Beauregard et al v. Town of Oxford et al
Filing
24
District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting 5 Motion to Dismiss for Failure to State a Claim. (Castles, Martin)
Case 4:21-cv-40118-TSH Document 24 Filed 09/16/22 Page 1 of 9
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
IN ADMIRALTY
____________________________________
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MATHIEU AND AMI BEAUREGARD, )
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Plaintiffs
)
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CIVIL ACTION
v.
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NO. 21-40118- TSH
)
TOWN OF OXFORD and
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ARTHUR ROSSI, dba
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ROSSI’S CLEANERS
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Defendant.
)
)
____________________________________)
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT TOWN OF OXFORD’S MOTION TO DISMISS
September 16, 2022
Introduction
Hillman, SJ.
Plaintiffs Mathieu and Ami Beauregard (“Plaintiffs”) have filed this negligence action
against the Defendants Town of Oxford (“Defendant Town” or “The Town”) and Arthur Rossi,
dba Rossi’s Cleaners after elevated levels of the chemical trichloroethylene (TCE) were
discovered in their private drinking water well. The Plaintiffs filed their complaint in July 2021
in Worcester Superior Court and the matter was subsequently removed to this Court after the
Complaint was amended to add a claim under 42 U.S.C. § 1983. The Town now moves to
dismiss all counts against it under Rule 12 (b)(6). For the reasons that follow, the motion to
dismiss is granted.
Case 4:21-cv-40118-TSH Document 24 Filed 09/16/22 Page 2 of 9
Background
The following facts, taken from the complaint, are accepted as true for the purposes of
this motion. See Rosenberg v. City of Everett, 328 F.3d 12, 15 (1st Cir. 2003). Plaintiffs Mathieu
and Ami Beauregard are married and are the former residents of the property at issue located at 6
Cherdon Lane, in the town of Oxford, Massachusetts (the “Property”). Defendant Rossi’s
Cleaners was a company doing business in Massachusetts with a principal place of business at
720 West Main St., Oxford MA (“the Site”).
In 1989, when the Site was owned by Rossi’s predecessor Dry Vin Cleaners, there was a
release of chlorinated hydrocarbons including TCE and perchlorethene (“PCE”) from the Site
into the groundwater. TCE and PCE are hazardous materials according to the Massachusetts
Contingency Plan (“MCP”) See 310 C.M.R. 40. The Massachusetts Department of
Environmental Protection (“DEP”) issued a Notice of Responsibility pursuant to Mass. Gen. L. c
21E to Dry Vin Cleaners for the release of the chemicals. DEP assigned a Release Tracking
Number (“RTN”) to the Site. In connection with remediation work at the Site over the
subsequent decades, several monitoring wells were installed in the area. The monitoring wells
detected levels of TCE and PCE above permissible levels between 1989 and 1992. Subsequent
tracking of private drinking water wells in the area led to the issuance of other RTNs associated
with the Site, each issued due to exceedances of TCE and other chemicals. As the Property is
downgradient from the Site, the chemicals migrated through the groundwater into the drinking
water well on the Property. From 1990 to 2017, Arthur Rossi, doing business as Rossi’s
Cleaners. owned and operated the dry-cleaning facility at the Site.
In 2014, while the Property was vacant, property managers NRT REO Experts
subcontracted the management duties to Spectrum Field Services who then hired Innovative
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Property Solutions to perform maintenance on the Property. Spectrum oversaw Innovative during
the process of demolishing the existing single-family home on the Property and preparing the
Property for resale. While conducting a test of the drinking water well, Spectrum and Innovative
found concentrations of TCE at 777 ug/liter, exceeding the permissible level of TCE in drinking
water in Massachusetts of 5 ug/liter. Neither Spectrum nor Innovative notified the DEP of the
test results. Instead, they filed the 2014 water test results were filed with the Town, which took
no action with regard to the results.
In 2016, Leveille Construction bought the Property and built a new home on it for which
the Town issued an occupancy permit. Plaintiffs purchased the Property in May 2017. When the
Plaintiffs bought the Property, all water for drinking and household use was received from the
private drinking water well on the Property. In May 2018, a test of the well on the Property
revealed a TCE concentration of 955 ug/liter. The Plaintiffs took steps to remediate the water
from the well, however their efforts did not improve the quality of the water and the entire house
and fixtures needed further remediation. Ultimately, the Plaintiffs moved out of the Property.
Standard of Review
In evaluating a Rule 12(b)(6) motion to dismiss, the Court must determine “whether,
construing the well-pleaded facts of the complaint in the light most favorable to the plaintiff[],
the complaint states a claim for which relief can be granted.” Cortés-Ramos v. Martin-Morales,
956 F.3d 36, 41 (1st Cir. 2020) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st
Cir. 2011). The complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 559 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While legal
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conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679.
Discussion
The Town contends it is immune as a municipality to the claims of negligence (Count I),
nuisance (Count II) and trespass (Count III) and moves to dismiss on these counts, pursuant to
Mass. Gen. L.ch. 258. The Plaintiffs attribute two actions by the Town that form the basis of
their Amended Complaint. The Plaintiffs allege that the Town “took no action” upon their
alleged receipt of certain water test results in 2014. See Amended Complaint (Docket No. 11) at
p. 31, ¶ 32. The Plaintiffs also allege that the Town issued a certificate of occupancy for the
subject property in or around 2017. See id. at ¶¶ 35, 36.
The Massachusetts Tort Claims Act (“MTCA”), Mass. Gen. L. ch 258 §1 et seq.,
governs civil actions against public employers. Towns are “public employers” within the
meaning of the Act, which provides that “public employer” means, “the commonwealth and any
county, city, town, educational collaborative, or district...” Mass. Gen. L. ch. 258 §1. Claims of
negligence, nuisance and trespass against a municipality fall under the purview of Mass. Gen. L.
ch. 258. See generally Morrissey v. New England Deaconess Association, 458 Mass. 580, 588589 (2010) (citing Taygeta Corp. v. Varian Associates, 436 Mass. 217, 231 (2002) (quoting Doe
v. New Bedford Housing Authority, 417 Mass. 273, 288 (1994)).
Section 10 of the Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258, provides certain
exemptions to the liability of public employers. Mass. Gen. L. ch. 258, § 10(j) specifically
provides immunity for allegations of a “failure to act to prevent or diminish the harmful
consequences of a condition or situation...which is not originally caused by the public
employer,” the Supreme Judicial Court has determined that “[t]o have ‘originally caused’ a
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condition or situation for the purposes of § 10 (j), the public employer must have taken an
affirmative action,” and the act “must have materially contributed to creating the specific
‘condition or situation’ that resulted in the harm.” Cormier v. City of Lynn, 479 Mass. 35, 40
(2018), citing Brum v. Town of Dartmouth, 428 Mass. 684, 695-696 (1999). So unless the public
actor 1) affirmatively acted, 2) which originally caused a condition or situation, and 3) the
harmful consequences of that condition or situation resulted in the alleged harm, then immunity
shall apply. See id. “The requirement of an ‘affirmative act’ is strict; it is also quite distinct from
a failure to prevent harm.” Jane J. v. Commonwealth, 91 Mass. App. Ct. 325, 328 (2017), (citing
Kent v. Commonwealth, 437 Mass. 312 (2002)). When alleging affirmative action, “a failure to
act will not suffice.” Cormier, 479 Mass. at 40, citing Brum, 428 Mass. at 695-696.
Plaintiff agrees that the Town is immune from suit under c. 258 § 10(j) for all “harmful
consequences arising from its failure to act or prevent the … conduct of a third person,” and
claims that the Town can only be liable if it “originally caused the condition or situation that
resulted in the harmful consequence.” See Plaintiff’s Opposition, Docket No. 13, p.7, citing Reid
v. Boston, 95 Mass App. Ct. 591, 598 (2019). The Town attempts to distinguish its failure to act
with the affirmative acts of requesting the test results, not acting on the results, and allowing the
Plaintiffs to occupy the Property, bringing the actions outside of the protections of the MTCA.
The Plaintiffs also contend, however, that they do not “rely on the issuance of the occupancy
permit or the Town’s failure to inspect the property to support Counts I, II, or III of the
Complaint.” See Plaintiff’s Opposition, Docket No. 13, p.7, n.1. Instead, the Plaintiffs argue that
the Town “set in motion a chain of events that allowed TCE to harm the Plaintiffs.” Id.
Plaintiffs’ claims, however, state otherwise. According to the allegations contained in the
Amended Complaint, the Plaintiffs allege that the Town, upon their alleged receipt of a 2014
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water test, failed to take action. See Amended Complaint at ¶ 32. The Plaintiffs have brought
this action against the Town for an alleged failure to prevent a potential harm to them however
the Plaintiffs admit that the Town is not the original cause of the alleged TCE in their water
results. According to the Amended Complaint, the subject TCE migrated from the co-defendant,
Rossi’s property to the plaintiffs’ former property in Oxford. See id. at ¶ 20. Accordingly, the
Town’s failure to act on the results of the water test following the dry cleaners’ release of
chemicals into the groundwater cannot form the basis of Plaintiffs’ claims of negligence,
trespass, and nuisance.
Where Plaintiffs’ allegations of negligence, trespass and nuisance arise out of the Town’s
issuance of a certificate of occupancy for the subject property, the Town is also immune from
liability pursuant to Mass Gen .L.ch. 258 §§ 10(e) and 10(f). A municipality is immune from
any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue,
deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization.
Mass. Gen. L. ch. 258 § 10(e). No action can be maintained against a municipality or its
employees for inadequate or negligent inspection of any property to determine whether the
property complies with or violates any law, regulation, ordinance or code. Mass. Gen. L.ch. 258
§ 10(f). In the absence of a special duty owed to a plaintiff, different from that which is owed to
the public at large, there can be no action against a municipality for negligent inspection. Zocchi
v. Hinsdale, 30 Mass.App.Ct. 803, 804 (1991) (citing Dinsky v. Framingham, 386 Mass. 801,
804 (1982)). When the actions that allegedly cause a private nuisance occur as a result of the
issuance of a permit, the claim is barred pursuant to the express language of Mass. Gen. L. ch.
258 § 10(e). Morrissey v. New England Deaconess Ass’n, 458 Mass. At 593 (2010).
Accordingly, to the extent the plaintiffs’ claims against the Town arise out of the Town’s
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issuance of a certificate of occupancy for the subject property in or around 2017, those claims
are also immune from suit.
Substantive Due Process – Count IV
Pursuant to 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1994). The statute is not a source of substantive rights, but rather, creates a
cause of action for persons deprived of their federally protected rights. Baker v. McCollan, 443
U.S. 137 (1979).
To prevail on a section 1983 claim, a plaintiff must prove both the existence of a federal
constitutional or statutory right and a deprivation of that right as a result of a defendant’s actions
under color of state law. Watterson v. Page, 987 F.2d 1, 7 (1st Cir.1993). The plaintiff must
show that he or she was deprived of a right, privilege or immunity secured by the Constitution
or laws of the United States. Natriello v. Flynn, 837 F.Supp. 17, 18-19 (D.Mass. 1993). Section
1983 does not provide a federal remedy for every violation of state law committed by a public
official. Lamoureux v. Haight, 648 F.Supp. 1169 (D.Mass. 1986).
Substantive due process claims prevent government actions from using power for
purposes of oppression or abuse that “shocks the conscience” or action that is “legally
irrational.” PFZ Props. Inc., v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991) (overruled on
other grounds by San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465 (1st Cir.
2012)). In order for a plaintiff to state a claim for substantive due process violations, the plaintiff
must show that the (i) defendant violated a right protected by the substantive due process clause
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and (ii) defendant’s actions “shock the conscience.” Martone Place, LLC v. City of Springfield,
2017 U.S. Dist. LEXIS 196013 at *29 (citing S. Commons Condo. Ass’n. v. City of Springfield,
967 F. Supp. 2d 457, 468 (D.Mass. 2013)). See also Mongeau v. City of Marlborough, 492 F.3d
14, 19 (1st Cir. 2007). Courts have described conscience shocking behavior as “extreme,” “truly
outrageous, uncivilized and intolerable” and “stunning”. Pagan v. Calderon, 448 F. 3d 16, 32
(1st Cir. 2006). The First Circuit has left the door slightly ajar to apply substantive due process
analysis to alleged violations in land use cases for “truly horrendous” situations. Glob. Tower
Assets, LLC v. Town of Rome, 810 F. 3d 77, 90 (1st Cir. 2016). Truly horrendous behavior in
land-use cases may include racial animus, political discrimination, fundamental procedural
irregularity, bribery and an overall corrupt process. PFZ Props., Inc. 739 F. Supp. at 72. See
also Brockton Power LLC, 948 F. Supp. 2d 48, 69 (D.Mass. 2013).
1
While municipalities may be sued civilly for causing a constitutional tort, municipalities
can act only through natural persons and governments should only be held responsible when,
and only when, their official policies cause their employees to violate another person’s
constitutional rights. City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988). Congress did not
intend municipalities to be held liable unless action pursuant to an official municipal policy
caused the constitutional tort. Monell v. New York City Department of Social Services, 436 U.S.
Plaintiffs argue that the Town, by issuing an occupancy permit and by failing to restrict use of the well despite
having failing test results is liable to them under the state-created danger doctrine. To prevail on a statecreated danger claim, Plaintiffs must prove not only that a government official’s action proximately caused their
injuries, but also that these actions shock the court's conscience. Lockhart–Bembery v. Sauro, 498 F.3d 69, 77 (1st
Cir.2007). “The burden to show state action that shocks the conscience is extremely high, requiring stunning
evidence of arbitrariness and caprice that extends beyond mere violations of state law, even resulting from bad faith
to something more egregious and more extreme.” Melendez–Garcia v. Sanchez, 629 F.3d 25, 37 (1st Cir.2010)
(internal quotation marks omitted). “In order to 'shock the contemporary conscience,' state action must be 'egregious'
and 'outrageous.' ” Id. (quoting Rivera, 402 F.3d at 36); see also Collins v. City of Harker Heights, 503 U.S. 115,
128, 112 S.Ct. 1061 (1992) (observing that the Supreme Court has “previously rejected claims that the Due Process
Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort
law”). Doe v. Town of Wayland, 179 F. Supp. 3d 155, 165 (D.Mass. 2016).
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658, 691 (1978). The plaintiff must assert both the existence of a policy or custom and a causal
link between that policy or custom and the constitutional injury. Santiago v. Fenton, 891 F.2d
373, 381 (1st Cir.1989).
Because the Plaintiffs’ do not identify a Constitutional right allegedly violated by the
Town of Oxford and/or plead a policy or custom of the Town of Oxford that violated the
plaintiffs’ civil rights, Count IV of the plaintiffs’ Amended Complaint must also be dismissed.
Conclusion
For the foregoing reasons, the Defendant Town of Oxford’s Motion to Dismiss (Docket
No. 5) is granted.
SO ORDERED.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
SENIOR DISTRICT JUDGE
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