Slavas et al v. Town of Monroe et al

Filing 32

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. the Defendants Motion to Dismiss - 09 - Counts I-IV of the complaint is GRANTED and these Counts are hereby dismissed with prejudice for failure to state a claim. The Motio n to Dismiss the state law claims in Counts V-VII is also GRANTED, but these claims are dismissed without prejudice to their reassertion in State Court. The Clerk will enter a judgment of dismissal in this case. Case may now be closed. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES P. SLAVAS and,
SPRAY RESEARCH, INC.,
Plaintiffs,
v.
TOWN OF MONROE, et al.
Defendants.

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Case No. 16-cv-30034-KAR

MEMORANDUM AND ORDER REGARDING
DEFENDANTS’ MOTION TO DISMISS
(Dkt. No. 9)
ROBERTSON, U.S.M.J.
I.

INTRODUCTION

Currently before the court is the motion of defendants Town of Monroe (“Monroe”),
David Nash, Larry Thoreson, Carla Davis-Little, D.J. Oakes, and Brenda J. Church to dismiss
the federal and state law claims brought against them by the plaintiffs, James P. Slavas and Spray
Research, Inc. (“SRI”) (collectively, “Plaintiffs”) in connection with the eviction of SRI from socalled Building 1 of the former Deerfield Glassine Paper Mill in Monroe (Dkt. No. 9). Plaintiffs
claim principally that Church, building commissioner for Monroe, with the other defendants,
violated their constitutional rights and various rights established by state law by evicting the
business from a building in which it was a hold-over lessee without a pre-deprivation hearing.
Each of the defendants moves to dismiss all claims asserted against it, him, or her. The parties
have consented to this court’s jurisdiction (Dkt. No. 15). See 28 U.S.C. § 636(c); Fed. R. Civ. P.
73. The court heard the parties at oral argument and took defendants’ motion to dismiss under

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advisement (Dkt. No. 30). The court GRANTS so much of defendants’ motion to dismiss as
seeks dismissal with prejudice of Plaintiffs’ federal claims. In view of the early stage of this
litigation, the court dismisses the pendent state law claims without prejudice to Plaintiffs’
reassertion of them in state court.
II.

STATUTORY FRAMEWORK

“Massachusetts law provides for both pre- and post-deprivation process in the
condemnation . . . of a building.” S. Commons Condo. Ass’n v. City of Springfield, 967 F. Supp.
2d 457, 460 (D. Mass. 2013), aff’d 775 F.3d 82 (1st Cir. 2014). Massachusetts General Laws ch.
143, § 6 provides, in pertinent part, that a local building commissioner,
immediately on being informed by report or otherwise that a building or other
structure or anything attached thereto or connected therewith in that city or town
is dangerous to life or limb or that any building in that city or town is unused,
uninhabited or abandoned, and open to the weather, shall inspect the same; and he
shall forthwith in writing notify the owner, lessee or mortgagee in possession to
remove it or make it safe if it appears to him to be dangerous, or to make it secure
. . . . If it appears that such structure would be especially unsafe in case of fire, it
shall be deemed dangerous within the meaning hereof, and the local inspector
may affix in a conspicuous place upon its exterior walls a notice of its dangerous
condition, which shall not be removed or defaced without authority from him.
Section 7 of Chapter 143 provides that an owner, lessee or mortgagee notified that a
building is dangerous has until noon the following day to remove the structure or make it safe.
See S. Commons Condo. Ass’n, 967 F. Supp. 2d at 460 (citing Mass. Gen. Laws ch. 143, § 7; 780
C.M.R. § 116.3). If an owner, lessee, or mortgagee in possession of a building deemed to be
unsafe fails to take steps to repair, secure, or demolish the building, the town building
commissioner is charged with convening a properly constituted Board of Survey, which must
make “’a careful survey of the premises.’” Gallant v. City of Fitchburg, 739 F. Supp. 2d 39, 42
(D. Mass. 2010) (quoting Mass. Gen. Laws ch. 143, § 8; 780 C.M.R. § 121.4). “After the survey
is made, ‘[a] written report of such survey shall be made, and a copy thereof served’ on the
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owner.” Id. (quoting Mass. Gen. Laws ch. 143, § 8). “[I]f the survey report ‘declares such
structure to be dangerous or to be unused, uninhabited or abandoned, and open to the weather,’
and if the owner fails to make the building safe and secure, the building commissioner ‘shall
cause it to be made safe or taken down or to be made secure.’” Id. (quoting Mass. Gen. Laws ch.
143, § 9; citing 780 C.M.R. § 121.5). The building commissioner is authorized, if public safety
so requires, to enter a dangerous building immediately, with such assistance as she may require,
and, using the summary process procedures set forth in Massachusetts General Laws ch. 239 or
otherwise, to remove or evict the building’s tenants or occupants. See Mass. Gen. Laws ch. 143,
§ 9.
The statutory scheme provides a remedy for an individual with a property interest
aggrieved by an order to make safe or remove a structure identified as dangerous.
An owner can challenge such [an] order by appealing the order to the superior
court for the county where the structure is located. Ch. 143, § 10 (providing that
an owner may proceed under ch. 139, § 2, for a remedy when aggrieved); 780
C.M.R. § 116.6. See generally Gallant, . . . 739 F. Supp. 2d [at] 41-42 . . .
(discussing the statutory scheme for orders to make buildings safe and secure and
the remedies available to challenge such orders). Although this section allows for
a challenge to the order, the [building commissioner’s] actions are not halted by
such a challenge. Ch. 143, § 10 (stating that ‘no provision of [ch. 139, § 2] shall
be construed so as to hinder, delay or prevent the local [commissioner] acting and
proceeding under section nine”); 780 C.M.R. § 116.6.
Consequently, in any circumstance where an owner desires to challenge the action
taken by the building [commissioner] – whether it be the original order by the
building [commissioner] or the immediate demolition of a structure deemed
hazardous to public safety . . . – the owner must proceed under section 2 of
chapter 139. The owner must commence a civil action within three days after the
service of the challenged order. Chapter 139, § 2.
S. Commons Condo. Ass’n, 967 F. Supp. 2d at 461. “The property owner is afforded a jury trial
for the purpose of affirming, annulling, or altering the order at issue.” Gallant, 739 F. Supp. 2d
at 42. Such actions have priority over other actions on the Superior Court docket. See id. The

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remedy under section 2 of chapter 139 remains available even if suit is instituted after, rather
than before, the property deprivation occurs. See S. Commons Condo. Ass’n v. Charlie Arment
Trucking, Inc., 775 F.3d 82, 90 (1st Cir. 2014). In other words, Massachusetts law provides for
compensation if a jury subsequently decides that a challenged order was wrongly issued. See id.
See also Morais v. City of Lowell, 738 N.E.2d 1158, 1161 (Mass. App. Ct. 2000) (plaintiffs’
allegation that city and municipal officials failed to provide the notice required under Chapters
143 and 139 prior to vacating the building, thereby depriving plaintiffs of the opportunity to
make the building safe, stated a claim under the Massachusetts Tort Claims Act, Mass. Gen.
Laws ch. 258).
III.

FACTS ALLEGED IN PLAINTIFFS’ COMPLAINT

1. SRI and its Facilities
Slavas is the president and owner of SRI, a Massachusetts corporation engaged in testing,
research, and product development related to spray atomizer performance, investigation of spray
behavior, and application of spray technologies (Dkt. No. 1 at 2-4, ¶¶ 3, 21). On August 19,
1999, SRI entered into a fifteen-year lease arrangement with Monroe Bridge Holding
Corporation, owner of the former Deerfield Glassine Paper Mill in Monroe. The mill complex
consists of four separate buildings, known locally as the Green Building, Building 1, Building 2,
and Building 3. SRI’s lease was for the fourth floor of Building 1 (id. at 3, ¶¶ 16-18). On
September 2, 1999, the Franklin County Cooperative Inspection Program issued a building
permit to SRI to create a research and development laboratory in 4,145 square feet of the fourth
floor of Building 1. The remainder of the space on the fourth floor served as a storage area.
SRI’s laboratory consisted of an extensive array of sophisticated and expensive equipment,

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including large pieces such as a low-speed wind tunnel and a closed-loop water tunnel (id. at 3-4,
¶¶ 19, 22).
SRI did not renew its lease for space at Building 1 at the conclusion of the initial fifteenyear leasehold. It nonetheless continued to occupy the premises in Building 1 and conduct its
business therein (id. at 3-4, ¶¶ 18, 22, 24).
2. SRI’s eviction
Church was appointed to the post of building commissioner by the Monroe Board of
Selectmen on or around April 20, 2015 (id. at 4, ¶ 25). At some point around the time of her
appointment, she inspected the mill complex and decided that it was dangerous (id. at 5, ¶¶ 26,
28). She did not notify Slavas of this determination (id., ¶ 28). Instead, she convened a Board of
Survey, consisting of Larry Thoreson, Carla Davis-Little, D.J. Oakes, and Stephen Eddington
(id. at 2-3, 6, ¶¶ 8-12, 31). 1 On April 30, 2015, Davis-Little notified Slavas by telephone that the
Board of Survey would be inspecting the mill complex on May 1, 2015 (id. at 7, ¶ 37). On May
1, 2015, without posting a prior public notice of its intent do so, the Board of Survey convened
its meeting and inspection at the mill complex, deliberating near SRI’s loading dock for
approximately ten minutes as recorded by a security camera (id., ¶ 39). The Board of Survey
“determined that the entire mill complex was unsafe” (id.).
On May 13, 2015, Church sent Davis-Little an email stating:
I have been doing some research on each step and will be sending it to you. The
first step is to start the foreclosure and then the building. There are only four law
firms that do this process in the state. I have worked with one of them and will
forward email. This must be done so we can take action on the person who is in
the building illegally.

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All claims against Stephen Eddington, initially named as a defendant, have been dismissed with
prejudice, and he is no longer a party to this case (Dkt. No. 6).
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(id. at 8, ¶ 43). Davis-Little told the Board of Selectmen, which consisted of defendants David
Nash, Larry Thoreson, and herself (“Selectmen”), about this email at a May 18, 2015 regularly
scheduled meeting of the Selectmen (id. at 2, 8, ¶¶ 7-9, 43).
On May 19, 2015, without prior notice to Slavas or SRI, Church arrived at Building 1
with two Massachusetts State Troopers and Louise Vera, the State Building Inspector for District
2. The troopers escorted Slavas from SRI’s facilities, and Church posted the building with
placards denominating Building 1 as “Condemned as Dangerous and Unsafe” (id. at 8, ¶ 45).
3. Post-Eviction Proceedings
On May 26, 2015, the Selectmen convened an emergency meeting to discuss Church’s
actions with regard to SRI and Building 1. Slavas attended the meeting with his attorney and a
representative of Whetstone Engineering (“Whetstone”), an engineering firm Slavas had hired to
perform a structural analysis of Building 1 and prepare a written report of the analysis (id. at 9,
¶¶ 51-52). The results of the Whetstone analysis were presented to the Selectmen, and a copy of
the written analysis was given to Church. In its report, Whetstone stated that Building 1 was
structurally competent and in no “imminent danger of failure or collapse endangering life and
limb and/or public safety” (id., ¶ 52). According to the Whetstone report, the roof showed signs
of recent leakage and minor repairs, but had no major damage or deterioration. The loading
dock, although in need of some repairs, was capable of handling the removal of SRI’s laboratory
equipment (id.).
Whetstone’s conclusion that Building 1 was structurally sound was consistent with an
analysis of the structural safety of the mill complex that had been commissioned by the
Massachusetts Department of Transportation (“DOT”) and performed approximately one year
earlier in connection with the reconstruction of a highway bridge adjacent to the mill complex.

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The DOT analysis had concluded that the Green Building was in poor condition. As to Building
1, which housed SRI’s laboratory, the DOT analysis noted “minor wear and tear” in SRI’s space,
cracks above a couple of windows, and staining and cracking on the north wall. The DOT
analysis, a copy of which DOT provided to the Town of Monroe, did not characterize Building 1
as structurally unsound (id. at 9-10, ¶ 53).
After the Selectmen heard from Whetstone, the Selectmen convened a closed executive
session attended by Church and town counsel (id. at 8-10, ¶¶ 47, 51, 54). During the executive
session, Church gave the Selectmen a report prepared by the Board of Survey, entitled
“Damaged remains of the Deerfield Glassine paper Mill, 16 Depot Street, Monroe, MA 01350”
(id. at 8, ¶ 47).
On June 1, 2015, Slavas received a Revised Notice of Violation stating that it was
Church’s intention to give Slavas five days to remove the equipment he used to operate his
business from Building 1 (id. at 10, ¶ 55). Between June 1 and 6, 2015, Slavas and his employee
worked fifteen hours a day to remove the most valuable and portable SRI equipment from
Building 1 to a self-storage facility (id., ¶ 57). On June 3, 2015, at the request of town counsel,
Slavas submitted a comprehensive list of SRI equipment that remained in Building 1,
enumerating the tasks and time required to disassemble, pack, and remove the major pieces of
equipment. Slavas estimated that a minimum of 288 hours would be required for the task and
requested the time he deemed necessary to complete removal of the SRI equipment (id. at 10-11,
¶ 58). On June 5, 2015, Church issued a No Trespassing Order for the mill complex and directed
SRI to submit, by June 12, 2015, a floor plan identifying the locations that housed equipment
that needed to be moved, the safe egress paths to be used by movers, and a document from a
Massachusetts design professional identifying the means and methods and egress paths for

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removal of SRI’s equipment (id. at 10-11, ¶ 60). By June 11, 2015, Slavas had complied with
this directive (id. at 11, ¶¶ 61-62). On the same date, Slavas received a copy of the Board of
Survey’s report on the status of the buildings at the mill complex, in which the Board of Survey
concluded that the mill complex was unsafe (id. at 8, ¶ 47).
On June 15, 2015, Church responded to Slavas’s request for additional time to remove
the SRI equipment. She stated that Building 1 posed a danger to life and limb. She approved a
maximum of nine days with four workers working eight hours a day for removal of SRI’s
equipment from Building 1 (id. at 11, ¶ 63), but conditioned this access on her receipt of
additional information from Slavas (id. at 11-12, ¶¶ 67-68, 76-78). On August 8, 2015, Church
notified Slavas that she was giving him from August 11th to August 21st to remove the
equipment, after which the building would be secured and utilities to the building shut off. Two
days later, on August 10, 2015, the Selectmen voted to request that Church give Slavas and SRI
24 days to remove the SRI equipment. The Selectmen stressed that they “would like this matter
resolved” (id. at 13, ¶¶ 80-81). Church acquiesced in the Selectmen’s request, albeit under
protest (id., ¶ 82).
In the meantime, on June 4, 2015, Slavas had asked Gordon Bailey, the State Building
Inspector for District 1, to conduct an expedited inspection of Building 1 to see if the eviction
notice issued by Church was warranted. Bailey referred the request to Vera, who was the
Building Inspector for District 2 (id. at 10, ¶ 59). On June 16, 2015, Slavas communicated his
request for an inspection of Building 1 to Vera. On June 18, 2015, Bailey, Vera, and Church
inspected the exterior of Building 1. Vera subsequently found that “the building is seriously
compromised.” Vera did not provide Slavas with a detailed summary or report of the inspection
that was the basis for her conclusion (id. at 12, ¶¶ 70-72). The content of the Building

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Inspector’s report was the basis of Church’s concern about allowing Slavas an extended period
of time to remove SRI equipment from Building 1 (id. at 13, ¶ 82).
Ultimately, Slavas and his employee were unable to complete removing SRI equipment
in the time authorized by Church. Some heavy equipment was broken up for scrap and some
SRI equipment remains in Building 1 (id. at 13, ¶ 83). Plaintiffs claim damages based on the
disruption of SRI’s existing business and lost business opportunities, the value of lost SRI
equipment and equipment replacement costs, and a loss of personal income for Slavas (id. at 1415, ¶¶ 90-98).
IV.

DISCUSSION

1. Standard of Review
To survive a motion to dismiss, a “complaint must contain enough factual material to
raise a right to relief above the speculative level . . . and state a facially plausible legal claim,”
Guerra-Delgado v. Popular, Inc., 774 F.3d 776, 780 (1st Cir. 2014) (quoting Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)), “accept[ing] as true well-pleaded facts in the
complaint and draw[ing] all reasonable inferences in the pleader’s favor.” Id. (citing Tasker v.
DHL Rev. Sav. Plan, 621 F.3d 34, 38 (1st Cir. 2010)). In resolving a motion to dismiss, the court
employs a two-step approach. Medina-Velázquez v. Hernández-Gregorat, 767 F.3d 103, 108
(1st Cir. 2014) (citing Ocasio-Hernández, 640 F.3d at 12).
First, [the court] “must separate the complaint’s factual allegations
(which must be accepted as true) from its conclusory legal
allegations (which need not be credited).” A.G. ex. rel. Maddox v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (internal quotation
marks omitted). Second, [the court] “must determine whether the
remaining factual content allows a reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (internal
quotation marks omitted).

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Medina-Velázquez, 767 F.3d at 108. While “a complaint need not plead facts sufficient to make
out a prima facie case or allege all facts necessary to succeed at trial,” id. (citing Carrero-Ojeda
v. Autoridad de Energía Eléctrica, 755 F.3d 711, 717-18 (1st Cir. 2014)), the elements of a
prima facie case “form[] ‘part of the background against which a plausibility determination
should be made.’” Id. (quoting Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st Cir.
2013)). “An analysis of plausibility is ‘a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’” Id. at 109 (quoting Grajales v. P.R.
Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)). That said, “the court may not disregard properly
pled factual allegations, ‘even if it strikes a savvy judge that actual proof of those facts is
improbable.’” Ocasio-Hernández, 640 F.3d at 12 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)). “[A] court [may not] attempt to forecast a plaintiff’s likelihood of success on
the merits; ‘a well-pleaded complaint may proceed even if . . . a recovery is very remote and
unlikely.’” Id. at 12-13 (quoting Twombly, 550 U.S. at 556).
2. Claims Asserted by Slavas
The complaint alleges that SRI is a corporation licensed to do business in Massachusetts
and that Slavas is its president and owner, and, impliedly, its sole shareholder (Dkt. No. 1 at 2, ¶¶
3-4). As an initial matter, the defendants have moved to dismiss all claims asserted by Slavas in
Counts I through VII of the complaint on the ground that he lacks standing to assert claims that
are solely for injuries to SRI (Dkt. No. 12 at 2-3). “This argument invokes the shareholderstanding rule, under which a corporate shareholder (even a sole shareholder) may not sue in his
own name to redress injuries suffered solely by the corporation.” Gianfrancesco v. Town of
Wrentham, 712 F.3d 634, 637 (1st Cir. 2013). Slavas responds that the complaint alleges injuries
personal to him, including financial losses resulting from the virtual destruction of SRI’s

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business, and contends that case law urges caution in the application of the shareholder-standing
rule at this early stage of the litigation (Dkt. No. 14 at 2-3). The court concludes that, at this
point at least, Slavas has the better of the arguments.
A federal court must satisfy itself that it has jurisdiction, including a plaintiff’s Article III
standing to sue, before addressing his particular claims. See Pagan v. Calderon, 448 F.3d 16, 26
(1st Cir. 2006) (citing Orr v. Orr, 440 U.S. 268, 271 (1979)). “The standing inquiry is both
plaintiff-specific and claim-specific. Thus, a reviewing court must determine whether each
particular plaintiff is entitled to have a federal court adjudicate each particular claim that he
asserts.” Id. Standing doctrine has two elements: an “’irreducible constitutional minimum’”
that must be satisfied and a prudential component. Gianfrancesco, 712 F.3d at 637 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); citing Allen v. Wright, 468 U.S. 737,
751 (1984)). The first, and essential, element requires that a plaintiff allege a concrete injury that
can be traced to a defendant’s conduct and is capable of being redressed. The second prudential
element “has various aspects, including a requirement that a party ‘assert his own legal rights and
interests,’ not those of third parties.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).
“The shareholder-standing rule is a species of prudential limitation, not a component of the core
constitutional standing requirement.” Id. (citing Franchise Tax Bd. of Cal. v. Alcan Aluminum
Ltd., 493 U.S. 331, 336-37 (1990)).
In The Do Corp. v. Town of Stoughton, No. Civ.A. 13-11726-DJC, 2013 WL 6383035
(D. Mass. Dec. 6, 2013), another session of this court considered an argument for dismissal that
was virtually identical to the argument advanced here in factually analogous circumstances. In
The Do Corp., the Town of Stoughton revoked the entertainment license of The Do Corporation
(“TDC”) and modified its liquor license following a series of disturbances on or near the

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premises of the business. The plaintiffs, TDC and Daniel Silva, the corporation’s president, sued
the town, members of its Board of Selectmen, and other town officials, alleging violations of
their federal due process rights, the Massachusetts Civil Rights Act, and various state statutes.
Id., at **1-4. Early in the litigation, the defendants challenged Silva’s standing to bring claims
on the ground that he lacked standing to assert injuries to the corporation. Id., at *4.
The court in The Do Corp. noted that the complaint alleged that TDC was an
incorporated entity, not an entity “doing business as” (“d/b/a”) that was actually operated by
Silva. Contrast Gianfrancesco, 712 F.3d at 637-38 (noting that “the ownership structure of
Tom’s Tavern is actually unclear;” where the complaint alleged variously that the tavern was a
d/b/a operated by the individual plaintiff and that it was a Massachusetts corporation owned by
the individual plaintiff). Nonetheless, the court noted that “courts have been reluctant to
conclude that a plaintiff lacks standing [under the shareholder standing rule] where ‘it is difficult
to state with confidence where plaintiff is asserting an injury to himself and where he asserts an
injury to . . . his business entit[y].’” The Do Corp., 2013 WL 6383035, at *4 (quoting Laverty v.
Massad, 661 F. Supp. 2d 55, 62 (D. Mass. 2009)). Noting that Silva had alleged a personal
financial injury resulting from the travails of TDC, and thereby satisfied the requirement that he
allege a concrete injury traceable to the defendants’ conduct that could be redressed by a court
order, see id. at *5, the court declined to dismiss Silva’s claims on the basis of the shareholderstanding rule “without prejudice to the Defendants’ renewal of this motion on a more developed
record.” Id. (citing Gianfrancesco, 712 F.3d at 638; Laverty, 661 F. Supp. 2d at 62).
Here, as in The Do Corp., Slavas satisfies the requirement that the complaint allege a
concrete injury to him personally that could be redressed by a court. He claims a substantial
reduction in his personal income by reason of the virtual destruction of SRI’s business, which he

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attributes to the defendants’ actions (Dkt. No. 1, at 15, ¶¶ 90, 96). See The Do Corp., 2013 WL
6383035, at *5 (Silva asserted Article III constitutional standing because even if TDC was a
separate entity, Silva alleged that defendants’ actions caused him actual financial injury); see
also Gianfrancesco, 712 F.3d at 638 (if the business was a corporate entity, the sole shareholder
would have Article III standing because actions taken against the business caused him actual
financial injury by driving the tavern out of business). When, as in this case, a plaintiff has
Article III constitutional standing, “a [c]ourt may bypass the analysis of the shareholder standing
rule to reach the merits of the claims[.]” The Do Corp., 2013 WL 6383035, at *5. The court
does so here, given the lack of clarity as to whether the injuries alleged in the complaint were
inflicted on SRI or on Slavas. Additionally, in view of the court’s conclusion that the complaint
fails to state any viable federal claim, a state court should rule on whether Slavas has viable state
law claims for injuries inflicted, at least in part, on SRI.
3. Section 1983 Claims
The defendants move to dismiss Counts I, II, III and IV of the complaint, brought under
42 U.S.C. § 1983 (“§ 1983”), against the Town of Monroe, the Selectmen, the Board of Survey,
and Church, respectively. “Section 1983 supplies a private right of action against a person who,
under color of state law, deprives another of rights secured by the Constitution or by federal
law.” Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011) (quoting Redondo-Borges v. U.S.
Dep’t of HUD, 421 F.3d 1, 7 (1st Cir. 2005)). A cause of action under § 1983 is comprised of
two essential elements. First, because § 1983 does not reach private actions, Rodríguez-Garcia
v. Dávila, 904 F.2d 90, 95 (1st Cir. 1990), a plaintiff must show “that the conduct complained of
transpired under color of state law.” Santiago, 655 F.3d at 68 (citing Redondo-Borges, 421 F.3d
at 7). Second, because “Section 1983 ‘is not itself a source of substantive rights,’ but merely

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provides ‘a method for vindicating federal rights elsewhere conferred,’” Albright v. Oliver, 510
U.S. 266, 270 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)), a plaintiff
must show “that a deprivation of federally secured rights ensued,” Santiago, 655 F.3d at 68
(citing Redondo-Borges, 421 F.3d at 7). There is no dispute “that the conduct complained of
[here] transpired under color of state law.” Santiago, 655 F.3d at 68. Thus, the question is
whether Plaintiffs have sufficiently stated a claim that they were deprived of federally secured
rights. Plaintiffs’ principal claim is that they were deprived of property without due process of
law when the Town of Monroe and its elected and employed representatives evicted SRI from
Building 1 without advance notice or a hearing. Plaintiffs also contend that their property was
illegally seized in violation of the Fourth Amendment by the Board of Survey and Church (Dkt.
No. 1 at 17-18, ¶¶ 113, 118). 2
A. Procedural Due Process Claims
The defendants’ principal contention is that Plaintiffs’ § 1983 claims fail because
Plaintiffs have failed to plead a constitutionally protected property interest in SRI’s laboratory
facilities on the fourth floor of Building 1. Even assuming that Plaintiffs had such a property
interest, the argument continues, due process did not require a pre-deprivation hearing. This is

2

Plaintiffs also invoke the Fifth and Ninth Amendments of the United States Constitution in
support of their § 1983 claims (Dkt. No. 1 at 17-18, ¶¶ 113, 118). The Fifth Amendment
provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property,
without due process of law[,]” and applies only to actions of the federal government, not to the
actions of private individuals or state actors. See, e.g., Gerena v. P.R. Legal Servs., 697 F.2d
447, 449 (1st Cir. 1983). Plaintiffs have not alleged any action by any federal official. The
Ninth Amendment “does not create substantive rights beyond those conferred by governing
law[,]” Vega-Rodriguez v. P.R. Tel. Co., 110 F.3d 174, 182 (1st Cir. 1997), and “does not
guarantee any constitutional right sufficient to support a claim under 42 U.S.C. § 1983.” DeLeon
v. Little, 981 F. Supp. 728, 734 (D. Conn. 1997). Plaintiffs have not argued in their opposition to
the defendants’ motion to dismiss that they have distinct claims under either the Fifth or the
Ninth Amendment. To the extent the complaint seeks to assert any such claims, they are
dismissed with prejudice for failure to state a cognizable claim.
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so, according to the defendants, because, at most, Plaintiffs have alleged that Church erroneously
invoked the summary procedures set forth in Chapter 143, and Massachusetts law provided an
adequate post-deprivation remedy. The court therefore turns first to the questions of whether
Plaintiffs had a constitutionally protected property interest in the premises occupied by SRI, and,
if so, whether SRI’s eviction deprived Plaintiffs of their right to procedural due process.
i.

Constitutionally Protected Property Interest

“The Fourteenth Amendment places procedural constraints on the actions of government
that work a deprivation of interests enjoying the stature of ‘property’ within the meaning of the
Due Process Clause.” Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 9 (1978).
Plaintiffs allege that, commencing in 2014, they had “a periodic tenancy at will” for the fourth
floor of Building 1 and a constitutionally protected property interest “by virtue of this ongoing
leasehold” (Dkt. No. 1 at 3, ¶18).
“[C]onstitutionally protected property rights are determined by reference to ‘an
independent source such as state law – rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits.’” Brown v. City of Barre, 878 F. Supp. 2d
469, 482 (D. Vt. 2012) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972);
citing Perry v. Sindermann, 408 U.S. 593, 601-02 (1972); Goldberg v. Kelly, 397 U.S. 254, 262
(1970); Golden v. City of Columbia, 404 F.3d 950, 955 (6th Cir. 2005)). A plaintiff claiming a
protected property interest must have a legitimate claim of entitlement that rises to the level of an
interest protected by the Due Process Clause. See Memphis Light, Gas and Water Div., 436 U.S.
at 9. Such interests, however, may take many forms and extend beyond “actual ownership of
real estate, chattels, or money.” Roth, 408 U.S. at 576, 571-72. A constitutionally protected

15

property interest may be “pretty thin by conventional standards.” Herwins v. City of Revere, 163
F.3d 15, 18 (1st Cir. 1998) (citing Goldberg, 397 U.S. at 254).
“Under Massachusetts landlord-tenant law, when a tenant holds over after the expiration
of the lease term, either a tenancy at will or a tenancy at sufferance results.” Spodek v. U.S.
Postal Serv., 35 F. Supp. 2d 160, 165 (D. Mass. 1999) (citing Staples v. Collins, 73 N.E.2d 729
(Mass. 1947); Ames v. Beal, 187 N.E.2d 99, 100 (Mass. 1933); Benton v. Williams, 88 N.E. 843
(Mass. 1909)). “A tenant at sufferance has no estate nor title, but only a naked possession,
without right and wrongfully[.]” Margosian v. Markerian, 192 N.E. 612, 613 (Mass. 1934). “A
tenant at sufferance is not entitled to notice to quit, but is a holder without right.” Id. (citing
Kelly v. Waite, 12 Metc. 300, 302 (1847)). When, however, “a lease contains a provision
governing the conditions of the lessee’s occupancy in the event of holding over, the parties’
rights continue to be determined by the applicable provisions in the lease,” and the holding over
“is said to be under the lease.” Cape Cod Shellfish & Seafood Co., Inc. v. City of Boston, 19
N.E.3d 856, 860 (Mass. App. Ct. 2014). Thus, while a tenancy at sufferance might not qualify as
a protected property interest, occupancy of property subject to the terms of a lease that addresses
the possibility of a hold-over tenancy is a “significant property interest” sufficient to implicate
the constitutional right to procedural safeguards. Fuentes v. Shevin, 407 U.S. 67, 87 (1972); see
also Grayden v. Rhodes, 345 F.3d 1225, 1236 (11th Cir. 2003) (due process generally requires
notice and a hearing prior to eviction). “Whether a tenancy at will or a tenancy at sufferance was
created is ordinarily a question of fact,” Spodek, 335 F. Supp. 2d at 165, and it is such a question
in this case. Plaintiffs assert in the complaint that SRI had a fifteen-year lease with the owner of
the mill complex and, as of May 2015, had a tenancy at will and ongoing leasehold with respect
to the fourth floor of Building 1 (Dkt. No. 1 at 8, ¶ 18). Therefore, Plaintiffs have sufficiently

16

alleged a constitutionally protected property interest in the premises in which SRI conducted its
business.
ii.

Application of the Parratt-Hudson Doctrine
a. Failure to Provide a Pre-Deprivation Hearing

“[D]ue process normally requires notice and the opportunity for ‘some kind of hearing’
Memphis Light, Gas and Water Div., 436 U.S. [at] 19 . . ., prior to a final deprivation of liberty
or property.” Herwins, 163 F.3d at 18. This generalization has been characterized by the First
Circuit as a “very loose one” to which there are a number of exceptions. See id. When a
plaintiff alleges a deprivation of a property interest by state officials who, by virtue of state law,
have some measure of authority to effect the seizure of property, the issue is whether Plaintiffs
“have raised a viable claim of deprivation of [their] federal due process rights as those rights
have been articulated in the Parratt-Hudson doctrine.” San Geronimo Caribe Project, Inc. v.
Acevedo-Vila, 687 F.3d 465, 478 (1st Cir. 2012) (en banc). 3 In Hudson, the Supreme Court held
that “when deprivations of property are effected through random and unauthorized conduct of a
state employee, predeprivation procedures are simply ‘impracticable’ since the state cannot know
when such deprivations will occur.” 468 U.S. at 533. This is so, said the Court, even when the
employee’s random and unauthorized conduct was intentional rather than negligent. See San
Geronimo Caribe Project, Inc., 687 F.3d at 479 (citing Hudson, 468 U.S. at 533). In such cases,
so long as the government provides an adequate post-deprivation remedy, an individual claiming
to have been deprived of a constitutionally protected property interest cannot claim a violation of
procedural due process. See Herwins, 163 F.3d at 18-19.

3

The reference is to the doctrine set forth in Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson
v. Palmer, 468 U.S. 517 (1984).
17

The First Circuit has consistently “recognized that the failure to provide pre-deprivation
process does not violate procedural due process when the deprivation of property ‘results from
conduct of state officials violative of state law.’” Bourne v. Town of Madison, 494 F. Supp. 2d
80, 89 (D.N.H. 2007) (quoting PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31 (1st Cir. 1991)).
Thus, in Herwins, the First Circuit reversed a verdict against a city board of health inspector,
whom a jury found had falsely or recklessly reported that conditions in the plaintiff’s building
posed an immediate danger to tenants and evicted them on an emergency basis, because the
jury’s finding that there was no emergency “show[ed] only that [the health inspector’s]
substantive decision was wrong; he was not required to hold a hearing before declaring an
emergency.” Id., 163 F.3d at 19. Because the city provided a post-deprivation remedy, there
was no denial of procedural due process, even by the health inspector. Id. (citing Parratt, 451
U.S. at 543-44; Hudson, 468 U.S. at 536-37). Similarly, in San Geronimo Caribe Project, Inc.,
the First Circuit affirmed dismissal of a developer’s federal due process claims where, in related
litigation in the Puerto Rican courts, the Puerto Rican Supreme Court had concluded that state
officials had wrongly evoked emergency powers to shut down work on a major development
project and thereby violated the developer’s due process rights under Puerto Rican law, because
“[t]he erroneous judgment by [the state officials] was exactly the type of ‘random and
unauthorized conduct’ encompassed by Parratt-Hudson,” and could not, therefore, be the basis
of a federal procedural due process claim by the developer. Id. at 490.
More recently, the First Circuit affirmed dismissal of procedural due process claims
brought by the owner-developer and tenants of a condominium complex that was summarily torn
down after a tornado swept through Springfield, Massachusetts in June 2011. According to the
complaint, the City did not provide advance notice to the residents or owner of the buildings that

18

it believed the buildings posed an immediate threat to public safety. It refused to allow tenants
access to the buildings to retrieve their belongings and arranged for the demolition of the
buildings the day after the tornado struck without undertaking any analysis addressing the extent
of the damage to the buildings, or assessing whether the buildings could be rehabilitated. See S.
Commons Condo. Ass’n, 775 F.3d at 84. In the face of claims by the plaintiffs that public safety
did not require barring all access to the buildings followed by their immediate demolition, the
First Circuit held that
it d[id] not matter if the owners [we]re right that the City violated section 7 [of
Chapter 143] because the ‘public safety’ did not in fact require the ‘immediate’
demolition that occurred [because] [t]he Supreme Court has made clear that
government officials do not commit a federal procedural due process violation by
erroneously applying a state law that, if followed, would survive a procedural due
process challenge.
Id. at 89.
Notwithstanding these decisions, Plaintiffs contend that there is a distinction between
situations that reasonably might be viewed as presenting an emergency and those that obviously
do not. They assert that, viewing the allegations in the complaint in the light most favorable to
them, conditions at the mill complex fell into the latter category, as demonstrated by the
willingness of the municipality and Church to allow Slavas and his employee to enter the
building to remove equipment after Church had evicted SRI and posted Building 1 as condemned
(Dkt. No. 29 at 1-3). They rely on Gallant, which, they assert, stands for the proposition that
when there is no emergency, the state is required to provide notice and the opportunity for a
hearing before an eviction, which the defendants indisputably failed to do (id. at 3-5). For their
part, the defendants contend that the complaint alleges that the defendants proceeded, if
imperfectly, under sections 6 and 9 of Chapter 143, which authorize a local building
commissioner to take immediate steps to remedy conditions when a building appears dangerous.
19

In response to Plaintiffs’ argument that they have not alleged that Church was addressing an
emergency situation (Dkt. No. 29 at 1-3), the defendants point out that Plaintiffs allege that
Church inspected the mill complex and deemed it dangerous, an assessment that was shared by
the regional Building Inspector, and that Church posted the building with placards describing the
building as condemned as dangerous and unsafe (Dkt. No. 1 at 5, 8, 12, ¶¶ 26, 28, 45, 71-72).
See Mass. Gen. Laws ch. 143, § 6. The complaint further alleges that Church convened a Board
of Survey pursuant to section 8 of Chapter 143, whose members prepared a report concluding
that the entire mill complex was unsafe (id. at 7, ¶¶ 37. 39). Defendants contend that even if they
were wrong about the danger posed by Building 1, this case is controlled by South Commons
Condo. Ass’n in that, accepting Plaintiffs’ allegations as true, Monroe officials did nothing more
than erroneously apply the summary provisions of Chapter 143, conduct that cannot support a
procedural due process claim. See id., 775 F.3d at 89. In the court’s view, the defendants have
the better of the arguments.
Viewing the complaint in the light most favorable to Plaintiffs and drawing all reasonable
inferences in their favor, their claims rely on an allegedly erroneous application of those portions
of Chapter 143 that authorize a local building commissioner to address and remedy conditions in
dangerous or abandoned buildings. The complaint quotes the provisions of Chapter 143 at
length (Dkt. No. 1 at 5-8, ¶¶ 27, 29, 31, 42, 48) and acknowledges that Church, Vera, and the
Board of Survey represented at various points, as a basis for taking action, the belief that the
buildings at the mill complex, including Building 1, were dangerous and unsafe (id. at 5, 7-8, 1112, ¶¶ 28, 39, 45, 69, 72). Plaintiffs plead, as a basis for their claims, that their eviction from
Building 1 “was not conducted in compliance with the procedures in G.L. c. 143, ss 6, 8, and 9”
(id. at 8, ¶ 46), an allegation that is held against them in assessing whether their claims fit within

20

the line of authority established by S. Commons Condo. Ass’n, and its predecessors. See San
Geronimo Caribe Project, Inc., 687 F.3d at 491-92 (stating that allegations in a complaint are to
be held against the pleader in assessing whether a complaint states a cause of action).
The relevant First Circuit cases do not support the distinction the Plaintiffs seek to draw
between emergency and non-emergency situations. Indeed, a fundamental point of the decisions
in Herwins and San Geronimo Caribe Project, Inc. is that government officials deprived the
plaintiffs of constitutionally protected property interests without a pre-deprivation hearing by
wrongfully invoking procedures intended to be used only in emergencies threatening public
health and safety. In Herwins, the jury found that the health inspector had recklessly or falsely
reported that emergency conditions required the immediate eviction of the owner and all of the
tenants in the building. In essence, the health inspector fabricated emergency conditions to
justify an immediate eviction. Herwins, 163 F.3d at 17; see also S. Commons Condo. Ass’n, 967
F. Supp. 2d at 466 (“Indeed, in the case of Herwins, the state actor was found to have acted
falsely or recklessly.”). In San Geronimo Caribe Project, Inc., the statute under which the state
officials ordered the developer to cease work authorized agencies to use emergency procedures
only in extraordinary situations posing an imminent danger to public health, safety, and welfare.
The state officials acted out of concern about the developer’s title to the property on which it was
building. The Puerto Rico Supreme Court held that doubt about the validity of the developer’s
title to the land being developed was not a situation that posed an imminent danger to public
health, safety, and welfare. 687 F.3d at 477. In S. Commons Condo. Ass’n, while the aftermath
of a tornado may more readily be identified as an emergency, the District Court nonetheless
“assum[ed] . . . that a mistake, possibly an egregious mistake, was made,” 967 F. Supp. 2d at
460, when public officials refused tenants access to the condominium complex to retrieve their

21

belongings and ordered the demolition of historic buildings without an engineering assessment of
the need to do so.
Fairly read, Plaintiffs’ complaint alleges that Church acted in error when she summarily
evicted SRI and condemned Building 1 as dangerous and unsafe. But, based on the allegations
in the complaint, “the situation colorably supported invocation of [Chapter 143.]” Id. at 467. In
addition to Church’s conclusion that Building 1 was unsafe, the complaint alleges that the Board
of Survey concluded that the entire mill complex was unsafe and that Vera, the Building
Inspector for District 2, concluded that Building 1 was seriously compromised (Dkt. No. 1 at 8, ¶
47; 12 at ¶¶ 70-72). “Even where an error may have occurred, a federal lawsuit based on a
violation of constitutional due process will not lie in these circumstances.” S. Commons Condo.
Ass’n, 967 F. Supp. 2d at 467; see also Herwins, 163 F.3d at 19 (“improper use [of summary
closure] is exactly the kind of ‘random and unauthorized’ conduct that the local government had
no duty (and indeed no practical way) to forestall through a pre-deprivation hearing”).
The Gallant case is not to the contrary. The court in Gallant acknowledged that “a mere
violation of state procedural law [does not] constitute[] a denial of procedural due process,” 739
F. Supp. 2d at 46, because, “’[t]o hold otherwise would convert every departure from established
administrative procedures into a violation of the Fourteenth Amendment, cognizable under §
1983.’” Id. (quoting PFZ Props., Inc., 928 F.2d at 31). “[T]hus, the alleged state law error – if
error it was – cannot save [Plaintiffs’] procedural due process claim, at least so long as an
adequate, post-hoc remedy is available.” S. Commons Condo. Ass’n, 755 F.3d at 89.
b. Adequacy of Post-Deprivation Remedy
Plaintiffs’ alternative argument is that Church (and Montague) deprived them of an
adequate post-deprivation remedy by failing to comply with the notice provisions in Chapter 143

22

(Dkt. No. 14 at 9-12). Plaintiffs allege that Church, having concluded that the mill complex was
unsafe, violated section 6 of Chapter 143 by failing to notify SRI, as lessee in possession, to
make safe or secure Building 1, thereby depriving Plaintiffs of their ability to take the steps
required by section 7 to make the building safe or secure or to challenge any such order pursuant
to section 10 and Chapter 139, section 2; violated section 8 of Chapter 143 by failing timely to
provide Slavas with a copy of the Board of Survey’s report concluding that the entire mill
complex was unsafe; and, when she finally provided a notice, indicating that any appeal could be
had under Chapter 143, section 100, rather than section 10 (id. at 11-12). According to
Plaintiffs, Gallant “stands for the proposition that botched notice by the municipality is no notice
at all,” and that failure to provide proper notice is a basis for a procedural due process claim (id.
at 12).
In the court’s view, Gallant cannot save Plaintiffs’ claims. The court in Gallant observed
that, under Chapter 143, after the plaintiff’s receipt of a final notice of demolition, he had three
days within which to file a suit in state court to challenge the demolition order. The filing of
such a suit, however, would “not operate to stay the impending demolition.” Id. at 46. Because
there was little likelihood that a case challenging a demolition order would be heard before the
building was demolished, the court concluded that “[t]he statutory procedures may . . . – at least
under some circumstances – be constitutionally inadequate.” Id. at 47. After Gallant was
decided, however, the First Circuit held, in S. Condo. Ass’n, that “section 2 [of Chapter 139]
does constitute an adequate [post-deprivation] remedy.” 775 F.3d at 91. This, despite the fact
that the City of Springfield did not give the plaintiffs the notice required by section 7 until after
the buildings were torn down. Id. at 89. The First Circuit agreed with the municipality’s
argument that a post-demolition order remained subject to challenge and annulment by means of

23

a suit filed under section 2 of Chapter 139, and deemed the ability to recover damages under
section 2 an adequate post-deprivation remedy, notwithstanding that the time to bring a claim
under section 2 is, at least on its face, very short. Id. at 90-91. Plaintiffs’ argument also appears
to be foreclosed by Herwins, where the plaintiff argued that the municipality’s failure to provide
him with a notice from which he could have appealed the shutdown of his building deprived him
of an adequate post-deprivation remedy. Herwins, 163 F.3d at 19-20. The court held that “[t]he
state’s failure to provide a landlord with express notice that he can seek review may violate state
law but does not render the review remedy constitutionally inadequate.” Id. at 20. Thus,
Church’s failure to provide Plaintiffs with proper notice of their remedies does not render those
remedies constitutionally inadequate.
That the statutory post-deprivation remedies may no longer actually be available to
Plaintiffs does not change the analysis. In Herwins and S. Commons Condo. Ass’n, the First
Circuit acknowledged that the plaintiffs might be foreclosed from invoking the statutory postdeprivation remedies under discussion. As was the case in Herwins and S. Commons Condo.
Ass’n, Plaintiffs in the instant case have not alleged that they attempted to exercise their rights
under section 2 of Chapter 139 (or under the Massachusetts Tort Claims Act). Plaintiffs cannot
be heard to complain about deficiencies of a constitutional dimension in the post-deprivation
remedy (or remedies) provided by the state when they did not attempt to pursue their rights under
the applicable statutory provisions. See S. Commons Condo. Ass’n, 775 F.3d at 91 (“If it is now
too late for the owners to bring a challenge under section 2, that is a function in this case of when
the owners sought to avail themselves of the remedy, rather than its necessary constitutional
inadequacy.”); Herwins, 163 F.3d at 20 (holding that plaintiff could not show that the statutory

24

remedy was constitutionally inadequate where he “made no . . . effort to appeal even
belatedly”). 4
c. The Parratt-Hudson Doctrine Shields the City and the Individual Defendants
The First Circuit has consistently ruled that the Parratt-Hudson doctrine shields not only
the municipality charged with wrongdoing, but also the individuals whose actions allegedly
violated a plaintiff’s right to procedural due process. In Herwins, the court observed that
the law might have developed to hold the official liable under the Fourteenth
Amendment for his own mistake even if the state had done all it could. . . . But
the Supreme Court has ruled that in such cases there is no denial of procedural
due process, even by the official, so long as the state provides an adequate means
of redress.
Herwins, 163 F.3d at 19 (citing Parratt, 451 U.S. at 543-44; Hudson, 468 U.S. at 536-37). See
also S. Commons Condo. Ass’n, 775 F.3d at 83 n.1 (addressing the potential liability of the
municipality and individually named defendants, including the Mayor, the Building
Commissioner, and the Deputy Director of Code Enforcement, collectively); San Geronimo
Caribe Project, Inc., 687 F.3d at 490 (reasoning as to failure of procedural due process claim
extends to all individual defendants).

4

Indeed, there is even less reason here than there was in Herwins or S. Commons Condo. Ass’n
to find that Plaintiffs were deprived of an adequate post-deprivation remedy. According to the
complaint, Plaintiffs had a hearing and the opportunity to make their case to Church and the
Selectmen at a meaningful time, i.e., immediately after the eviction but before any equipment
had been removed from the building (Dkt. No. 1 at 9, ¶¶ 51-52). On May 6, 2015, the Selectmen
scheduled an emergency hearing to address Church’s “actions with regard to SRI and Building
1,” which Plaintiff attended with his attorney and a representative from Whetstone, the company
he had hired to perform a structural analysis of Building 1 (id.). The Selectmen received
information from Plaintiff, Whetstone, “and other members of the public in open session” (id. at
10, ¶ 53). The court acknowledges, however, that the adequacy of this hearing as a postdeprivation remedy is not a question that can be resolved at this stage of the case. See Amsden v.
Moran, 904 F.2d 748, 753 (1st Cir. 1990) (noting the basic procedural due process requirement
that the opportunity to be heard must come at a meaningful time and be conducted in a
meaningful manner).
25

Plaintiffs’ procedural due process claims as against the members of the Board of Survey
and the Selectmen, also fail independently for other reasons. Members of the Board of Survey
are alleged to have done nothing more than conduct a survey of the condition of the mill
complex after Church convened them for that purpose. See Mass. Gen. Laws ch. 143, § 8.
Nothing in Chapter 143 authorizes or requires a Board of Survey convened by a building
commissioner to provide an affected property owner or lessee with any form of notice or hearing
prior to conducting such a survey, although a member of the Board of Survey provided informal
advance notice of the inspection in this instance (Dkt. No. 1 at 7, ¶ 37). The statute does not
specify that the Board of Survey – as opposed to the building commissioner – is required to serve
a copy of its report on the owner, lessee, or mortgagee in possession, see Mass. Gen. Laws ch.
143, § 8, nor does the issuance of such a report trigger any further right to a hearing for an
owner, lessee, or mortgagee in possession. See Mass. Gen. Laws ch. 143, § 9. 5 Plaintiff has not
alleged that the Board of Survey, in the report or otherwise, ordered the municipality or the
building commissioner to violate Plaintiffs’ right to due process, or that the Board of Survey had
any authority to direct the actions of the municipality or the building commissioner. For this
additional reason, Plaintiffs’ procedural due process claims against members of the Board of
Survey, individually and in their capacity as members of the Board of Survey, necessarily fail.
See San Geronimo Caribe Project, Inc., 687 F.3d at 491; see also Velez-Rivera v. Agosto-Alicea,

5

Plaintiffs’ references to alleged violations of the Open Meeting Law, Mass. Gen. Laws ch. 30A,
§ 21(a)(1), are unavailing because there is no private right of action for an individual plaintiff
under the statute. See O’Rourke v. Hampshire Council of Govs., 121 F. Supp. 3d 264, 275 (D.
Mass. 2015). “Rather, the law provides that ‘the attorney general or 3 or more registered voters
may initiate a civil action to enforce the open meeting law.’” Id. (citing Mass. Gen. Laws ch.
30A, § 23(f)).
26

437 F.3d 145, 156 (1st Cir. 2006) (it is well-settled that only those who participated in conduct
that deprived plaintiffs of their constitutional rights can be held liable).
Plaintiffs’ claims against the Selectmen are similarly deficient. While Plaintiffs
acknowledge in their opposition to defendants’ motion to dismiss that “the statutory scheme
clearly puts the responsibility for implementation of Chapter 143 on the local building inspector”
(Dkt. No. 14 at 5), they contend that discovery is necessary to determine “just who was calling
the shots” (id.). Chapter 143, however, designates the building commissioner of a town as the
“administrative chief in a city or town responsible for administering and enforcing the state
building code” in a town. See Mass. Gen. Laws ch. 143, § 3. Section 9 of Chapter 143
authorizes the local building commissioner – not the Selectmen – to “enter [an unsafe structure] .
. . with such assistance as [s]he may require, and . . . remove and evict, under the pertinent
provisions of chapter two hundred thirty-nine or otherwise, any tenant or occupant thereof.”
Moreover, Plaintiffs’ complaint alleges that the Selectmen voted to request that Church give
Slavas additional time to remove SRI equipment from Building 1 (Dkt. No. 1 at 13, ¶ 81),
acknowledging, at least by reasonable inference, that the Selectmen lacked authority to “call the
shots” as to the eviction. Plaintiffs’ procedural due process claim rests on the allegations that
Church evicted Plaintiffs without providing the prior notice required under section 6 and without
providing a copy of the Board of Survey report required by section 8 (Dkt No. 1 at 8, ¶ 45).
Because Plaintiffs’ claim in Count II against the Selectmen rests on orders with respect to the
eviction, and because there are no such orders allegedly issued by the Selectmen and the relevant
statutes do not confer authority to evict on the Selectmen, any claim against the Selectmen would
rest on impermissible speculation. See Guerra-Delgado, 774 F.3d at 780; Velez-Rivera, 437
F.3d at 156.

27

In summary, the court finds that, under the First Circuit’s holdings in S. Commons
Condo. Ass’n, San Geronimo Caribe Project, Inc., and Herwins, the Parratt-Hudson doctrine
applies to preclude Plaintiffs’ claims that the municipality and its officials violated their
procedural due process rights in connection with SRI’s eviction from Building 1. The complaint,
therefore, fails to state such a claim. Accordingly, Counts 1-IV will be dismissed with prejudice.
B. Substantive Due Process
The complaint does not separately allege that the defendants’ actions violated Plaintiffs’
substantive due process rights, but the opposition to defendants’ motion to dismiss plainly does
so (Dkt. No. 1, at 16-18, ¶¶ 105, 109, 113, 118; Dkt. No. 14 at 13). Defendants argue summarily
that the conduct alleged, taken as true, does not meet the stringent test for pleading a substantive
due process claim (Dkt. No. 12 at 15). “The court must determine if, as a matter of law,
Plaintiffs have failed to make out a claim for relief.” S. Commons Condo. Ass’n, 967 F. Supp. 2d
at 468 (citing Gallant, 739 F. Supp. 2d at 48).
“For Plaintiffs to adequately allege a claim for violation of substantive due process, they
must show that (1) Defendants violated a right protected by the substantive Due Process Clause
and (2) Defendants’ actions ‘shock the conscience.’” Id. (quoting Martinez v. Cui, 608 F.3d 54,
64 (1st Cir. 2010)). The court has already found that Plaintiffs have adequately alleged
deprivation of a protected property right. Thus, the remaining question “is whether the factual
allegations, if proven, adequately describe state action that ‘in and of itself [was] egregiously
unacceptable, outrageous, or conscience-shocking.’” Id. (alteration in original) (quoting
Amsden, 904 F.2d at 754). The determination the court must make is fact based and objective.
Nonetheless, the First Circuit has established certain general guidelines applicable to an initial
pleading.

28

[I]n order to shock the conscience, conduct must at the very least be “extreme and
outrageous,” [Depoutot v. Raffaelly, 424 F.3d 112,] 118 [(1st Cir. 2005)], or, put
another way, “truly outrageous, uncivilized, and intolerable.” Hasenfus v.
LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999). We also know that “[m]ere
violations of state law, even violations resulting from bad faith,” do not invariably
amount to conscience-shocking behavior. DePoutot, 424 F.3d at 119. Rather,
conscience-shocking behavior “must be stunning.” Amsden, 904 F.2d at 754 n.5.
Pagen, 448 F.3d at 32. “Executive branch action that sinks to the depths of shocking the
contemporary conscience is much more likely to find its roots in ‘conduct intended to injure in
some way unjustifiable by any government interest.’” DePoutot, 424 F.3d at 119 (quoting Cnty
of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).
Turning first to Church’s actions, Plaintiffs have alleged that she committed legal error in
their summarily evicting them from Building 1, and that she exhibited a distinct lack of courtesy
and professionalism, but even on Church’s part they have not alleged bad faith, malice, or an
intent to cause injury in a way unconnected to a justifiable government interest. See S. Commons
Condo. Ass’n, 775 F.3d at 92 (affirming dismissal of substantive due process claim where
plaintiffs did not allege that municipality’s summary decision to demolish buildings was product
of bad faith or malice). While Church may have been negligent, or even grossly negligent, in
summarily evicting SRI when eviction was not necessitated by Building 1’s condition, the
complaint alleges that she acted under the authority vested in her under Massachusetts law and
Plaintiffs concede that Church, the Board of Survey, and the District 2 Building Inspector all
concluded that the buildings at the mill complex were a danger to public safety. “It is crystal
clear that mere allegations of mistakes by state officials, even if committed in bad faith, are
insufficient to raise a claim for violation of substantive due process.” S. Commons Condo. Ass’n,
967 F. Supp. 2d at 469. As to the remaining defendants, members of the Board of Survey are
alleged to have done nothing more than inspect the mill complex and report on their findings

29

about the conditions of the buildings (Dkt. No. 1 at 7, ¶ 37). Plaintiffs concede that the
Selectmen sought to alleviate the harm caused by the eviction by requesting that Church give
Plaintiffs an extended period of time to remove SRI equipment from Building 1, thereby
negating any reasonable inference of malice or bad faith on the part of the Selectmen.
Plaintiffs again seek to rely on Gallant in support of their position that they have
adequately pled a substantive due process claim. Gallant is distinguishable, however. In
Gallant, the allegations were that, when the plaintiff received notice that the municipality
intended to demolish his building if he did not make repairs, he immediately boarded up the
building and secured the premises. He then had a contractor put a new roof on the building and
sought assurances from the municipality that he was in compliance with its requirements. When
he was asked to take further steps to secure the premises, he did so. He then sought a building
permit, which the building commissioner issued. On the very same day, however, the building
commissioner issued a notice of demolition, which the plaintiff received only after he had
obtained the building permit, completed repairs, and had the work inspected and approved by the
municipality’s building inspector. The same day the plaintiff received the notice of demolition,
the municipality’s officials issued a notice of pending demolition, which the plaintiff did not
receive until after his building had been demolished. Gallant, 736 F. Supp. 2d at 43-44. A
reasonable inference from the Gallant complaint was that the municipality deliberately
concealed its intention of demolishing the plaintiff’s building while knowing that he was
investing substantial time, effort, and money in complying with the municipality’s orders to
ameliorate its condition. In contrast, Plaintiffs in the instant case have not alleged that they
expended funds to comply with an order by the municipality to make repairs to Building 1 or that
they brought Building 1 into complete code compliance only to see it demolished without notice

30

by order of the same municipal office that had certified compliance with all orders to make
repairs.
While “each determination of whether state conduct shocks the conscience is necessarily
fact specific[,]” Cruz-Erazo v. Rivera-Montanez, 212 F.2d 617, 623 (1st Cir. 2000),
“[m]eritorious substantive due process claims in the context of a land use dispute are rare.”
Bourne, 494 F. Supp. 2d at 89. This is not such a rare case. The court does not doubt that the
events alleged were highly disruptive to SRI’s business and distressing to Slavas, SRI’s sole
owner. However, “[b]eyond the alleged procedural deficiencies, Plaintiffs do not allege any
facts that give rise to a reasonable inference that the [municipality] went about [evicting SRI] in
a manner that ‘shocks the conscience.’” S. Commons Condo. Ass’n, 967 F. Supp. 2d at 469
(citing Martinez, 608 F.3d at 119). For the foregoing reasons, defendants’ motion to dismiss so
much of Counts I-IV as allege a substantive due process claim will be dismissed with prejudice.
See id.
C. Fourth Amendment Violations
Plaintiffs claim that the actions of Church with respect to the eviction of SRI “and in
requiring Plaintiffs to abort the removal of the equipment and other possessions of Slavas and
SRI from Building 1 constituted an illegal search and seizure and violated Plaintiffs’ rights . . .
protected by the Fourth . . . Amendment[] of the Constitution of the United States” (Dkt. No. 1 at
18, ¶ 118). The allegations supporting this claim are that, on May 9, 2015, Church arrived
unannounced at Building 1, accompanied by Vera and two Massachusetts State Troopers. The
law enforcement officers escorted Slavas from Building 1, and Church posted the building as
condemned (id. at 8, ¶ 45). She thereafter refused Slavas adequate time to remove all of SRI’s
equipment from the building (id. at 10-14). Although Plaintiffs’ allegations about the activities

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of members of the Board of Survey are limited, Count III of the complaint raises claims under
the Fourth Amendment against these defendants as well (id. at 17, ¶ 113). As a basis for
dismissal of these claims, defendants argue that, even if Church infringed on Plaintiffs’ Fourth
Amendment rights, she is entitled to qualified immunity for her conduct. Plaintiffs, who omitted
any response to this contention and failed to mount any defense of these claims in their
opposition and reply briefs, have arguably waived these claims. See Snyder v. Collura, 812 F.3d
46, 51 (1st Cir. 2016) (holding that plaintiff’s failure to identify claim and facts on which it
rested before trial court waived theory of recovery argued for the first time on appeal).
Nonetheless, a court should not automatically treat Plaintiffs’ failure to oppose dismissal of
Plaintiffs’ Fourth Amendment claims as a procedural default. See Phaneuf v. Lustig, Glaser &
Wilson, P.C., 148 F. Supp. 3d 72, 74 (D. Mass. 2015). Accordingly, the court considers whether
the complaint alleges an adequate basis for the Fourth Amendment claims stated in Counts III
and IV, and, if so, whether any defendant is entitled to invoke the defense of qualified immunity.
The Fourth Amendment protects citizens against seizures of property by state actors. See
U.S. Const. amend. IV; Soldal v. Cook County, 506 U.S. 56, 65-67 (1992). “A ‘seizure’ of
property . . . occurs when ‘there is some meaningful interference with an individual’s possessory
interest in that property.’” Soldal, 506 U.S. at 61 (quoting United States v. Jacobsen, 466 U.S.
109, 113 (1984)). The court has already concluded that Plaintiffs have alleged a property interest
in the premises occupied by SRI in Building 1, nor is there any doubt that they had a
constitutionally-protected property interest in SRI’s equipment. See U.S. Const. amend. IV
(Fourth Amendment protects against unreasonable seizure of “effects”). In order to be
actionable, however, “a seizure must also be objectively unreasonable.” Thomas v. Cohen, 304
F.3d 563, 574 (6th Cir. 2002); Downeast Ventures, Ltd. v. Washington Cty., Civil No. 05-87-B-

32

W, 2007 WL 1745630, at *10 (D. Me. June 13, 2007) (the touchstone standard for a Fourth
Amendment violation is objective reasonableness, which entails examination of the defendants’
actions in light of the facts and circumstances then known to them). Because the defendants
have invoked the defense of qualified immunity, if the court concludes that there was a violation
of Plaintiffs’ Fourth Amendment rights, then the court must address whether any of these
defendants violated a constitutional right of Plaintiffs that was clearly established at the time of
the alleged violation; and whether reasonable officials in the position of Church and the Board of
Survey would have understood that their conduct violated the clearly established right at issue.
See Higgins v. Penobscot Sheriff’s Dept., 446 F.3d 11, 13, 15 (1st Cir. 2005) (per curiam). It is
not mandatory that the court follow the two-step analysis sequentially. Qualified immunity
provides immunity from suit, not just from damages. Particularly at the pleading stage, if the
question of whether a defendant has violated a constitutional right is difficult or heavily factbound, the court may proceed immediately to the second step of the qualified immunity analysis.
See Maldonado v. Fontanes, 568 F.3d 263, 269-70 (1st Cir. 2009).
i.

Members of the Board of Survey

As to members of the Board of Survey, Plaintiffs’ claims under the Fourth Amendment
are disposed of easily. Plaintiffs have not alleged in their complaint that members of the Board
of Survey played any role in the eviction other than in the most indirect fashion, i.e., by
preparing a report of their findings about the condition of the mill complex. Although those
findings, inferentially, formed a part of the basis of Church’s decision to evict SRI and condemn
Building 1, no member of the Board of Survey is alleged to have been present at the eviction,
had any communications with Slavas about the eviction, or made or contributed to any decision
about post-eviction access to the SRI equipment that remained in Building 1. Because the

33

members of the Board of Survey – D.J. Oakes, Larry Thoreson, and Carla Davis-Little – did not
participate in the conduct that allegedly violated Plaintiffs’ Fourth Amendment rights, they
cannot be held liable. See Velez-Rivera, 437 F.3d at 156; see also Maldonado, 568 F.3d at 274
(a government official who himself inflicts truly outrageous, uncivilized and intolerable harm
may be liable for alleged constitutional violations).6
ii.

Church

In contrast, Church is alleged to have played a direct role in the eviction. Although there
is no allegation that Church entered Building 1 on May 19, 2015, or ever physically prevented
Slavas from entering the building, it may fairly be inferred from the complaint that she initiated
and organized the eviction. It also may fairly be inferred that orders she issued after she
condemned Building 1 resulted “in the allegedly wrongful seizure of numerous items of personal
property [in the form of SRI equipment], which implicates the Fourth Amendment[.]” Downeast
Ventures, Ltd., 2007 WL 1745630, at *10.
There remains the question of whether SRI’s eviction and the resulting seizure of a
portion of its property was objectively unreasonable. While the question is not free from doubt,
the court believes that the actions taken by Church could not fairly be interpreted as
unreasonable in light of the facts and circumstances known to her. She had inspected the mill
complex, including Building 1, and concluded that the buildings were dangerous.
Notwithstanding Plaintiff’s allegations about evidence to the contrary from Whetstone and the

6

There is no allegation in the complaint that the Board of Survey acts in any supervisory
capacity with respect to the building commissioner, nor is there any basis in Chapter 143, which
provides that the building commissioner is responsible for convening a Board of Survey, for such
a contention. See Mass. Gen. Laws ch. 143, § 8. Thus, there is no viable case for supervisory
liability under the Fourth Amendment on the part of members of the Board of Survey. See
Maldonado, 568 F.3d at 274-75.
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DOT, Church’s conclusions about the condition of the buildings were consistent with the view of
the Board of Survey and that of the District 2 Building Inspector. Chapter 143, while requiring
notice Church allegedly failed to provide, conferred authority on her in her capacity as building
inspector to act summarily in the event of danger to public health and safety. Church’s action in
evicting SRI was subsequently discussed at a public and a closed executive meeting of the
Selectmen, also attended by town counsel, and was not thereafter rescinded, despite the
Whetstone analysis. Church’s role in SRI’s eviction was effected under a “colorable [grant of]
legal authority [in Chapter 143],” Thomas, 304 F.3d at 572, on which she could reasonably rely.
As to the seizure of SRI equipment, following SRI’s eviction, Church allowed Slavas access to
Building 1 to retrieve SRI’s equipment on terms that might be found reasonable, given that she
ultimately allowed him the time he claimed he needed to remove SRI equipment.
Even if Church violated Plaintiffs’ Fourth Amendment rights, however, the court has no
doubt that she is entitled to qualified immunity from suit and any liability for her actions.
“’[T]he qualified immunity defense . . . provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.’” Downeast Ventures, Ltd., 2007 WL
1745630, at *12 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Even if the eviction
violated a Fourth Amendment right of SRI or Slavas, an objectively reasonable municipal
official in Church’s position, relying on the summary authority granted in Chapter 143, would
not have believed she was violating Plaintiffs’ clearly established constitutional rights by
conducting the summary eviction of a business from a building she believed to be in a dangerous
condition. It is well-established that the United States Constitution leaves room for swift
governmental action to deal with the immediate dangers that damaged and abandoned properties
may sometimes pose, and case law in this and other circuits confirms this proposition. See, e.g.,

35

S. Commons Condo. Ass’n, 775 F.3d at 86; Herwins, 163 F.3d at 18-19; see also Flatford v. City
of Monroe, 17 F.3d 162, 166-68 (6th Cir. 1994) (ruling that the city’s Director of Building and
Safety was entitled to qualified immunity for claims asserted by the plaintiffs under the Fourth
and Fourteenth Amendments based on the summary eviction from their apartment). Further, it is
a fair inference from the complaint that Church knew that SRI did not have a current lease for the
premises it was occupying in Building 1 (Dkt. No. 1 at 8, ¶ 43). 7 Here, an objectively reasonable
official in Church’s position could conclude that she was authorized to initiate the orderly
eviction of a business in SRI’s position from a dangerous building, and entitled thereafter to
control access to a building she had posted as condemned. Moreover, so far as the court has
been able to determine, there is no case in this or any other circuit holding that an eviction by a
building inspector or commissioner in similar circumstances was in violation of a business
tenant’s Fourth Amendment rights. Thus, the contours of Plaintiffs’ claimed Fourth Amendment
rights were not sufficiently clear that Church would have understood that what she was doing
violated any such rights. See Maldonado, 568 F.3d at 269. Church is, therefore, entitled to
qualified immunity with respect to Plaintiffs’ Fourth Amendment claims.
4. State Law Claims
When a court has dismissed all claims over which it has original jurisdiction, the court
may “’decline to exercise supplemental jurisdiction’ over the remaining claims.” S. Commons
Condo. Ass’n, 967 F. Supp. 2d at 469 (quoting 28 U.S.C. § 1367(c)(3)).
Here, the court has dismissed all federal claims, with the result that only the state
claims against [the defendants] remain. “In deciding whether or not to retain
jurisdiction on such an occasion, the . . . court must take into account concerns of
comity, judicial economy, convenience, fairness, and the like.” Roche v. John
Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996). Given the early
7

According to Plaintiffs, Church referred in a May 13, 2015 email to Davis-Little to “tak[ing]
action on the person who is in the building illegally” (Dkt. No. 1 at 8, ¶ 43).
36

stage of litigation, the court will exercise its discretion to decline supplemental
jurisdiction over the remaining state claims. The issues of potential liability[,
standing,] and compensation in play here involve application of complex state law
and regulation, as to which the state courts have the final say. These issues lie
more comfortably within the competence of the Massachusetts judiciary. The
court will therefore dismiss these state law claims without prejudice to Plaintiffs’
assertion of them in state court. McInnis-Misenor v. Maine Med. Ctr., 319 F.3d
63, 74b (1st Cir. 2003) (“When federal claims are dismissed before trial, state
claims are normally dismissed as well.”) (alteration in original).
Id. at 469-70.
V.

CONCLUSION

For the foregoing reasons, the defendants’ motion to dismiss Counts I-IV of the
complaint is granted and these counts are hereby dismissed with prejudice for failure to state a
claim. The motion to dismiss the state law claims in Counts V-VII is also granted, but these
claims are dismissed without prejudice to their reassertion in state court. The Clerk will enter a
judgment of dismissal in this case, which may now be closed.
It is so ordered.
Dated: March

, 2017

Katherine A. Robertson
KATHERINE A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

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