LEO T. SOROKIN, District Judge.
Defendant Boston Public Schools ("BPS") objects (Doc. No. 29) to Magistrate Judge Cabell's Report and Recommendation (Doc. No. 26) that the Court deny BPS's Motion to Dismiss for Failure to State a Claim (Doc. No. 6) insofar as it pertains to the only federal claim asserted in the Complaint. After de novo review, the Court reaches a different conclusion on Count I for the following reasons.
At issue is whether Plaintiffs Denise Lee, individually and on behalf of a minor child named D.P, and Joseph Lee (collectively "The Lees") have stated a claim that BPS, during the relevant time period of 2005-2011, had a policy, practice or custom of covering up allegations of sexual abuse.
The Lees have alleged that "[Principal] Bolt and her superiors" transferred a teacher, LaShawn Hill, to cover up his sexual abuse.
This failure alone does not, however, necessarily compel dismissal. "Although liability may not be imposed on a municipality for a single instance of misconduct by an official
In analyzing Massachusetts's statutory scheme, a then-Massachusetts Superior Court judge observed that "the school committee makes policy; the school superintendent and principals implement those policies."
Principal Bolt is plainly not the superintendent. Nor do the Lees anywhere in the Amended Complaint identify these "superiors," let alone allege that they are school committee members or the superintendent.
Accordingly, the Court ALLOWS the Motion to Dismiss for Count I, and Count I is thus DISMISSED. In all other respects, the Court ADOPTS the Report and Recommendation, and DISMISSES Counts II, V, VI, and VIII. If the Lees wish to file a motion for leave to amend, they shall do so within fourteen days. The Court notes that Count I provided the only basis for federal jurisdiction.
SO ORDERED.
Plaintiffs Denise and Joseph Lee, both individually and on behalf of their child D.P., allege that a teacher's aide hired and supervised by the defendant Boston Public Schools (BPS or the defendant) sexually assaulted D.P. Their complaint claims a violation of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, a number of negligence claims under the Massachusetts State Tort Claims Act, and claims for loss of consortium. The defendant has moved to dismiss all counts of the complaint. (Dkt. No. 6). The plaintiffs oppose the motion. (Dkt. No. 9). For the reasons stated below, the court recommends that the motion be allowed in part and denied in part.
> The facts alleged in the complaint are as follows:
D.P. is a non-verbal, autistic, minor child. From 2005-2010, he attended the Joseph Lee School, from Kindergarten through 5th grade. In 2011 he attended the Harbor Pilot Middle School (the Harbor Pilot School). Both schools are Boston public schools. A BPS teacher's aide named LaShawn Hill (Hill) worked at both of these schools during the same time periods D.P. attended them. From 2005-2010, Hill sexually abused D.P. at the Joseph Lee School, during the summer. When D.P. attended the Harbor Pilot School in 2011, Hill sexually abused him there as well. Due to D.P.'s disabilities, however, D.P. was not able to defend himself against Hill, or to report Hill's abuse to his parents or to other authorities.
At some point in 2010, Hill also worked at another Boston public school, the King K-8 School (King School), and sexually assaulted a minor there as well. The principal of the King School was Jessica Bolt (Bolt). Bolt did not report Hill to authorities as required, and no one investigated the allegations of Hill's sexual misconduct. Instead, school officials, as part of a policy and custom of covering up allegations of sexual abuse of students by BPS employees, simply "eliminated" Hill's position as part of a "district wide restructuring" and transferred him to the Harbor Pilot School.
In 2011 Hill was involved in at least two other incidents at the Harbor Pilot School. In the first he was found with a child and admitted to trying to persuade the child to engage in improper conduct. In the second, Hill touched a disabled child in a bathroom. Hill subsequently pleaded guilty to various criminal charges in connection with these two incidents. In December of 2011, BPS officials informed D.P.'s parents of these two incidents at the Harbor Pilot School.
Following Hill's abuse of D.P., D.P. began to manifest signs of abuse through hypersexualized behavior to such an extent that his parents were forced to isolate him from his friends and from public outings. Complaint, ¶¶ 1-35.
A Rule 12(b)(6) motion to dismiss requires the Court to "assume the truth of all wellplead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). In order to survive a motion to dismiss, the plaintiff must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1977 (2007). The"[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (internal citations omitted). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if the plaintiff's well-pleaded facts do not "possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations and original alterations omitted). As such, "[t]he relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Cayo v. Fitzpatrick, No. CIV.A. 13-30113-TSH, 2015 WL 1307319, at *1 (D. Mass. Mar. 24, 2015) (quoting Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir.2011)). In determining whether a complaint crosses the plausibility threshold, `the reviewing Court [must] draw on its judicial experience and common sense.'" Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937)). Where "the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224 (1st Cir. 2012) (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)).
The plaintiffs seek relief on seven counts, each of which is addressed below.
Count I of the complaint charges a violation of 42 U.S.C. § 1983, which reads:
Section 1983 does not create substantive rights but is rather a procedural mechanism for enforcing constitutional or statutory rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 812 (1994). To state a claim under § 1983, a plaintiff must allege that (1) some individual deprived the plaintiff of a federally protected right, and (2) the individual who deprived the plaintiff of the right acted "under color of state law." Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001); DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 33 (1st Cir. 2001); Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001). In this case, the plaintiffs allege that Hill, while in his capacity as a BPS employee, sexually assaulted D.P. and in so doing violated D.P.'s Fourteenth Amendment right to bodily integrity. There is no dispute that the Fourteenth Amendment protects the right to bodily integrity and the Court presumes that this right is violated when a state actor sexually abuses a schoolchild. See e.g., Doe v. Bradshaw, No. CIV.A. 11-11593-DPW, 2013 WL 5236110 (D. Mass. Sept. 16, 2013); United States v. Giordano, 442 F.3d 30, 47 (2d Cir. 2006); Doe v. Taylor I.S.D., 15 F.3d 443, 451-52 (1994), cert. denied, 513 U.S. 815, 115 S.Ct. 70 (1994).
The plaintiffs allege that BPS knew of allegations of sexual misconduct against Hill and chose as a matter of policy and custom to transfer him to another school rather than report him to authorities. The plaintiffs further allege that, even if transferring Hill rather than reporting him was not done intentionally to cover up allegations of sexual abuse, it was grossly negligent and reflected a deliberate indifference towards his propensity to molest vulnerable children.
BPS argues, correctly, that it cannot be held liable for Hill's actions simply by virtue of their employment relationship. See Monell v. New York City Dept. Of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978). In Monell, the Supreme Court held that municipalities may be held liable under section 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U.S. at 694. Discrete actions by municipal officials with "final policymaking authority," however, also may subject a municipality to liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292 (1986); Welch v. Ciampa, 542 F.3d 927, 942 (1st Cir.2008). BPS argues that the complaint fails to state a claim because it does not allege sufficient facts to show that BPS had a policy that deprived D.P. of the right to bodily integrity. BPS acknowledges that the complaint does allege that BPS had a "policy or custom of covering up allegations of sexual abuse of students by BPS employees" but argues that this conclusory statement is insufficient to make out a claim in the absence of articulable facts identifying BPS policymaker(s) or a well-settled and widespread policy or custom. Moreover, BPS argues, the complaint fails to articulate how the alleged policy was conveyed to subordinate employees, fails to allege that any BPS policymaker knew of or was indifferent to Hill's actions, and indeed does not allege that anyone knew of Hill's conduct until after he was caught with another student in December of 2011, i.e., until after Hill had already allegedly assaulted D.P.
Undoubtedly, the complaint could be clearer, and its use of tentative and alternative-theory style phrasing in some places reveals a number of significant issues of proof the plaintiffs will have to overcome if they are to prevail. That being said, the Court is not prepared at this early juncture to say that the complaint fails to state a valid Monell claim. As alleged in the complaint, Bolt was the principal of the King School in 2010. Hill assaulted a minor student there under her watch. Although state law requires administrators to report allegations of child abuse of minors, the complaint alleges that Bolt "and her superiors" "intentionally" decided not to report concerns about Hill's conduct, and chose instead to deal with those concerns "in-house" by transferring him to another school under the "guise" of a "district wide restructuring" program. In that regard, the complaint specifically alleges that Bolt and others took these steps pursuant to a "BPS' policy and custom of covering up allegations of sexual abuse of students by BPS employees."
Against this backdrop, BPS really complains more about the scarcity of detail in the complaint than anything else. BPS argues that the complaint fails to allege a municipal custom or policy, but it does, albeit in bare fashion. It alleges that BPS had a specific policy to conceal allegations of child abuse rather than to report the allegations as required under state law. Similarly, BPS argues that the complaint fails to identify a BPS policymaker. The complaint does allege that Bolt was involved in policy decision making but BPS claims that Bolt as a principal cannot be a policymaker as a matter of law. See Doe v. Stoughton, 12-CV-10467-PBS, 2013 WL 6498959 (D. Mass. Dec. 10, 2013). Even crediting this argument, however, the complaint alleges that Bolt executed the BPS policy in concert with her "superiors" and thus encompasses, again with less than ideal specificity, the notion that administrators above the level of principal were involved in setting and executing the alleged policy at issue. Given that BPS strongly doubts there is any evidence to support the plaintiffs' claim of such a policy, it would unquestionably have been preferable from their perspective had the complaint set out more specific allegations articulating exactly who created the alleged BPS cover-up policy, when they created it, how widespread it was, and how it was put into practice. The fact that the plaintiff has not done so, however, is not fatal to the complaint. To survive a motion to dismiss in a § 1983 case alleging municipal liability, a pleading need only contain enough to allow the court and the defendant to understand the gravamen of the plaintiff's complaint. See Leatherman v. Tarrant County Narcotics Intelligece and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160 (1993); McCormick v. City of Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000). In the Court's view, the complaint here achieves that goal.
The plaintiffs also bring state law claims in Counts II through V for negligence (Count II), negligent retention (Count III), negligent transfer (Count IV), and negligent supervision (Count V). BPS argues that all of the negligence claims must be dismissed because the plaintiffs failed to timely present the claims to the proper person as required under the Massachusetts Tort Claims Act ("MTCA"). Alternatively, BPS argues that these counts must be dismissed because they fail to state a claim and because BPS is immune from suit under the MTCA.
The plaintiffs commenced the instant lawsuit in 2013. At the time, the MTCA provided that "[a] civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose. . . ." M.G.L. c. 258 § 4; see also Pollard v. Georgetown Sch. Dist., No. 14-CV-14043-DJC, 2015 WL 5545061 (D. Mass. Sept. 17, 2015) (citations omitted). The statute thus imposed two requirements on a plaintiff: (1) the plaintiff must present his or her claims within two years of when the cause of action arose; and (2) must present the claims to the proper authority. Strict compliance was required. See Weaver v. Com., 387 Mass. 43, 47, 438 N.E.2d 831, 834 (1982).
In 2014, however, the legislature amended the MTCA to eliminate the need to make a presentment before bringing an action involving allegations of sexual abuse on a minor. The statute was also amended to incorporate two related statutes, M.G.L. c. 260 §§ 4C and 4C ½. The statutes are virtually identical except that section 4C relates to civil actions against individuals for sexual abuse of a minor while section 4C ½ relates to civil actions against a public employer. Under both sections the time period for commencing an action increased to 35 years from the abuse itself, or within seven years of learning of a basis for legal action, whichever comes later. Both statutes also toll the time limit for bringing an action until the child's 18th birthday. If applied here, the amendments would effectively moot the defendant's presentment argument because it would not matter whether the plaintiffs made a proper presentment. Rather, the claims would be proper because they were brought within the applicable time limitations period.
In that regard, the Legislature has instructed that the provision of section 4C ½ providing for a 35 year limitations period is to run prospectively from the effective date of June 26, 2014, while the provision providing for a period of up to seven years from the discovery of an injury or condition caused by the abuse is to apply retroactively. See 2014 Mass. Legis. Serv. Ch. 145, § 8 (H.B. 4126) ("this [seven year clause] shall apply regardless of when any such action or claim shall have accrued or been filed and regardless of whether it may have lapsed or otherwise be barred by time under the law of the commonwealth."). The SJC has interpreted this same language in the context of a case involving section 4C to signal the Legislature's "clear and unequivocal" intent to apply the amendment retroactively. See Sliney v. Previte, 473 Mass. 283, 41 N.E.3d 732 (2015). In practical terms, this means that a minor victim presently contemplating a legal action against an employer for abuse would not need to make a presentment, at all, and could bring the action up to the greater of 35 years after the abuse or seven years after becoming aware of the cause of action.
Although there is nothing directly addressing the effect of section 4C ½'s partial retroactivity on M.G.L. c. 258 § 4, logic compels the conclusion that the 2014 amendment eliminating the need to make a presentment within two years must also be retroactive. To hold otherwise would preclude some victims from seeking redress simply on the basis of whether they fortuitously chose to bring a timely lawsuit before or after June 26, 2014. At present, a victim contemplating legal action against a public employer for sexual abuse has at least seven years and does not need to make a presentment. Similarly, a victim whose cause of action arose prior to the June of 2014, but within the last seven years, may also bring a suit without making a presentment. However, if the amendment eliminating the need to make a presentment were not treated as retroactive, a victim who brought suit prior to the amendment without making a presentment would now be barred from maintaining their suit, even if their action was brought within the retroactive seven year limitations period. Such a result would directly contradict the Legislature's plain and unambiguous edict that the seven year limitations period applies regardless of when an action has accrued or when it has been filed.
Moreover, following such a framework would have no practical effect because a victim forced to dismiss a legal action for failure to make a timely presentment could now simply refile the action, without making a presentment. Forcing victims to go through this step would do nothing more than add an unnecessary and meaningless step to the litigation process. The Legislature just could not have intended such a result. Accordingly, the Court concludes that the pertinent provisions of chapters 258 and 260 apply retroactively. As a result, even assuming the plaintiffs failed to properly present their claims within two years, that failure is immaterial because the MTCA requires only that a suit be brought within seven years of discovery of the cause of action. There is no claim here that the plaintiffs have not done just that.
The defendant argues that the plaintiffs' four state law negligence based claims at Counts II through V should be dismissed because they fail to state a claim or are otherwise barred by M.G.L. c. 258, §§ 10(b) or 10(j), which provides immunity to public employers in certain circumstances. The Court addresses each count in turn.
Count II of the complaint is somewhat vague but appears to allege that BPS was negligent in hiring Hill. See Compl., ¶ 48 (alleging that the defendant breached a duty to exercise due diligence "when hiring employees to work in the BPS.") (emphasis added). The defendant argues that Count II fails to state a claim and even if it does, the decision to hire Hill was a discretionary function entitling BPS to immunity under M.G.L. c. 258, § 10(b).
The Court agrees that Count II is facially deficient and fails to state a claim. In order to prevail on a negligent hiring claim, a plaintiff must present evidence that "the employer knew or should have known that the employee who was hired was unfit and posed a danger to others who would come into contact with the employee during the employment, and evidence that the employer's failure proximately caused the injury of which the plaintiff complains." Armstrong v. Lamy, 938 F.Supp. 1018, 1046 (D. Mass. 1996). Thus, to survive at the motion to dismiss stage, the plaintiffs must allege facts that would make this claim plausible. Here, the plaintiffs fail to assert any facts regarding when Hill was hired, who made the decision to hire him, and what characteristics or facts about him should have raised a red flag such that BPS knew or should have known of his tendency to sexually abuse minor children at the time he was hired.
Notably, all of the allegations the plaintiffs do include to support their negligent hiring claim relate to actions and events that took place after Hill was hired. Specifically, Count II claims D.P. was injured as a "direct and proximate result of the negligent failure to report an allegation of abuse," Compl., at ¶ 50, and that BPS has no discretion in determining whether to disclose such allegations. Compl., at ¶ 49. Even taking these allegations as true, they do not a priori bear on whether the defendant was negligent in choosing to hire Hill years earlier. In short, Count II is fatally flawed because it fails to allege any facts supporting a claim of negligent hiring. For that reason, the Court recommends dismissal of Count II. It is therefore not necessary to consider whether BPS should also be afforded immunity with respect to this claim.
The defendant argues that it should be afforded immunity from suit with respect to the claim of negligent transfer in Count IV because the decision to transfer Hill to another school was a policy based decision premised on BPS' teaching needs, budget, and other factors, and thus a discretionary act within the meaning of M.G.L. c. 258, § 10(b).
Section 10(b) of the MTCA is known as the "discretionary function" exception and provides that liability shall not attach to "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused[.]" M.G.L. c. 258, § 10(b). When a Court is faced with deciding whether conduct on the part of a governmental actor amounts to a discretionary function, the first step involves determining whether the governmental actor had any discretion at all as to what course of conduct to follow. Greenwood v. Town Of Easton, 444 Mass. 467, 469, 828 N.E.2d 945, 948 (2005). Second, and more difficult, is to determine whether the discretion at issue is the kind which section 10(b) is intended to provide immunity from liability. Id. at 470. The inquiry is a narrow one and the statute is meant to provide immunity "only for discretionary conduct that involves policy making or planning." Id. (citation omitted).
BPS claims that Hill was transferred pursuant to a "district wide restructuring" which involved decisions surrounding the allocation of employees. BPS argues that this necessarily involved the exercise of judgment, and therefore involved the type of policy based decisions section 10(b) was designed to protect from legal attack. This argument fails because the Court must at this juncture take the plaintiffs' allegations as true. The complaint alleges in essence that there was no "district wide restructuring." Rather, the so-called restructuring was a sham pretext to conceal the fact that Bolt and others were removing Hill from the King School in order to conceal his abuse from the proper authorities. Discovery may help clarify whether there was in fact a discretionary restructuring underway, in which case immunity might yet be warranted. At this stage, however, the Court must take the complaint as it is and the negligent transfer claim therefore survives dismissal.
The defendant argues that section 10(j) of the MTCA bars the plaintiffs' claims for negligent retention (Count III) and negligent supervision (Count V) because that section shields a public employer from liability for "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer." M.G.L. c. 258, § 10(j). "Courts have interpreted this section as barring liability where `a plaintiff has been harmed by a condition or situation which was not originally caused by the public employee, and is attributable to the employee only in the sense that the employee failed to prevent or mitigate it.'" Brum v. Town of Dartmouth, 428 Mass. 684, 694, 704 N.E.2d 1147 (1999) (internal citation omitted).
The defendant argues that the complaint alleges only that any negligent supervision or negligent retention failed to prevent the harm suffered by D.P., but does not allege that the defendant's actions actually caused his harm, thereby bringing the defendant within the scope of section 10(j). The Court agrees with the defendant that the plaintiffs' claim for negligent supervision necessarily involves a failure to supervise Hill. See Pettengill v. Curtis, 584 F.Supp.2d 348, 366-67 (D. Mass. 2008) (noting that negligent supervision claims do not "involve anything more than the failure to alleviate or respond to a private harm."). It is this type of claim that section 10(j) provides immunity for and indeed, "[c]ourts have repeatedly held that a claim for negligent supervision alone is barred by section 10(j)." Fournier, 851 F. Supp. 2d at 224-25; see also Armstrong v. Lamy, 938 F.Supp. 1018, 1043-46 (D. Mass. 1996) (where the plaintiff asserted, among others, claims for negligent supervision and negligent hiring of a teacher who allegedly sexually abused him. The court found that the former was barred by § 10(j) while the latter was not.). Accordingly, the Court recommends that the negligent supervision claim underlying Count V be dismissed.
However, with respect to Count III, the plaintiffs allege that BPS failed to exercise diligence in retaining Hill and allowed him to remain in a position of authority and trust with children. Again, discovery may help to prove or disprove this claim but the complaint does in the Court's view plead enough facts to withstand dismissal on the claim for negligent retention. While retention is still somewhat passive, it involves a conscious decision to retain the employee and thus consists of more than an utter failure to act. At this stage "it would be premature to conclude that the school officials' negligent retention of [Hill] after learning of his improper [behavior] with students was not an original cause of [D.P.'s] harm." Fournier, 851 F. Supp. 2d at 225. Accordingly, the Court recommends that the motion to dismiss be denied with respect to Count III.
Counts VI and VII claim loss of consortium on behalf of D.P.'s parents. See M.G.L. c. 231, § 85X. The defendant seeks dismissal of these counts on two grounds. The defendant argues first that the plaintiffs did not present the claims in their presentment letter. For the reasons discussed above, this argument fails because presentment is no longer required as a condition to bringing a lawsuit relating to the sexual abuse of a minor. Second, the defendant argues that BPS cannot be liable for loss of consortium because only a "person" may be liable and BPS is not a person as contemplated by the statute. The Court agrees.
M.G.L. c. 231, § 85X provides that "[t]he parents of a minor child . . . shall have a cause of action for loss of consortium of the child who has been injured against any person who is legally responsible for causing such injury." M.G.L. c. 231, § 85X. As the plaintiffs correctly point out, the question of whether a municipal entity is a "person" within the meaning of this statute has not been squarely addressed by a Massachusetts state court. However, Doe v. Bradshaw, 2013 WL 5236110, decided in this Court, has addressed the issue and is instructive. In that case parents of a minor child who had allegedly been sexually abused brought claims for loss of consortium among others. The Court noted that M.G.L. c. 4, § 7, applies to all Massachusetts statutes and defines a "person" to include "`corporations, societies, associations, and partnerships,' but makes no mention of municipalities or government entities." Id. at *14 (citing M.G.L. c. 4, § 7). For that reason, and because there was no indication to the contrary, the Court found that the municipality was not a person for purposes of the loss of consortium statute, and accordingly dismissed the complaint. Id. This Court finds that simple reasoning compelling, and applies it here. Because BPS is not a person within the meaning of M.G.L. c. 231, § 85X, it may not be held liable for loss of consortium. The motion to dismiss should therefore be granted with respect to Counts VI and VII.
For the foregoing reasons, it is respectfully recommended that the defendant's motion to dismiss be DENIED with respect to Counts I, III and IV, and GRANTED with respect to Counts II, V, VI, and VII. (Dkt. No. 6). The parties are hereby advised that under the provisions of Fed. R. Civ. P. 72(b), any party who objects to these proposed findings and recommendations must file specific written objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Fed. R. Civ. P. 72(b), will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also, Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985).
