Comley v. Town of Rowley, Massachusetts et al

Filing 44

Judge Rya W. Zobel: Memorandum of Decision entered granting 31 Motion to Dismiss as to Counts i, II, III, IV, V and VII; granting 33 Motion for Judgment on the Pleadings as to Counts I, II, III, IV, V and VI.Judgment may be entered withprejudice for Town defendants on Counts I, III, IV, and V, and without prejudice forTown defendants on Counts II and VI. Judgment may be entered with prejudice forMassDOT on Counts I, II, III, IV, V, and VII. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 17-10038-RWZ

STEPHEN B. COMLEY
v.

TOWN OF ROWLEY,
TOWN OF ROWLEY BOARD OF SELECTMEN,
JOSEPH PERRY, Individually and as Selectman,
ROBERT SNOW, Individually and as Selectman,
CLIFFORD PIERCE, Individually and as Selectman,
G. ROBERT MERRY, Individually and as Selectman,
DAVID PETERSEN, Individually and as Selectman, and
COMMONWEALTH OF
MASSACHUSETTS DEPARTMENT
OF TRANSPORTATION/HIGHWAY DIVISION

MEMORANDUM OF DECISION
October 31, 2017

ZOBEL, S.D.J.
Plaintiff Stephen B. Comley brings this 42 U.S.C. § 1983 lawsuit against the
Town of Rowley (“Town”), the Town's Board of Selectmen (“Board”), five named
selectmen in their individual and official capacities (collectively, “Town defendants”),
and the Massachusetts Department of Transportation (“MassDOT”) to vindicate his
rights to free speech and equal protection. He alleges that defendants removed his

political signs posted on Town property and along state highways but allowed others’
signs to remain. Defendants move to dismiss and for judgment on the pleadings.
I.

Factual Background
The facts are recited as alleged in plaintiff’s complaint (Docket # 1-2). See

Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 5 (1st Cir. 2011).
Comley is a Rowley resident and longtime nuclear safety activist dedicated to
raising awareness of the dangers he perceives from the nearby Seabrook Power Plant.
To that end, he posted signs on public property throughout the Town in 2015 urging
attention to his concerns and related issues.1 At a Town Meeting in May 2015, he
moved that the Board request the United States Nuclear Regulatory Commission to
hold a public hearing concerning Seabrook’s evacuation plans.
Following that meeting, plaintiff’s signs “began to disappear” from their locations
around Town (Complaint, at ¶ 16), about which he pleads nothing beyond that they
“were posted in areas and locations customarily used by other individuals without
restraint relating to elections [and] to express political views.” Id., at ¶ 15. Plaintiff
subsequently discovered that the Board had “instructed or vicariously instructed
departments of the town to remove his signs,” id., at ¶ 16, even as “other similar signs
of political nature posted by other individuals or citizens of the town were not so
removed.” Id., at ¶ 17. MassDOT also removed plaintiff’s signs from Route 1A and

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Specifically, one of plaintiff’s signs exhorted then-President Obam a to “Protect U.S.
Dem ocracy” and “investigate the Nuclear Regulatory Com m ission,” and another advertised plaintiff’s own
candidacy for the presidency. Ex. 2 to Com plaint.

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Route 1 in the Towns of Ipswich, Rowley, Newbury, Newburyport, and Salisbury. Id., at
¶ 23. However, the complaint is devoid of any detail as to that conduct.
At a Board meeting in November 2015,2 defendant Merry explained that the
Board had received complaints about plaintiff’s signs and opined that any signs posted
on utility poles violated state law. See Docket # 39-2, at 4. Defendant Petersen
likewise assumed that the signs were unlawful, saying, “If the signs are gone, they're
gone, and we can't waste time tracking down signs put up illegally on Town property.”
Id.
Plaintiff brought the present action in Essex Superior Court. Docket # 7. The
complaint alleges five counts of violations of his constitutional rights to free speech and
equal protection under 42 U.S.C. § 1983 (Counts I–V), one count of civil conspiracy
against Town defendants (Count VI), and one count of violation of 700 C.M.R.
3.02(2)(b)(4) against MassDOT. Town defendants removed the case to federal court
on January 9, 2017, Docket # 1, and now move for judgment on the pleadings. Docket
# 33. MassDOT, which had not yet been served at the time of removal, neither
consented to nor joined the removal, but now moves to dismiss. Docket # 31.
2

Plaintiff attached the m inutes for two Board m eetings, including the Novem ber 9, 2015,
m eeting, to his opposition to Town defendants’ m otion for judgm ent on the pleadings. Docket # 39-2.
Materials offered in support of or opposition to a m otion to dism iss under Rule 12(b)(6) or a m otion for
judgm ent on the pleadings under Rule 12(c) m ay be considered without converting the m otion to one for
sum m ary judgm ent where the authenticity of the content is undisputed; where the parties did not object to
the court’s consideration of the content; or where the content is consistent with the pleadings. See
W atterson v. Page, 987 F.2d 1, 3–4 (1st Cir. 1993). Here, as in W atterson, “all or m ost of the abovem entioned elem ents are present. Plaintiff[], m oreover, introduced the docum ents [him self], in order to
bolster [his] argum ent against defendants' m otions to dism iss.” Id. (citing Cortec Indus., Inc. v. Sum
Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]he problem that arises when a court reviews statem ents
extraneous to a com plaint generally is the lack of notice to the plaintiff . . . W here plaintiff has actual notice
. . . and has relied upon these docum ents in fram ing the com plaint the necessity of translating a Rule
12(b)(6) m otion into one under Rule 56 is largely dissipated.”), cert. denied, 503 U.S. 960 (1992)).

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II.

Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. The standard for evaluating a Rule 12(c) motion
for judgment on the pleadings is essentially the same as that for deciding a Rule
12(b)(6) motion. Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005).
For purposes of a motion to dismiss, the court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in the plaintiff’s favor. See
Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 52–53 (1st Cir. 2013). In addition
to facts and documents included in or incorporated into the complaint, the court “may
also consider ‘documents incorporated by reference in [the complaint], matters of public
record, and other matters susceptible to judicial notice.’” Giragosian v. Ryan, 547 F.3d
59, 65 (1st Cir. 2008) (alteration in original) (quoting In re Colonial Mortg. Bankers
Corp., 324 F.3d 12, 20 (1st Cir. 2003)).
III.

Analysis
A.

Constitutional Claims (Counts I–V)

In Counts I through V, plaintiff alleges a variety of somewhat duplicative
constitutional claims. Count I alleges free speech violations under the First Amendment
and/or the Massachusetts Declaration of Rights, and Count II invokes these same rights

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in stating a § 1983 violation. Because the latter is the appropriate cause of action for
the former violations, I treat them as one claim under Count II. Counts III and IV seek
injunctive relief and attorneys’ fees, which do not amount to independent causes of
action. See Payton v. Wells Fargo Bank, N.A., No. 12-11540, 2013 WL 782601, at *6
(D. Mass. Feb. 28, 2013) (“[I]njunctive relief is not a stand-alone cause of action under
Massachusetts or federal law.”). Count V, styled a claim for “selective enforcement,” is
ambiguously pleaded but appears to invoke the Fourteenth Amendment’s equal
protection clause. Cf. McGuire v. Reilly, 386 F.3d 45, 62–63 (1st Cir. 2004) (noting few
substantive differences between oft-confused doctrines of First Amendment viewpoint
discrimination and Fourteenth Amendment selective enforcement).
Whether under the First or Fourteenth Amendment, to prevail on a § 1983 claim,
a plaintiff must plausibly allege both the violation of a constitutional right and that the
alleged violation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). A public employee generally “acts under color of state
law while acting in his official capacity or while exercising his responsibilities pursuant to
state law.” Id. at 50.
1.

First Amendment Viewpoint Discrimination

Plaintiff alleges that in 2015, he “and other citizens of the town” posted political
signs on public property throughout the Town of Rowley. Complaint, at ¶ 14. Claiming
that Town defendants “instructed or vicariously instructed departments of the town” to
remove his signs,3 plaintiff maintains that “other similar signs of political nature posted
3

In his opposition to Town defendants’ m otion to dism iss, plaintiff relies on a num ber of
em ails to the Board from Town residents com plaining about his signs. Plaintiff’s com plaint nowhere
m akes reference to these em ails or their contents, nor were they attached to the com plaint or to any

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by other individuals . . . were not so removed.” Id., at ¶¶ 16–17. In support, he
attached as Exhibit 2 to his complaint seven photographs – the first showing an
example of his own signs, and the remaining six purporting to show others’ signs that
were not removed.4 He further avers that this court may take judicial notice of the
ubiquity of political signage on public property during election season.
Although plaintiff offers no facts specifying the locations of his signs, I accept as
true for this analysis his allegation that all signs were removed from public property. It
is “well settled that the government need not permit all forms of speech on property that
it owns and controls. The government, no less than a private owner of property, has
power to preserve the property under its control for the use to which it is lawfully
dedicated.” Del Gallo v. Parent, 557 F.3d 58, 68 (1st Cir. 2009) (citations omitted).
Plaintiff does not challenge that power itself, but rather the discriminatory manner with
which he argues it was applied in removing only his signs. “The essence of a viewpoint
discrimination claim is that the government has preferred the message of one speaker
over another,” in violation of the First Amendment. McGuire, 386 F.3d at 61–62 (citing
subsequently filed m otions. The em ails appear at Docket # 7 only as part of the state court record
entered by defendants, but plaintiff variously m ischaracterizes their status in the record. He first refers to
them as attached to Exhibit 3 to the com plaint. Docket # 39, at 3. That exhibit is a letter from plaintiff to
the Board dated October 27, 2015, listing seven enclosures, none of which were attached to the com plaint
and which in any event do not include the em ails. Ex. 3 to Com plaint, at 24. He also cites to the em ails
as “Ex. 5 to the Verified Com plaint,” Docket # 39, at 9–10, 17, but that com plaint includes only three
exhibits. At the m otion hearing on Septem ber 19, 2017, plaintiff’s counsel represented that these em ails
were “attached to the com plaint,” but argued that I need not rely on them to find in his favor since ¶¶
14–16 of the com plaint alleged the relevant facts. Accordingly, and since the em ails are not public
records undisputed by the parties, I exclude them as outside the pleadings. See W atterson, 987 F.2d at
3–4.
4

Plaintiff's signs appear to be in a residential location, close to a driveway. The other
photographs show the following signs in roadside locations whose public or private character is unclear:
“Kevin Coppinger for Sheriff”; “Bernie 2016”; “Archer for Sheriff”; “Marks for Sheriff”; “Trum p”; and a “2 for
$4” Monster drinks advertisem ent, on what appears to be a utility pole in front of a gas station.

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Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
804 (1984)). To prevail on this claim, plaintiff must show “a pattern of unlawful
favoritism.” Thomas v. Chicago Park Dist., 534 U.S. 316, 325 (2002) (“Granting waivers
to favored speakers (or, more precisely, denying them to disfavored speakers) would of
course be unconstitutional, but we think that this abuse must be dealt with if and when
a pattern of unlawful favoritism appears”).
Plaintiff has failed to plead sufficient facts in support of such a pattern. Although
he contends that, following the May 2015 Town Meeting, his signs were removed while
“other similar signs of political nature posted by other individuals . . . were not so
removed,” Complaint at ¶¶ 16-17, plaintiff’s photographs of such other signs reveal
remarkably little. Plaintiff has pleaded nothing about when the other signs were placed
where or by whom. Even as to his own signs, the plaintiff does not specify where he
posted them. In the absence of such information, it is impossible to conclude that
defendants allowed some signs to remain in similar locations from which they removed
plaintiff’s signs, much less that they did so in a discriminatory manner.
2.

First Amendment Retaliation

Although it is not precisely pleaded, plaintiff’s First Amendment claim could
alternatively be read to allege retaliatory removal of his signs following his Town
Meeting motion for a public hearing on nuclear safety issues. “When a government
actor retaliates against someone for exercising constitutionally protected First
Amendment rights, that individual has a cognizable retaliation claim pursuant to § 1983.
To make out a valid claim, a plaintiff must first show that his conduct was

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constitutionally protected and, second, he must show proof of a causal connection
between the allegedly protected conduct and the supposedly retaliatory response.”
Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 141 (1st Cir. 2016) (citations
omitted). “The defendant may then avoid a finding of liability by showing that ‘it would
have reached the same decision . . . even in the absence of the protected conduct.’”
Powell v. Alexander, 391 F.3d 1, 17 (1st Cir. 2004) (quoting Mt. Healthy City Sch. Dist.
Bd. Of Educ. V. Doyle, 429 U.S. 274, 287 (1977)).
Plaintiff’s Town Meeting motion, as commentary on a matter of public concern, is
clearly constitutionally protected speech.5 See Najas, 821 F.3d at 141. Plaintiff has
adduced no facts, however, to establish defendants’ retaliatory motive. Instead, he
implies causation from the basic chronology that his signs “began to disappear” after
the May 2015 Town Meeting. Complaint, at ¶ 16. Although temporal proximity alone
may sometimes suffice, it must generally be close. Gonzalez-Droz v. Gonzalez-Colon,
660 F.3d 1, 16-17 (1st Cir. 2011). Here, plaintiff alleges nothing specific about when
defendants first removed his signs, and in fact the record shows that his signs were
disappearing well before the May 2015 meeting.6 This cripples his effort to establish
5

Plaintiff also argues that Town defendants were bound by his m otion, which passed by
unanim ous vote, to m ake an official request of the Nuclear Regulatory Com m ission (“NRC”) for a public
hearing. See Com plaint, at ¶ ¶ 10–13. Plaintiff has no standing to advance this argum ent, and in any
event, Town defendants responded diligently. See Docket # 33-1 (Board-com m issioned report of Town
Fire Chief reviewing plaintiff’s safety concerns); Docket # 33-2 (m inutes for June 1, 2015, Board m eeting
to address plaintiff’s m otion; em ergency m anagem ent officials and state representatives in attendance);
Docket # 33-4 (letter dated June 15, 2015 from Board to Congressm an Seth Moulton, requesting that he
contact the NRC on the Town’s behalf and m eet with plaintiff). See also Butler v. Town of East
Bridgewater, 110 N.E. 2d 922, 925 (Mass. 1953) (reserving discretion in selectm en, who are duty-bound
to avoid “unreasonable, arbitrary, whim sical, or capricious” action).
6

In a letter dated October 27, 2015, plaintiff dem ands that the Board provide specific
inform ation about the Town’s role in rem oving his signs. Ex. 3 to Com plaint, at 20. He states that he and
others com plained of stolen signs to police, who began investigating “over a year” before the date of the
letter. Id. He is also on the record as stating during a Board m eeting on March 16, 2015, that he had “put

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causation. See id.; see also Rubinovitz v. Rogato, 60 F.3d 906, 911 (1st Cir. 1995)
(plaintiffs’ reliance on circumstantial evidence of allegedly retaliatory enforcement
following protected speech is insufficient to support an inference of improper motive,
particularly where some enforcement preceded the speech). It may well be that plaintiff
intends more broadly to allege retaliation for his longstanding activism, but he has not
so pleaded.
3.

Fourteenth Amendment Selective Enforcement

Plaintiff brings a separate count for selective enforcement, apparently sounding
in the Fourteenth Amendment’s equal protection clause. “A claim for a ‘class of one’
equal protection violation is cognizable when—and only when—a plaintiff alleges that
she has been intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.” SBT Holdings, LLC v. Town of
Westminster, 547 F.3d 28, 34 (1st Cir. 2008) (citations omitted). “In a class of one
equal protection claim, proof of a similarly situated, but differently treated, comparator is
essential. In particular, plaintiff[] must show an extremely high degree of similarity
between [himself] and the persons to whom [he] compare[s] [himself]. [He] must show
that [he] engaged in the same activity . . . without such distinguishing or mitigating
circumstances as would render the comparison inutile.” Snyder v. Gaudet, 756 F.3d
30, 34 (1st Cir. 2014) (citations omitted).
Although plaintiff identified six other signs he claims were not removed, he has in
no way substantiated how those signs are relevant comparators. See Najas, 821 F.3d

out m any signs from Ipswich to Ham pton and m any have been stolen.” Docket # 33-5, at 4.

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at 144 (holding that it “does not cut it, even at the pleading stage,” to offer comparators
without explanation of how they are similarly situated); see also Freeman v. Town of
Hudson, 714 F.3d 29, 39–40 (1st Cir. 2013) (complaint’s “failure to do more than
conclusorily state that the [plaintiffs] were both similarly situated to and treated
differently from unspecified ‘other contractors' is insufficient to survive the defendants'
motion to dismiss”). Accordingly, his equal protection claim fails. See Harron v. Town
of Franklin, 660 F.3d 531, 537 (1st Cir. 2011) (paucity of facts surrounding putative
comparators fatal to equal protection claim).
Because plaintiff has failed to plausibly allege free speech or equal protection
violations, I need not consider whether he has pleaded a basis for municipal liability
under Monell v. New York City Department of Social Services, 436 U.S. 658, 98 (1978).
See Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 640 n.4 (1st Cir. 2013)
(“Policy or practice aside, a municipality cannot be liable for the actions of its officials
under Monell if those actions inflicted no constitutional harm.”). Town Defendants’
motion for judgment on the pleadings (Docket #33) is GRANTED as to Counts I, III, IV,
and V, and GRANTED WITHOUT PREJUDICE as to Count II.
The same analysis dooms plaintiff’s even more barely pleaded claim against
MassDOT which, as a state agent, is in any event immune from federal suit. See
Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 99 (1st Cir. 2002) (“[S]tates are
immune under the Eleventh Amendment from private suit in the federal courts, absent
their consent.”). MassDOT’s motion to dismiss (Docket #31) is GRANTED as to Counts
I, II, III, IV, and V.

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B.

Count VI – Civil Conspiracy (Town Defendants only)

Plaintiff further claims that Town defendants’ “collective acts and omissions
represent a common design or agreement to violate [his] constitutional rights and/or
under color of law selectively enforce applicable town policy, procedure or regulations
against him.” Complaint, at ¶ 43. Where he has not plausibly alleged a constitutional
violation, any civil conspiracy claim based on such violations must also fail. See Earle
v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988) (“[F]or a conspiracy to be actionable under
section 1983 the plaintiff has to prove that there has been, besides the agreement, an
actual deprivation of a right secured by the Constitution and laws.”). Accordingly, the
motion for judgment on the pleadings (Docket #33) is GRANTED WITHOUT
PREJUDICE as to Count VI.
C.

Count VII – “Regulatory Violation” (MassDOT only)

Finally, plaintiff alleges that, in removing his signs from alongside state highways,
MassDOT violated 700 C.M.R. 3.02(2)(b)(4). Complaint, at ¶¶ 23, 45. That regulation
provides, for signs “erected solely for and relating to public elections,” an exemption to
the permitting requirement for any sign along a state highway. The regulation does not,
however, provide a private right of action, see Loffredo v. Ctr. for Addictive Behaviors,
689 N.E.2d 799, 803 (1998) (“[A] private cause of action cannot be inferred solely from
an agency regulation”), and again, a state agency is not a proper defendant in federal
court. See Wojcik, 300 F.3d at 99. Accordingly, the motion to dismiss (Docket # 31) is
GRANTED as to Count VII.

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IV.

Conclusion
Town defendants’ motion for judgment on the pleadings (Docket # 33) is

GRANTED as to Counts I, II, III, IV, V, and VI. MassDOT’s motion to dismiss (Docket #
31) is GRANTED as to Counts I, II, III, IV, V, and VII. Judgment may be entered with
prejudice for Town defendants on Counts I, III, IV, and V, and without prejudice for
Town defendants on Counts II and VI. Judgment may be entered with prejudice for
MassDOT on Counts I, II, III, IV, V, and VII.

October 31, 2017

/s/Rya W. Zobel

DATE

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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