Upshaw v. WMB Construction, Inc. et al
Judge George A. O'Toole, Jr: ORDER entered granting 9 Motion to Dismiss for Failure to State a Claim; granting 17 Motion to Dismiss; denying without prejudice 19 Motion for Sanctions (Halley, Taylor) Modified on 9/28/2017 (Halley, Taylor).
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-12563-GAO
WMB CONSTRUCTION, INC., WILLIAM M. BRANDON, JR., KARA L. BRANDON,
OFFICER MIKE DOMBROSKY, AVON POLICE DEPARTMENT,
OPINION AND ORDER
September 28, 2017
The plaintiff purports to bring claims against the defendants that he asserts arise from the
unlawful “seizure” of a tractor and trailer belonging to him.
His claims against the defendants WMB Construction, Inc., William M. Brandon, Jr., and
Kara L. Brandon are alleged to arise under a federal civil forfeiture statute, 18 U.S.C. § 983, and
the Federal Tort Claims Act, 28 U.S.C. §§ 2671–2680. Neither of the cited federal statutes
authorizes an action against non-governmental persons or entities. Consequently, the complaint
contains no claim against these defendants upon which relief can be granted. Accordingly, their
Motion to Dismiss Complaint Pursuant to F.R.C.P. Rule 12 (dkt. no. 17) is GRANTED, and the
complaint is dismissed as to them.
To the extent the complaint purports to allege claims under those federal statutes against
the defendants Officer Mike Dombrosky and the Avon Police Department, it similarly fails to state
a viable cause of action against Dombrosky, the Avon Police Department, or the Town of Avon.
The complaint appears also to allege claims against these defendants under the Massachusetts Tort
Claims Act. For the reasons both procedural and substantive set forth in the defendants’
memorandum, the tort claims are not viable, and their Motion to Dismiss (dkt. no. 9) is GRANTED
The Motion for Sanctions filed by the defendants WMB Construction, Inc. and William
M. Brandon, Jr. (dkt. no 19) is DENIED WITHOUT PREJUDICE at this time. The plaintiff is
warned that further attempts to assert in this Court claims similar to those set forth in the present
complaint may well result in the imposition of appropriate sanctions.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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