Freeman, et al v. Town of Hudson, et al

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Kenneth F. Ripple and Kermit V. Lipez, Appellate Judge. Published. [12-1356]

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Document: 00116517025

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Date Filed: 04/15/2013

Entry ID: 5726041

United States Court of Appeals
For the First Circuit
No. 12-1356
CHARLES FREEMAN AND DANIELA FREEMAN,
Plaintiffs, Appellants,
v.
TOWN OF HUDSON, TOWN OF HUDSON CONSERVATION COMMITTEE,
TOWN OF HUDSON POLICE DEPARTMENT, THOMAS CRIPPEN,
DAVID STEPHENS, RICHARD BRAGA, DEBBIE CRAIG, PAUL BYRNE,
DAVID ESTEVES, JEFF WOOD, THOMAS THORBURN,
COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL
PROTECTION AND JOSEPH BELLINO,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Ripple* and Lipez,
Circuit Judges.

Barry Bachrach, with whom The Law Office of Barry Bachrach was
on brief, for appellants.
Jonathan M. Silverstein, with whom Janelle M. Austin and
Kopelman and Paige, P.C. were on brief, for appellee Town of
Hudson.
James A. Sweeney, Assistant Attorney General, with whom Martha
Coakley, Attorney General, and Ronald F. Kehoe, Assistant Attorney
General, were on brief, for appellee Joseph Bellino.

*

Of the Seventh Circuit, sitting by designation.

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HOWARD, Circuit Judge.

Date Filed: 04/15/2013

Entry ID: 5726041

Plaintiffs Charles and Daniela

Freeman appeal the dismissal of their section 1983 suit against the
Town of Hudson, Massachusetts, one of its agencies, and several
state and local officials.
grew

out

of

an

The events giving rise to this suit

allegation

that

the

Freemans

had

breached

conservation restriction appurtenant to their Hudson home.

a

Like

the magistrate judge and district judge, we conclude that the
Freemans' complaint does not plead facts sufficient to support any
of their federal claims, and we therefore affirm the judgment.
I. Background
As the dismissal was entered pursuant to Federal Rule of
Civil Procedure 12(b)(6), we take the facts from the Freemans'
complaint and draw all reasonable inferences in their favor.

San

Juan Cable, LLC v. P.R. Tel. Co., 612 F.3d 25, 28 (1st Cir. 2010).
According

to the

complaint, what

began as a

dispute

between

neighbors turned into a concerted effort by the Town and the
Commonwealth of Massachusetts to deprive the Freemans of their
constitutional

rights.

sentiment,

not

if

defendants' actions.

a

The

plaintiffs

common

objective,

insinuate
running

a

common

through

the

For ease of exposition, however, we dissever

the allegations into smaller episodes.
A. Conservation Commission Defendants
In late fall of 2009, Hudson Police Sergeant Thomas
Crippen, the Freemans' neighbor, informed the Hudson Conservation
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Commission that the Freemans were building a tree house in a
conservation restriction area ("Parcel B") on their property.

In

response, the Commission ordered the Freemans to cease and desist
from any further activity in Parcel B until a scheduled Commission
meeting in early December 2009.

The property had previously been

subject to an Order of Conditions issued by the Commission in 2007.
At the December meeting, Mr. Freeman conceded that the
tree house was built in the conservation restriction area and
agreed to move it.

The Commission then questioned whether the

Freemans were complying with state and local land-use laws relating
to their property.

Although the Commission had previously issued

a Certificate of Compliance for the property (7 Freeman Circle) in
2008, a few weeks after the December meeting it determined that the
Freemans had subsequently breached their obligations and that
additional work was necessary to remedy the violations.
As a consequence, in January 2010 the Freemans' engineer
presented a preliminary plan relating to remediation at 7 Freeman
Circle.

It appears that the Commission viewed this plan as

insufficient, as it warned the Freemans that it would involve the
Massachusetts Department of Environmental Protection ("DEP") if the
Freemans did not comply with its determinations.

In June 2010 the

Commission issued a new Order of Conditions for 7 Freeman Circle
detailing what modifications were required.
this order to DEP.

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The Freemans appealed

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Once involved in the case, DEP indicated that state
enforcement would follow if the Freemans and the Commission could
not resolve the issue at the local level.

In response, the

Freemans terminated their appeal of the Order of Conditions in
September and began compliance work. Unaware that the Freemans had
dropped

the

appeal,

Commission

Administrator

Debbie

Craig,

accompanied by police escort, served Mr. Freeman a cease and desist
order the same day that work began.

For the next several days,

members of the Commission ordered Mr. Freeman not to work on the
property while they ascertained the legal status of the Freemans'
appeal.

On each of these visits to the Freemans' property, the

Commission members were accompanied by Hudson Police officers.
The Freemans allege that throughout this process the
defendants displayed heavy-handed tactics toward them and their
associates.

At a January meeting, Commission Chairman Paul Byrne

and Commission Member David Esteves spoke with open hostility
toward Mr. Freeman.1

Moreover, Byrne and Craig spoke disparagingly

about Mr. Freeman to third parties during the course of the ongoing
dispute.

Also, Esteves uprooted a portion of a silt fence on the

Freemans' property, claiming that it was installed incorrectly,
although a subsequent determination indicated that the fence met
all installation requirements.

According to the complaint, this

1

Byrne made a thinly veiled reference to Mr. Freeman's
dishonesty by stating, "If I was a farmer, I would not put the fox
in charge of the hen house because all the hens will disappear."
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hostile attitude pervaded DEP thinking as well.2

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The complaint

includes emails written by Joseph Bellino, a DEP employee, to show
that

DEP

officials

lacked

impartiality

in

dealing

with

the

Freemans.3
The

Freemans

further

contend

that,

while

zealously

enforcing land-use laws against them, the Commission took little or
no action against the Freemans' neighbors -- the Crippens and the
MacPhees.

The Crippens had constructed a pool in the 100-foot

buffer zone adjacent to Parcel B, and the MacPhees had cut down
trees in Parcel B and laid down planks for a walking path.

In

neither case did the Commission issue an order, and the Freemans
assert that these violations largely went uncorrected.
B.

Police Department Defendants
In

retaliation

for

the

Freemans'

dispute

with

the

Crippens, the Police Department defendants purportedly pursued
trumped-up

criminal

charges

against

Mr.

Freeman.

After

an

unpleasant encounter with Mr. Freeman, neighbor Dana MacPhee spoke
with Crippen and Hudson Police Captain David Stephens about Mr.
Freeman's conduct.

Without further investigating the matter,

2

The complaint listed DEP as a defendant. The district court
dismissed all claims against DEP, and the Freemans have not
appealed that decision.
3

The most provocative email (between Bellino and Craig)
refers to the sale of the Freemans' home in the following terms:
"1.175 million- A Bahgain !!!!! Of course that doesn't include our
$$$$$ [referring to a possible DEP fine]."
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Stephens filed charges against Mr. Freeman for criminal harassment
and threat to commit a crime.

Although Mr. Freeman had committed

no physical acts of violence, Stephens successfully argued to the
court that Mr. Freeman should not be given notice of his probable
cause hearing because he posed an imminent threat of violence to
MacPhee. Stephens and Crippen both spoke with the prosecutor about
the case on separate occasions.

By January 2012, all charges had

been dropped against Mr. Freeman.
C. Building Commissioner Defendant
Finally,

the

Freemans

claim

that

Hudson

Building

Commissioner Jeff Wood selectively enforced zoning laws against Mr.
Freeman, who had posted a sign advertising his company at a work
site.

The complaint avers that the posting of such signs is

standard practice among contractors, but Wood issued a violation
notice to the property owner for displaying the sign.4
II. Discussion
A. Standard of Review
Our review of a district court's dismissal of a complaint
under Rule 12(b)(6) is de novo.

See Ocasio-Hernández v. Fortuño-

Burset, 640 F.3d 1, 7 (1st Cir. 2011).

As such, we are free to

affirm an order of dismissal on any basis made apparent from the

4

The complaint also alleges that Electrical Inspector Thomas
Thorburn selectively enforced licensing requirements against the
Freemans' electrician.
The Freemans have not pursued this
allegation on appeal.
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record.

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See Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008).

In

order to survive a motion to dismiss, the complaint must include
"enough detail to provide a defendant with 'fair notice of what the
. . . claim is and the grounds upon which it rests.'"

Ocasio-

Hernández, 640 F.3d at 12 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).

While we need not give weight to legal

conclusions contained in the complaint, "[n]on-conclusory factual
allegations must . . . be treated as true."

Id.

B. Scope of the Record
Before moving to the heart of the Freemans' appeal, we
consider the question of which documents were properly before the
district court when it decided the motion to dismiss.

On a motion

to dismiss, a court ordinarily may only consider facts alleged in
the complaint and exhibits attached thereto, Watterson v. Page, 987
F.2d 1, 3 (1st Cir. 1993), or else convert the motion into one for
summary judgment.
appended

Id.; Fed. R. Civ. P. 12(d).

Here, the Freemans

twenty-five exhibits to their complaint.

Subsequently,

both parties submitted a flurry of extrinsic exhibits for the
district court's consideration on the motion to dismiss. The court
took account of some documents but excluded others.

The Freemans

challenge the court's decision not to consider six documents that
they submitted, while simultaneously suggesting that the court

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relied on those very same documents in its order, presumably to the
Freemans' detriment.5
Under

certain

"narrow

exceptions,"

some

extrinsic

documents may be considered without converting a motion to dismiss
into a motion for summary judgment.

Watterson, 987 F.2d at 3.

These exceptions include "documents, the authenticity of which are
not disputed by the parties; . . . official public records; . . .
documents central to plaintiffs' claim; [and] . . . documents
sufficiently referred to in the complaint."

Id.

The plaintiffs'

submissions do not fit into any of these enumerated categories.
The Freemans sought to have the court consider excerpts
from the depositions of MacPhee and Stephens, given in connection
with a separate civil suit, as documents sufficiently referred to
in the complaint.

While the complaint does make passing reference

to testimony from MacPhee and Stephens, the proposed exhibits
consist of excerpts that are unrelated to any matter discussed in
the complaint, and therefore cannot be taken as referenced therein.
The mere mention of the depositions in the complaint does not
amount to sufficient reference.

See Goldman v. Belden, 754 F.2d

5

We have not previously clarified the standard of review that
governs a court's determination that documents external to the
complaint cannot be relied upon under Rule 12(b)(6). Because we
would uphold the district court's judgment pursuant to either de
novo or abuse of discretion review, we need not reach the issue
here.
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1059, 1066 (2d Cir. 1985) ("[L]imited quotation does not constitute
incorporation by reference.").
The Freemans also claim that three submissions should
have been considered as public records. These include a transcript
of 911 calls and two Hudson Police incident reports.

The Freemans

ask us to adopt the expansive view that any document held in a
public repository falls within the category of extrinsic materials
that may be considered.

It is true that, when reviewing a motion

to dismiss for failure to state a claim, a court may "consider
matters of public record."
46 (1st Cir. 2011).

Haley v. City of Boston, 657 F.3d 39,

But there are limits to that license.

Many

documents in the possession of public agencies simply lack any
indicia of reliability whatsoever. In that regard, they are unlike
official records, such as birth or death certificates and other
similar

records

authority

--

interpretation,

of

vital

other
and

statistics.

than
we

have

Watterson
found

The
--

none.

Freemans
for

cite

their

Rather,

the

no

broad
phrase

"official public records" when used in the present context, appears
limited, or nearly so, to documents or facts subject to judicial
notice under Federal Rule of Evidence 201.

Watterson, in holding

that a court could consider public records on a motion to dismiss,
relied

on

the

Ninth

Circuit

case

Mack

v.

South

Bay

Beer

Distributors, Inc., 798 F.2d 1279 (9th Cir. 1986), abrogated on
other grounds by Astoria Federal Sav. and Loan Ass'n v. Solimino,

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501 U.S. 104, 107 (1991).

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The public record at issue in that case

was a state administrative proceeding, id. at 1282, and the Ninth
Circuit used the term "public records" synonymously with a document
susceptible to judicial notice.

Id. (citing Phillips v. Bureau of

Prisons, 591 F.2d 966, 969 (D.C. Cir. 1979) ("We are mindful, too,
that when passing on a motion attacking the legal efficacy of the
plaintiff's statement of his claim, the court may properly look
beyond the complaint only to items in the record of the case or to
matters of general public record.")).
Our cases applying Watterson may not have endorsed this
view explicitly, but the results have been consistent with this
approach. See, e.g., San Geronimo Caribe Project, Inc. v. AcevedoVila, 687 F.3d 465, 471 n.2 (1st Cir. 2012) (taking notice of state
court decisions); Gargano v. Liberty Intern. Underwriters, Inc.,
572 F.3d 45, 47 n.1 (1st Cir. 2009) (taking notice of a state court
decision); Parker v. Hurley, 514 F.3d 87, 90-91 (1st Cir. 2008)
(taking notice of statewide curricular standards); Greene v. Rhode
Island, 398 F.3d 45, 49 (1st Cir. 2005) (taking notice of federal
statutes).
Other than invoking the label "public records," which is
too broad a term to rely on, the Freemans make no developed
argument as to why documents such as the 911 transcripts and police
incident reports, which would not be subject to judicial notice,
are either

categorically

or

in

this

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eligible

to

be

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They thus have waived any other

claim that the documents may be considered.
The Freemans' brief contains no argument at all with
respect to the final exhibit at issue, which is a photograph.
issue regarding this exhibit is thus also waived.

See

Any

United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
We must iron out one more wrinkle on this topic,
involving the Freemans' superficial assertion in their brief that
"the district court mentioned facts from these exhibits in its
decision."

This

simple

allegation

could

have

non-trivial

consequences. Reliance on facts beyond the complaint's allegations
might require converting the motion to dismiss into a motion for
summary judgment.

See Fed. R. Civ. P. 12(d).

Although we could

ignore this question as insufficiently briefed, see Zannino, 895
F.2d at 17, we are also satisfied that neither the magistrate
judge's Report and Recommendation nor the district court's Order
touch on facts outside the complaint.

We therefore proceed to a

12(b)(6) analysis.
C. Freemans' Section 1983 Claims
42 U.S.C. § 1983 grants individuals the right to sue
those acting "under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of

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Columbia . . . [for] the deprivation of any rights, privileges, or
immunities secured by the constitution and laws."
1983.

42 U.S.C. §

To prevail, a plaintiff must show that "the challenged

conduct [is] attributable to a person acting under color of state
law" and that "the conduct must have worked a denial of rights
secured by the Constitution or by federal law."

Soto v. Flores,

103 F.3d 1056, 1061 (1st Cir. 1997).
1. Municipal Liability
The Freemans face additional requirements in order to
establish

a

Commission.6

section

1983

claim

against

the

Town

and

the

"A municipality cannot be held liable solely because

it employs a tortfeasor."

Monell v. Dept. of Soc. Servs. of the

City of N.Y., 436 U.S. 658, 691 (1978).

Instead, a plaintiff must

show that the violation occurred as a result of the municipality's
"policy or custom."
policymaker

Id. at 694.

constitutes

A single decision by a municipal

official

policy

"only

where

the

decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered."
Cincinnati, 475 U.S. 469, 481, (1986).

Pembaur v. City of

When determining whether a

decisionmaker exercises final authority, "[c]ourts must look to
state law, including 'valid local ordinances and regulations,' for

6

The complaint also listed the Town of Hudson Police
Department as a defendant. The district court, while dismissing
all federal claims, did not specifically discuss the Police
Department's liability. However, the Freemans have also failed to
raise this issue on appeal, and therefore it is waived.
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descriptions of the duties and obligations of putative policymakers
in the relevant area at issue."

Walden v. City of Providence, 596

F.3d

(quoting

38,

56

(1st

Cir.

2010)

City

of

St.

Louis

v.

Praprotnik, 485 U.S. 112, 125, (1988)).
The Freemans have advanced only a "final authority"
theory of municipal liability.

The complaint, however, references

no state or local laws establishing the policymaking authority of
any individual or group of individuals.

The complaint alleges

misconduct from many separate actors, but gives no guidance about
which acts are properly attributable to the municipal authority.
Absent this information, the complaint fails to state more than
respondeat superior liability on the part of the Town and the
Commission.

This is not enough to support a section 1983 action

against a municipality, Monell, 436 U.S. at 691, and the district
court correctly dismissed the claims against the Town and the
Commission.

We turn, then, to the claims against the individual

defendants.
2. Equal Protection
The Freemans allege that Conservation Commission members
Byrne and Esteves, Administrator Craig, and Building Inspector Wood
violated the equal protection clause of the fourteenth amendment by
selectively enforcing local laws against them. An equal protection
claim requires "proof that (1) the person, compared with others
similarly situated, was selectively treated; and (2) that such

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selective treatment was based on impermissible considerations such
as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person."

Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (1st Cir.

1995) (citations omitted).
Claiming

no

membership

in

a

protected

class,

the

complaint argues that the defendants arbitrarily and unfavorably
singled out the Freemans as a "class of one."

To prevail on such

a claim, the Freemans must show that they were "intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment."
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
fails

to

meet

the

"similarly

situated"

test,

discussion of the rational basis requirement.

Village of

The complaint
obviating

any

We have held that

class-of-one claims require "an extremely high degree of similarity
between [the plaintiffs] and the persons to whom they compare
themselves."
2007).

Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.

In the land-use context, this means more than "point[ing]

to nearby parcels in a vacuum and leav[ing] it to the municipality
to disprove conclusory allegations that the owners of those parcels
are similarly situated."

Id.

a. Conservation Commission Defendants
According to the complaint, Craig, Byrne and Esteves
abridged the Freemans' equal protection rights by treating them

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differently from their neighbors, the Crippens and the MacPhees.
While the properties of all three abut the same protected area, the
similarities essentially end there.

Their actions in relation to

Parcel B differed in key respects, making them inapt comparators.
The Commission determined that the Freemans had committed a number
of violations, some of them within Parcel B and specifically
governed by the Conservation Easement.7

By contrast, the complaint

alleges that the Crippens drained pool water into a buffer zone and
that the pool encroached into the buffer zone.

These allegations

fail to demonstrate that the Crippens and Freemans were "similarly
situated in all relevant respects." Barrington Cove Ltd. P'ship v.
Rhode Island Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir.
2001).

In the same vein, the Freemans' allegations that the

MacPhees were allowed to plant inappropriate flora, cut down
certain trees and install removable planks for a walkway fail to
establish a claim for relief.

The Conservation Easement -- which

the district court considered -- allowed for certain plant cutting
and trail maintenance.

The Freemans, meanwhile, conceded that

their treehouse violated the same Conservation Easement.

Indeed,

the complaint does not allege that either the Crippens or the
MacPhees were in violation of the Conservation Easement.

7

The Freemans admit to having constructed a treehouse in
Parcel B.
Additionally, the 2010 Order of Conditions found
numerous violations relating to the placement of fences and walls,
the amount of fill on the property, and the construction of other
unauthorized structures.
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Against this backdrop, the Freemans cannot demonstrate
that they were similarly situated to their neighbors, and their
equal

protection

claim

against

the

Conservation

Commission

defendants necessarily fails.
b. Building Commissioner Wood
The complaint also alleges that Building Commissioner
Wood violated Mr. Freeman's equal protection rights by selectively
enforcing

zoning

laws

against

a

customer

who

displayed

Mr.

Freeman's business sign. To the extent that this conduct concerned
not Mr. Freeman's rights but those of Mr. Freeman's customer, the
action

cannot

be

maintained.

While

Mr.

Freeman

conceivably

suffered some economic harm as a result of Wood's actions -- the
lost value of advertising his work in the community -- this alone
typically does not give rise to third-party standing.

True, an

"isthmian exception" does permit one to assert another's rights in
circumstances where "some barrier or practical obstacle deters a
third party from asserting its rights."

Wine & Spirits Retailers,

Inc. v. Rhode Island, 418 F.3d 36, 49 (1st Cir. 2005); see also
Powers v. Ohio, 499 U.S. 400, 411, (1991) (stating that, in order
to assert third-party standing "there must exist some hindrance to
the third party's ability to protect his or her own interest"
(internal quotations and citations omitted)). Here, however, there
is no allegation that the customer is incapable of asserting his or
her own rights, and therefore we lack jurisdiction over this claim.

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Moreover, to the extent that the complaint may be read to
allege an interference with Mr. Freeman's property interest in a
display license granted him by his customer, the claim does not
fare

any

better.

The

complaint's

failure

to

do

more

than

conclusorily state that the Freemans were both similarly situated
to and treated differently from unspecified "other contractors" is
insufficient to survive the defendants' motion to dismiss.
3. Substantive Due Process
The Freemans claim that the conduct of Town officials and
DEP

employee

Bellino

were

so

outrageous

substantive due process violations.

as

to

constitute

Substantive due process is

said to "protect individuals from particularly offensive actions on
the part of government officials, even when the government employs
facially neutral procedures in carrying out those actions."
v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006).

Pagán

Such claims are

limited to government action that, by its very nature, "shock[s]
the conscience," id., and we reserve it for "truly horrendous
situations."
964

F.2d

Nestor Colon Medina & Sucesores, Inc. v. Custodio,

32,

46

(1st

Cir.

1992).

Evidence

that

officials

"exceed[ed] [their] authority under the relevant statutes" does not
automatically trigger the due process clause. Amsden v. Moran, 904
F.2d 748, 757 (1st Cir. 1990). In this case, neither the complaint
as

a

whole

nor

any

of

its

allegations

meet

establishing a substantive due process violation.

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the

burden

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a. Conservation Commission Defendants
Upon review, nothing in the actions of Byrne, Craig and
Esteves reaches the level of conscience-shocking behavior.

The

Commission retained jurisdiction over Parcel B at all relevant
times and had the power to remedy environmental violations at 7
Freeman Circle.

The Freemans disagree with the legal conclusions

of the Commission and believe that the Commission reached these
erroneous conclusions in bad faith.

Even if this is true, "[s]uch

a claim is too typical of a run of the mill dispute between a
developer

and

a

town

planning

agency,

regardless

.

.

.

of

defendants' alleged mental states, to rise to the level of a due
process violation."

Creative Env'ts, Inc. v. Estabrook, 680 F.2d

822, 833 (1st Cir. 1982).

Our prior cases are replete with

plaintiffs who, alleging comparable conduct, failed to sustain
substantive due process claims.

See, e.g., Mongeau v. City of

Marlborough, 492 F.3d 14 (1st Cir. 2007) (where a town official
interfered in the zoning process for improper reasons); Licari v.
Ferruzzi, 22 F.3d 344 (1st Cir. 1994) (where a town revoked
building permits due to alleged hostility and animus); PFZ Props.,
Inc. v. Rodriguez, 928 F.2d 28 (1st Cir. 1991) (where a planning
board refused to process construction drawings), rev'd on other
grounds en banc, San Geronimo Caribe Project, Inc. v. Acevedo-Vila,
687 F.3d 465 (1st Cir. 2012).

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As in those cases, here the

Case: 12-1356

Document: 00116517025

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Date Filed: 04/15/2013

Entry ID: 5726041

Freemans' grievances do not support a substantive due process
claim.
b. Commonwealth of Massachusetts Defendant Bellino
The

Freemans

contend

that

Bellino,

a

DEP

employee,

exercised the muscle behind the Commission's scheme; the threat of
DEP enforcement "sledgehammer[ed]" the Freemans into compliance.
But DEP is statutorily authorized to enforce applicable laws, see
M.G.L. c. 131, § 40, and the Freemans appealed the June 2010 Order
of Conditions to DEP, thereby ensuring its involvement.

While

DEP's participation might have influenced the Freemans, that does
not

render

such

participation

improper.

Moreover,

Bellino's

conduct throughout this process was not "so shocking or violative
of universal standards of decency" as to give rise to a due process
violation. Amsden, 904 F.2d at 757 (quoting Furtado v. Bishop, 604
F.2d 80, 95 (1st Cir. 1979)). His communications to Town officials
did evince a certain hostility toward the Freemans. The plaintiffs
have not shown, however, that Bellino's third-party communications
affected their constitutional rights.

While these communications

may have been in bad taste, they do not constitute violations of
the Freemans' substantive due process rights.
c. Police Department Defendants
Finally, Mr. Freeman claims that the Police Department
defendants violated his substantive due process rights by pushing
unsupported criminal charges against him for personal reasons.

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Case: 12-1356

Document: 00116517025

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Date Filed: 04/15/2013

Entry ID: 5726041

Sifting through the many aspersions contained in the complaint,
however,

reveals

prosecution."

only

"a

garden-variety

claim

of

malicious

Roche v. John Hancock Mut. Life Ins. Co, 81 F.3d

249, 256 (1st Cir. 1996). "'[S]ubstantive due process may not
furnish the constitutional peg on which to hang' [a malicious
prosecution tort]." Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.
2001) (quoting Albright v. Oliver, 510 U.S. 266, 271 n. 4, (1994)).
While the complaint may be read to allege a plot on the part of
Police Department officials and MacPhee to bring charges against
Mr.

Freeman,

it

also

acknowledges

that

these

charges

were

predicated on prior incidents between MacPhee and Mr. Freeman.
Thus, while the Police Department defendants may or may not have
acted with malice, they did not act in the absence of any evidence.
Furthermore, none of the Police Department's subsequent actions -failing to investigate further, obtaining an ex parte probable
cause hearing, and discussing the case with the prosecutor -- shock
the conscience.

If, as alleged, improper personal motivations

caused the investigation to follow a certain course, that fact may
form the basis for a claim of malicious prosecution, but not a due
process violation.8

8

The parties' briefs suggest that a malicious prosecution
claim against the Police Department defendants is pending in state
court.
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Date Filed: 04/15/2013

Entry ID: 5726041

III. Conclusion
For the foregoing reasons, the district court's judgment
dismissing the Freemans' section 1983 claims is affirmed.

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