpired under color of state law." Klunder, 778 F.3d at 30. For BU or Smith to have acted under color of state law, it must be fair to characterize BU or Smith as state actors. Id. (quoting Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005)). To assess whether a private party conducted itself as a state actor, the Court examines three distinct inquiries. Id. at 5; Malachowski v. City of Keene, 787 F.2d 704, 710 (1st Cir. 1986). First, under the state compulsion test, the Court addresses whether the state "has exercised coercive power or has provided such significant encouragement, either overt or covert, that the [challenged conduct] must in law be deemed to be that of the State." Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)) (alteration in original). Second, under the nexus test, a private party can be considered a state actor when the circumstances demonstrate that the state has "so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant" in the alleged wrongdoing. Rinsky, 2010 WL 5437289, at *4 (quoting Estades-Negroni, 412 F.3d at 5). Third, the Court applies the public function test, in which "a private party is viewed as a state actor if the plaintiff establishes that, in engaging in the challenged conduct, the private party performed a public function that has been 'traditionally the exclusive prerogative of the State.'" Estades-Negroni, 412 F.3d at 5 (quoting Blum, 457 U.S. at 1005).

Under the state compulsion test, Lu fails to allege how BU or Smith performed as state actors. Lu has alleged no facts that "even suggest that either BU or its personnel were acting pursuant to any governmental influence." Rinsky, 2010 WL 5437289, at *3; Estades-Negroni, 412 F.3d at 5 (concluding that appellant failed to allege facts that showed how the state coerced orencouraged appellees to participate in her involuntary commitment). The complaint alleges that BU police officers act "under color of statute, regulation, policy, custom, or usage of BU police department," D. 5 ¶ I(8), but this alone does not cure the deficient complaint. This Circuit has found that self-governance by an educational institution does not qualify as state action. See Klunder, 778 F.3d at 31-32. Lu also fails to allege facts that support a plausible finding under the nexus test, because Lu provides no allegations that demonstrate that a state actor was in a position of interdependence with BU or its officers such that it functions as a joint participant with pervasive entwinement. See Rinsky, 2010 WL 5437289, at *4 (concluding that plaintiff failed to establish the nexus test because her complaint provided no reason to think that the town had insinuated itself into the college's programming and curriculum).

As to Smith, Lu's claim may survive under the public function test: where the private party performed a public function that is traditionally in the exclusive province of the state. Under the pubic function test, it is not enough for the plaintiff to show that the private actor performed a public function, but instead that the private entity "assumed powers 'traditionally exclusively reserved to the State.'" Barrios-Velazquez v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 84 F.3d 487, 493-94 (1st Cir. 1996) (quoting Rockwell v. Cape Cod Hosp., 26 F.3d 254, 256 (1st Cir.1994) (internal quotation omitted). The activities that fall within the public function test "are few and far between" and "are characterized by exclusivity born of pervasive government involvement." Santiago v. Puerto Rico, 655 F.3d 61, 69 (1st Cir. 2011). Lu makes three allegations that could be construed together to allege state action under the public function theory: that Smith stated that the BU officers "are equivalent to state police," D. 5 ¶ I(1), that Smith told Lu that he could be arrested for trespass because he is on Boston University property, D. 5 ¶ I(2)(a), and that "[a]ll BU police officers . . . are appointed special state police troopers."D. 5 ¶ I(6)(a). Defendants argue that appointment as a special state police officer does not change this analysis for Boston University Police Department ("BUPD") officers, and that no state action exists here. D. 13 at 12-13. For the purposes of the motion to dismiss where the Court must assume the truth of the allegations in the complaint, however, Lu has plausibly alleged that Smith performs a public function that is the exclusive prerogative of the State.

While it does not appear that there is any First Circuit precedent directly on point, some courts have ruled that a delegation of power from state police meant that campus officers were acting under the color of state authority. Henderson v. Fisher, 631 F.2d 1115, 1118-19 (3d Cir. 1980) (holding that the delegation of municipal police powers to the campus police supported the conclusion that the campus police act under the color of state authority); Stokes v. Nw. Mem'l Hosp., No. 89 C 2352, 1989 WL 84584, at *4 (N.D. Ill. July 20, 1989) (ruling that "when the state gives a private party exactly the same powers as the police . . . and the private party exercises these powers and uses them to infringe upon the constitutional rights of another, there is state action sufficient to hold the private individual liable under § 1983"). At the very least, the well pled allegations in the complaint preclude granting the motion to dismiss as to Smith. See Klunder, 2011 WL 2790178, at *5-7 (denying summary judgment as the university's police officers) and cases cited.

As to BU, however, Lu's claim must fail. "[T]ort theory of respondeat superior does not allow imposition of supervisory liability under § 1983" and "§ 1983 liability cannot rest solely on a defendant's position of authority." Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19 (1st Cir. 2014) (citing Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012); Guadalupe-Báez v. Pesquera, 819 F.3d 509, 514-15 (1st Cir. 2016) (citing Ramírez-Lluveras, 759 F.3d at 19). Instead, Lu is required to provide a "causal connection between the supervisor's conduct and theconstitutional violation." Ramírez-Lluveras, 759 F.3d at 19 (citing Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011)). This showing requires presenting allegations that the supervisor or supervising entity's conduct led to the constitutional violation at issue, id. at 19-20 (quoting Hegarty v. Somerset Cnty., 53 F.3d 1367, 1380 (1st Cir. 1995)), and that "the supervisor's liability [is] premised on his own acts or omissions." Guadalupe-Báez, 819 F.3d at 515 (internal citations omitted). This can be shown through "direct participation" or "condonation or tacit authorization" of the misconduct. Jones v. Han, 993 F. Supp. 2d 57, 67 (D. Mass. 2014). Here, Lu provides no allegations that show either direct participation or...