Palermo, et al v. Town of North Reading

Filing 920100409

Opinion

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var WPFootnote1 = 'An unaccepted street is a public right of way that has not\
been built to municipal standards.\
'

var WPFootnote2 = 'The district court put forth a second ground for dismissal of\
Count Two, that the Palermos failed to identify the constitutional\
right(s) that they alleged were violated by the Town. "[T]he\
complaint is unclear, at best, as to which of their constitutional\
rights were violated and what specific conduct of the Town deprived\
plaintiffs of those rights." Palermo v. Town of North Reading, No.\
05-11782-RWZ (D. Mass. Nov. 14, 2008) (order granting motion to\
dismiss).\
              In addition, though not relevant to this appeal, we note that\
the district court dismissed Count One because, "To the extent the\
plaintiffs continue to complain about the inadequate pro tanto\
award, their procedural due process rights have been fully\
vindicated by the jury trial in which they were heard and the jury\
clearly heard them." Id. The district court also noted that "[I]t\
is difficult . . . to discern the basis for the claim that the\
taking was unconstitutional and second, to reconcile that claim\
with plaintiffs\' acceptance of the award." Id. The Palermos did\
not appeal from the dismissal of Count One.\
'

var WPFootnote3 = 'The Palermos also argue, in response to the district court\'s\
second ground for granting the motion to dismiss on the civil\
rights claim, that the constitutional right violated by the Town\
was the right to substantive due process. \
'

var WPFootnote4 = 'Indeed, the amended complaint is premised on the notion that\
the Palermos were treated differently than other property owners in\
the Town, rather than the same as many other property owners as\
part of the Town\'s policy, practice, or custom. The Palermos\
asserted at oral argument that Paragraph 26 of the amended\
complaint raised a sufficient Monell claim for purposes of a motion\
to dismiss. That paragraph alleged that "the actions, decisions,\
and policies" of the Town "deprived the Plaintiffs of all\
economically beneficial use of the Premises." Under Bell Atl.\
Corp. v. Twombly, 550 U.S. 544, 555 (2007), this allegation is not\
nearly sufficient to support a Monell claim because the complaint\
as a whole contained no factual assertions whatsoever regarding\
Town policy. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)\
("To survive a motion to dismiss, a complaint must contain\
sufficient factual matter, accepted as true, to \'state a claim to\
relief that is plausible on its face.\'") (quoting Twombly, 550 U.S.\
at 570). As noted above, the factual premise of the amended\
complaint was that the Palermos had been treated differently from\
other property owners, not similarly in accordance with Town\
policy. \
'

var WPFootnote5 = 'In addition, the Palermos make a brief argument that the\
federal constitutional injury they suffered was the violation of\
their right to substantive due process. This alleged injury was\
not included in their amended complaint and we will not consider it\
here for the first time. Slade, 980 F.2d at 30. We agree with the\
district court that the Palermos failed to specify the\
constitutional right upon which their § 1983 claim was premised. \
'

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