Leslie Mercado v. Department of Children and Families.

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

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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.

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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

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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.

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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

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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),

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(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

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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.

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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.

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