Maroney et al v. Fiorentini et al
Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (Dkt. #24) AND PLAINTIFFS' MOTION TO AMEND (Dkt. #27). (Russo, Noreen)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL J. MARONEY, as TRUSTEE
OF PREMIERE REALTY TRUST and
JAMES J. FIORENTINI,
INDIVIDUALLY and in his
capacity as MAYOR of the CITY
OF HAVERHILL, ROBERT E. WARD,
INDIVIDUALLY and in his
capacity as DEPUTY DIRECTOR OF
PUBLIC WORKS OF THE CITY OF
DIVISION, and THE CITY OF
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS (Dkt. #24) AND PLAINTIFFS’ MOTION TO AMEND (Dkt. #27)
This case arises from developer Michael Maroney’s efforts to
complete a subdivision of homes in the city of Haverhill (“the
Having been denied certain permits, he brought suit
through his business entities against the City and two of its
officials, for violations of 42 U.S.C. § 1983 and state law, based
property rights and constitutional rights to equal protection and
(Dkt. No. 1, ¶ 1).
on the pleadings.
The defendants move for judgment
(Dkt. No. 24).
The plaintiffs oppose the motion
and in the alternative move for leave to amend the complaint to
assert additional facts.
(Dkt. Nos. 26, 27).
For the reasons
that follow, the motion for judgment on the pleadings is ALLOWED
IN PART and DENIED IN PART.
The motion for leave to amend is
The facts are taken from the Amended Complaint, Doc. No. 27
(“Compl.” ¶ __), and certain documents submitted by the defendants
in connection with their motion.
See Dkt. Nos. 25-1, 25-2. 2
does not constitute a finding by the court that any or all of the
alleged facts are true.
At this stage of the proceedings, the law
requires the court to accept the plaintiffs’ allegations as true
Although the defendants opposed the motion to amend (Dkt. No. 29), they
indicated at the hearing on the motions that they did not oppose the court’s
consideration of their motion based on the facts alleged in the proposed
amended complaint. Given that representation, interests of efficiency and
common sense impel the court to allow the motion to amend; the court
accordingly considers the facts as alleged in the proposed amended complaint.
(Dkt. No. 27, Exh. B).
The two documents consist of (1) a letter dated May 21, 2009, from the
engineering firm that reviewed the impact of the anticipated project on the
City’s water distribution system to the City’s Water Department, and (2) a
notice from the City’s Planning Board dated September 15, 2009, approving the
plaintiffs’ application for the project at issue. No party disputes the
authenticity of the documents or otherwise objects to their submission.
Moreover, the complaint refers to the May 2009 report as a relevant document,
and the September 2009 notice would appear in any event to be a public
record. Accordingly, it is appropriate to consideration the documents at
this stage. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
and to draw all reasonable inferences flowing therefrom in the
Watterson, 987 F.2d at 3.
The Parties and the Project
The plaintiffs are the related entities of (1) Premiere Realty
Trust, (2) Michael J. Maroney as Premiere’s trustee, and (3)
Maroney Construction Company, Inc., of which Michael Maroney is
(Compl. ¶¶ 4-5).
The defendants are the City, its
mayor James Fiorentini (the Mayor), and Robert Ward (Ward), at the
(Compl. ¶¶ 6-8).
In or around 2009, Premiere purchased land off North Broadway
in Haverhill with the intent to develop a subdivision known as the
development plan consisted of 50 residential lots on Back Nine
Drive and Front Nine Drive.
(Compl. ¶ 9).
Company, Inc. (MCC) was general contractor for the subdivision, on
which development began in 2009.
(Compl. ¶¶ 9, 10).
The City had at that time received an engineer’s water system
evaluation report from Wright-Pierce (the May 2009 report), which
indicated that adequate water pressure could not be supplied to
the proposed development, and that supplemental pumping might be
required in order to ensure adequate fire flow capacity throughout
the proposed development.
(Compl. ¶ 11).
On June 12, 2009,
Premiere entered into an agreement with the Haverhill Planning
Under the agreement, Premiere agreed to construct and
install municipal ways and services, including a water booster
In exchange, the Planning Board agreed to release lots
(Compl. ¶ 10).
The Planning Board approved Premiere’s subdivision plan on
January 25, 2010.
(Compl. ¶ 11).
However, the issuance of
installing and testing the utilities shown on the plan, or posting
a security bond of $250,000 to guarantee construction of the water
booster station, with an effective bond date of November 1, 2016.
The plaintiffs chose this latter option.
(Compl. ¶¶ 13-15).
Because no completion deadline was imposed by the subdivision
approval, the water booster station only had to be constructed
upon completion of the subdivision, i.e., the effective bond date
of November 1, 2016.
(Compl. ¶ 13).
transferred to purchasers 29 homes in the subdivision, completing
remaining lots on Front Nine Drive.
(Compl. ¶¶ 17-18).
2015, however, the City, citing water pressure and fire flow
capacity issues, abruptly refused to issue further permits related
to site applications, foundation, building, and occupancy permits.
(Compl. ¶¶ 13, 18, 19).
The plaintiffs (through Maroney) met with
the Planning and Water Departments on a number of occasions, both
before and after March 2015, in an effort to resolve the City’s
concerns. (Compl. ¶ 21). Although each of these meetings appeared
to result in an agreement on how to proceed, and although the
plaintiffs subsequently took certain remedial steps recommended by
the City, including the installation of a water line on North
Broadway, the City ultimately refused to issue the plaintiffs the
permits they needed.
(Compl. ¶¶ 20-21).
The State Court Lawsuit
In an effort to compel the City to release the needed permits,
the plaintiffs brought suit in state superior court against the
Inspector (the “state court lawsuit”).
(Compl. ¶ 22; Maroney et
al v. City of Haverhill Planning Board, et al., Dkt. No. 1577-CV001251).
The suit, which remains pending at the time of this
opinion, alleges among other things breach of contract, breach of
The parties negotiated a settlement but the
City refused to sign it unless Maroney first agreed to drop the
(Compl. ¶ 24).
Evidence of Animus and Disparate Treatment
exaggerated concerns about water pressure and fire flow safety
issues at Crystal Springs.
(Compl. ¶ 26).
The plaintiffs believe
that the City has done so as part of a plan to compel the plaintiffs
subdivision, Parsonage Hill.
(Compl. ¶ 26).
Parsonage Hill was
completed several years earlier, in 1995, and the City subsequently
allowed six more homes to be built thereafter in 2000, all without
regard to whether or how the increased development might adversely
impact low water pressure or adequate fire flow issues.
The plaintiffs suspect that the City surmised that it could
plaintiffs to construct a water booster station in connection with
(Compl. ¶ 26).
Indeed, the City issued permits to at least three other area
developers without requiring them to construct a water booster
(Compl. ¶ 27).
First, in 2012 the City allowed four new
homes to be built across from the entrance to Front Nine Drive,
using the same water main that Parsonage Hill and Front Nine Drive
The City did not tell the developer, Steve Franciosa,
that there were fire flow or water pressure issues in the area.
(Compl. ¶ 27).
Then, in a second instance in 2015, the City approved a
subdivision for seven homes at the DelHaven Estates on Broadway.
(Compl. ¶ 27).
The DelHaven water supply comes from the same water
tower that supplies the plaintiffs’ Crystal Springs development
and the Parsonage Hill development.
(Compl. ¶ 27).
City’s consultant, Wright-Pierce, approved the DelHaven Estates
even though it had no fire flow and insufficient water pressure.
(Compl. ¶ 27).
Indeed, the City approved DelHaven Estates despite
an elevation level so high that fire hydrants were omitted and
individual water booster pumps had to be installed in each home to
compensate for the low water pressure.
(Compl. ¶ 27).
Finally, the Water Department has allowed the owners of Lot
6, who are related to employees of the Water Department, to move
into their house, which was listed in the allegedly unserviceable
(Compl. ¶ 46).
Current Conditions at Crystal Springs
At present, the Haverhill Fire Department has signed off on
all permits regarding the plaintiffs’ development, most recently
on July 7, 2016.
(Compl. ¶ 28).
The Water Department performed
water logger tests which showed that there was more than sufficient
water pressure, surpassing both the state and municipal minimum
(Compl. ¶ 29).
Recent fire flow testing also
yielded results well within the state and municipal requirements.
(Compl. ¶ 29).
Despite these positive metrics, the City has refused to
endorse a timetable for construction of the water booster station
with benchmark deadlines, although it previously had done so.
(Compl. ¶ 31).
In fact, the plaintiffs have since July 2015
constructed a parallel water line as part of the first phase of
building the water booster station, at a cost of $162,000, and
have secured additional financing for the station itself.
¶¶ 25, 32).
Further, the plaintiffs’ engineer has drafted and submitted
plans for the water booster station to the City for approval.
(Compl. ¶ 33).
But, even though the plans were 95% complete as of
January 1, 2016, and were approved by the City’s engineering
consultant, Wright-Pierce, the Water Department indicated that it
was going to scrap the existing designs and begin anew.
The plaintiffs’ engineers have since accordingly redrafted
the plans at considerable cost and expense, and re-submitted them
to the City, but the City has yet to approve them.
(Compl. ¶ 34).
The plaintiffs believe that the refusal to process permits is a
direct result of an order from the Mayor’s office to refuse permits
until the plaintiffs dropped the state litigation.
(Compl. ¶ 36).
The operative complaint advances four counts. Count I alleges
that the defendants deprived the plaintiffs of their Fourteenth
Amendment equal protection and substantive due process rights, in
defendants violatied the plaintiffs’ civil rights, in violation of
the state civil rights statute, M.G.L. c. 12, § 11I.
Finally, Count IV alleges that the defendants conspired to refuse
to issue permits to the plaintiffs.
Courts reviewing a motion for judgment on the pleadings under
Rule 12(c) apply essentially the same standard as when reviewing
a motion to dismiss under Rule 12(b)(6).
Pasdon v. City of
Peabody, 417 F.3d 225, 226 (1st Cir. 2005).
When reviewing a
motion to dismiss under Rule 12(b)(6) courts must apply the notice
pleading requirements of Rule 8(a)(2).
en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2004).
Rule 8(a)(2), a complaint need only include a short and plain
statement of the claim showing that the pleader is entitled to
relief and giving the defendant fair notice of the grounds for the
Conley v. Gibson, 355 U.S. 41, 47 (1957).
Therefore, “a Court confronted with a Rule 12(b)(6) motion ‘may
dismiss a complaint only if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations.’”
Educadores Puertorriquenos en Accion at
66 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
To demonstrate that one is entitled to relief, the plaintiff
must provide “enough facts to state a claim to relief that is
plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully,” and is met
when “the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556).
However, the court is
“not bound to accept as true a legal conclusion couched as a
Id. at 678 (quoting Twombly, 550 U.S. at
The main difference between a 12(b)(6) and a 12(c) motion is
that a 12(c) motion is filed after the pleadings are closed, that
is, after both the complaint and answer have been filed.
v. Bloise, 741 F. Supp. 2d 357, 360 (D. Mass. 2010).
As such, the
court will consider the factual allegations in both the complaint
and the answer.
Nevertheless, since the case is still at a
very early stage, and given the obligation to view the facts in
the light most favorable to the non-movant, the court must treat
any allegations in the answer that contradict the complaint as
A. Count I – Violation of 42 U.S.C. § 1983
Count I alleges a violation of 42 U.S.C. § 1983.
1983 creates no independent substantive rights but rather provides
a cause of action by which individuals may seek damages for
Albright v. Olivier, 510 U.S. 266, 271 (1994).
To succeed under
§ 1983, a plaintiff therefore must prove that the challenged
conduct is attributable to a person acting under color of state
law, and that the conduct effected a denial of rights secured by
the Constitution or by federal law. See Soto v. Flores, 103 F.3d
1056, 1061 (1st Cir. 1997).
Here, the plaintiffs allege that the
defendants violated their right to equal protection under the law,
and their right to substantive due process, both protected rights
under the Fourteenth Amendment.
The court addresses each in turn.
i. Equal Protection
The plaintiffs assert a “class of one” equal protection claim.
differential treatment of classes, an equal protection claim may
be brought by a “class of one” where a plaintiff can demonstrate
that (1) he has been intentionally treated differently (2) from
others similarly situated, (3) that no rational basis exists for
the difference in treatment, and that (4) the different treatment
was based on a malicious or bad faith intent to injure the
plaintiff. Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006);
Walsh v. Town of Lakeville, 431 F. Supp. 2d 134, 145 (D. Mass.
Proof of a similarly situated but differently treated
extremely high degree of similarity between themselves and the
persons to whom they compare themselves.”
F.3d 30, 34 (1st Cir. 2014).
Snyder v. Gaudet, 756
These “similarly situated” persons
mitigating or distinguishing circumstances that would render the
This similarity requirement “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.’” Id. (quoting Village of
To survive a motion to dismiss (or for judgment on the
pleadings), a plaintiff must provide facts that the court can use
to determine whether the cited comparable is in any way similar to
the plaintiff’s project. Najas Realty, LLC v. Seekonk Water Dist.,
68 F. Supp. 3d 246, 257 (1st Cir. 2014).
In that regard, the
“Court must be able to compare ‘apples to apples’ and not be
presented ‘with a fruit basket’ of different types of allegedly
Clark v. Boscher, 514 F.3d 107, 114
(1st Cir. 2008).
Here, the defendants assert two primary challenges to the
plaintiffs’ equal protection claim, arguing:
(1) the complaint
fails to plead facts sufficient to show that the plaintiffs’
project is “similarly situated” to any other projects; and (2) the
complaint fails to adequately allege that the defendants acted
with malice or bad faith.
The plaintiffs may indeed face some
difficulty in proving an equal protection violation, but neither
of these challenges justifies dismissal of the equal protection
claim at this early juncture of the case.
developers similarly situated to the plaintiffs in all relevant
Notably, though, this argument is based on the facts as
pled in the original complaint.
The court also agrees that the
complaint, limited to those factual allegations, falls short of
adequately identifying any similarly situated developers.
amended complaint, however, appears to have been intended to
specifically redress this issue and does in the court’s view set
forth enough additional details to push the plaintiffs’ equal
protection claim over the 12(b)(6) hurdle.
According to the facts alleged in the amended complaint, at
least one nearby development, DelHaven Estates, would appear to be
similarly situated to the Crystal Springs development. The amended
complaint alleges that DelHaven Estates, a subdivision of seven
homes which the City approved for development in 2015, will use
development (as well as Parsonage Hill), and was approved despite
the fact that it too purportedly had insufficient water pressure
and no fire flow.
(Compl. ¶ 27).
Significantly, the amended
permitted to remediate the low water pressure issue by installing
individual water booster pumps in each house; by contrast, the
City fabricated concerns about water pressure at Crystal Springs
and ultimately prevented the plaintiffs from taking any steps to
remediate any reported water pressure/flow issues by constructing
a water booster station.
As such, the amended complaint
alleges that a developer constructing a development near Crystal
Springs, at around the same time, and with similar water pressure
prevented from proceeding.
Understanding that time and discovery will reveal whether
there is real substance to this claim, the court finds for now
situated developer and thus satisfies (for pleading purposes) this
element of an equal protection claim. 3
See e.g., Mosdos Chofetz
The amended complaint refers to two other Haverhill developments but the
allegations lack sufficient detail to readily determine whether they are
similarly situated to the plaintiffs’ Crystal Springs development. (Compl. ¶
With respect to the nearby development known as Parsonage Hill, the
complaint alleges that the defendants allowed six homes to be built there “after
2000” without consideration for water pressure or fire flow, but fails to
articulate any facts (aside from geographic proximity) that would allow the
court conclude that the developments are comparable.
(Compl. ¶ 27).
other things, where the amended complaint asserts that the defendants were aware
of water capacity issues “as far back as May 21, 2009” (Compl. ¶ 11), any homes
added to Parsonage Hill before 2009 would thus not be relevant, because the
defendants probably would not have been considering water capacity issues when
approving those permits.
With respect to the development built by Steve
Franciosa, the plaintiffs allege that the defendants in 2012 gave Franciosa
four building permits to develop homes along the same water main as Front Nine
Drive, but did not tell him that there would be any issues with fire flow or
water pressure in the area, and gave him the permits without any concerns.
(Compl. ¶ 27). As the court reads the amended complaint, however, these facts
do not evince disparate treatment where the plaintiffs also received or
possessed permits to proceed during the same time period, and there is no
allegation that Franciosa thereafter received permits in 2015 that the
plaintiffs were denied.
Chaim, Inc. v. Vill. Of Wesley Hills, 815 F. Supp. 2d 679, 697
(S.D.N.Y. 2011) (Although at summary judgment stage court asks
whether jury, based on reasonable evidence, could conclude that
plaintiff and proposed comparator are similarly situated, such
evidence is not necessary at motion to dismiss stage).
In addition, the plaintiffs have sufficiently pled that the
defendants’ actions were “motivated by malicious or bad faith
intent to injure.”
Snyder, 756 F.3d at 34.
To evidence this bad
faith or malice, the plaintiff must show that the government
official’s decisions were not simply arbitrary and erroneous;
instead, the plaintiff must establish that the defendants’ actions
constituted a “gross abuse of power.”
Tapalian v. Tusino, 377
F.3d 1, 6 (1st Cir. 2004) (quoting Baker v. Coxe, 230 F.3d 470,
474 (1st Cir. 2000)).
The amended complaint meets that standard
because it alleges that (1) there is in fact no need for a water
requiring the plaintiffs to build one is to cure the problems that
plague nearby Parsonage Hill; (2) the defendants disingenuously
denied the plaintiffs permits based on the false claim that they
were obligated to have built the station much earlier; and (3) the
Mayor has refused to allow any permits to be released unless the
plaintiffs dismiss the state lawsuit. If true, these actions would
certainly constitute a gross abuse of power.
F.3d at 6 (collecting cases).
See Tapalian, 337
To be sure, the defendants argue that these assertions cannot
be probative of bad faith or malice.
They argue that even assuming
the impetus for requiring the plaintiffs to build the booster
station was to benefit Parsonage Hill, that fact is irrelevant
because the plaintiffs never appealed the requirement.
assuming that is true, however, proof that the defendants had an
ulterior motive for forcing the plaintiffs to build a booster
station at Crystal Springs could still be probative of their
The defendants also argue that the court should not credit
the allegation that the Mayor has refused to allow anyone to
approve any permits for the plaintiffs until they drop the state
court lawsuit, because attempting to resolve a lawsuit does not
constitute bad faith or malice.
The court agrees that there may
plaintiffs to dismiss the state court lawsuit, and makes no adverse
findings against the defendants in that regard.
That being said,
if arguendo the Mayor has refused to allow permits to be issued to
the plaintiffs, in order to force the plaintiffs to abandon their
right to seek redress for a perceived legal wrong, the court has
no issue in concluding that such conduct could comprise malice or
In sum, the plaintiffs have adequately alleged that the
defendants have treated their development differently than others,
that there was no rational basis for the difference, and that the
difference in treatment was motivated by malice or bad faith.
such, the equal protection claim survives the motion for judgment.
ii. Substantive Due Process
Next, the defendants argue that the plaintiffs have not
alleged a cognizable due process claim.
They argue that because
the alleged deprivation here is merely a delay in the issuance of
construction permits, rather than a denial of permits, it is
property interest able to form the basis of a substantive due
They argue that even if it could, it is not enough
to constitute the type of conscience-shocking conduct required to
support a substantive due process claim.
The Fourteenth Amendment provides protection to an individual
from state deprivation of life, liberty, or property without due
process of law.
U.S. Const. Amend. XIV.
deprivation of property] is not arbitrary and capricious.” Licari
v. Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994).
It prevents the
“abuse of government power that shocks the conscience, or action
interest.” PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31–32 (1st
Cir. 1991); accord Clark, 514 F.3d at 112.
Although the First
Circuit has routinely rejected substantive due process claims in
the zoning and land-use contexts, it has “left the door slightly
ajar for federal relief in truly horrendous situations.”
Colon Medina & Sucesores Inc. v. Custodio, 964 F.2d 32, 45 (1st
Cir. 1992); accord Licari, 22 F.3d at 350; Collier v. Town of
Harvard, No. 95–cv–11652, 1997 WL 33781338, at *5 (D. Mass. Mar.
28, 1997); see Chongris v. Board of Appeals, 811 F.2d 36, 43 (1st
Cir. 1987) (noting “even abridgments of state law [in the landuse context] committed in bad faith do not necessarily amount to
constitutional deprivation of due process,” but acknowledging that
there could exist a “type of egregious official behavior which
could conceivably work a breach of the due process clause”); cf.
Gianfrancesco v. Town of Wrentham, 712 F.3d 634 (1st Cir. 2013)
To state such a claim in this Circuit in the land-use context,
Clark, 514 F.3d at 113 (internal quotations omitted);
cf. Nestor Colon Medina, 964 F.2d at 45–47 (noting a plaintiff
must demonstrate a “high” level of “abuse of government power,”
hostility toward the applicants” and obstacles that “any other
developer would have faced”).
For example, another session of
this court permitted a substantive due process claim to not only
survive through discovery but also proceed to trial where the
extortion to further the personal interests of a local official.
Collier, 1997 WL 33781338, at *5–7.
Among other things, there was
evidence that the defendants visited the plaintiff at his home and
told him that “things would go a lot more smoothly . . . if [the
plaintiff] gave [a defendant] the easement that he wanted.”
court concluded that because the plaintiff had alleged specific
facts that were more than just “loose claims of conspiracy and
corruption,” a reasonable jury could find that a substantive due
process violation had been committed.
In yet another matter, a court in this session concluded that
the plaintiffs had done enough at the pleading stage to distinguish
their allegations from the sort of “run of the mill land-use claims
often brought by disappointed developers and rejected by the
federal courts in this jurisdiction” where they alleged that the
mayor had led an orchestrated campaign against the developers by
changing zoning laws that only affected the plaintiffs’ project,
refusing to issue water permits to the plaintiffs’ property, and
litigation that was intended to expend the plaintiffs’ resources.
Brockton Power LLC v. City of Brockton 948 F. Supp. 2d 48, 69 (D.
Considering the foregoing here and, importantly, accepting
all of the allegations in the amended complaint as true as the
court is constrained to do, the plaintiffs have done enough at
this stage of the proceedings to state a valid substantive due
process claim against the Mayor and Ward.
In particular, where
the plaintiffs allege that the fire department has signed off on
department has determined that the water pressure at Crystal
Springs exceeds state and municipal requirements, that the City’s
own water tests have shown that the plaintiffs’ subdivision meets
all state and municipal fire flow requirements, but that the City,
instead of allowing the plaintiffs to proceed, has required them
development, has prevented them from building the booster station,
and has moreover held the allowance of any additional permits
hostage to force the plaintiffs to drop the state court lawsuit,
they allege that the defendants have engaged in arbitrary and
capricious conscience-shocking conduct.
See e.g., Dolan v. City
of Tigard, 512 U.S. 374, 387 (1994) (where there is no nexus
between a permit condition and a legitimate state interest, valid
But, the court agrees with the defendants that the complaint
as framed fails to state a valid § 1983 claim against the City.
It is well established that a municipality cannot be held liable
under § 1983 for the acts of its employees unless a plaintiff has
shown that the violation occurred as a result of an official policy
or custom of the municipality.
Freeman v. Town of Hudson, 714
F.3d 29, 37-38 (1st Cir. 2013) (citing Monell v. Dept. of Soc.
Servs. Of the City of New York, 436 U.S. 658, 694 (1978)).
‘official policy’ requirement was intended to distinguish acts of
the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action
for which the municipality is actually responsible.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 479 (1986).
The decision of a
municipal policymaker only constitutes official policy where the
“decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered.”
Freeman, 714 F.3d at
In order to make this determination, “[c]ourts must look to
state law, including ‘valid local ordinances and regulations,” for
policymakers in the relevant area at issue.’”
Here, although the complaint alleges among other things that
“[t]he Mayor has directed the Water Department not to issue any
permits until the [state court lawsuit] is voluntarily dismissed”
(Compl. ¶ 43), it fails to reference any state or local laws
establishing the policy making authority of the Mayor or any City
Anecdotal allegations that the Mayor has told
Maroney and/or others that the plaintiffs could receive the needed
suggestive of political clout, fail without more to constitute
proof that the City has actually delegated policy making authority
on this matter to the Mayor.
Accordingly, Count I is dismissed
against the City, but without prejudice to the plaintiffs’ ability
to seek to amend.
iii. Qualified Immunity
violation occurred, they enjoy qualified immunity from liability.
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”
555 U.S. 223, 231 (2009).
Pearson v. Callahan,
At the motion to dismiss stage “it is
scrutinized for ‘objective legal reasonableness.’”
Pelletier, 516 U.S. 299, 309 (1996) (emphasis original).
the court presumes without finding that manipulating and abusing
the permitting process in order to coerce the plaintiffs into
building an unneeded water booster station to cure problems at
another development, as well as to coerce them into dropping a
established statutory or constitutional right.
It is generally unwise though to venture into a qualified
immunity analysis at the pleading stage because in the majority of
cases it is necessary to develop the factual record to test the
Bettencourt, 614 F.3d 25, 29 (1st Cir. 2010) (“[i]t is not always
possible to determine before any discovery has occurred whether a
defendant is entitled to qualified immunity, and courts often
Consequently, if qualified immunity is not granted at
the motion to dismiss stage, nothing prevents a party from raising
it again after further development of the facts.
Fontanes, 568 F.3d 263, 268 (1st Cir. 2009); see also Olivio
Gonzalez v. Teacher’s Retirement Bd., 208 F. Supp. 2d 163, 167
(D.P.R. 2002) (“Since the issue of qualified immunity has been
raised in the context of a motion to dismiss, and we conclude that
the complaint contains sufficient factual allegations that could
immunity, the court can proceed no further.
are free to raise this issue in the context of a motion for summary
judgment on the grounds of a qualified immunity defense at this
stage of the litigation, without prejudice to the defendants’
ability to renew.
B. Remaining Claims: Violation of M.G.L. c. 12 § 11;
Interference with Contractual and Economic Relations;
and Common Law Conspiracy. (Counts II-IV)
i. Count II: Violation of the Massachusetts Civil
The Massachusetts Civil Rights Act (MCRA) provides a cause of
action for any person whose rights under the Constitution, federal
interpreted the MCRA to be co-extensive with § 1983 except for two
disparities: (1) the MCRA does not require any state action (i.e.,
there is no “under color of state law” requirement), and (2) a
claim under the MCRA requires a violation by threats, intimidation,
Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002)
(internal quotation marks original).
Because the court has already determined that Count I states
a valid § 1983, the MCRA claim also survives against the individual
defendants for the same reasons.
However, the court agrees that
Count II must be dismissed against the City because a municipality
is not a “person” within the meaning of the statute and therefore
cannot be sued under the MCRA.
McCarthy v. Szoztkiewicz, 188 F.
Supp. 2d 64, 71 (D. Mass. 2002).
ii. Count III: Interference with Contractual Relations
Count III alleges that the defendants interfered with the
intentional interference, a plaintiff must prove that (1) it had
a contract with a third party; (2) the defendant knowingly induced
interference, in addition to being intentional, was improper in
G.S. Enters., v. Falmouth Marine, Inc., 410
Mass. 262, 272 (1991).
As to the third prong, which is at issue
here, a plaintiff need only establish either improper means or
motive, not both, to sustain a claim of tortious interference.
See Cavicchi v. Koski, 67 Mass. App. Ct. 654, 658 (2006).
The defendants argue that Count III fails to state a claim
against the individual defendants because the plaintiffs have not
sufficiently alleged bad faith or malice.
However, as the court
has already found in discussing the plaintiffs’ equal protection
claim that the complaint does in fact adequately allege that the
defendants were motivated by bad faith or malice, the court rejects
this argument and finds that Count III states a valid claim for
interference with contractual relations.
By contrast, Count III
fails to state a claim against the City because municipalities are
Massachusetts Tort Claims Act, G.L. c. 258, §10(c).
See Felix v.
Town of Randolph, No. 12-10997-GAO, 2013 WL 3830840, at *4 (D.
Mass. July 22, 2013).
iii. Count IV: Common Law Conspiracy
Count IV as originally drafted alleged that the individual
defendants conspired to violate the plaintiffs’ civil rights, in
violation of 42 U.S.C. §§ 1985 and 1986.
The defendants argue
that this claim fails because a plaintiff must prove class based
complaint removes the references to §§ 1985 and 1986 and now
alleges only a common law conspiracy claim.
As such, there is no
basis to strike the claim.
Judgment on the Pleadings (Dkt. No. 24) is ALLOWED IN PART and
DENIED IN PART.
Specifically, the motion is ALLOWED with respect
to the claims against the City in Counts I, II and III, and DENIED
with respect to the claims against the individual defendants in
Counts I, II, III and IV.
The Plaintffs’ Motion to Amend (Dkt.
No. 27) is ALLOWED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
December 7, 2017
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