Brown v. Woods Mullen Shelter/Boston Public Health Commission (Lawyers Weekly No. 09-001-17)



SUFFOLK, ss                                                                                                                                    SUPERIOR COURT

  1. 16-805-C





                                                                JASON BROWN




                                                   WOODS MULLEN SHELTER/

                                       BOSTON PUBLIC HEALTH COMMISSION




                                 MEMORANDUM OF DECISION AND ORDER ON




Plaintiff Jason Brown, appearing pro se, has brought what appears to be a three-claim complaint against the owner-operator of the Woods Mullen Shelter, a public homeless shelter located in Boston.  All claims arise out of the plaintiff’s expulsion from the shelter on August 10, 2014, when Woods Mullen staff informed Mr. Brown that he would not be permitted to enter the facility as a resident with even medically prescribed marijuana.[1]  As a matter of policy, the Boston Public Health Commission (which manages the shelter) does not allow marijuana or other controlled substances – whether for medical reasons or otherwise – onto its property.  According to Commission Director of Emergency Shelter Services Elizabeth Henderson, “[t]he Commission is constantly striving to monitor and remove substances from the shelter, whether that is [sic] marijuana, alcohol, drugs, unmarked prescription drugs and other similar substances.  The Commission treats marijuana of any nature as it does alcohol and prohibits it from its shelters.”  (Henderson Aff. at para. 6)(emphasis supplied).[2]  Plaintiff refused to leave the shelter, and shelter staff summoned the Boston Police.  When efforts by the police to escort plaintiff off of the site were unsuccessful, Mr. Brown was arrested for trespassing.

Plaintiff has brought claims for negligence, negligent infliction of emotional distress and unspecified “civil rights” violations.  These claims are addressed exclusively to Mr. Brown’s expulsion from the Woods Mullen Shelter by the Boston Public Health Commission, and do not reach his arrest at the hands of the Boston Police Department.[3]  The defendant has moved for summary judgment on all counts.  The Court conducted a hearing in respect to this motion on August 28, 2017, at which hearing the plaintiff and counsel for Woods Mullen Shelter/Boston Public Health Commission appeared and presented arguments.  For the reasons which follow, the defendant’s Motion for Summary Judgment shall be ALLOWED IN PART and DENIED IN PART.


The defendant’s first contention is that the Complaint’s claims for negligence and negligent infliction of emotional distress are barred by the plaintiff’s failure to make proper presentment of such claims to the Commission’s chief executive.  The Court agrees.

Under G.L. c. 258, _ 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G.L. c. 258, _ 1 as its “nominal chief executive officer or board,” within two years after the cause of action arose.  In the case of the Boston Public Health Commission, the chief executive officer for presentment purposes is its Executive Director.  See Daveiga v. Boston Public Health Commission, 449 Mass. 434, 443 (2007) (affirming allowance of motion to dismiss for lack of presentment to Executive Director);  Ballanti v. Boston Public Health Commission, 70 Mass. App. Ct. 401, 402 (2007) (“Presentment of claims against the [C]ommission is required to be made upon the [C]ommission’s executive director.”).


In the case at bar, the record reflects that the plaintiff served a demand letter on the Commission’s “Legal Department.”  Nothing in the record, however, refutes the Commission’s contention (in the Affidavit of Debra Paul) that no presentment was ever made to its Executive Director.  Nor does the record contain evidence that, notwithstanding a lack of presentment, the Commission’s Executive Director nevertheless had actual notice of the plaintiff’s claim during the two year presentment period.  See Lopez v. Lynn Housing Authority, 440 Mass. 1029, 1030 (2003) (presentment requirement may be deemed fulfilled if plaintiff can show that, despite defective service,  chief executive officer had actual notice of the written claim); accord Bellanti, 70 Mass. App. Ct. at 407.  Our appellate courts have consistently held that “the actual notice exception is narrow … [and] notice to the executive officer will not be inferred or imputed from the fact that others with responsibility for investigation and settlement of the dispute reviewed the presentment letter and were in contact with the plaintiff.”  Id. at 407-08.  Accord Coren-Hall v. Mass. Bay Transit Auth., 91 Mass. App. Ct. 77, 79 (2017) (same) (observing that “[t]he statute is strict, requiring that presentment be made to the proper executive officer in a timely fashion,” and holding that presentment made to MBTA Claims Department was insufficient).[4]

On this record, therefore, and Coren-Hall being squarely on point, the Court is constrained to conclude that plaintiff has failed to make the pre-suit presentment required by G.L. c. 258, _ 4.  The undersigned appreciates that this lapse visits a severe consequence on a pro se litigant.  Nevertheless, this is the result our appellate courts have dictated in these circumstances.  As the Appeals Court stated recently when dismissing the claims of a litigant who, like Mr. Brown, had made presentment on a public entity’s Claims Department:

“We recognize that this is a harsh result, particularly

where it may have made no practical difference to

the agency that [its chief executive officer], himself,

was not notified of the plaintiff’s claim.  In the context

of presentment, however, it has been held that it is

irrelevant that the defendant may not have suffered any

prejudice by reason of the lack of actual notice…. We

are not in a position to change that rule.”


Coren-Hall, 91 Mass. App. Ct. at 80 (citations and quotations omitted).


For the foregoing reasons, the defendant’s Motion for Summary Judgment shall be allowed as to the  plaintiff’s claims for negligence and negligent infliction of emotional distress.  These claims are hereby dismissed with prejudice.



Turning next to the defendant’s Motion for Summary Judgment against the plaintiff’s “civil rights” claims, the Court is unable to conclude that the record evidence – construed in the light most favorable to the plaintiff – fails to present a viable cause of action.  As set forth ante, the record reflects that plaintiff was excluded from a public homeless shelter, and then arrested by the police when he refused to leave, for no reason other than his possession of lawfully prescribed medical marijuana.  The Court finds that, in these circumstances, the pleaded facts state a potentially viable claim for relief under the Massachusetts Civil Rights Act (“MCRA”), G.L. c. 12, __ 11H and 11I.

To establish a claim under the MCRA, a plaintiff “must prove that (1) [his] exercise or enjoyment of rights secured by the Constitution or laws of either the United States or the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation or coercion.”  Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86, 91 (1999) (quoting Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395 (1996)).  Each of these elements is at least arguably present in the case at bar.


Collapsing elements (1) and (2) together, the Complaint suggests that the defendant’s conduct interfered with Mr. Brown’s right as a medical marijuana patient to possess this now lawful substance in a public place.  In 2012, the Massachusetts Legislature enacted “An Act for the Humanitarian Medical use of Marijuana,” St. 2012, c. 369 (the “Act”).  The Act permits citizens of the Commonwealth with debilitating medical conditions to possess up to a 60-day supply of marijuana for medical use.  The Act, however, is not without restrictions, and provides that none of its terms “require[] any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school grounds, in any youth center, in any correctional facility, or of smoking marijuana in any public place.”  See St. 2012, c. 369, at _ 7.

Notably absent from this exclusionary provision of the Act is any language barring the mere possession of medical marijuana in a public place, or even the use of medical marijuana in a public place if such use does not entail smoking.  Under the inclusio unius doctrine of statutory construction, the Act would appear to require the accommodation of medical marijuana patients in their right to possess and/or use without smoking the substance in public places.  Reinforcing this conclusion is the Act’s statement that medical marijuana patients “shall not be penalized under Massachusetts law in any manner, or denied any right or privilege,” for exercising his or her rights under the Act.  See St. 2012, c. 369, _ 4.  The defendant’s summary eviction of the plaintiff from its homeless shelter (a place of public accommodation, see G.L. c. 272, _ 92A) for his simple possession of medical marijuana would thus appear to be an unwarranted interference with a statutory right.[5]


The Complaint’s allegations would likewise suggest that the defendant violated Mr. Brown’s constitutional right to equal protection of the law.  The Commission’s policy evidently distinguishes between two classes of medically debilitated individuals: those who treat their condition with prescribed marijuana, and those who treat their condition with other forms of prescription medication.  On the record that exists, the Court cannot say that there is a constitutionally sufficient basis for this type of discrimination.  See Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 92 (1978) (state policy producing inequality may violate equal protection clause absent reasonable justification); Memorial Hospital v. Maricopa County, 415 U.S. 250, 259 (1974) (equal protection concerns raised where one of two groups of individuals were denied “food, shelter and other necessities of life” based solely on status conferred by their exercise of a constitutional right).


Finally, the defendant’s actions in this case may have interfered with Mr. Brown’s constitutional liberty interest without due process of law.  While the plaintiff (a single male) possesses no “right” to stay in a temporary shelter such as Woods Mullen, see Commonwealth v. Magadini, 474 Mass. 593, 602 n.15 (2016) (citing G.L. c. 23B, _ 30), he does have a constitutional liberty interest that bears on his ability to choose where he lives.  In Doe v. Police Comm’r of Boston, 460 Mass. 342 (2011), the SJC struck down a statute that prohibited sex offenders from living in long-term care facilities, concluding that such exclusion violated the plaintiff’s constitutional liberty interest by depriving him of the right to choose where to live without due process of law.  Id. at 348.  The Court found that the “fit” between the plaintiff’s status as a sex offender and the state’s legislative goals had not been sufficiently demonstrated; and it held that sex offenders must be afforded “an opportunity to establish” that they pose “a minimal risk to the community the statute was intended to protect” before they could properly be denied the right to live in a long-term care facility on account of their status.  Id.  As in Doe, and for reasons that might not withstand constitutional scrutiny, the Commission has arguably interfered with Mr. Brown’s liberty interest in choosing to take shelter in a residential facility that could otherwise accommodate him.  With living options for the homeless necessarily limited, this interference is of no small moment to Mr. Brown.  If the Commission is unable to establish the requisite “fit” between restricting Mr. Brown on account of his status as a patient in need of medical marijuana and the Commission’s declared goals, the plaintiff may be able to show that Woods Mullen’s policy of exclusion interfered with his constitutional rights to liberty and due process of law.  Cf. Moe v. Secretary of Admin. & Finance, 382 Mass. 629, 654 (1981) (“Coercive financial incentives” favoring a choice “that is constitutionally guaranteed to be free from governmental intrusion” impinges upon due process liberty right).[6]


Having found that the record is reasonably construed to charge the Commission with an interference with Mr. Brown’s statutory and/or constitutional rights, the Court turns to the final requirement of an MCRA claim – viz., that such interference be accomplished by means of “threats, intimidation or coercion.”  G.L. c. 12, _ 11H.  Here, the plaintiff has alleged that the staff of Woods Mullen subjected him to forcible arrest by the Boston Police following his exercise and enjoyment of a legal right, to wit, the possession of medical marijuana.  The MCRA requires no more.  See, e.g., Sarvis, 47 Mass. App. Ct. at 93 (arrest for trespassing motivated by defendant’s desire to remove plaintiff from property without honoring right to summary process satisfied MCRA’s coercion requirement).


For the foregoing reasons, the defendant’s Motion for Summary Judgment is ALLOWED IN PART and DENIED IN PART.  The Complaint’s claims for common law negligence and negligent infliction of emotional distress are barred by the plaintiff’s failure to make proper presentment in accordance with G.L. c. 258, _ 4, and are accordingly dismissed.  The Complaint and supporting evidence, however, sufficiently state viable claims under the Massachusetts Civil Rights Act, which claims may proceed to trial.




Robert B. Gordon

Justice of the Superior Court





Dated:     August 28, 2017











[1]The record reflects that Mr. Brown possessed a State of Massachusetts Medical Marijuana Recommendation Card.  That card contained a physician’s certification that Mr. Brown had been examined and “found … to have a condition which is amenable to treatment with medical cannabis.”  Accompanying doctor’s notes confirm that plaintiff has been under psychiatric care for a depressive disorder and takes marijuana by prescription; but these physician notes are dated more than two years after Mr. Brown’s exclusion from the Woods Mullen Shelter.

[2]Although the record is unclear on the point, the Court draws from Ms. Henderson’s statement the inference that the Commission bans all species of marijuana, be it medical or recreational, from its shelters, but allows onto these premises other forms of prescribed medication if it is properly marked to the identified resident.

[3]Neither the Boston Police Department nor any of its individual officers have been named in this action.

[4]It is well to note that the facts of the present case are considerably less suggestive of actual notice of presentment than those found lacking in Coren-Hall.  In Coren-Hall, the plaintiff’s transmittal of his demand letter to the MBTA’s Claims Department activated an extended settlement negotiation.  In that negotiation, the defendant made financial offers of compromise that the trial judge presumed must have been conveyed with the approval of the agency’s authorized chief executive.  The Appeals Court did not agree, reversed the lower court’s decision, and ordered that summary judgment enter in favor of the MBTA.  Coren-Hall, 91 Mass. App. Ct. at 79-81.

[5]That marijuana possession remains illegal under federal law does not, without more, relieve an entity from the obligation to accommodate its possession by one in medical need of it.  See Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456, 462-66 (2017).  On the subject of Barbuto, the Court observes that the plaintiff has not asserted a claim for disability discrimination; and, even if he had, the claim would be barred by his failure to exhaust the required administrative remedies of G.L. c. 151B (providing a remedy for failing to accommodate handicaps in places of public accommodation).  Going forward, however, it would appear that an undifferentiated application of the Commission’s “no medical marijuana on premises” policy – as to Brown or anyone else who uses this prescribed substance to address a debilitating condition –  would invite viable discrimination claims under this statute, in accordance with the holding of Barbuto.

[6]The Legislature established the Boston Public Health Commission to “ensure the continuous delivery of quality health care” to Boston residents, in part, by improving living conditions and “meeting the medical and public health needs of all served ….”  St. 1995, c. 147, _ 1(a).  To accomplish this purpose, the Commission is empowered to enact and repeal health regulations and to exercise “all powers” related to properties under its custody and control.  Id. at _ 7(a)(15), (16).  The Commission’s grant of authority, however, is limited insofar as it cannot enact policies or exercise powers that are inconsistent with “any public health regulation of the state department of public health” or any other provision of Massachusetts law.  Id.  As pleaded, the plaintiff’s Complaint suggests that the Boston Public Health Commission did, in fact, exercise its power in a manner that is inconsistent with the Commonwealth’s medical marijuana law.

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