NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-128
LESLIE MERCADO
vs.
DEPARTMENT OF CHILDREN AND FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Leslie Mercado, appeals from a Superior
Court judgment dismissing her complaint for damages and other
relief against the defendant, the Department of Children and
Families (department or DCF), for failure to state a claim upon
which relief may be granted. Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974). The allegations of the complaint are
disturbing, but somewhat unclear. On appeal the plaintiff
argues that DCF (1) was negligent in its care of her while she
was in its custody, (2) violated her civil rights, and
(3) failed to provide her with her records. She further argues
that the motion judge erred by failing to consider her
opposition to DCF's motion to dismiss. We affirm the judgment. Discussion. We review the sufficiency of the plaintiff's
complaint de novo, taking as true its factual allegations and
drawing all reasonable inferences in her favor. Curtis v. Herb
Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look
beyond the conclusory allegations in the complaint and focus on
whether the factual allegations plausibly suggest an entitlement
to relief." Id., citing Iannacchino v. Ford Motor Co., 451
Mass. 623, 635-636 (2008). In doing so, we consider, among
other things, exhibits attached to the complaint. Schaer v.
Brandeis Univ., 432 Mass. 474, 477 (2000). We are mindful that
"there is no requirement that a complaint state the correct
substantive theory of the case," and that "[a] complaint is not
subject to dismissal if it would support relief on any theory of
law" (citation omitted). Gallant v. Worcester, 383 Mass. 707,
709-710 (1981).
1. Tort claims. The plaintiff's complaint alleges that
DCF negligently failed to care for her while she was in DCF
custody, by placing her in danger, failing to provide a safe and
nurturing environment, and allowing continued sexual and
physical abuse. With her complaint, the plaintiff includes a
personal narrative in which she recounts being subjected to
physical, emotional, and sexual abuse in one foster home, and
rape in a later foster home. DCF does not address the veracity
of these troubling allegations but instead argues that the
2 plaintiff's claims fail for lack of proper presentment and are
untimely.
We first address the tort claims that are not premised on
sexual abuse of a minor. The Massachusetts Tort Claims Act
provides in pertinent part that "[a] civil action shall not be
instituted against a public employer on a claim for damages
. . . unless the claimant shall have first presented his claim
in writing to the executive officer of such public employer."
G. L. c. 258, § 4. "An oft-recited proposition is that
presentment must be made 'in strict compliance with the
statute.'" Martin v. Commonwealth, 53 Mass. App. Ct. 526, 528
(2002), quoting Weaver v. Commonwealth, 387 Mass. 43, 47 (1982).
The purpose of the presentment requirement is to "ensure[] that
the responsible public official receives notice of the claim so
that the official can investigate." Murray v. Hudson, 472 Mass.
376, 384 (2015). Once the governmental defendant timely raises
the question of presentment, the burden is on the plaintiff to
show that presentment was proper. Lodge v. District Attorney
for Suffolk Dist., 21 Mass. App. Ct. 277, 284 (1985).
Here, once DCF raised the presentment issue in its motion
to dismiss, the plaintiff did not show (or even claim) that she
met the presentment requirements applicable to her other tort
claims. The judge properly dismissed those claims for lack of
proper presentment. G. L. c. 258, § 4.
3 Even if those claims had been properly presented, the
plaintiff did not assert them in a complaint filed within the
statute of limitations. Tort claims against a public employer
like DCF, other than those alleging sexual abuse, must
ordinarily be filed within three years after the claims accrued.
G. L. c. 258, § 4 ("No civil action shall be brought more than
three years after the date upon which such cause of action
accrued"). Here, as further discussed below, the plaintiff's
tort claims accrued when she was a minor, i.e., no later than
2000, and thus those claims not premised on sexual abuse were
required to be filed within three years after she turned
eighteen, i.e., no later than 2003. See G. L. c. 260, § 7.
This action was not filed until 2023. Thus, dismissal of those
claims as untimely was also proper.
As for the plaintiff's claims that do relate to the sexual
abuse of a minor, while no presentment is required, see G. L.
c. 258, § 4, a statute of limitations does apply. General Laws
c. 260, § 4C1/2 provides:
"An action of tort alleging that the defendant negligently supervised a person who sexually abused a minor or that the defendant's conduct caused or contributed to the sexual abuse of a minor by another person shall be commenced within the later to expire of: (i) [thirty-five] years after the acts alleged to have caused an injury or condition to such minor; or (ii) [seven] years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by such act; provided, however, that the time limit for commencement of such an action under this section shall
4 be tolled for a child until the child reaches 18 years of age."
However, clause (i) is applicable only to "claims arising out of
or based upon [such] acts . . . which first occurred after [June
26, 2014]." St. 2014, c. 145, § 8. As the plaintiff turned
eighteen in 2000, all instances of sexual abuse of a minor
committed against her would have occurred long before 2014,
making clause (i) inapplicable.
Thus, the relevant standard is in clause (ii), which at
most allowed the plaintiff, starting when she turned eighteen, a
period of seven years after she "discovered or reasonably should
have discovered" the emotional or psychological injury caused by
the alleged abuse. G. L. c. 260, § 4C1/2. The plaintiff's
complaint and her related filings show that she was aware of the
injuries caused by the abuse by no later than 2008. 1 Therefore,
the statute of limitations on her sexual abuse claims expired no
later than 2015, and her complaint, filed in 2023, is untimely.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-128
LESLIE MERCADO
vs.
DEPARTMENT OF CHILDREN AND FAMILIES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Leslie Mercado, appeals from a Superior
Court judgment dismissing her complaint for damages and other
relief against the defendant, the Department of Children and
Families (department or DCF), for failure to state a claim upon
which relief may be granted. Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974). The allegations of the complaint are
disturbing, but somewhat unclear. On appeal the plaintiff
argues that DCF (1) was negligent in its care of her while she
was in its custody, (2) violated her civil rights, and
(3) failed to provide her with her records. She further argues
that the motion judge erred by failing to consider her
opposition to DCF's motion to dismiss. We affirm the judgment. Discussion. We review the sufficiency of the plaintiff's
complaint de novo, taking as true its factual allegations and
drawing all reasonable inferences in her favor. Curtis v. Herb
Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "[W]e look
beyond the conclusory allegations in the complaint and focus on
whether the factual allegations plausibly suggest an entitlement
to relief." Id., citing Iannacchino v. Ford Motor Co., 451
Mass. 623, 635-636 (2008). In doing so, we consider, among
other things, exhibits attached to the complaint. Schaer v.
Brandeis Univ., 432 Mass. 474, 477 (2000). We are mindful that
"there is no requirement that a complaint state the correct
substantive theory of the case," and that "[a] complaint is not
subject to dismissal if it would support relief on any theory of
law" (citation omitted). Gallant v. Worcester, 383 Mass. 707,
709-710 (1981).
1. Tort claims. The plaintiff's complaint alleges that
DCF negligently failed to care for her while she was in DCF
custody, by placing her in danger, failing to provide a safe and
nurturing environment, and allowing continued sexual and
physical abuse. With her complaint, the plaintiff includes a
personal narrative in which she recounts being subjected to
physical, emotional, and sexual abuse in one foster home, and
rape in a later foster home. DCF does not address the veracity
of these troubling allegations but instead argues that the
2 plaintiff's claims fail for lack of proper presentment and are
untimely.
We first address the tort claims that are not premised on
sexual abuse of a minor. The Massachusetts Tort Claims Act
provides in pertinent part that "[a] civil action shall not be
instituted against a public employer on a claim for damages
. . . unless the claimant shall have first presented his claim
in writing to the executive officer of such public employer."
G. L. c. 258, § 4. "An oft-recited proposition is that
presentment must be made 'in strict compliance with the
statute.'" Martin v. Commonwealth, 53 Mass. App. Ct. 526, 528
(2002), quoting Weaver v. Commonwealth, 387 Mass. 43, 47 (1982).
The purpose of the presentment requirement is to "ensure[] that
the responsible public official receives notice of the claim so
that the official can investigate." Murray v. Hudson, 472 Mass.
376, 384 (2015). Once the governmental defendant timely raises
the question of presentment, the burden is on the plaintiff to
show that presentment was proper. Lodge v. District Attorney
for Suffolk Dist., 21 Mass. App. Ct. 277, 284 (1985).
Here, once DCF raised the presentment issue in its motion
to dismiss, the plaintiff did not show (or even claim) that she
met the presentment requirements applicable to her other tort
claims. The judge properly dismissed those claims for lack of
proper presentment. G. L. c. 258, § 4.
3 Even if those claims had been properly presented, the
plaintiff did not assert them in a complaint filed within the
statute of limitations. Tort claims against a public employer
like DCF, other than those alleging sexual abuse, must
ordinarily be filed within three years after the claims accrued.
G. L. c. 258, § 4 ("No civil action shall be brought more than
three years after the date upon which such cause of action
accrued"). Here, as further discussed below, the plaintiff's
tort claims accrued when she was a minor, i.e., no later than
2000, and thus those claims not premised on sexual abuse were
required to be filed within three years after she turned
eighteen, i.e., no later than 2003. See G. L. c. 260, § 7.
This action was not filed until 2023. Thus, dismissal of those
claims as untimely was also proper.
As for the plaintiff's claims that do relate to the sexual
abuse of a minor, while no presentment is required, see G. L.
c. 258, § 4, a statute of limitations does apply. General Laws
c. 260, § 4C1/2 provides:
"An action of tort alleging that the defendant negligently supervised a person who sexually abused a minor or that the defendant's conduct caused or contributed to the sexual abuse of a minor by another person shall be commenced within the later to expire of: (i) [thirty-five] years after the acts alleged to have caused an injury or condition to such minor; or (ii) [seven] years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by such act; provided, however, that the time limit for commencement of such an action under this section shall
4 be tolled for a child until the child reaches 18 years of age."
However, clause (i) is applicable only to "claims arising out of
or based upon [such] acts . . . which first occurred after [June
26, 2014]." St. 2014, c. 145, § 8. As the plaintiff turned
eighteen in 2000, all instances of sexual abuse of a minor
committed against her would have occurred long before 2014,
making clause (i) inapplicable.
Thus, the relevant standard is in clause (ii), which at
most allowed the plaintiff, starting when she turned eighteen, a
period of seven years after she "discovered or reasonably should
have discovered" the emotional or psychological injury caused by
the alleged abuse. G. L. c. 260, § 4C1/2. The plaintiff's
complaint and her related filings show that she was aware of the
injuries caused by the abuse by no later than 2008. 1 Therefore,
the statute of limitations on her sexual abuse claims expired no
later than 2015, and her complaint, filed in 2023, is untimely.
1 The plaintiff knew of the injuries she allegedly suffered from the childhood sexual abuse at least by the time the undated DCF report included in her filings was written. The report includes statements such as, "[the plaintiff] reported that when she was three or four years old her teenaged foster brother began molesting her" and that "her foster mother's boyfriend 'came on to' her." The report also states that the plaintiff met her husband "[t]wo years ago" and that the couple married in 2006. Based on this language, we conclude that the report could have been written no later than 2008. Thus, the plaintiff knew of her injuries by no later than 2008.
5 2. Civil rights claims. The plaintiff argues that DCF
violated her civil rights. DCF counters that any civil rights
claim would arise under either the Massachusetts Civil Rights
Act (MCRA), G. L. c. 12, §§ 11H-11J, or the Federal Civil Rights
Act, 42 U.S.C. § 1983, both of which allow claims against only
those defendants who are "persons." DCF does not qualify as a
"person" under either statute. "[T]here is no indication in the
MCRA that the word 'person' includes either the Commonwealth or
any of its political subdivisions." Howcroft v. Peabody, 51
Mass. App. Ct. 573, 592 (2001). "[I]t is a widely accepted rule
of statutory construction that general words in a statute such
as 'persons' will not ordinarily be construed to include the
State or political subdivisions thereof." Hansen v.
Commonwealth, 344 Mass. 214, 219 (1962). And "an agency of the
Commonwealth is not a 'person' subject to suit for monetary
damages under § 1983." Laubinger v. Department of Revenue, 41
Mass. App. Ct. 598, 601 (1996). Because DCF is not a "person"
and so cannot be sued under these statutes, the plaintiff's
civil rights claims were properly dismissed.
3. Claim for release of records. In her complaint, the
plaintiff alleges that DCF is denying her access to her records
and calling her to harass her about her records. On appeal, the
plaintiff claims that DCF failed to perform its duty to provide
her with "crucial pre-adoption records." DCF argues that we
6 should interpret this claim as a complaint seeking relief in the
nature of mandamus to compel the release of documents. Seeing
no more likely explanation, our analysis proceeds on that basis.
To survive a motion to dismiss, a complaint in the nature
of mandamus must plausibly allege that the defendants have a
"clear cut duty" to perform a particular act. Simmons v. Clerk-
Magistrate of the Boston Div. of the Hous. Court Dep't, 448
Mass. 57, 59-60 (2006), quoting Doe v. District Attorney for the
Plymouth Dist., 29 Mass. App. Ct. 671, 675 (1991). Further,
"mandamus does not lie if any other effective remedy exists"
(citation omitted). Doherty v. Retirement Bd. of Medford, 425
Mass. 130, 135 (1997).
The plaintiff has not plausibly alleged that DCF failed to
comply with a clear cut duty. See Simmons, 448 Mass. at 59-60.
Among other things, she does not identify what law imposes a
nondiscretionary duty on DCF to release any specific records to
her. Various procedures apply to records requests to DCF. See
110 Code Mass. Regs. § 7.211(1) (2008); 110 Code Mass. Regs.
§§ 12.01-12.17 (2008); G. L. c. 210, § 5D. Among other things,
"all records held by the [d]epartment about a person are
available to that person" by written request with payment of a
fee. 110 Code Mass. Regs. § 12.10(1), (3). DCF will redact
certain third-party identifiers and remove privileged
information from its response. 110 Code Mass. Regs. § 12.10(1),
7 (4). If the person requesting records is in ongoing litigation
with DCF, other procedural requirements apply, but the records
are still subject to redaction by DCF. 110 Code Mass. Regs.
§ 12.09.
In support of her argument that DCF has failed in its duty
to provide records, the plaintiff attaches two e-mail messages
that appear to be from DCF confirming the receipt of one or more
records requests. It is unclear whether these were attached to
her Superior Court complaint, as would have been necessary for
the judge to consider them in connection with a motion to
dismiss. Even if they were, the complaint does not provide
information or documentation showing what she requested or how
DCF ultimately responded. As the plaintiff does not plausibly
allege that DCF failed to comply with a clear cut duty to
provide records to her, the complaint does not state a claim for
mandamus relief.
4. Opposition to motion to dismiss. The plaintiff argues
that the judge improperly dismissed her complaint without
considering her response to DCF's motion to dismiss. The
Superior Court docket, however, shows that the plaintiff did not
file any such response. The plaintiff's postjudgment motion for
reconsideration asserts that she filed an opposition to DCF's
motion to dismiss on the same day DCF filed its motion, i.e.,
October 31, 2023. It may be that the plaintiff was referring to
8 an e-mail message she sent on that date to the Office of the
Attorney General (but not the court), giving the name and docket
number of her case and an explanation of why she filed it. We
have carefully reviewed that e-mail message and see nothing in
it that would have given the motion judge any ground to deny
DCF's motion to dismiss. Therefore, the plaintiff suffered no
prejudice from the judge's apparent lack of opportunity to
review the e-mail message.
Similarly, even if the plaintiff had appealed from the
denial of her motion for reconsideration, the result would be
the same. 2 That motion contains no argument on any of the
grounds for dismissal that we have relied on in our analysis
above.
5. Other issues. The plaintiff's brief makes several
other general allegations that have no clear relevance to the
legal claims asserted in her complaint. 3 She asserts that the
2 The plaintiff filed that motion on December 18, 2023, after she filed her notice of appeal on November 27, 2023. The judge denied the motion on December 21, 2023, and the plaintiff did not file another notice of appeal. Thus, the denial of the motion is not before us.
3 The plaintiff's brief also asserts a breach of contract but does not point to any contract that existed between DCF and herself or how any contract was breached. Additionally, this argument was not raised below, so it cannot be raised for the first time on appeal. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493–494 (1983). Similarly, the plaintiff's claim that DCF failed to provide her with proper legal representation is waived because she did not raise the issue below. See id.
9 lower court "[f]ail[ed] to recognize the gravity of [her] claims
against DCF" and that "systemic failures within DCF[] demand[]
accountability and reform." We emphasize that our decision to
affirm the judgment dismissing her complaint is based on an
application of the relevant law, not an evaluation of the
gravity of the plaintiff's childhood experiences as alleged in
her complaint.
Judgment affirmed.
By the Court (Meade, Sacks & Hodgens, JJ. 4),
Clerk
Entered: February 26, 2025.
4 The panelists are listed in order of seniority.