THE RUMFORD FREE CATHOLIC LIBRARY et al v. TOWN OF RUMFORD et al

Filing 107

ORDER ON MOTIONS TO DISMISS granting 28 Motion to Dismiss for Lack of Jurisdiction; granting 28 Motion to Dismiss for Failure to State a Claim; granting 31 Motion to Dismiss; granting 36 Motion to Dismiss for Failure to State a Claim; gra nting 38 Motion to Dismiss for Failure to State a Claim; granting 55 Motion to Dismiss for Failure to State a Claim; granting 81 Motion to Dismiss; denying in part 5 Motion for Preliminary Injunction; denying 17 Motion to Amend Complaint. By JUDGE JON D. LEVY. (aks)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FATHER PHILIP M. STARK, S.J., )
et al.,
)
)
Plaintiffs,
)
)
v.
) 2:20-cv-00066-JDL
)
TOWN OF RUMFORD, et al.,
)
)
Defendants.
)
ORDER ON MOTIONS TO DISMISS
Father Philip M. Stark, the president of the Rumford Free Catholic Library,
and Peter Francis Tinkham, one of the Library’s founders (collectively, “Plaintiffs”),
bring this action, asserting that seventeen Defendants violated state and federal law
during the course of their dealings with the Library over the past several years (ECF
No. 9). 1 This Order addresses four sets of motions to dismiss: one filed by the Town
of Rumford, Maine (“the Town”), and its employees Thomas Bourret, Linnell
Geronda, Richard Coulombe, Michael Mills, and Attorney William H. Dale (“the Town
Defendants”) (ECF No. 36); another filed by the Oxford County Board of Assessment
Review and two Oxford County employees, Wade Rainey and Oxford County Probate
Judge Jarrod Crockett (the “Oxford County Defendants”) (ECF Nos. 28, 55); a third
filed by Attorney Jennifer Kreckel (ECF No. 38); and a fourth filed by Hebert Realty

The Library was originally a plaintiff in this action as well, but it was terminated as a party for
failure to retain counsel on August 6, 2020. As I have previously explained, entities such as the Library
are not permitted to represent themselves in federal court.
1

1

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Company (ECF Nos. 31, 81). 2 For the reasons that follow, I find that the Plaintiffs’
First Amended Complaint fails to state a claim against any of these Defendants and,
accordingly, grant all four motions to dismiss.
I. PROCEDURAL HISTORY
The Plaintiffs initiated this action in the District of Rhode Island. It was
subsequently transferred to this Court by an order of United States District Judge
Mary S. McElroy dated February 25, 2020. When the case was transferred, a number
of motions were pending, and the parties have filed several additional motions since.
I have issued five orders to date.
The first order, which was issued on June 12, 2020, denied the Plaintiffs’
motion for a temporary restraining order against the Town and Bourret (the Town’s
tax collector) because the Tax Injunction Act of 1937, 28 U.S.C.A. § 1341 (West 2020),
deprived the Court of jurisdiction over the motion (ECF No. 90). 3 The second order,
which was issued on July 13, 2020, dealt with seven motions related to procedural
matters such as venue, removal, and the appointment of counsel (ECF No. 96). The
third and fourth orders, which were both issued on October 30, 2020, resolved three
motions and dismissed three Defendants based on insufficient service of process and
lack of personal jurisdiction (ECF No. 104), and granted the Plaintiffs an extension
of time to serve three other Defendants who are not addressed in this order (ECF No.

2 The affidavits of two individuals associated with Hebert Realty refer to the entity as “Hebert Realty
Group, LLC.” ECF Nos. 31-3 at 2, 31-4 at 2. I refer to Hebert Realty using the name in the docket.
3 The Plaintiffs filed an interlocutory appeal of that order, which the First Circuit dismissed for lack
of prosecution in September 2020 (ECF No. 102).
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105). The fifth order, issued on November 4, 2020, dispensed with three motions
related to motions addressed in these prior orders (ECF No. 106).
In this order, I address the grounds for dismissal raised by the remaining
Defendants who have been properly served.
II. FACTUAL BACKGROUND
The following facts are derived from the Plaintiffs’ First Amended Complaint
(ECF No. 9), which I treat as true on a motion to dismiss. See Rodríguez-Reyes v.
Molina-Rodríguez, 711 F.3d 49, 52-53 (1st Cir. 2013). In April 2014, the Library
acquired real property in Rumford, intending to establish a self-service food pantry,
children’s library, and Ignatian retreat site. The Library is a 501(c)(3) non-profit
organization and, according to the Plaintiffs, is therefore entitled to a tax exemption
on the subject property. The Library’s entitlement to a tax exemption is the source
of a long-running dispute between the Plaintiffs and the Town that spans five years,
has been before multiple administrative bodies and courts, and is evidently the
subject of another pending state court action. A more complete history of the tax
exemption and abatement dispute is set forth in my order denying the Plaintiffs’
motion for a temporary restraining order (ECF No. 90).
In addition to the tax exemption issue, the Plaintiffs allege that the Town has
enforced land use ordinances against the Library in an arbitrary manner. Defendant
Coulombe, the Town’s Code Enforcement Officer, ordered the Library to cease and
desist its charitable pantry service, its plans for a children’s Catholic library, and its
use of the property for religious and charitable purposes “unless and until a change-

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of-use was established.” ECF No. 9 ¶ 88. There are five other non-profit organizations
in the same residential zone as the Library, all of which are non-religious.
Additionally, the First Amended Complaint asserts that the Town and
Coulombe conspired with a private realtor4 to prevent the Plaintiffs from purchasing
additional property in Rumford in furtherance of the Library’s religious mission. In
particular, the First Amended Complaint alleges that the Plaintiffs were seeking to
establish a community garden for the Library, but that “all inquiries to local realtors
were unsuccessful” until the Plaintiffs concealed their identities by sending a proxy
to view prospective properties. ECF No. 9 ¶ 92. It further alleges that the private
realtor, when she became aware of the Plaintiffs’ plans to establish a community
garden on a particular stretch of agricultural land, expressed concerns that such a
use “would not be permitted” by Coulombe. Id. ¶ 94. Despite these reservations, the
First Amended Complaint alleges that the realtor entered into a verbal agreement
with an employee of the Library to “hold the property for two weeks to give the
[Library] time to produce the full amount of the selling price.” Id. ¶ 95.
When the Library’s employee returned two weeks later to produce the full
amount, the First Amended Complaint alleges that she was “quickly approached by
a man” who had obviously been “camped-out” and waiting for her. Id. ¶ 98. The man
allegedly informed her that he had “just closed on the property” and that it was no
longer for sale. Id. Based on this turn of events and the realtor’s earlier statements
about Officer Coulombe, the First Amended Complaint asserts that there was

4 The realtor was initially named as a Defendant in this case. On October 30, 2020, I dismissed the
claims against her because she was not properly served with process.
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“collusion” between the realtor and Defendant Coulombe “to prevent the [Library]
from owning any more tax-free property” in Rumford. Id. ¶ 99.
Finally, the First Amended Complaint asserts that several Town employees
and others have repeatedly made “slanderous” and “defamatory” statements about
the Plaintiffs over the course of several years. In addition to alleging widespread,
general defamation and “character assassination” by various Town employees,
Oxford County employees, and others, ECF No. 9 ¶ 83(b), the First Amended
Complaint specifically alleges that certain Defendants falsely stated that the
Library’s property was not in use, was derelict, and was unsuitable for any use during
administrative and state judicial proceedings related to the Library’s application for
a tax exemption and request for a tax abatement. The First Amended Complaint
alleges that, contrary to these assertions, there was “overwhelming evidence” that
the property was in use during the relevant time period. ECF No. 9 ¶¶ 56, 63, 66, 72.
III. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
the complaint “must contain sufficient factual matter to state a claim to relief that is
plausible on its face.” Rodríguez–Reyes, 711 F.3d at 53 (quoting Grajales v. P.R. Ports
Auth., 682 F.3d 40, 44 (1st Cir. 2012)). Courts apply a two-pronged approach in
resolving a motion to dismiss. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12
(1st Cir. 2011).

First, the court must identify and disregard statements in the

complaint that merely offer legal conclusions couched as factual allegations. Id.
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Second, the court “must determine
whether the remaining factual content allows a reasonable inference that the
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defendant is liable for the misconduct alleged.” A.G. ex rel. Maddox v. Elsevier, Inc.,
732 F.3d 77, 80 (1st Cir. 2013) (quotation marks and citation omitted). The court
accepts all well-pleaded facts as true and draws all reasonable inferences in the
plaintiff’s favor. Rodríguez–Reyes, 711 F.3d at 52−53. Determining the plausibility
of a claim is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 53 (quoting Iqbal, 556 U.S. at 679).
Self-represented plaintiffs are not exempt from this framework, but the court
must construe their complaints “liberally” and hold them “to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Additionally, the
court may consider other filings by self-represented plaintiffs “to understand the
nature and basis of [their] claims.” Wall v. Dion, 257 F. Supp. 2d 316, 318 (D. Me.
2003); accord Sirois v. United States, No. 2:17-cv-324-GZS, 2018 WL 2142980, at *1
(D. Me. May 9, 2018).
IV. DISCUSSION
The Plaintiffs’ First Amended Complaint asserts claims for violations of:
Article IV of the United States Constitution (Count One); the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.A. § 2000cc (West 2020)
(Count Two); the First and Fourteenth Amendments, pursuant to 42 U.S.C.A. § 1983
(West 2020) (Count Three); the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C.A. §§ 1961-1968 (West 2020) (Count Four); and 42 U.S.C.A. § 1985
(West 2020) for conspiracy to interfere with civil rights (Count Five). Construed

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liberally, the First Amended Complaint also raises a defamation claim. 5 All of these
claims arise out of several sets of factual allegations: (1) the Town’s denial of the
Library’s request for a tax abatement, (2) the Town’s allegedly arbitrary enforcement
of land use ordinances against the Library and the alleged conspiracy to prevent the
Plaintiffs and Library from acquiring additional property in Rumford, and (3) the
Defendants’ alleged slander and defamation of the Plaintiffs and the Library. I
address the claims corresponding to each set of factual allegations in turn. 6
A.

The Town’s Denial of the Library’s Application for a Tax Exemption
and Request for a Tax Abatement
Counts One, Three, Four, and Five of the First Amended Complaint assert that

the Town’s denial of the Library’s application for a property tax exemption and
request for a tax abatement, and the Town’s conduct in the proceedings related to the
same, violated Article IV as well as the First and Fourteenth Amendments of the
United States Constitution, the RICO statute, the RLUIPA, and 42 U.S.C.A. § 1985’s
prohibition on conspiracies to interfere with civil rights. Previously, I denied the
Plaintiffs’ motion for a temporary restraining order to prevent the Town and Bourret
from foreclosing on the Library’s property, based largely on the Tax Injunction Act of
1937 (TIA), 28 U.S.C.A. § 1341 (ECF No. 90). I now grant the Defendants’ motions
to dismiss for the same reasons.

5 I exercise supplemental jurisdiction to address this state-law claim, which “derive[s] from a common
nucleus of operative fact” as the Plaintiffs’ federal claims. Pejepscot Indus. Park, Inc. v. Me. Cent. R.
Co., 281 F. Supp. 2d 311, 312 (D. Me. 2003) (quoting Vera-Lozano v. Int’l Broad., 50 F.3 67, 70 (1st Cir.
1995)); see 28 U.S.C.A. § 1367 (West 2020).
6 For the most part, the Plaintiffs do not specify against which Defendant or Defendants they are
making any particular claim. Because I find that none of their claims have merit, I need not untangle
that knot.
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“The TIA deprives federal district courts of jurisdiction to enjoin the collection
of state taxes.” Wal-Mart P.R., Inc. v. Zaragoza-Gomez, 834 F.3d 110, 118 (1st Cir.
2016). In conjunction with principles of comity, the TIA “sweeps more broadly than
the letter of its text suggests” to “forbid[] not only injunctive relief, but also
declaratory and monetary relief.” Cumberland Farms, Inc. v. Tax Assessor, State of
Me., 116 F.3d 943, 945 (1st Cir. 1997); see also Ludwin v. City of Cambridge, 592 F.2d
606, 610 (1st Cir. 1979) (“[W]e believe a court would ordinarily find it difficult or
impossible to decide whether illegal practices had occurred of such gravity as to
render the local officials answerable in damages without first ascertaining the
correctness of the assessment, a question which both comity and common sense
indicate is for the state tribunals.”). These principles apply even when the plaintiff
raises federal constitutional claims. See Levin v. Commerce Energy, Inc., 560 U.S.
413, 421, 428 & n.8 (2010). And although the TIA allows a federal court to exercise
jurisdiction if the state courts do not provide a “plain, speedy and efficient remedy,”
28 U.S.C.A. § 1341, I have already determined that “Maine’s state courts provide a
plain, speedy and efficient remedy” for the adjudication of the tax dispute underlying
this case. ECF No. 90 at 7. There is nothing in the record to suggest that the
circumstances underlying that decision have changed.
For these reasons and for the reasons stated more fully in my order denying
the Plaintiffs’ request for a temporary restraining order (ECF No. 90), I lack
jurisdiction to adjudicate claims based on the Town’s imposition or assessment of
property tax, including the Town’s alleged failure to grant the Plaintiffs an exemption
based on their religious status. I therefore dismiss those claims without prejudice.
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B.

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The Town’s Allegedly Arbitrary Enforcement of Land Use Ordinances
Against the Library and Alleged Conspiracy to Prevent the Plaintiffs
From Acquiring Additional Property
Counts Two, Three, and Five of the First Amended Complaint, construed

liberally, assert that the Town’s and Defendant Coulombe’s enforcement of land use
ordinances against the Library, along with those Defendants’ alleged collusion with
a private realtor to prevent the Plaintiffs or the Library from purchasing more
property in Rumford, violated the RLUIPA, the First and Fourteenth Amendments
of the United States Constitution, and 42 U.S.C.A. § 1985’s prohibition on
conspiracies to interfere with civil rights. These claims are premised on a selective
prosecution theory: that the Town and Coulombe violated the Plaintiffs’ rights by
enforcing its zoning ordinance against the Library, but did not enforce the ordinance
against secular organizations, and that this selective enforcement was based on
religious discrimination. 7
1.

RLUIPA

The Plaintiffs make several claims under the RLUIPA: a “substantial burden”
claim under 42 U.S.C.A. § 2000cc(a), an “equal terms” claim under § 2000cc(b)(1), a
discrimination claim under § 2000cc(b)(2), and an unreasonable limitation claim
under § 2000cc(b)(3). Many of the elements and much of the analysis of these claims
overlap, but for the sake of clarity, I address each in turn.

7 The Plaintiffs do not suggest that the Town’s land use regulations are facially discriminatory, i.e.,
that they treat religious organizations differently because of their “religious character.” Espinoza v.
Mont. Dep’t of Rev., 140 S. Ct. 2246, 2255 (2020).
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a.

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Substantial Burden

The RLUIPA’s “substantial burden” provision prohibits any government from
“impos[ing] or implement[ing] a land use regulation in a manner that imposes a
substantial burden on the religious exercise of a person, including a religious
assembly or institution,” unless imposition of the burden “is in furtherance of a
compelling governmental interest” and is the “least restrictive means of furthering
that compelling governmental interest.” 42 U.S.C.A. § 2000cc(a). The First Circuit
has set forth several non-exhaustive factors to determine whether a land use
regulation, or its application to a religious organization, is a substantial burden on
religious exercise:
1) [W]hether the regulation at issue appears to target a religion because
of hostility to that religion itself; 2) whether the regulation was imposed
on the religious institution arbitrarily, capriciously, or unlawfully; and
3) whether local regulators have subjected the religious organization to
a process that may appear neutral on its face but in practice is designed
to reach a predetermined outcome contrary to the group’s requests.
Signs for Jesus v. Town of Pembroke, 977 F.3d 93, 111 (1st Cir. 2020) (quotation
marks and alterations omitted).

The RLUIPA is intended to protect against

discriminatory land use regulation; “it is not meant to allow religious exercise to
circumvent facially-neutral zoning regulations.” Eagle Cove Camp & Conf. Ctr., Inc.
v. Town of Woodboro, 734 F.3d 673, 681 (7th Cir. 2013).
The Plaintiffs assert that Coulombe’s decision to enforce the zoning ordinance
against the Library was arbitrary, but the First Amended Complaint does not provide
sufficient factual allegations to support this claim. The First Amended Complaint
states that, in late 2017 or early 2018, Coulombe ordered the Library “to cease and
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desist . . . its use of the [property] for religious and charitable purposes unless and
until a change-of-use was established.” ECF No. 9 ¶ 88. However, the Plaintiffs do
not identify any facts to indicate that this enforcement action was “arbitrary” or
inconsistent with the governing ordinances. The mere fact that Coulombe enforced
the ordinance against the Library, without more, does not support a reasonable
inference that the enforcement was arbitrary, unlawful, or based on animus. And
although the Plaintiffs allude to the presence of “five non-religious non-profit
organizations in the same residential zone” as the Library, ECF No. 9 ¶ 111(d), they
again do not state any specific facts that would demonstrate that the Town does not
enforce its ordinance consistently, such as an allegation that the non-religious
organizations have received exemptions from the same ordinance that was enforced
against the Library. Cf. Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995) (finding
that the plaintiffs had not demonstrated “disparate treatment” in the revocation of
their zoning variance where the record contained no “evidence that any of their
neighbors were either required to seek a variance or actually made such a request”).
The Plaintiffs further allege that, when they were looking for other property
on which to establish a community garden, the private realtor “object[ed] that a
garden might not be permitted by [Coulombe],” and that the realtor made “several
statements” that demonstrate “collusion” between Coulombe and the realtor, ECF
No. 9 ¶¶ 94, 99, but they do not identify the substance of these statements or explain
how they would show a disparity in enforcement. Additionally, nothing about the
run-in with the unidentified man who was allegedly “camped-out” on the property

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suggests a connection to Coulombe. Id. ¶ 98. This allegation is too vague to support
the Plaintiffs’ substantial burden claim.
For these reasons, the First Amended Complaint fails to state a claim under
42 U.S.C.A. § 2000cc(a) against any of the Defendants.
b.
Section

Equal Terms
2000cc(b)(1)

prohibits

a

government

from

“impos[ing]

or

implement[ing] a land use regulation in a manner that treats a religious assembly or
institution on less than equal terms with a nonreligious assembly or institution.” To
make out an equal terms claim, “a plaintiff must show that the challenged law—by
its terms or operation—actually differentiates between religious and secular groups.”
Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona (Tartikov), 945 F.3d
83, 125 (2d Cir. 2019). A plaintiff alleging an equal terms claim must “identify a
relevant secular comparator” that is “similarly situated with respect to the purpose
of the underlying regulation.” Signs for Jesus, 977 F.3d at 109.
As with the Plaintiffs’ substantial burden claim, the First Amended
Complaint’s lack of specificity about the Town’s land use ordinance, or Coulombe’s
allegedly arbitrary enforcement of it, forecloses the Plaintiffs’ equal terms claim. The
allegation that requiring the Plaintiffs to obtain a change-of-use permit placed the
Library “on less than equal terms with the five non-religious non-profit organizations
in the same residential zone,” ECF No. 9 ¶ 111(d), is a “threadbare recital[] of the
elements of a cause of action” that I must disregard, Ocasio-Hernández, 640 F.3d at
12 (quoting Ashcroft, 556 U.S. at 678) (alteration omitted). The complaint alleges no
specific facts showing that the Plaintiffs’ property was subject to a different or more
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restrictive ordinance or enforcement scheme than any of these nonreligious
comparators. Again, without more, the fact that the Town enforced its ordinance
against the Library does not demonstrate a violation of the RLUIPA’s equal terms
provision. See Signs for Jesus, 977 F.3d at 109-10; Bey v. Tampa Code Enf’t, 607 F.
App’x 892, 898-99 (11th Cir. 2015) (per curiam) (finding that complaint failed to state
an equal terms claim under the RLUIPA because it did not “allege with any specificity
how the . . . application of [the city’s] code to [the plaintiff’s] property resulted in her
religious assembly being treated on less than equal terms” with nonreligious
organizations).
Accordingly, the First Amended Complaint does not state a claim under §
2000cc(b)(1).
c.

Discrimination Claim

The RLUIPA also prohibits land use regulations that “discriminate[] against
any assembly or institution on the basis of religion or religious denomination.” 42
U.S.C.A. § 2000cc(b)(2). “In applying RLUIPA’s nondiscrimination provision, courts
have looked to equal protection precedent.” Jesus Christ Is the Answer Ministries,
Inc. v. Baltimore Cty., 915 F.3d 256, 262 (4th Cir. 2019); see also Tartikov, 945 F.3d
at 110 n.211 (“RLUIPA’s nondiscrimination provision codifies the equal protection
guarantees of the Fourteenth Amendment.”).
“Plaintiffs claiming an equal protection violation must first ‘identify and relate
specific instances where persons situated similarly in all relevant aspects were
treated differently, instances which have the capacity to demonstrate that plaintiffs
were singled out for unlawful oppression.’” Rubinovitz, 60 F.3d at 910 (quoting
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Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989) (internal
quotation marks and alterations omitted)).

Comparators must be alleged with

“reasonable particularity,” Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg. Fin.
Corp., 246 F.3d 1, 8 (1st Cir. 2001), a requirement that “must be enforced with
particular rigor in the land-use context because zoning decisions ‘will often, perhaps
almost always, treat one landowner differently from another.’” Cordi-Allen v. Conlon,
494 F.3d 245, 251 (1st Cir. 2007) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562,
565 (2000) (Breyer, J., concurring)). “An equal protection claimant ‘may not prevail
against a Rule 12(b)(6) motion simply by asserting an inequity and tacking on the
self-serving conclusion that the defendant was motivated by a discriminatory
animus.’” Barrington Cove, 246 F.3d at 10 (quoting Coyne v. City of Somerville, 972
F.2d 440, 444 (1st Cir. 1992) (alterations omitted)).
Here, too, the First Amended Complaint does not state specific facts from
which it could reasonably be inferred that the Plaintiffs were “singled out” for
enforcement of the zoning ordinance. Rubinovitz, 60 F.3d at 910. The allegation that
five secular organizations are present “in the same residential zone” as the Library,
ECF No. 9 ¶ 111(d), does not demonstrate that those organizations were “similarly
situated” to the Plaintiffs with regard to their compliance with the Town’s ordinance,
Macone v. Town of Wakefield, 277 F.3d 1, 10 (1st Cir. 2002); see also Freeman v. Town
of Hudson, 714 F.3d 29, 39 (1st Cir. 2013). After all, there is an “obvious alternative
explanation” for the presence of those organizations, Iqbal, 556 U.S. at 682 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567 (2007)): that the secular organizations
complied with the ordinance.

The same is true of the realtor’s statement that
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Coulombe might not permit a community garden: the obvious explanation is that the
realtor was correct, i.e., that the Town’s ordinances might not permit a community
garden on the property in question. Thus, disparate enforcement is not a plausible
inference.
Because the First Amended Complaint does not allege facts sufficient to raise
a plausible inference that the Plaintiffs were treated differently than other “similarly
situated” landowners, Macone, 277 F.3d at 10, the Plaintiffs have not stated a claim
under RLUIPA’s nondiscrimination provision.
d.

Total Exclusion and Unreasonable Limitation Claim

Section 2000cc(b)(3) prohibits a government from implementing a land use
regulation that “totally excludes religious assemblies from a jurisdiction” or
“unreasonably limits religious assemblies, institutions, or structures within a
jurisdiction.” These provisions “prevent[] government[s] from adopting policies that
make it difficult for religious institutions to locate anywhere within the jurisdiction.”
Bethel World Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 560 (4th
Cir. 2013). Other than the conclusory statement that the Town “interpret[ed]” its
“zoning ordinance to totally exclude some religious functions and unreasonably limit
others,” ECF No. 9 ¶ 111(f), the First Amended Complaint does not contain any
factual allegations showing that the Town’s zoning ordinance excludes or restricts
the use of property for religious purposes. The First Amended Complaint does not
state a claim under § 2000cc(b)(3).

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2.

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Free Exercise Claim

The Plaintiffs also allege that the Town’s enforcement of its land use ordinance
against them violated their right to the free exercise of religion under the First and
Fourteenth Amendments. The First Amended Complaint does not state a sufficient
free exercise claim for at least two reasons. First, the Plaintiffs have not alleged that
the Town’s ordinance is facially discriminatory on the basis of religion.

See

Employment Div. v. Smith, 494 U.S. 872, 879 (1990). Second, as I have already
described, the Plaintiffs’ First Amended Complaint contains insufficient factual
allegations to raise a plausible claim that the ordinance, or Coulombe’s or the Town’s
enforcement of it against the Library, “constitutes a substantial burden on [their]
First Amendment right to the free exercise of religion.” Roman Catholic Bishop of
Springfield v. City of Springfield, 724 F.3d 78, 101 (1st Cir. 2013); see id. (noting that
RLUIPA’s substantial burden provision is intended “to be interpreted consonantly
with the Supreme Court’s usage of the phrase in the First Amendment context”).
For these reasons, the Plaintiffs’ free exercise claim fails.
3.

Due Process Claim

The First Amended Complaint, construed liberally, also alleges that the Town
and Coulombe violated the Plaintiffs’ procedural due process rights by enforcing the
ordinance against them. This claim, too, does not survive Rule 12(b)(6) analysis. Due
process “does not require every procedural protection . . . ; it simply requires that a
private person have a basically fair opportunity to convince the decision maker, by
presenting proofs and arguments and evidence and replies to the arguments of
others.” Newman v. Burgin, 930 F.2d 955, 961 (1st Cir. 1991) (emphasis omitted).
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The Plaintiffs have not alleged that they were prohibited from raising their
arguments before Coulombe, a municipal board of review, or, indeed, a state court.
See Amsden v. Moran, 904 F.2d 748, 755 (1st Cir. 1990) (noting that “the existence of
state remedies,” particularly “the availability of judicial review,” is “highly relevant”
to the due process analysis); cf. Me. R. Civ. P. 80B.
I find that the First Amended Complaint does not state a due process claim
based on the Town’s enforcement of its zoning ordinance.
4.

Equal Protection Claim

The Plaintiffs also claim that the Town’s enforcement of its land use ordinance
against them violated the Equal Protection Clause of the Fourteenth Amendment. I
have already applied an equal protection analysis to the Plaintiffs’ RLUIPA
nondiscrimination claim and determined that the First Amended Complaint does not
adequately allege that the Plaintiffs were treated differently than other “similarly
situated” landowners. Macone, 277 F.3d at 10. For the same reasons, the First
Amended Complaint also fails to state an equal protection claim.
5.

42 U.S.C.A. § 1985

Count Five of the First Amended Complaint alleges that the Town Defendants
conspired to deny due process and equal protection to the Plaintiffs, in violation of 42
U.S.C.A. § 1985(3). As I have described, the Plaintiffs cannot bring a § 1985 claim
based on the tax assessment and exemption issues; I therefore limit my analysis of
this claim to the Town’s enforcement of the zoning ordinance and alleged conspiracy
to prevent the Plaintiffs from acquiring more property in the Town.
A claim under § 1985(3) has four elements:
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First, the plaintiff must allege a conspiracy; second, he must allege a
conspiratorial purpose to deprive the plaintiff of the equal protection of
the laws; third, he must identify an overt act in furtherance of the
conspiracy; and finally, he must show either injury to person or
property, or a deprivation of a constitutionally protected right.
Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). “Pleading a
section 1985(3) conspiracy ‘requires at least minimum factual support of the existence
of a conspiracy.’” Parker v. Landry, 935 F.3d 9, 18 (1st Cir. 2019) (quoting FrancisSobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979)). This requires the plaintiff to
state either “direct evidence of such an agreement” or “plausible factual allegations
sufficient to support a reasonable inference that such an agreement was made.” Id.
“A complaint containing only vague and conclusory allegations of a conspiracy fails
to state a plausible claim under section 1985(3).” Id.
The First Amended Complaint does not satisfy the threshold requirement that
the plaintiffs must allege a conspiracy.

As I have described, the First Amended

Complaint does not contain any factual allegations supporting the existence of a
conspiracy; rather, the First Amended Complaint alludes to the existence of
evidence—for instance, allegations that the Defendants made statements that “will
leave the Jury in no doubt of the collusion,” ECF No. 9 ¶ 99—but it never reveals the
substance of that evidence. The vehemence of its language cannot compensate for
the vagueness of its allegations.
Because the First Amended Complaint does not contain factual material that
is “sufficient to support a reasonable inference” of a conspiracy, Parker, 935 F.3d at
18, the Plaintiffs have failed to state a § 1985(3) claim.

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C.

PageID #: 378

Defamation Claims
Although the First Amended Complaint does not allege defamation in a

separate count, Counts Four and Five fairly assert claims for defamation.
Defamation is “a false statement published to a third party” that “harmed the
plaintiff’s reputation so as to lower her in the community’s estimation.” Cookson v.
Brewer Sch. Dep’t, 974 A.2d 276, 285 (Me. 2009). In order to establish defamation, a
plaintiff must prove that there was:
(1) a false and defamatory statement concerning [the plaintiff];
(2) an unprivileged publication to a third party;
(3) fault amounting at least to negligence on the part of the publisher; and
(4) either actionability of the statement irrespective of special harm or the
existence of special harm caused by the publication.
Waugh v. Genesis Healthcare LLC, 222 A.3d 1063, 1066 (Me. 2019) (quoting Rippett
v. Bemis, 672 A.2d 82, 86 (Me. 1996)). 8
To the extent that the Plaintiffs’ defamation claims are based on allegations of
widespread, general defamation and “character assassination” by various Town
employees, Oxford County employees, and others, those allegations are conclusory.
A plaintiff must plead defamation in a manner “sufficiently detailed to the extent
necessary to enable the defendant to respond.” Bishop v. Costa, 495 F. Supp. 2d 139,
141 (D. Me. 2007). The Plaintiffs’ repeated allegations that various Defendants
engaged in “vicious and false defamatory slander,” ECF No. 9 ¶ 114(a), and “concocted
and false character assassination,” ECF No. 9 ¶ 102, are too vague to enable the
Defendants to respond, and thus fail to state a claim for defamation.

8 The First Amended Complaint also contains allegations of slander. Under Maine law, slander is a
form of defamation. See, e.g., Cookson, 974 A.2d at 285. Accordingly, the defamation analysis above
applies to the Plaintiffs’ assertions of both defamation and slander.
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The only specific, allegedly defamatory statements described in the First
Amended Complaint are (1) the Town employees’ statements during administrative
and judicial proceedings about the use and condition of the Library’s property, and
(2) Defendant Rainey’s statement, which he made in his capacity as the Board of
Assessment Review’s chairman, that the property was “derelict” and unused, ECF
No. 9 ¶ 73.
Both of these categories of statements are privileged under Maine law.
Regarding the Town employees’ statements, Maine recognizes an “absolute privilege”
for witnesses in judicial proceedings. Dunbar v. Greenlaw, 128 A.2d 218, 223 (Me.
1956). And although the Maine Law Court has not expressly stated that this privilege
extends to proceedings before municipal or county administrative bodies, such as the
Board of Assessment Review here, this Court has found that the Law Court would
apply the privilege to all “quasi-judicial” settings where decisions have the force of
law, such as a zoning board of appeals. Rohrbach v. Charbonneau, No. Civ. 99-282P-C, 2000 WL 760739, *7 (D. Me. Mar. 1, 2000); accord Restatement (Second) of Torts,
§§ 585 cmt. b, 588 (Am. Law Inst. 1977). This privilege protects the Town employees’
statements during the state court proceedings and the hearing at the Board of
Assessment Review.
Rainey’s statement is also protected.

Under Maine law, “quasi-judicial

decisions within the scope of [a public officer’s] authority”—such as those of a
licensing board, school committee, and zoning board—are absolutely privileged.
Richards v. Ellis, 233 A.2d 37, 41 (Me. 1967); see Restatement (Second) of Torts § 585
cmt. b. Rainey’s statement about the property, which he made in his capacity as the
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chairman of the tax assessment board, was related to the tax abatement matter. That
statement was privileged.
Therefore, the First Amended Complaint fails to state a claim for defamation
against any of the Defendants.
V. CONCLUSION
For the foregoing reasons, the Town Defendants’ motion to dismiss (ECF No.
36) is GRANTED; the Oxford County Defendants’ motions to dismiss (ECF Nos. 28,
55) are GRANTED; Attorney Kreckel’s motion to dismiss (ECF No. 38) is
GRANTED; and Hebert Realty’s motions to dismiss (ECF Nos. 31, 81) are
GRANTED. In light of this disposition, the Plaintiffs’ First Motion for a Preliminary
Injunction (ECF No. 5) is DENIED IN PART as to Hebert Realty. However, the
dismissals are without prejudice as to the claims arising out of the tax exemption and
abatement dispute.
Additionally, because the Plaintiffs’ motion for leave to file a Second Amended
Complaint (ECF No. 17) merely seeks to name additional defendants and does not
make any new factual allegations that would cure the deficiencies in the First
Amended Complaint, their motion for leave to file is DENIED.

SO ORDERED.
Dated this 18th day of November, 2020
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

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