Signs for Jesus et al v. Pembroke, NH, Town of et al
Filing
20
///ORDER granting in part and denying in part 13 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro.(jna) Modified on 3/24/2016 to add: /// (js).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Signs for Jesus, et al.
v.
Case No. 15-cv-482-PB
Opinion No. 2016 DNH 059
Town of Pembroke, et al.
MEMORANDUM AND ORDER
Signs for Jesus and Hillside Baptist Church applied for a
permit to put up an electronic sign that would display religious
messages on Pembroke Street in Pembroke, New Hampshire.
When
their application was denied, they filed this suit against the
Town of Pembroke, the Town’s Zoning Board of Adjustment, and the
Town’s Code Enforcement Officer, Everett Hodge.
Plaintiffs
allege that the defendants’ actions violated the United States
and New Hampshire constitutions, and federal and state statutes.
After filing their answer, defendants responded with a partial
motion to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1), (3), and (6).
Doc. No. 13.
I.
BACKGROUND
In April 2015, Signs for Jesus and Hillside Baptist Church
(hereafter, collectively “the Church”) applied for a permit to
install an electronic sign on its property on Pembroke Street in
Pembroke, New Hampshire.1
The purpose of the proposed sign was
to display daily Bible scriptures.
In April 2015, Everett
Hodge, the Town of Pembroke’s Code Enforcement Officer, denied
the Church’s application.
Doc. No. 1 at 7.
The Church then
appealed Hodge’s decision to the Town of Pembroke’s Zoning Board
of Adjustment (“ZBA”), and filed a separate variance request.
Id.
After a public hearing, the ZBA denied the Church’s
administrative appeal and its request for a variance.
Id. at 8.
In August 2015, the Church requested rehearing pursuant to N.H.
Rev. Stat. Ann. § 677:2.
Id.
The ZBA denied the Church’s
requests at a subsequent hearing.
In November 2015, the Church filed its complaint here,
alleging that the Town’s actions and its sign ordinance are
unconstitutional, and violate federal and New Hampshire law.
Specifically, the Church’s complaint includes nine counts: four
claims invoking the United States Constitution (brought pursuant
to 42 U.S.C. § 1983); two claims based on the federal Religious
Land Use and Institutionalized Persons Act (“RLUIPA”); one claim
invoking the New Hampshire Constitution; and two claims based on
Signs for Jesus is a New Hampshire non-profit corporation
“whose purpose is to publicly display daily Bible scriptures to
the public via road signs.” Doc. No. 1 at 2. Hillside Baptist
Church is a religious organization that owns property at 547
Pembroke Street (otherwise known as U.S. Route 3) in Pembroke,
New Hampshire.
2
1
N.H. Rev. Stat. Ann. § 677:4.
The complaint names as defendants
the Town of Pembroke, Pembroke’s ZBA, and Hodge, both
individually and in his official capacity as the Town’s Code
Enforcement Officer.
and monetary relief.2
The Church seeks declaratory, injunctive
Id. at 24-25.
II.
ANALYSIS
Defendants have filed a partial motion to dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(1), (3), and (6).
Doc. No. 13.
In their motion, defendants argue that I should
dismiss all claims against (1) the ZBA, (2) Hodge in his
official capacity as the Town’s a Code Enforcement Officer, and
(3) Hodge in his individual capacity.
I take up each argument
in turn.
A.
Claims Against the ZBA
Defendants first argue that I should dismiss plaintiffs’
claims against the ZBA, because the ZBA is merely a decisionmaking body of the Town, and therefore is not an appropriate
Because it is somewhat unclear which claims plaintiffs are
bringing against which defendant, I assume, for the purposes of
this Order, that plaintiffs are bringing all of their claims
against all of the defendants. I further assume that plaintiffs
seek declaratory, injunctive, and monetary relief from each
defendant on each of their claims.
2
3
separate defendant from the Town.
To support this argument,
defendants point to two New Hampshire Supreme Court cases that
suggest that a municipality, not the municipality’s decisionmaking body, is the appropriate defendant in a zoning appeal
case.
See Kelley v. Hopkinton Village Project, 108 N.H. 206,
207 (1967); N.H. Highway Hotel, Inc. v. City of Concord, 119
N.H. 122, 124-26 (1979).
In response, plaintiffs argue that cases involving federal
claims “will frequently include both the town and the ZBA as
separate parties.”
Doc. No. 17 at 2; see, e.g., Westchester Day
School v. Village of Mamaroneck, 504 F.3d 338, 353-54 (2d Cir.
2007); Grace United Methodist Church v. City of Cheyenne, 451
F.3d 643 (10th Cir. 2006); New Cingular Wireless PCS, LLC v.
City of Manchester, 2014 DNH 044.
Plaintiffs also point to
RLUIPA’s text, which provides that both municipalities and
municipal departments are proper defendants to RLUIPA claims.
See 42 U.S.C. § 2000cc-5(4)(A).
They further note that RLUIPA
grants a government discretion to change its policy or practice,
or to create specific exemptions, in order to avoid RLUIPA’s
preemptive force, 42 U.S.C. § 2000cc-3(e), and argue that a
conflict may arise between the Town and the ZBA regarding who
has the authority to grant such an exemption.
I need not decide whether the ZBA is an appropriate
4
separate defendant here.
Admittedly, the ZBA appears to be
merely a subdivision of the Town, which cannot provide any
different or greater relief than the Town itself.
Yet, whether
the ZBA remains a separate defendant or not, there will be no
meaningful difference in discovery, motion practice, or any
other significant aspect of this dispute.
Because this is a
purely academic debate, then, I decline to decide whether the
ZBA is an appropriate separate defendant in this case.
Accordingly, I deny defendants’ motion to dismiss claims against
the ZBA.
B.
Claims Against Hodge in his Official Capacity
Next, defendants contend that I should dismiss all claims
against Hodge in his official capacity because “the Plaintiffs
do not and cannot seek relief against Mr. Hodge which is
separate or distinct from that which they seek from the Town.”
Doc. No. 13 at 3.
I agree.
An official-capacity suit is “in all respects other than
name, to be treated as a suit against the entity.”
Kentucky v.
Graham, 473 U.S. 159, 166 (1985); see Surprenant v. Rivas, 424
F.3d 5, 19 (1st Cir. 2005); Wood v. Hancock County Sheriff's
Dep't, 354 F.3d 57, 58 n. 1 (1st Cir. 2003); Nereida–Gonzalez v.
Tirado–Delgado, 990 F.2d 701, 705 (1st Cir. 1993)).
Put another
way, “official-capacity suits generally represent only another
5
way of pleading an action against an entity of which an officer
is an agent.”
Monell v. New York City Dep't of Social Servs.,
436 U.S. 658, 690 n.55 (1978).
Accordingly, “a string of
Supreme Court cases holds that a suit against a government
officer in his or her official capacity binds the agency or
other governmental entity, not the officer personally.”
Am.
Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256,
1259 (1st Cir. 1993) (citing Graham, 473 U.S. at 166; Brandon v.
Holt, 469 U.S. 464, 471 (1985)).
In this case, plaintiffs have sued both the Town and Hodge
in his official capacity.
Because a suit against a town officer
in his official capacity is essentially the same as a suit
against the town, Surprenant, 424 F.3d at 19, Hodge’s liability
in his official capacity “is indistinguishable from the” Town’s.
Wood, 354 F.3d at 58 n.1.
Put plainly, it was redundant for
plaintiffs to sue both the Town and Hodge in his official
capacity.
Because of that redundancy, it is appropriate to
dismiss plaintiffs’ claims against Hodge in his official
capacity here.
See Decotiis v. Whittemore, 635 F.3d 22, 38 n.19
(1st Cir. 2011); Roman Catholic Bishop of Springfield v. City of
Springfield, 760 F. Supp. 2d 172, 184 (D. Mass. 2011)
(dismissing claims, including Section 1983 and RLUIPA claims,
against city officials sued in their official capacity as
6
redundant), rev’d on other grounds, 724 F.3d 78 (1st Cir.
2013)).
C.
Claims Against Hodge in his Individual Capacity
Defendants also argue that I should dismiss all claims
against Hodge in his individual capacity because “each and every
action taken by Mr. Hodge and referenced in the Complaint was
taken in Mr. Hodge's capacity as Code Enforcement officer for
the Town.”
Doc. No. 13 at 3.
Thus, according to the
defendants, because the complaint “contains absolutely no
reference to any action taken by Mr. Hodge in his individual
capacity,” the complaint fails “to state a claim upon which
relief can granted against Mr. Hodge in his individual
capacity.”
Id.
I disagree.
Defendants’ argument rests upon misunderstanding of the
distinction between “official” and “individual” capacity suits.
As explained above, “official-capacity suits generally represent
only another way of pleading an action against an entity of
which an officer is an agent.”
Monell, 436 U.S. at 690 n.55.
Individual-capacity suits, meanwhile, “seek to impose personal
liability upon a government official payable out of personal
assets.”
Am. Policyholders Ins. Co. v. Nyacol Prods., Inc., 989
F.2d 1256, 1259 (1st Cir. 1993) (internal citation and emphasis
omitted).
7
In determining whether a suit involves an individual or
official-capacity claim, I am guided by the complaint.
Asociacion De Subscripcion Conjunta Del Seguro De
Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 26
(1st Cir. 2007).
Thus, “the phrase ‘acting in their official
capacities’ is best understood as a reference to the capacity in
which the state officer is sued, not the capacity in which the
officer inflicts the alleged injury.”
21, 26 (1991).
Hafer v. Melo, 502 U.S.
Plaintiff may therefore sue a government officer
in his individual capacity even where the officer caused the
complained-of injury while acting within the scope of his
official duties.
Id.; Flores Galarza, 484 F.3d at 26.
With those principles in mind, I return to defendants’
argument.
Defendants contend that I should dismiss all claims
against Hodge in his individual capacity because the complaint
“contains absolutely no reference to any action taken by Mr.
Hodge in his individual capacity.”
Doc. No. 13 at 3.
Put
differently, defendants argue that the claims against Hodge in
his individual capacity fail because he was acting within the
scope of his official duties when he denied plaintiffs’
application.
Yet, as explained above, the fact that Hodge
allegedly caused injury while acting within the scope of his
official duties does not bar an individual capacity suit against
8
him here.
Hafer, 502 U.S. at 26.
I therefore decline to
dismiss claims against Hodge in his individual capacity on that
basis.3
D.
Section 677:4 Supplemental Jurisdiction
Finally, in their motion, defendants argue that I should
decline to exercise supplemental jurisdiction over plaintiffs’
claims brought pursuant to N.H. Rev. Stat. Ann. § 677:4.
At a
subsequent in-chambers conference, however, the parties agreed
to stay plaintiffs’ state-law claims pending adjudication of
their federal claims.
Based upon that understanding, I deny
defendants’ motion without prejudice as it relates to Counts
VIII and IX.
III.
CONCLUSION
Defendants do not argue that I should dismiss the claims
against Hodge in his individual capacity because he is entitled
to qualified immunity. They also do not argue that the RLUIPA
claim for damages against Hodge fails because RLUIPA does not
permit such relief against a municipal officer sued in his
individual capacity. Compare Cryer v. Spencer, 934 F. Supp. 2d
323, 333 (D. Mass. 2013) (explaining that, at least in the
institutionalized person context, RLUIPA does not allow damages
claims against municipal actors in their individual capacities),
with Israelite Church of God in Jesus Christ, Inc. v. City of
Hackensack, No. CIV.A. 11-5960 SRC, 2012 WL 3284054, at *6
(D.N.J. Aug. 10, 2012) (finding that RLUIPA’s land-use provision
allows such claims). Because the parties do not address these
issues, I do not reach them here.
3
9
For the reasons provided above, defendants’ motion to
dismiss (Doc. No. 13) is granted as to claims against Hodge in
his official capacity and is otherwise denied.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
March 24, 2016
cc:
Pierre A. Chabot, Esq.
Michael J. Tierney, Esq.
Christopher Cole, Esq.
Garry R. Lane, Esq.
Meghan C. Carrier, Esq.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?