Full opinion text
KEETON, District Judge. This is an action brought under 42 U.S.C. § 1983, by Barry Armstrong and Kim Armstrong, for civil rights violation, and under pendant jurisdiction for common-law torts and violation of Mass.Gen.L. ch. 12 § 111. This action, filed July 14, 1994, arises out of the alleged sexual abuse of Barry Armstrong in the 1970s, when he was a teenage student at Higgins Junior High School in Peabody, Massachusetts. Defendant Michael Lamy, a music teacher at the Higgins Junior High School, allegedly had sexual contact with Barry Armstrong on school property, at Lamy’s residence, and in a vehicle operated by Michael Lamy. Plaintiff Barry Armstrong and his wife Kim Armstrong have brought a complaint containing 29 counts, including Kim Armstrong’s claim against each defendant for loss of consortium. Plaintiffs allege one or more counts against each of 15 defendants. For convenience of reference, the claims are grouped as follows: (1) The plaintiffs have brought a federal claim under 42 U.S.C. § 1983, a Massachusetts Civil Rights Act (“MCRA”) claim under Mass.GemL. ch. 12 § 111, and common-law tort claims of negligence and loss of consortium against Edward O’Connor (Principal of Higgins Junior High School), Robert Ireland (Superintendent of the Peabody School System), seven members of the Peabody School Committee, and the City of Peabody. Collectively, these defendants are referred to here as the “Municipal Defendants.” (2) The plaintiffs have also brought an MCRA claim and common-law tort claims of negligence, negligent and intentional infliction of emotional distress, and loss of consortium against Michael Lamy’s siblings, Thomas Lamy, Philip Lamy, and Catherine (Lamy) Puzzo, as well as against Thomas Lamy in his capacity as executor of the estate of Cecilia Lamy (Michael Lamy’s mother). Collectively, these defendants are referred to here as the “Lamy Family Defendants.” (3) Finally, the plaintiffs have brought an MCRA claim and common-law tort claims of negligence, negligent and intentional infliction of emotional distress, assault, battery, and loss of consortium against defendant Michael Lamy. Now pending before this court are motions for summary judgment for all defendants on all claims. For convenience, a Table of Organization of this Opinion is presented below. I. Summary Judgment Standard.............................................1027 II. Factual Background......................................................1027 A. Facts relating to the alleged sexual contact between Barry Armstrong and Michael Lamy.................................................1028 B. Facts relating to the Statute of Limitation...............................1028 C. Facts relating to Municipal Defendants.................................1029 D. Facts relating to Lamy Family Defendants..............................1030 III. Section 1983 Claim Against Municipal Defendants............................1031 A. Statute of Limitation Applied to § 1983 Claim...........................1031 B. Supervisory Liability.................................................1033 C. Municipal Liability...................................................1035 (1) Liability for Failure to Supervise...................................1035 (2) Liability for Inadequate Hiring Policy................................1036 (3) Liability for Failure to Train.......................................1036 IV. Supplemental Jurisdiction Over State Law Claims............................1037 V. Statute of Limitation Applied to State Law Claims...........................1037 VI. Massachusetts Civil Rights Act Claim Against Municipal Defendants...........1041 VII. Common-Law Tort Claims Against Municipal Defendants.....................1042 A. Common-Law Tort Claims Against Municipal Defendants Individually____1042 B. Common-Law Tort Claims Against the City of Peabody...................1043 (1) Massachusetts Tort Claims Act Protections Against Accountability____1043 (2) Municipal Liability for Alleged Negligent Acts of Public Employees other than Michael Lamy........................................1043 (3) Municipal Liability for Michael Lamy’s Alleged Negligent Acts.........1044 (4) Municipal Liability for Negligent Hiring.............................1045 C. Loss of Consortium Claim Against Municipal Defendants .................1046 VIII. Common-Law Tort Claims Against the Lamy Family Defendants..............1046 A Legal Duty of Family Members........................................1046 B. Negligence Claims Against Lamy Family Defendants.....................1048 C. Claims Against Lamy Family Defendants for Intentional Infliction of Emotional Distress.................................................1049 D. Loss of Consortium Claim Against Lamy Family Defendants..............1049 IX. Claims Against Michael Lamy.............................................1050 A Jurisdictional Issues..................................................1050 B. Claims Asserted.....................................................1050 C. Michael Lamy’s Motion for Summary Judgment.........................1050 (1) Statute of Limitation..............................................1050 (2) Loss of Consortium Claim Against Michael Lamy.....................1050 X. Conclusion..............................................................1051 XI. Interlocutory Order......................................................1052 I. Summary Judgment Standard Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is appropriate, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). To survive the motion, the nonmoving party need only present evidence from which a jury might return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Where, as here, the moving party does not have the burden of proof at trial, that party nevertheless must make a showing, by “pointing out to the district court,” that the evidence is insufficient to support the nonmoving party’s ease. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. Once this showing has been made, it is up to the nonmoving party to proffer sufficient competent evidence to establish the existence of a genuine issue of material fact. United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992). “Genuine” means that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a “material fact” is one that “might affect the outcome of the suit under governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. On issues where the nonmovant bears the burden of proof, he or she must present definite, competent evidence to rebut the motion. Id. at 256-57, 106 S.Ct. at 2514-15. II. Factual Background This statement of the factual background recites facts as disclosed by the record before the court, viewed, for the purposes of summary judgment, in the light most favorable to the plaintiffs. A. Facts relating to the alleged sexual contact between Barry Armstrong and Michael Lamy Plaintiff Barry Armstrong was born on June 24, 1960. From 1972 through 1975, from age 12 through age 15, Barry Armstrong was a student attending seventh grade through ninth grade at the Higgins Junior High School, in Peabody, Massachusetts. Defendant Michael Lamy was employed by the City of Peabody as a music teacher at the Higgins Junior High School from 1971 to 1976. In the fall of 1972, when Barry Armstrong was a 12-year-old student in the seventh grade, he first met Michael Lamy. Throughout the time that Barry Armstrong was in junior high school, he participated and performed in school plays that were directed by Michael Lamy. From 1972 through 1975, Barry Armstrong saw Michael Lamy on almost a daily basis. They were often alone together at school and on the school’s premises. In addition, during this time period, Michael Lamy invited Barry Armstrong to sleep over at the Lamy Family residence after school hours and on weekends. From approximately December, 1973 through March, 1975, a sixteen-month period, defendant Michael Lamy allegedly had sexual contact with plaintiff Barry Armstrong. The sexual contact between Barry Armstrong and Michael Lamy occurred at various locations including the Lamy Family residence on Drury Lane in Danvers, at the Higgins Junior High School in Peabody, in an automobile operated by Defendant Michael Lamy, and on camping trips in New Hampshire and other outings with Michael Lamy. Defendant Michael Lamy’s sexual contact with Barry Armstrong allegedly included fondling Armstrong’s genitals, causing Armstrong to fondle Michael Lamy’s genitals, performing fellatio on Armstrong, and causing Armstrong to perform fellatio on Michael Lamy. On at least two occasions, Michael Lamy attempted to have anal intercourse with Barry Armstrong, but Barry Armstrong turned his body, moved away and did not let this happen. Michael Lamy also attempted to kiss Barry Armstrong’s face, but Barry Armstrong turned his face away and did not let this happen. Michael Lamy also caused Barry Armstrong to drink beer, and the attempts at anal intercourse were at times when Barry Armstrong was intoxicated. B. Facts relating to statute of limitation Barry Armstrong has stated that, at the time the alleged sexual contact was occurring, it did not upset him or bother him, because he “really had no sexual contact at thirteen, [so he] had nothing to compare it to.” He stated that he “enjoyed the attention” from Michael Lamy, and “enjoyed [the sexual contact] somewhat.” He stated that on the first occasion of sexual contact he was “a little nervous,” and “scared,” because the sexual contact was “new” and “different.” After the first occasion, the sexual contact became “routine.” He stated that, later on, he felt “uncomfortable” when Michael Lamy attempted anal intercourse with him and attempted to kiss him on the face. Barry Armstrong has also stated that he felt “sore” for a day after the alleged attempts at intercourse, and may have experienced physical pain when Michael Lamy squeezed his arm. During the time period of the alleged sexual contact, Barry Armstrong remembers “not sleeping well,” especially when he slept over at Michael Lamy’s house. At the time of the sexual contact, Barry Armstrong “admired” Michael Lamy, and considered him his “mentor.” Barry Armstrong’s parents “liked” and “looked up to” Michael Lamy. Barry Armstrong’s parents always gave their permission for Barry Armstrong to stay over at Michael Lamy’s home, and never questioned why Michael Lamy invited him. A dispute exists among the parties as to whether Barry Armstrong forgot or repressed his memories of the alleged sexual contact between the time of the sexual contact in 1973 to 1975 and October 1992. Defendants point out that Barry Armstrong has made a number of shifting and contradictory statements during his deposition; he has testified both that he remembered the sexual contact over time and that he repressed memories of the sexual contact over time. In his deposition Barry Armstrong at first testified that he repressed all memory of the alleged sexual contact ■within months after it stopped, and had no memories of the alleged sexual contact until the fall of 1992 when he saw his son in a play in the first grade. Later in the deposition, however, Barry Armstrong stated that the sexual contact was “something he lived with” and was always “back in [his] mind.” At one point in the deposition, Barry Armstrong stated that he remembered the sexual contact over time, but not as “vividly” as he did after his son was in the play at school. Further he testified that he “may have been somewhat aware of the [sexual contact]” over time. He acknowledged that he may have told two of his friends “something to the effect that” the sexual contact “was always in the back of [his] mind.” In September of 1991, Barry Armstrong began to suffer and continues to suffer post-traumatic stress disorder, paranoia, insomnia, headaches, nightmares, appetite loss, dysthymia, stomach aches, inability to concentrate, depression, lack of trust, extreme mental distress, and emotional harm. He has experienced suicidal ideation, for which he was hospitalized for several days in August and September 1995. It is undisputed by the parties, for the purposes of summary judgment, that Barry Armstrong did not and was not able to connect the earlier sexual contact with these later severe psychological and physical manifestations until October of 1992, when he went to see his son perform in a school play. C. Facts relating to Municipal Defendants Robert Ireland was the Superintendent of the Peabody School System from March 1972 to June 1988. Edward O’Connor was the principal of the Higgins Junior High School between 1970 and 1981. David Hallinan, Walter Roche, Margaret McBreen, Edward Dullea, Jr., and Raymond Potter, all served as members of the Peabody School Committee during the time Barry Armstrong was a student at the Higgins Junior High School. Nicholas Mavroules served as a mayor for the City of Peabody between 1968 and 1978 and served as Chairman Ex-Officio of the Peabody School Committee during this time by virtue of his position as mayor. Defendant Michael Lamy served as a music teacher at the Higgins Junior High School from 1971 to 1976. Before he was offered this position, Lamy provided a transcript and references, including a reference from the former Dean or Director of the Music Education Department at the Boston Conservatory of Music, where Lamy had graduated in 1971 with a Bachelor of Science Degree in music education. During his year at the Conservatory, Lamy served as a student assistant in the Peabody School System, during which time a full-time position became available. At no time before he took the position or during his service as a teacher did Lamy have any type of criminal or arrest record. No evidence has been proffered of any previous sexual misconduct by Michael Lamy before the alleged sexual contact with Barry Armstrong. Only two instances of sexual contact between Barry Armstrong and Michael Lamy are alleged to have occurred at the Higgins Junior High School. Barry Armstrong was not sure when the two contacts at the High School occurred other than sometime during 1973, 1974, or 1975. No evidence has been proffered of any other sexual contact between Michael Lamy and Barry Armstrong at the Higgins Junior High School or any other school property or facility at any time. All other sexual contact with Michael Lamy alleged by Barry Armstrong is asserted to have taken place when he slept over at the Lamy Family home, or on certain camping trips, or in Michael Lamy’s ear. None of the camping trips or sleep-overs at the Lamy Family home was a school-sponsored event. As to the two alleged instances of sexual contact at the Higgins Junior High School, the first occurred during an after-school rehearsal behind the stage. Michael Lamy allegedly “initiated some fondling ..., and just as soon as we started ... we heard somebody jiggling ... keys and coming in.” Barry Armstrong did not see or know who the person was. The second alleged incident occurred on a Saturday or Sunday when Barry Armstrong went to pick up an amplifier in one of the practice rooms. Some fondling took place, but when they heard someone say something, the fondling stopped. Barry Armstrong does not know who the person was, what he or she said, or whether he or she saw anything. On three to four occasions, Barry Armstrong came to school late with Michael Lamy, and as they came through the main door of the school, Edward O’Connor and Michael Lamy acknowledged each other in Barry Armstrong’s presence. Barry Armstrong has proffered no other evidence that any of the individual Municipal Defendants had any knowledge of the alleged sexual contact between Barry Armstrong and Michael Lamy. Barry Armstrong never told any school official of the alleged sexual contact with Michael Lamy. During her first month as a School Committee member, Margaret McBreen requested that the School Committee purchase a film called “Beware of the Friendly Strangers,” to be shown to elementary school children. The film was never shown at the Higgins Junior High School and the principal, Mr. O’Connor, never heard of the film and never assembled students to see such a film. Although Ms. McBreen was aware of several problems of sexual molestation of school children in Massachusetts and throughout the nation, she was not aware of any acts or complaints of sexual misconduct of any Peabody School teachers at that time. Barry Armstrong has presented no other facts to indicate that the municipal defendants were aware of any problems of sexual abuse of students at the Higgins Junior High School. At the Higgins Junior High School, no written policies existed regarding a discipline code for teachers. No written manuals or guidelines defined appropriate teacher conduct or proper student-teacher relationships. No rules or regulations prohibited teachers from having students sleep over at their homes. Mary Sultzer, a student at the same time as Barry Armstrong, stated in her affidavit (Docket No. 44, Ex. 11) that “the environment at the Higgins Junior High School was like a ‘zoo’ in that there was little discipline of students and [that] some of the teachers [including Lamy] freely fraternize[d] with the students both during and after school hours,” that “neither the teachers nor the administrators did anything to control this loose atmosphere,” and that “both the students and many of the teachers were given too much freedom to do as they wished.” D. Facts relating to Lamy Family Defendants During the time period of the alleged sexual contact, Michael Lamy, Philip Lamy and Thomas Lamy, as well as Cecilia Lamy, her husband and other Lamy siblings, lived in the Lamy Family home. Catherine (Lamy) Puzzo did not five in the Lamy Family home during this time period, but visited on occasional weekends. Barry Armstrong stayed overnight at the Lamy family home during the time period of the alleged sexual contact approximately 20 to 30 times. Barry Armstrong stayed at the Lamy family home to visit Michael Lamy and at Michael Lamy’s invitation, and none of the other Lamy Family Defendants ever invited him to stay over. On the occasions when he slept over at the Lamy family home, Barry Armstrong usually slept in Michael Lamy’s bedroom, at Michael Lamy’s invitation, and the alleged sexual contact occurred in Michael Lamy’s bedroom behind closed doors. On one or two occasions, Barry Armstrong slept downstairs in the family room rather than in Michael’s bedroom because he was “nervous” and did not want the other Lamy family members to see him go into Michael Lamy’s bedroom. Barry Armstrong tried to keep the sexual contact hidden from the other Lamy family members. To Barry Armstrong’s knowledge, no Lamy family member ever saw him enter or leave Michael’s bedroom. Although he occasionally drank liquor and smoked marijuana in the Lamy Family home, Barry Armstrong proffers no evidence that any Lamy Family member (other then Michael) was aware of these activities. Barry Armstrong does not recall Cecilia Lamy or Catherine (Lamy) Puzzo making any comments to suggest that they were aware of the sleeping arrangements or aware of any alleged sexual contact. Philip Lamy and Thomas Lamy allegedly made three statements that Barry Armstrong claims suggest that they knew of the alleged sexual contact. Barry Armstrong believes that the first comment, calling him “Michael’s little boy,” was made in 1976, after he had joined a band with Philip and Thomas Lamy called the Lamy Brothers Band. The second comment, also calling him “Michael’s little boy,” was made at the Eagle Mountain Lodge in New Hampshire in 1978. On a third occasion, while Barry Armstrong was at the Eagle Mountain Lodge, Thomas and Philip teased him about a gay hotel employee liking him. Each of these three comments was made between one year and three years after the alleged sexual contact had stopped in 1975. Although Barry Armstrong played in a band with Philip and Thomas Lamy for many years following the sexual contact with Michael Lamy, these three comments are the only comments upon which Barry Armstrong relies to show that Philip and Thomas Lamy had knowledge of the sexual contact between Barry Armstrong and Michael Lamy. No Lamy Family Defendant has ever told Barry Armstrong that he or she knew about the alleged sexual contact. Barry Armstrong never told any Lamy Family Defendant of the alleged sexual contact with Michael Lamy. III. The 42 U.S.C. § 1983 Claim (Count 28) Plaintiff Barry Armstrong alleges a claim under 42 U.S.C. § 1983 against the principal, the superintendent of schools, seven members of the school committee, and the City of Peabody (collectively, the “Municipal Defendants”). Barry Armstrong has not brought a § 1983 claim against the teacher, Michael Lamy. Plaintiff Barry Armstrong bases his § 1983 claim on the assertion that the Municipal Defendants violated his constitutional right to be free from sexual abuse by his school teacher. Although neither the First Circuit nor the Supreme Court has spoken on the matter, I note that the Third and the Fifth Circuits have held that such a eonstitutional right exists. See Doe v. Taylor Independent School Dist., 15 F.3d 443, 445 (5th Cir.1994) (en banc) (holding that “schoolchildren do have a liberty interest in their bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment and that physical sexual abuse by a school employee violates that right”), cert. denied sub nom, Lankford v. Doe, — U.S. -, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994); Stoneking v. Bradford Area School Dist., 882 F.2d 720, 727 (3rd Cir.1989) (student’s “right to bodily integrity under the Due Process Clause [encompasses] a student’s right to be free from sexual assaults by his or her teachers,” distinguishing DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) because “DeShaney’s injuries resulted at the hands of a private actor, whereas Stoneking’s resulted from the actions of a state employee.”), cert. denied sub nom Smith v. Stoneking, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990). For purposes of deciding the motions now pending, I will assume, without deciding, that Barry Armstrong had a constitutional right to be protected from sexual abuse by his school teacher, and that his right was clearly established in law by the dates in question. The issues to be decided concern whether plaintiffs have proffered sufficient evidence to establish that one or more of the Municipal Defendants may be held liable for violation of Barry Armstrong’s constitutional right. I need not discuss whether the teacher, Michael Lamy, may be held liable for violation of Barry Armstrong’s constitutional right, because no § 1983 claim has been brought against the teacher himself. A. Statute of Limitation Applied to § 1983 Claim In Wilson v. Garcia, 471 U.S. 261, 278, 105 S.Ct. 1938, 1948, 85 L.Ed.2d 254 (1985), the Supreme Court held that courts entertaining claims brought under § 1983 should borrow state statutes of limitation for personal injury actions. In Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989), the Supreme Court modified the rule to require courts to borrow the general or residual statute for personal injury actions when the forum state provides multiple statutes of limitation for personal injury actions. Under Mass.Gen.L. ch. 260 § 2A, “actions of tort ... shall be commenced only within three years next after the cause of action accrues.” The three-year period of limitation prescribed in Mass.Gen.L. ch. 260 § 2A governs these § 1983 claims. Federal law applicable to § 1983 claims also borrows from state law the state’s principles for tolling the limitation period. Board of Regents of University of State of N.Y. v. Tomanio, 446 U.S. 478, 483-86, 100 S.Ct. 1790, 1794-96, 64 L.Ed.2d 440 (1980). Under Mass.Gen.L. ch. 260 § 7, “if the per son entitled thereto is a minor ... when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed.” Thus, in this case, if Barry Armstrong’s claim accrued when he was a minor, the commencement of the three-year period would be deferred until he turned 18 years of age. See e.g. Tindol v. Boston Housing Authority, 396 Mass. 515, 487 N.E.2d 488 (1986) (if person is minor when cause of action first accrues, action may be brought within time fixed, in appropriate state statute of limitation, from the time minor reaches legal age). The question before this court is whether Barry Armstrong brought his § 1983 claims within the three-year-period of limitation prescribed by Massachusetts law. The dispute focuses on when the three years began to run, which is also referred to as the time the claim accrued. Although the applicable limitation period is determined as a matter of state law, the accrual date of a § 1983 action is determined as a matter of federal law. Lafont-Rivera v. Soler-Zapata, 984 F.2d 1, 2-3 (1st Cir.1993); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir.1992); Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n. 5 (1st Cir.1990). Under the federal “discovery rule,” § 1983 claims accrue when the plaintiff “knows or has reason to know of the injury which is the basis of the cause of action.” Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir.1995). See also Attallah v. United States, 955 F.2d 776, 780 (1st Cir.1992) (“Where the injury and its cause are not immediately apparent, accrual of the cause of action occurs at the time the injury is discovered or when a claimant in exercise of reasonable diligence could have discovered it,” citing United States v. Kubrick 444 U.S. 111, 121-25, 100 S.Ct. 352, 359-61, 62 L.Ed.2d 259 (1979) (discovery rule under Federal Tort Claims Act)); Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980) (in § 1983 action, “until the plaintiff is in possession of the ‘critical facts that he has been hurt and who has inflicted the injury,’ ... the statute of limitations does not commence to run,” citing Kubrick, 444 U.S. at 122, 100 S.Ct. at 359). If Barry Armstrong’s § 1983 claim were against the alleged abuser based on the abusers’ injury to his constitutional rights, the question regarding when Barry Armstrong knew or had reason to know of his injury under the federal discovery rule would be somewhat different from the question before this court now. The theory of Barry Armstrong’s § 1983 claim against the Municipal Defendants is not that Barry Armstrong was sexually abused by any person among the Municipal Defendants, but that the Municipal Defendants created the circumstances under which another person, a teacher, sexually abused him. In other words, Barry Armstrong’s § 1983 claim against the Municipal Defendants is that, if the Municipal Defendants had taken action to prevent teachers from abusing students, Michael Lamy would not have abused Barry Armstrong. The Municipal Defendants are liable, argue the plaintiffs, because they proximately caused the injury and violation of Barry Armstrong’s constitutional rights, by failing to supervise and control Michael Lamy and by promulgating policies that permitted sexual abuse to flourish within the school system. In the context of school sexual abuse cases, several district courts in other jurisdictions have held that the date the claim accrued against school officials was different from the date the claim accrued against the alleged abuser, because a plaintiff could not reasonably be expected to know that the conduct of the school officials was a cause of the injury and violation of his or her constitutional rights. See Doe v. Board of Educ. of Hononegah Community High School Dist. No. 207, 833 F.Supp. 1366 (N.D.Ill.1993) (in § 1983 school sexual abuse case, motion to dismiss by school administrators on statute of limitation grounds was denied, because a minor student could not reasonably be expected to discover that the school administrators had caused her constitutional rights to be violated through their promulgation of policies that allowed sexual abuse to flourish, especially where plaintiff alleged that administrators concealed teacher’s sexual misconduct of other students); Doe v. Paukstat, 863 F.Supp. 884 (E.D.Wis.1994) (in § 1983 school sexual abuse case against teacher and school district, summary judgment against the school district on the statute of limitation issue was denied where issues of disputed fact existed as to when student knew that she was injured by the school district’s conduct of promulgating policies that fostered child abuse); Sowers v. Bradford Area School Dist., 694 F.Supp. 125 (W.D.Pa.1988), aff'd, 869 F.2d 591 (3rd Cir.1989), judgment vacated on other grounds, sub nom Smith v. Sowers, 490 U.S. 1002, 109 S.Ct. 1634, 104 L.Ed.2d 150 (1989) (in § 1983 school sexual abuse case, motion to dismiss on statute of limitation grounds was denied, where further discovery and factual development was necessary in order to determine whether the plaintiff student knew or should have known that the school district, superintendent, principal, and assistant principal had fostered an environment of deliberate indifference toward teacher abuse of female students, and that such deliberate indifference was a proximate cause of the student’s injury). As in Board of Educ. of Hononegah Community High School Dish No. 207, Paukstat, and Sowers, the evidence in this case does not indicate the date on which the plaintiff knew, or should have known, that the alleged acts and omissions on the part of the Municipal Defendants were a proximate cause of his injury, even assuming that he knew he had been injured by Michael Lamy. I conclude that summary judgment as to the § 1983 claim is not appropriate on the issue of the statute of limitation. I therefore move on to the merits of that claim. B. Supervisory Liability Barry Armstrong has also asserted § 1983 claims against each of the individual Municipal Defendants in his or her individual capacity. A superior officer cannot be held vicariously liable under § 1983 on a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). A supervisory official may, however, be held liable under § 1983 on the basis of his or her own acts or omissions. Bowen v. City of Manchester, 966 F.2d 13, 20 (1st Cir.1992). To succeed on any such claim of supervisory liability, a plaintiff must show deliberate or callous indifference to the constitutional rights of others and an “affirmative link” between “street-level misconduct and the action, or inaction, of the supervisory officials.” Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.1989). Thus, to support a supervisory liability claim, plaintiffs must connect the supervisor’s conduct to the subordinate’s violative act or omission. Maldonado-Denis, 23 F.3d at 581. The Fifth Circuit has held that a supervisory school official can be held personally liable for a subordinate’s sexual abuse of a student, if the student establishes that: (1) the defendant learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; and (2) the defendant demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and (3) that such failure [was a cause of] injury to the student [of constitutional dimension]. Doe v. Taylor Independent School Dist., 15 F.3d at 451. The Eighth and Tenth Circuits have formulated a somewhat different legal test, holding that school officials are subject to personal liability under § 1983 if: (a) the school officials (1) received notice of a pattern of unconstitutional acts of sexual abuse committed by subordinates, and (2) demonstrated deliberate indifference to or tacit authorization of the offensive acts, and (3) failed to take sufficient remedial action, and (b) their failure was a proximate cause of injury to the student. Larson by Larson v. Miller, 76 F.3d 1446, 1453 (8th Cir.1996); Jane Doe “A” by and through Jane Doe “B” v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.1990); Gates v. Unified School Dist. No. 449 of Leavenworth County, Kan., 996 F.2d 1035, 1041 (10th Cir.1993). The Third Circuit has held that school officials may be held personally liable based upon “[tjheir own actions in adopting and maintaining a practice, custom or policy of reckless indifference to instances of known or suspected sexual abuse of students by teachers, in concealing complaints of abuse, and in discouraging students’ complaints about such conduct.” Stoneking, 882 F.2d at 724. In this case, I conclude that the plaintiffs have not proffered sufficient evidence to support a finding against any of the individual Municipal Defendants under any of the formulations of the legal test stated above. Plaintiffs have proffered no evidence that any of the Municipal Defendants “learned of facts ... pointing plainly to the conclusion that [a] subordinate was sexually abusing [a] student.” The fact that Michael Lamy walked in late on several occasions with Barry Armstrong past Principal O’Con-nor’s office and “acknowledged” Principal O’Connor is not enough to support a reasoned inference that Principal O’Connor knew that Michael Lamy and Barry Armstrong were engaging in sexual contact. Plaintiffs have proffered no evidence that any of the individual Municipal Defendants “received notice of a pattern” of sexual abuse. The assertion that the atmosphere at the Higgins Junior High School was like a “zoo” and that teachers and students “fraternized” is not enough to support a reasoned inference that any of the Municipal Defendants knew or should have known that any teacher was engaging in a pattern of sexually abusing students. Aside from two occasions on which Lamy and Armstrong are alleged to have engaged in secretive sexual contact on school grounds, all of the sexual contact is alleged to have occurred off of school property, either in Lamy’s home, or in his car. Plaintiff has presented no evidence of complaints of sexual abuse by Barry Armstrong or any student, upon which any of the Municipal Defendants were called to take remedial action. Plaintiffs have presented no evidence that any of the Municipal Defendants concealed or discouraged complaints. Courts that have allowed plaintiffs to maintain claims against school supervisory officials individually have required plaintiffs to proffer substantial evidence indicating deliberate indifference, far more than plaintiffs have proffered here. In Doe v. Taylor Independent School Dist., 15 F.3d at 446, 456-57, the court denied summary judgment as to the personal liability of a school principal, where “it was no secret within the school community that [the teacher] behaved inappropriately toward a number of young female students,” and the principal had received “a clear signal” of the sexual relationship when he received complaints about specific inappropriate sexual behavior on the part of the teacher toward specific students and had previously cautioned the teacher about specific acts. Likewise, in Stoneking, 882 F.2d 720, summary judgment was denied as to the personal liability of two supervisory officials who had received, repressed and concealed at least five complaints between 1978 and 1982, concerning sexual assaults of female students by teachers and/or staff members. Courts have not allowed plaintiffs to maintain claims against school supervisory officials individually without evidence of deliberate indifference. For example, in Stoneking, 882 F.2d at 731, the court granted summary judgment for the school superintendent individually, where it was not possible to discern from the record any affirmative acts by the superintendent on which plaintiff could base a claim of toleration, condonation or encouragement of sexual abuse by teachers. In short, nothing in the record would support a reasoned finding that any of the individual Municipal Defendants knew of the alleged sexual abuse of Barry Armstrong or any other student, or was deliberately indifferent to Barry Armstrong’s constitutional rights. I conclude that Principal Edward O’Connor, Superintendent Robert Ireland, and the seven members of the Peabody School Committee, individually, are each entitled to summary judgment as to the § 1983 claim in Count 28. C. Municipal Liability Plaintiffs have asserted § 1983 claims against the City of Peabody and against each of the individual Municipal Defendants in his or her official capacity. A suit against an officer in his or her official capacity is simply another way of suing the public entity that the official represents. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361, 116 L.Ed.2d 301 (1991). A municipality cannot be held liable for a purported constitutional civil rights violation under ordinarily applicable principles of either vicarious liability or respondeat superior. City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1202, 103 L.Ed.2d 412 (1989); Monell v. Department of Social Services of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). In order to establish municipal liability under § 1983, a plaintiff must establish that a municipal policy or custom was a cause of the alleged constitutional violation. Manarite by and through Manarite v. City of Springfield, 957 F.2d 953, 958 (1st Cir.1992), cert. denied 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70 (1992). To establish a claim against a municipality on the basis of custom, a plaintiff must prove a practice so “permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Monell, 436 U.S. at 691, 98 S.Ct. at 2036; quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Only when the implementation of the municipality’s policy or custom is a cause of the injury may the municipality be hable under § 1983. Canton, 489 U.S. at 385, 109 S.Ct. at 1202. A plaintiff must show “a direct link between the municipality’s policy and the constitutional violation.” Bowen, 966 F.2d at 18. Only those municipal officials who have “final policymaking authority” may by their actions subject the municipality to § 1983 liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986). Whether a particular official has “final policymaking authority” is a question of state law to be resolved by the trial judge. City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988); Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989). Under Massachusetts law, the school committee in each city, town and regional school district is responsible for “establish[ing] educational goals and policies for the schools in the district consistent with the requirements of law and statewide goals and standards established by the board of education.” Mass. Gen.L. ch. 71 § 37. See also McDuffy v. Secretary of Executive Office of Educ., 415 Mass. 545, 615 N.E.2d 516, 549 (1993) (“general charge” of the public schools in each town, city, or regional school district is assigned to a locally elected school committee in each community). (1) Liability for failure to supervise A local governmental entity can be found liable under § 1983 for a governmental custom of failing to supervise its employees to prevent or stop sexual misconduct, if the plaintiff proves both the existence of the official custom and that the custom was a cause of the claimed harm. Precedents support a statement of the applicable legal test as one requiring a plaintiff to show: (1) that the governmental entity’s employees engaged in a continuing, widespread, persistent pattern of conduct in violation of the constitutional standard, (2) that the governmental entity’s policy-making officials, after having notice of the misconduct, remained deliberately indifferent to or tacitly authorized continuation of that misconduct, and (3) that the plaintiff was injured by continued misconduct within the persistent pattern, thus showing that the custom was a moving force behind the violation of the constitutional standard. See Gates, 996 F.2d at 1041; Larson, 76 F.3d at 1453; Thelma D. by and through Delores A. v. Board of Educ. of City of St. Louis, 934 F.2d 929, 932 (8th Cir.1991); Jane Doe “A” v. Special School Dist. of St. Louis County, 901 F.2d at 646. Plaintiffs have not proffered evidence sufficient to satisfy this legal test. As noted previously, aside from two occasions on which Lamy and Armstrong are alleged to have engaged in secretive sexual contact on school grounds, all of the sexual contact is alleged to have occurred off of school property, either in Lamy’s home, or in his car. No other students are alleged to have engaged in sexual conduct with Michael Lamy or any other teacher. There is no evidence of the existence of any “continuing, widespread, persistent pattern” of sexual abuse by subordinates. Plaintiffs have presented no evidence that the school committee (as the officials with final policymaking authority) showed “deliberate indifference to” sexual contact or manifested tacit authorization of such misconduct after notice that it was occurring, because plaintiffs have presented no evidence that the school committee, or indeed any school supervisory official, knew of the alleged sexual contact between Barry Armstrong and Michael Lamy or any other students or teachers. They have presented no evidence of any complaints made to any school supervisory official by Barry Armstrong or any other person. (2) Liability for inadequate hiring policy To prove that a hiring policy violated his rights, Barry Armstrong must show that (1) the hiring procedures were inadequate; (2) the school officials were deliberately indifferent in adopting the hiring policy; and (3) the inadequate hiring policy was a cause of his injury. Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.1992), cert. denied, 506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). An example of a successful claim appears in Doe v. Hillsboro Independent School Dist., 81 F.3d 1395, 1402 (5th Cir.1996). The court in Hillsboro held that the school officials’ hiring policies and procedures were inadequate and caused violation of a student’s constitutional rights when she was raped by a school custodian, after officials had failed to investigate criminal records of prospective employees, and had employed a school staff of which one third were convicted criminals. Barry Armstrong has not met this burden. He has presented no evidence that the school’s hiring policy had anything to do with Michael Lamy’s alleged abuse of Barry Armstrong. The evidence is that Michael Lamy had no criminal record, and no record of complaints of sexual abuse, at the time he was hired to work at the Higgins Junior High School. (3) Liability for failure to train Failure to train may be a basis for municipal liability, but only if the failure to train reflects a “deliberate” or “conscious” choice by the municipality. Canton, 489 U.S. at 389, 109 S.Ct. at 1205. To establish liability of a local governmental entity under § 1983, for failure to adequately train employees to report and to prevent sexual abuse of students, a plaintiff must prove that the entity’s failure to train its employees in a relevant respect evidenced deliberate indifference to rights of students. One avenue for asserting a failure-to-train claim is to show a pattern of constitutional violations that puts the municipality on notice that its employees’ responses to a regularly recurring situation are insufficient to measure up to the constitutional standard for protection of persons in the municipality. Canton, 489 U.S. at 397, 109 S.Ct. at 1209. As explained previously, plaintiffs have provided no evidence that the school committee, or any other school supervisory official, had either actual or constructive notice of the inadequacy of its training program and then failed to take remedial steps. Notice of a pattern of behavior in violation of the constitutional standard need not be shown to render a governmental entity liable under § 1983 for failure to train employees, however, if “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Canton, 489 U.S. at 390, 109 S.Ct. at 1205. For example, in Canton, the Court noted that because police officers are armed by a municipality and the officers are certain to be required on occasion to use force in apprehending felons, “the need to train officers in the constitutional limitations on the use of deadly force can be said to be ‘so obvious,’ that failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights.” Id. at 390, n. 10, 109 S.Ct. at 1205, n. 10 (citation omitted). The evidence in this case does not compare favorably with the example recited in Canton. Even if it were assumed that some need for training regarding sexual abuse or fraternization would have been obvious to ordinarily prudent school officials in the mid-1970’s, plaintiffs have not proffered any evidence to support a finding that any purported failure to train teachers regarding sexual abuse or fraternization was a cause of injury to Barry Armstrong. A plaintiff must show that there is a causal link between the municipality’s policy and the alleged violation. Bowen, 966 F.2d at 18. I conclude that the City of Peabody and all of the Municipal Defendants in their official capacities, are entitled to summary judgment as to the § 1983 claim in Count 28. IV. Supplemental Jurisdiction over State Law Claims In the absence of a valid § 1983 claim, at this point, plaintiffs can claim no independent basis for federal jurisdiction against the defendants. Plaintiffs cannot, at this point, claim diversity of citizenship under 28 U.S.C. § 1332(a)(1), because all of the Municipal Defendants and at least one of the Lamy Family Defendants are Massachusetts domiciliaries. Complete diversity cannot be shown. This court may, however, exercise discretionary supplemental jurisdiction to decide the remaining state law claims under 28 U.S.C. § 1367(c)(3). It provides: The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if ... the district court has dismissed all claims over which it has original jurisdiction ... In deciding whether to retain jurisdiction over lingering state-law claims, the court must take into account “concerns of comity, judicial economy, convenience, fairness, and the like.” Roche v. John Hancock Mutual Life Insurance Company, 81 F.3d 249, 257 (1st Cir.1996). Dismissal may be appropriate if the federal-question claim is eliminated early in the proceedings. Martinez v. Colon, 54 F.3d 980, 990 (1st Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 515, 133 L.Ed.2d 423 (1995). In an appropriate situation, however, a federal court may retain jurisdiction over state-law claims “notwithstanding the early demise of all foundational federal claims.” Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995). In this case, as in Roche, 81 F.3d at 257, the litigation has matured, discovery has been extensive, the summary judgment record is complete, and interests in both judicial economy and fairness all weigh in favor of this court’s exercising discretion to retain jurisdiction over plaintiffs’ remaining state-law claims. I proceed to analyze the state law claims. V. Statute of Limitation Applied ■ to State Law Claims The remaining claims in the case are all state-law claims. Each of these state-law claims depends upon legal and factual issues bearing upon the application of a statute of limitation under Massachusetts law. As explained in Part III.A, under Massachusetts law, the limitation period for a cause of action for tortious conduct is three years from the date the action accrues. Mass. Gen.L. eh. 260 § 2A. If the plaintiff is a minor when the action accrues, the commeneement of the limitation period is deferred until the age of majority. Mass. Gen.L. eh. 260 § 7. The question now before this court is whether plaintiffs brought their state tort claims within the three-year limitation period prescribed by Massachusetts law. The dispute once again focuses on when the three years began to run, or, as commonly phrased, when the claim accrued. Plaintiffs argue that the cause of action did not accrue and the three-year period did not commence to run until Barry Armstrong, in his own mind, in October 1992, made the causal connection between the earlier sexual contact and his later severe psychological and physical manifestations. Thus, they argue, plaintiffs’ filing in July, 1994 was timely. Defendants, on the other hand, contend that the cause of action accrued at the time of the sexual contact when Barry Armstrong was a minor, that tolling was in effect until he reached age 18, and that the three-year limitation period ended when he reached age 21, on June 24, 1981. On this basis, defendants argue that plaintiffs’ filing thirteen years later in July, 1994, was untimely. Under Massachusetts law, the court applies a “discovery rule,” under which the limitation period does not begin to run until the plaintiff has “(1) knowledge or sufficient notice that [he] was harmed and (2) knowledge or sufficient notice of what the cause of the harm was.” Bowen v. Eli Lilly & Co., 408 Mass. 204, 557 N.E.2d 739, 742 (1990). “One need not apprehend the full extent or nature of an injury in order for a cause of action to accrue.” Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780, 784 (1991), citing Olsen v. Bell Telephone Laboratories, Inc., 388 Mass. 171, 445 N.E.2d 609, 612 (1983) (cause of action accrues on discovery of any injury rather than on discovery that injury is permanent). The statute of limitation starts to run “when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury.” Bowen, 557 N.E.2d at 741. In Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780 (1991), the court addressed the applicability of the Massachusetts discovery rule in the context of sexual abuse. Riley involved a malpractice claim against a psychiatrist. Specifically, the plaintiff claimed that the psychiatrist committed malpractice when he introduced alcohol, marijuana, and sexual activity into the psychiatric sessions under the guise that these were legitimate treatment methods. Riley, 565 N.E.2d at 783. Riley was uncomfortable with the sexual activity and after the second or third incident refused to participate further. Id. Nonetheless, Riley apparently became totally dependent on the psychiatrist, stating the opinion that he might be “God.” The psychiatrist told Riley not to tell anyone of the nature of the therapy because it was “special” and the world would neither understand nor approve. Id. After the therapist abruptly ended the therapy, Riley began therapy with a new psychiatrist the following year, who told him that the first psychiatrist’s “treatment” was totally inappropriate. Riley, however, still did not realize until four years later, when he first met another former patient of the first psychiatrist, that there was a causal link between his psychological condition and the treatment he had received from the first psychiatrist. The trial court held that Riley’s claim was barred by the three-year statute of limitation. In analyzing the statute-of-limitation problem, the Supreme Judicial Court in Riley held the plaintiff to the standard of a reasonable person who has been subjected to the conduct that serves as the basis for the plaintiffs complaint: If ... an initially reasonable person would, by reason of the experience forming the basis for the plaintiffs complaint, have his or her judgment altered in some way, such altered judgment becomes the standard. The cause of action will not accrue until such an individual would have discovered the damage. In other words, if the defendant’s conduct would, in an ordinary reasonable person, cause an injury which by its very nature prevents the discovery of its cause, the action cannot be said to have accrued. The accrual of the cause of action occurs when the reasonable person who had been subject to the experience would have discovered that the injury was caused by that experience. Riley, 565 N.E.2d at 786. Finding that “an injury to the mind could interfere with the discovery of the cause of action,” and that a “reasonable fact finder ... could find that Riley did not make the causal link and that his failure to do so was reasonable,” id. at 786, the court held that summary judgment for the defendant psychiatrist had been improperly granted and reversed the trial court’s judgment. In this case, a dispute of fact exists as to whether and to what extent Barry Armstrong repressed his memory of the sexual contact, from the time of the sexual contact until he saw his son in a school play in October of 1992. I conclude, however, that this dispute is not material. Under the Massachusetts discovery rule, “The delayed knowledge may be either the fact of the injury ... or the cause of the injury.” Cambridge Plating Co., Inc. v. Napco, Inc., 991 F.2d 21, 25 (1st Cir.1993). In a “repressed memory” ease, the plaintiff lacks conscious memory of the sexual contact and therefore lacks current comprehension of the harm and its cause. See e.g. Hoult v. Hoult, 792 F.Supp. 143, 145 (D.Mass.1992) (summary judgment for defendant denied where plaintiff had no memory of sexual abuse until after the expiration of the statute of limitation). “Repressed memory,” however, is not necessary to overcome the statute-of-limitation bar under Massachusetts law. In Riley, the plaintiff always remembered the sexual contact and did not claim repressed memory. In a case not involving “repressed memory,” accrual of the action does not occur until a “reasonable person who had been subject to the experience would have discovered that injury was caused by that experience.” Riley, 565 N.E.2d at 786. Defendants have not shown the absence of a genuine dispute of material fact as to whether a reasonable person who was subjected to the experience of Barry Armstrong would have discovered that injury was caused by Michael Lam/s conduct. I conclude that in this case, as in Riley, a finder of facts could reasonably find that a reasonable thirteen-to-fifteen-year-old boy who has been “subjected to the condition that forms the basis for the plaintiff’s complaint,” might have his judgment altered by the defendant’s conduct. The defendant’s conduct could, in a reasonable thirteen-to-fifteen-year-old boy, cause an injury that by its very nature prevents the discovery of its cause. The proffered evidence in Barry Armstrong’s case is similar to that in Nault v. New England Annual Conference of the United Methodist Church, Suffolk County Superior Court, Commonwealth of Massachusetts, Civil Action No. 95-03457 (June 14, 1996) (Hinkle, J.) (Docket No. 76, Ex. B). In Nault, the court denied the defendants’ summary judgment motions in a case brought by a woman who was fourteen at the time she was sexually abused by a minister in her church. The court held that the record raised an issue of material fact as to when the plaintiff knew or should have known of her injury, where a finder of fact might find that at the time of the sexual abuse she was unaware of the wrongfulness of the sexual contact, considered the relationship with the minister to be a boyfriend-girlfriend relationship, and felt as though she was a “coconspirator” with her abuser. The plaintiff testified that she did not believe she had been harmed by the minister’s actions at the time, and that it was not until many years later that she experienced any emotional harm at all. Although the plaintiff was in therapy during and after the incidents of sexual abuse, the sexual abuse was never a focus of the therapy. The record was sufficient to support a finding that the plaintiff was unable to make the causal connection between her sexual abuse and the psychological harm she suffered until years later when she became aware through the news media of incidents involving sexual abuse by Catholic Priest Father James Porter. A finder of facts could reasonably find that, like the plaintiff in Nault, Barry Armstrong, at the time of the alleged sexual contact, considered his relationship with Michael Lamy to be an intimate personal relationship. The undisputed evidence is that throughout the time that Barry Armstrong was in junior high school he participated and performed in school plays that were directed by Michael Lamy, seeing Michael Lamy on almost a daily basis. They were often alone together at school and on the school’s premises and Barry Armstrong slept over at the Lamy Family home on numerous occasions. They had numerous instances of sexual contact during the course of a sixteen-month period. The evidence would also support findings that, at the time the sexual contact was occurring, Barry Armstrong “enjoyed” the contact, that it did not upset him or bother him, because he “really had no sexual contact at thirteen [so he] had nothing to compare it to,” that he “enjoyed the attention” from Michael Lamy, “admired” Michael Lamy, and considered Michael Lamy his “mentor,” and that his parents also “liked” and “looked up to” Michael Lamy. Defendants argue that Barry Armstrong’s experience of feeling “uncomfortable,” “scared,” and “nervous” at the time of the sexual contact, having insomnia during the time period of the sexual contact, feeling pain from his arm being gripped, and feeling sore for one day after attempted intercourse, constitute enough injury, as a matter of law, to put Barry Armstrong on notice, at the time of the sexual contact, that he had been injured and by whom. I conclude that I cannot so determine on the record before me. A genuine dispute of material fact is presented. Defendants place great weight on the fact that Barry Armstrong was “uncomfortable” with certain aspects of the sexual contact with Michael Lamy, and that plaintiff turned away and refused to allow these acts. In Riley, the adult plaintiff also was “uncomfortable” with the sexual conduct and after the second or third incident refused to participate any further. Similarly, in this case, any evidence that Barry Armstrong was “uncomfortable” or refused to participate in some aspect of the sexual contact, is not enough to support a decision, as a matter of law, that he suffered an “injury,” or to determine that beyond genuine dispute Barry Armstrong knew or should have known he had been harmed. Defendants also stress the fact that Barry Armstrong stated he was “scared” and “nervous” at the time of the sexual contact. Barry Armstrong specifically stated in his deposition that he was “nervous” and “scared” during the first occasio