Opinion
21-P-97
04-05-2022
Sunday OREKOYA v. SEX OFFENDER REGISTRY BOARD & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A judge of the Superior Court relieved the plaintiff of his obligation to register as a sex offender in 2019. Thereafter, the plaintiff filed suit against the Sex Offender Registry Board (SORB) and three of its employees. He alleged violations of his State and Federal constitutional rights and several intentional torts based on his classification and registration as a sex offender and the publication of that information. The defendants promptly moved to dismiss for failure to state a claim under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A judge of the Superior Court granted the motion, and the plaintiff timely appealed. We now affirm.
The plaintiff initially filed suit in the Superior Court challenging a classification determination by the Sex Offender Registry Board (SORB). Because of the plaintiff's prior conviction of a sexually violent offense, SORB was statutorily precluded from relieving him of his obligation to register, despite the hearing examiner's assessment that the plaintiff did not pose a risk of reoffense or a danger to the public. See G. L. c. 6, § 178K (2) (d ). Recognizing SORB's inability to act and the power of the Superior Court to "set aside the agency's decision on constitutional grounds," a judge determined that the mandatory registration requirement as applied to the plaintiff "violated his due process rights ... because he pose[d] no risk of reoffending or danger to the public."
Discussion. We review the allowance of a motion to dismiss de novo. Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 17 (2018). In determining whether a complaint can withstand a motion to dismiss under rule 12 (b) (6), we accept the factual allegations in the plaintiff's complaint and attached exhibits as true and "draw all reasonable inferences in the plaintiff's favor." Id. "[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
The plaintiff's complaint cannot withstand a challenge under rule 12 (b) (6) because governmental immunity bars each of his claims.
We reject the plaintiff's arguments that res judicata bars the defendants’ assertion of immunity and that the defendants were obligated to raise the issue in the earlier proceedings relating to the plaintiff's classification. Those proceedings were of a different nature, involved different causes of action, and did not require litigation of the defendants’ immunity. See DeGiacomo v. Quincy, 476 Mass. 38, 41-42 (2016) (discussing elements of claim and issue preclusion).
1. Claims against SORB and its employees in their official capacities. a. Constitutional claims. The plaintiff alleges violations of the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I, and of 42 U.S.C. §§ 1983 and 1985(3), the Federal statutes that provide remedies for deprivations of Federal constitutional rights by State actors. As to the plaintiff's claims against SORB, agencies of the Commonwealth are not persons subject to suit under the MCRA or either Federal civil rights statute. See Williams v. O'Brien, 78 Mass. App. Ct. 169, 173 (2010) ; Laubinger v. Department of Revenue, 41 Mass. App. Ct. 598, 601 (1996) ; 42 U.S.C. § 1985(3). And because "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office ... it is no different from a suit against the State itself," and is therefore barred by sovereign immunity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
The plaintiff also alleges violations of the Massachusetts Declaration of Rights. However, the Declaration does not create an independent cause of action, and, in accordance with our previous opinions, we decline to recognize one here. See Doe, Sex Offender Registry Bd. No. 474362 v. Sex Offender Registry Bd., 94 Mass. App. Ct. 52, 64-65 (2018).
b. Intentional tort claims. The plaintiff's complaint also sets forth claims of defamation, infliction of emotional distress, and a violation of his right to privacy. Immunity precludes these claims as well, since § 10 (c ) of the Massachusetts Tort Claims Act (MTCA), which governs the Commonwealth's liability for torts, provides immunity for agencies and state employees in their official capacities for "claim[s] arising out of an intentional tort." G. L. c. 258, § 10 (c ). See Nelson v. Salem State College, 446 Mass. 525, 537 (2006).
The plaintiff's complaint does not specify whether he seeks damages for the intentional or negligent infliction of emotional distress. To the extent that he alleged a claim for negligent infliction of emotional distress, we agree with the Commonwealth that the claim is likewise barred by the MTCA, which requires written presentment of the claim as a condition precedent to suit. G. L. c. 258, § 4. The plaintiff's complaint does not establish that he met this requirement. See Drake v. Leicester, 484 Mass. 198, 199 (2020).
2. Claims against SORB employees in their personal capacities. Finally, immunity also bars the plaintiff's tort and constitutional claims against the SORB employees in their individual capacities. General Laws c. 6, § 178O, provides that "public employees acting in good faith shall not be liable in a civil ... proceeding for any publication on the internet ... or other dissemination of sex offender registry information." The plaintiff's complaint does not allege that the defendant employees acted in bad faith, and therefore G. L. c. 6, § 178O, applies to preclude his remaining claims.
We note that the plaintiff's complaint also appears to seek injunctive relief "against further harassment or intimidation by the defendants." Sovereign immunity does not bar this claim against the employee defendants in their official capacities. See Doe No. 474362 , 94 Mass. App. Ct. at 64-65 ; Will, 491 U.S. at 71 n.10. The plaintiff's claim nevertheless fails because he does not allege any ongoing or imminent conduct by SORB. See Shaw v. Harding, 306 Mass. 441, 449 (1940) (no entitlement to injunctive relief "unless the apprehended danger is so near as at least to be reasonably imminent"). Rather, he bases his request on the speculative prospect of future action.
Judgment affirmed.