Sullivan v. Trs. of Bos. Univ.

JOHN J. SULLIVAN v. TRUSTEES OF BOSTON UNIVERSITY & others.¹

15-P-941

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

March 8, 2016

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case arose from the plaintiff's receipt of a grade of "B" in the Metropolitan College prison education program (PEP) offered by Boston University (BU). In a well-reasoned, comprehensive memorandum of decision, a judge allowed the defendants' motion to dismiss the plaintiff's thirteen-count, first amended complaint (complaint). See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The plaintiff appeals from the judgment and purports to appeal from the order denying his postjudgment motion to amend.² We affirm.

Review of a grant of a motion to dismiss is de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Accepting all factual allegations as true, we conclude that the plaintiff failed to state a claim for relief meeting the governing standard.³ See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

1. 42 U.S.C. § 1983 (counts I, II, and III). Only persons acting under color of State law may be subjected to liability under § 1983.⁴ See Doe v. Senechal, 66 Mass. App. Ct. 68, 80 (2006). The defendants named in the complaint are officials and employees of BU, a private university. Although in rare circumstances private parties may be deemed State actors for § 1983 purposes, the plaintiff failed to allege any facts that would support a finding of State action. See Klunder v. Brown Univ., 778 F.3d 24, 30-33 (1st Cir. 2015). As matter of law, the facts cannot satisfy the public function test. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (public function mustfall within the exclusive province of State to qualify for State action); Berrios v. Inter Am. Univ., 535 F.2d 1330, 1333 (1st Cir. 1976) ("Higher education is not generally regarded as exclusively a function 'traditionally associated with sovereignty'" [citation omitted]); Perkins v. Londonderry Basketball Club, 196 F.3d 13, 19 (1st Cir. 1999) (performance of nonexclusive public function will not suffice to transform private conduct into State action); Phillips v. Youth Dev. Program, Inc., 390 Mass. 652, 655 (1983) (education is not traditional and exclusive State function).

The case of West v. Atkins, 487 U.S. 42, 43-44, 48 (1988), is distinguishable for the reason, if none other, that North Carolina had a duty under the Federal Constitution and State law to provide adequate medical care to prison inmates, which it delegated by contract to a private physician. Here, in contrast, the Commonwealth had no affirmative obligation under the Federal Constitution or any statute to provide inmates like the plaintiff with a college education. See Jackson v. Russo, 495 F. Supp. 2d 225, 229 (D. Mass. 2007).

2. General Laws c. 93A, § 9 (count VI).⁵ We conclude that the plaintiff's claims were beyond the purview of G. L. c. 93A. Liability for unfair or deceptive acts or practices under c. 93Ais limited to those committed "in the conduct of any trade or commerce." G. L. c. 93A, § 2(a), inserted by St. 1967, c. 813, § 1. This limitation on liability applies to actions brought under both G. L. c. 93A, §§ 9 and 11. Compare Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 176 (2013). In the particular circumstances of this case, the plaintiff cannot show that the defendants committed their unfair and deceptive acts and practices in a business context.⁶ See Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 23-27 (1997), and cases cited. See also Brodsky v. New England Sch. of Law, 617 F. Supp. 2d 1, 7 (D. Mass. 2009).

3. G. L. c. 12, §§ 11H and 11I (count VII). Relief under the Massachusetts Civil Rights Act is limited to situations in which the derogation or attempted derogation of secured rights occurred "by 'threats, intimidation or coercion.'" Bally v. Northeastern Univ., 403 Mass. 713, 717 (1989), quoting from c. 12, § 11H. The actions alleged by the plaintiff fall squarely within the range of conduct held not to satisfy this essential element of the claim.⁷ See Brunelle v. Lynn Pub.Schs., 433 Mass. 179, 182-184 (2001); Mancuso v. Massachusetts Interscholastic Athletic Assn., Inc., 453 Mass. 116, 130-133 (2009); Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 762-765 (2014).

4. Conversion (count IX). The plaintiff asserted that the defendants "stole" the honor and status of being the class valedictorian at the graduation ceremony and gave it to another inmate, depriving the plaintiff of the right to give the valedictorian address and to be recognized and congratulated by visiting dignitaries. These honors were not personal property, intangible or otherwise, that may be the subject of a conversion claim under Massachusetts law. See Matter of Brauer, 452 Mass. 56, 67 (2008).

5. Remaining tort claims (count VIII, X, and XI). Lacking adequate factual allegations that would support essential elements of these tort claims, the plaintiff's complaint failed to plausibly suggest an entitlement to relief.⁸ See Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974); Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982) (fraud); Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 221-222 (2009) (negligence); Kurker v. Hill, 44 Mass. App. Ct. 184, 188-190 (1998) (civil conspiracy).

6. Breach of contract (count XIII). We have assumed that a contractual relationship existed between the plaintiff and BU. The scenario portrayed in the plaintiff's principal brief concerning the flawed appeal process in breach of that contract was improperly dominated by unpleaded facts. See Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000). Passing that difficulty, the plaintiff did not allege any damages recoverable in contract as required to sustain a breach of contract claim. See Singarella v. Boston, 342 Mass. 385, 387 (1961); John Hancock Mut. Life Ins. Co. v. Banerji, 447 Mass. 875, 888 (2006); St. Charles v. Kender, 38 Mass. App. Ct. 155, 159 (1995).

7. Motion to amend. The complaint in issue, the plaintiff's second, contained thirteen claims against several defendants. In light of the undue delay, we discern no abuse of discretion in the denial of the plaintiff's postjudgment motion to amend the complaint to add "detail[s]" that could have been added earlier. See Arthur D. Little, Inc. v. East CambridgeSav. Bank, 35 Mass. App. Ct. 734, 740-742 (1994).

No other issue is properly before us.

Judgment affirmed.

Order denying motion to amend complaint affirmed.

By the Court (Cohen, Carhart & Kinder, JJ.⁹),

/s/

Clerk

Entered: March 8, 2016.

1. Jay A. Halfond, Kim A. Randall, Jennifer Drew, and Gary Donato, all sued in their individual capacities.

2. The plaintiff's notice of appeal identifies only the judgment. He filed a postjudgment motion to amend his complaint and did not appeal from the order denying it. Although we need not address his argument regarding the denial of the motion to amend, see Mass.R.A.P. 3, as amended, 430 Mass. 1602 (1999), we exercise our discretion to do so. See Lombardi v. Lombardi, 68 Mass. App. Ct. 407, 410 (2007).

3. In conducting our review, we have discounted all "legal conclusions cast in the form of factual allegations," Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000), as well as factual assertions not appearing expressly or inferentially within the complaint and the documents specifically referenced therein, see Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 224 (2011).

4. The cases cited in the plaintiff's briefs establish that the question of State action may be decided pursuant to a motion to dismiss. See, e.g., Rockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994); Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 2-3 (1st Cir. 2005). See also Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

5. On appeal, the plaintiff has expressly waived any argument regarding counts IV and V.

6. Not only is BU a nonprofit institution, it provides educational services to qualified inmates free of charge.

7. The plaintiff alleged that BU's PEP coordinator called his complaint about a...