Viveiros et al v. Town of Easton, et al

Filing 18

///ORDER granting 11 defendants' Motion for Judgment on the Pleadings. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Scott Viveiros and
Sandra Viveiros,
Plaintiffs
v.

Case No. 13-cv-91-SM
Opinion No. 2014 DNH 042

Town of Easton, NH;
Kevin O’Brien;
Tom Boucher; and
Edward Cutler,
Defendants
O R D E R
Scott and Sandra Viveiros brought suit against the Town of
Easton and three members of the Easton Select Board, alleging a
federal claim under 42 U.S.C. § 1983 and state law claims for
malicious trespass and intentional interference with contract.
The defendants move for judgment on the pleadings on grounds that
the Viveiroses do not allege a claim under § 1983 and that the
court should decline supplemental jurisdiction as to the state
law claims.

The Viveiroses object to the motion.

Standard of Review
A motion for judgment on the pleadings is addressed under
the same standard as is used for a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).

Portugues-Santana v.

Rekomdiv Int’l, Inc., 725 F.3d 17, 25 (1st Cir. 2013).

Under the

applicable standard, the court takes all of the well-pleaded
allegations as true and views the facts in the light most
favorable to the non-moving party to determine whether the
complaint alleges enough facts to support a claim “that is
plausible on its face.”

Downing v. Glove Direct LLC, 682 F.3d

18, 22 (1st Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

Legal boilerplate and general conclusory

statements are insufficient to state a cognizable claim.

Menard

v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012).

Discussion
In their complaint, the Viveiroses title Count I as “CLAIM
UNDER 42 U.S.C. § 1983.”

They allege that they bought property

in Easton and had a contract to buy abutting property.

The

Viveiroses further allege that the defendants interfered with
their contract when the town offered to buy the abutting
property; that the defendants improperly denied and delayed their
application for a building permit; that the defendants entered
the Viveiroses’ property without their permission; that the
defendants falsified, altered, or suppressed town records
relating to the Viveiroses; that the defendants inflated the
assessed value of the Viveiroses’ property and delayed their tax
refund; and that the defendants misused the Fire Department to
prevent the Viveiroses from burning brush.

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The defendants seek judgment on the pleadings on Count I,
asserting that the Viveiroses have failed to state a claim under
§ 1983.

The defendants also ask the court to decline

supplemental jurisdiction under 28 U.S.C. § 1367.

The Viveiroses

argue that their allegations are sufficient to state a cognizable
claim under § 1983 and suggest that if their complaint were to be
found insufficient, they should be granted an opportunity to
amend.

I.

Civil Rights Claim - Count I
Section 1983 provides a cause of action for those whose

federally protected rights are violated by someone acting under
color of state law.

42 U.S.C. § 1983; see, e.g., Maine v.

Thiboutot, 448 U.S. 1, 4-8 (1980) (discussing violation of
federal statutory rights); Baker v. McCollan, 443 U.S. 137, 143
(1979) (discussing action necessary to implicate Fourth Amendment
violation).

Section 1983, however, “is not itself a source of

substantive rights, but merely provides a method for vindicating
federal rights elsewhere conferred.”
386, 393-94 (1989).

Graham v. Connor, 490 U.S.

Therefore, a plaintiff must allege that the

defendant’s actions caused a violation of a federal right.
Sullivan v. City of Springfield, 561 F.3d 7, 14-15 (1st Cir.

See

2009).

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While the Viveiroses allege many facts about the
circumstances that led to their suit, they do not allege that the
defendants’ actions caused a violation of any particular federal
constitutional or statutory right.

They merely state generally

that the defendants’ actions “caused the Viveiroses to be
subjected to the deprivation of their rights, privileges, or
immunities secured by the Constitution and laws of the United
States of America.”

Such a conclusory statement that merely

repeats the language of § 1983 is insufficient to show that the
Viveiroses are entitled to relief.1
In their objection to the defendants’ motion for judgment on
the pleadings, the Viveiroses assert that the defendants’ actions
violated their right to substantive due process and their right
to equal protection under the Fourteenth Amendment.

The

complaint, however, does not include those allegations, and an
objection to a dispositive motion does not serve as an amendment
to the complaint.
But, even had the Viveiroses identified the substantive due
process and equal protection provisions of the Fourteenth
Amendment as the bases for their § 1983 claim, the claim would
still not survive for the reasons stated in the cases that the

1

Because the Viveiroses are represented by counsel, they
are not entitled to the less stringent standard that would be
applied if they were proceeding pro se. See Haines v. Kerner,
404 U.S. 519, 520 (1972).
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Viveiroses cite in their objection.

To avoid dismissal of a

substantive due process claim, a plaintiff “must allege that the
actions taken against him were so egregious as to shock the
conscience and that they deprived him of a protected interest in
life, liberty, or property.”

Gianfrancesco v. Town of Wrentham,

712 F.3d 634, 639 (1st Cir. 2013).

In the context of squabbles

between a town and a resident over town regulations, a plaintiff
must show that an unlawful regulation or overreaching by the town
was “‘a brutal and inhumane abuse of power,’ or ‘truly
outrageous, uncivilized, and intolerable.’”

Id. (quoting Harron

v. Town of Franklin, 660 F.3d 531, 535 (1st Cir. 2011)); see also
Clark v. Bosher, 514 F.3d 107, 113 (1st Cir. 2008) (“We have
repeatedly held that the substantive due process doctrine may
not, in the ordinary course, be invoked to challenge
discretionary permitting or licensing determinations of state or
local decisionmakers, whether those decisions are right or
wrong.” (internal quotation marks omitted)).

As in

Gianfrancesco, Harron, and Clark, the Viveiroses’s allegations in
this case do not come close to the “truly horrific circumstances”
that are necessary to avoid dismissal of a substantive due
process claim.

Harron, 660 F.3d at 536.

Similarly, the Viveiroses’s “class of one” equal protection
theory falls far short of stating a claim.

In this context, a

plaintiff must allege facts to show that he was intentionally

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treated differently than others who were similarly situated to
him in all respects relevant to the governmental action and that
the action was based on malice or another impermissible
consideration.

See Gianfrancesco, 712 F.3d at 639-40; Harron,

660 F.3d at 537; Clark, 514 F.3d at 114.

The Viveiroses do not

allege facts to support an equal protection theory.
Because the Viveiroses do not state a claim under § 1983,
Count I must be dismissed.

II.

Leave to Amend
The Viveiroses suggest at the end of their objection to the

defendants’ motion that they should be granted an opportunity to
amend the complaint if it were to be found deficient.

In this

district, however, a party cannot combine a request for relief
and an objection to a pending motion.

LR 7.1(a)(1).

To the

extent the Viveiroses intended to seek leave to amend their
complaint by the suggestion in their objection, that relief was
not properly requested.

See Fisher v. Kadant, Inc., 589 F.3d

505, 509-10 (1st Cir. 2009).
Further, the Viveiroses filed their objection on September
9, 2013, a week after the deadline for amendment of the
pleadings.

Because of their delay, the Viveiroses would have had

to satisfy the requirements of Federal Rule of Civil Procedure
16(b)(4) before seeking leave to amend the complaint.

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And, of

course, an amendment, as suggested, would likely be futile given
the nature of the alleged offensive conduct.
Therefore, the Viveiroses have not properly requested leave
to amend the complaint and leave is not granted to do so.

III.

Supplemental Jurisdiction
The defendants ask the court to decline to exercise

supplemental jurisdiction after dismissing the § 1983 claim.

The

Viveiroses did not address the issue of supplemental jurisdiction
in their objection.
A district court may decline to exercise supplemental
jurisdiction over state law claims that remain after the claim
that conferred subject matter jurisdiction has been dismissed.
28 U.S.C. § 1367(c)(3).

Although the court is not required to

decline to exercise jurisdiction under the circumstances provided
in § 1367(c)(3), that is the ordinary course.

See Allstate

Interiors & Exteriors, Inc. v. Stonestreet Constr., LLC, 730 F>3d
67, 74 (1st Cir. 2013); Rodriguez v. Doral Mortg. Corp., 57 F>3d
1168, 1177 (1st Cir. 1995).

After jurisdiction is declined, the

state law claims are dismissed without prejudice.

See Rojas-

Velazquez v. Figueroa-Sancha, 676 F.3d 206, 208 (1st Cir. 2012);
Mendez Internet Mgmt. Servs., Inc. v. Banco Santander de P.R.,
621 F.3d 10, 16 (1st Cir. 2010).

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In this case, subject matter jurisdiction was based on the
alleged existence of a federal question, the claim under § 1983
in Count I.

See 28 U.S.C. § 1331.

With the dismissal of Count

I, it is appropriate to decline to exercise supplemental
jurisdiction over the state law claims, Counts II and III.

Conclusion
For the foregoing reasons, the defendants’ motion for
judgment on the pleadings (document no. 11) is granted, and Count
I is dismissed with prejudice.
The state law claims asserted in Counts II and III are
dismissed without prejudice.
The Clerk of Court shall enter judgment accordingly and
close the case.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
February 28, 2014
cc:

W. E. Whittington, Esq.
R. Matthew Cairns, Esq.

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