Montagno v. Burlington, City of

Filing 17

OPINION AND ORDER Granting in Part and Denying in Part 9 Defendants' Motion to Dismiss. Signed by Chief Judge Christina Reiss on 6/1/2017. (pac)

U.S. OlSTRiCT COURT
OfSTR!CT OF VERHOHT
FILED

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JOSEPHMONTAGNO,
Plaintiff,
v.

CITY OF BURLINGTON,
Defendant.

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2111 JUN -I AH 10: t.9

Case No. 2:16-cv-232

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS
(Doc. 9)

Plaintiff Joseph Montagna brings this action pursuant to 42 U.S.C. § 1983 and
Vermont state law against Defendant City of Burlington (the "City"), alleging that the
City maintains a "caller punishment policy" through which it acted in concert with his
landlord to violate Plaintiffs First, Fifth, and Fourteenth Amendment rights under the
United States Constitution, as well as Plaintiffs rights under state law.
On November 4, 2016, the City moved to dismiss Plaintiffs Complaint pursuant
to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed. R.
Civ. P. 12(b)(6) for failure to state a claim for which relief may be granted. Plaintiff
opposes the motion. After oral argument on February 8, 20 17, the court took the motion
under advisement.
James M. Diaz, Esq. and Lia N. Ernst, Esq. represent Plaintiff. Pietro J. Lynn,
Esq. and Sean M. Toohey, Esq. represent the City.
I.

The Complaint.
A.

The City's Alleged "Caller Punishment Policy."

On March 15,2013, Plaintiff signed a written one year lease with Sisters and
Brothers Investment Group ("S&B") for an apartment located at 184 Church Street in
Burlington, Vermont. Plaintiffs initial lease term expired on February 28, 2014. He

---------------------------

subsequently renewed his lease for one year terms in 2014, 2015, and 2016. During his
tenancy at 184 Church Street, Plaintiff allegedly contacted the Burlington Police
Department ("BPD") on numerous occasions regarding "threatening and hazardous
conduct, and other potentially criminal or hazardous occurrences, he experienced in and
around 184 Church Street." (Doc. 1 at 8, ,-[ 49.)
Plaintiff alleges that the City has a "policy, practice, and/or custom" of punishing
Burlington tenants whom the City "unilaterally and arbitrarily deems to have requested
BPD assistance too frequently." I d. at 1; id. at 6, ,-[ 34. Plaintiff further asserts that the
City enforces this "policy" by: (1) tracking the number of calls for BPD assistance from
tenants; (2) arbitrarily classifying as a "public nuisance" any tenant deemed to call BPD
too frequently; (3) pressuring landlords to silence, threaten to evict, or evict "public
nuisance" tenants; and (4) failing to provide tenants with notice or an opportunity to
challenge the City's arbitrary actions. Id. at 6-7, ,-[,-[ 35-43 (internal quotation marks
omitted).
Plaintiff alleges that on or about January 16,2016, "[a]s a direct result of the
[City's] Caller Punishment Policy," S&B informed Plaintiff that it was terminating his
lease for "no cause" effective March 31, 2016. Id. at 7, ,-[ 47 (internal quotation marks
omitted); id. at 14, ,-[ 102 (internal quotation marks omitted). S&B then proceeded to
initiate eviction proceedings against him. Due to the City's "caller punishment policy,"
Plaintiff alleges that S&B refused to withdraw its eviction action against him unless he
agreed to modify his lease so that it terminated six months prior to its expiration date.

B.

The "Minimum Housing Standards Ordinance of the City of
Burlington."

The "Minimum Housing Standards Ordinance of the City of Burlington" (the
1

"Housing Code" or "HC") was in effect at all times relevant to Plaintiffs Complaint. It
1

Plaintiff did not attach a copy of the Housing Code to his Complaint; however, because his
Complaint relies on, cites to, and quotes extensively from the Housing Code which is attached to
the City's motion to dismiss (Doc. 9-2), the document is properly before the court. See
Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) ("A complaint 'is deemed to
include any written instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference" and even if "a document is not incorporated by reference, the
2

provides that an "owner of a rental unit ... shall not rent, offer for rent[,] or allow any
person to occupy any dwelling or dwelling unit without a certificate of compliance[.]"
HC § 18-18(a). 2 If an owner fails to comply with the Housing Code, the owner's
certificate of compliance "for one ( 1) or more rental unit( s) may be suspended for up to
one (1) year ... [if] the fault for noncompliance is determined to rest with the landlord,
not the tenant(s)." HC § 18-20(a). Suspensions may also result from the following
circumstances:
(1)

The occurrence of at least five (5) violations of any applicable city
or state ordinance or law within a particular rental unit within an
eighteen (18) month period which have not been rectified within the
period of time allowed by the enforcement officer;

(2)

The occurrence of at least two (2) major violations of any applicable
city or state ordinance or law within a particular rental unit within an
eighteen (18) month period which have not been rectified within the
time allowed by the enforcement officer;

(3)

If the rental unit has been adjudicated to be a public nuisance since
receipt of the certificate of compliance; or

(4)

The occurrence on the property of at least three (3) adjudicated
public nuisance type violations, including but not limited to,
excessive and unreasonable noise, public urination, or discharge of
fireworks, firearms[,] or airgun, within a twelve (12)-month period if
the landlord has not taken prompt and appropriate remedial action as
determined by the enforcement officer based on the severity of the
violations. Appropriate remedial action may mean a warning letter,
a notice of termination[,] or a filing of an ejectment action as
determined appropriate by the enforcement officer. Action will be
considered prompt if it is taken within seven (7) days from
notification by the city to the landlord or agent. A suspension issued
pursuant to this subsection ... shall apply to the entire rental
property notwithstanding anything to the contrary herein.

court may nevertheless consider it where the complaint relies heavily upon its terms and effect,
thereby rendering the document integral to the complaint.") (internal quotation marks omitted).
2

"Owner" is defined as "any person who, alone, jointly[,] or severally with others, holds legal or
equitable title to any dwelling, roominghouse, dwelling unit[,] or rooming unit." HC § 18-2.
"Rental unit" means "any structure, a part of which is rented out and occupied as a residence by
another, for compensation, including duplex units, so called. The portion of any such unit being
occupied as a residence by the owner shall be considered a rental unit." Id
3

HC § 18-20(a)(1)-(4).
An owner's certificate of compliance may be revoked "for the remainder of its
term but in no case for a period of less than one ( 1) year for failure to comply with the
requirements of[§ 18-20(b)] and the fault for noncompliance is determined to rest with
the landlord, not the tenant(s)" in the following circumstances:
(1)

More than one (1) suspension within eighteen (18) months;

(2)

The failure to correct a violation for which a suspension occurs later
than forty-five (45) days after suspension;

(3)

The failure to immediately commence the correction of a life
threatening violation, or to immediately put in place the interim
protections ordered by the enforcement officer in order to preserve
health, safety[,] and welfare of those endangered by said violation;
or

(4)

To fail to complete the correction of a life threatening violation
within the time frame specified by the enforcement officer.

HC § 18-20(b)(1)-(4).
The Housing Code affords certain protections for tenants in the event of a
suspension or revocation of their landlord's certificate of compliance:
Protection of tenants during suspension/revocation. If, in the judgment of
the enforcement officer, it is necessary for the tenants of a rental unit to be
relocated during the effectiveness of any suspension/revocation ordered
pursuant to this chapter the owner shall be financially responsible for the
cost of such relocation and for any additional rental costs necessarily
incurred by the displaced tenants in order to secure comparable replacement
housing which meets code requirements during the term of such
suspension/revocation. The relocation services specified in Section 18-28
shall become applicable in such circumstances. In the event that the owner
fails to meet its obligations under this subsection, such services may be
provided by the city which shall thereupon be regarded as having a lien on
the property to the extent of the monetary value of the services rendered by
the city and shall be enforced within the time and in the manner provided
for the collection of taxes on land.

HC § 18-20(c).

4

C.

The City's Alleged Enforcement Action.

Plaintiff alleges that on August 28, 2015, BPD Officer Philip Tremblay emailed
BPD Crime Analyst Connor Brooks and requested the creation of a spreadsheet of BPD
contacts with 184 Church Street since May 1, 20 15. BPD Lieutenant Matthew Sullivan
was copied on this email. In response, on September 1, 2015, Mr. Brooks sent both
Officer Tremblay and Lieutenant Sullivan a spreadsheet identifying calls from 184
Church Street tenants to BPD, including the name of each tenant involved in each call,
regardless of whether he or she was the caller. Plaintiffs name was included in this list.
The spreadsheet described the subject matter of the calls between May 1 and August 31,
2015 as "mental health issues, suspicious events, threats/harassment, ordinance
violations, disturbances, general calls for assistance, drug sales, disorderly conduct,
intoxication, vandalism, compliance checks, assault, larceny, welfare checks, domestic
disturbances, violations of conditions of release, ... or drug overdoses." (Doc. 1 at 9,
~57.)

On or about September 4, 2015, Lieutenant Sullivan asked Director ofBurlington
Code Enforcement William Ward to review the spreadsheet to determine if there was a
"code angle" that could be used to "reduce calls" coming from tenants of 184 Church
Street. !d. at 9, ~~55-56 (internal quotation marks omitted). On December 22, 2015,
BPD Community Affairs Liaison Lacey-Ann Smith emailed Director Ward an updated
spreadsheet, which indicated call type, call date/time, call duration, and the names and
addresses of the callers. The spreadsheet also included "internal BPD server internet
links to BPD incident reports for each call[,]" which allowed Director Ward to access the
related BPD incident reports. Id. at 9-10,

~~

60-61. Director Ward responded that he

"definitely [could] work on it" and advised that he planned to send a letter to S&B
regarding the tenants' calls for BPD assistance. !d. at 10,

~

63. Ms. Smith, in tum, stated

that she would inform BPD Chief Brandon del Pozo of this plan. Thereafter, on several
occasions in 2015 and in January of2016, Ms. Smith contacted S&B and requested that
S&B take action to eliminate or to reduce the calls from 184 Church Street tenants for
BPD assistance.
5

On February 4, 2016, Director Ward sent the following letter to S&B's
representative, Joseph Handy:
RE: 184 Church Street
Dear Mr. Handy:
I am writing to notify you that your property at 184 Church Street has been
identified as a problem property based on police calls for service and Code
Enforcement complaints. Problem properties are generally identified as
any property where several incidents requiring city intervention occur
within a designated time frame.
The Burlington Police Department has recorded over 140 incidents at 184
Church Street between January 1, 20 15 and December 31, 20 15. The Code
Enforcement Department has 7 documented incidents at this property over
the same period. The police calls for service include general disturbances,
noise disturbances, disorderly conduct, intoxication incidents, trespassing,
vandalism, simple assault, [and] aggravated assault, among others.
It is important to note that if arrests are made or tickets are issued, the

property owner of a nuisance property could be subject to additional
consequences. Burlington City ordinance provides for suspension of an
owner's rental certificate of compliance for one year after the occurrence of
a specific number of violations which are not addressed promptly. The full
text of the ordinance is on the back side of this letter.
I am setting up a meeting at the Burlington Police Department next week to
discuss the details of the complaints with you and learn what remedial
action steps you intend to take. The problem property team and I will be
meeting between noon and 4 p.m. on Friday February 12,2016. Let me
know which one hour block of time you would like to reserve to discuss
your property.
(Doc. 9-1 at 1.) Director Ward informed BPD Community Affairs Officer Bonnie Beck
and Ms. Smith via email that he had sent the letter to Mr. Handy, and attached a copy of
his letter.
On February 12, 2016, Mr. Handy met with BPD representatives, including Ms.
Smith and Director Ward, as well as other members of the "problem property team[.]"
(Doc. 1 at 11, ,-[,-[ 73-74) (internal quotation marks omitted). Mr. Handy was informed
that he was required to take action to stop or reduce the number of calls from 184 Church
Street tenants for BPD assistance. In response to this request, S&B sent a letter dated

6

February 18,2016 to each tenant of 184 Church Street, including Plaintiff, which stated,
in relevant part: "[t]hese nuisance calls need to stop. Over the last year there [have] been
over 140 calls to the BPD for the building. If people continue to call for nuisance calls
we will be forced to start evicting people." Id. at 11, ,-r 77 (internal quotation marks
omitted).
On February 25,2016, S&B provided Ms. Smith with a copy ofS&B's February
18, 2016 letter. Ms. Smith forwarded the letter to Director Ward and Ms. Beck. Neither
the BPD nor the City advised S&B of any objections to its February 18, 2016letter.
On February 19, 2016, Ms. Smith emailed Mr. Handy, copying Director Ward and
Ms. Beck, regarding "frequent callers" from 184 Church Street. The email included the
names of eight tenants and the number of times each tenant had called for BPD assistance
in 2015 and 2016. Plaintiff was identified as having called for BPD assistance forty-two
times in 2015 and four times in 2016.
Thereafter, S&B initiated an eviction proceeding against Plaintiff in Vermont
Superior Court. On March 2, 2016, Director Ward contacted Mr. Handy and inquired
about the date and time of the hearing on S&B's request for eviction. When he was
informed that it was scheduled for March 22, 2016 at 8:30a.m., Director Ward
responded: "I just updated my calendar and will be available that day if needed." !d. at
15, ,-r 106 (internal quotation marks omitted). Director Ward subsequently attended the
eviction hearing and offered to testify against Plaintiff.
On March 11, 2016, Director Ward emailed S&B regarding the "one month checkin regarding ... attempts at remedial action at 184 Church Street." Id. at 12-13, ,-r 88
(internal quotation marks omitted). He noted that calls for BPD assistance from
184 Church Street tenants had not stopped since the February 12, 2016 meeting and
advised that he would "make a referral of the property to the City Attorney's office" to
suspend S&B 's certificate of compliance. I d. at 13, ,-r 90 (internal quotation marks
omitted). Director Ward also stated that S&B should "take more direct action" to reduce
the number of calls for BPD assistance because the "volume of calls is umeasonable and

7

a nuisance to the neighboring properties." Id. at 13, ,-; 91 (internal quotation marks
omitted).
One week later, on March 18, 2016, Director Ward contacted the City Attorney's
Office, Chief del Pozo, and the Mayor's Office, recommending suspension of S&B' s
certificate of compliance for 184 Church Street based on the number of BPD calls from
Plaintiff and other tenants. On March 21, 2016, Ms. Smith sent Ms. Beck and Director
Ward a spreadsheet entitled "184 [C]hurch call for service breakdown 2015." Id. at 13,
,-; 93 (internal quotation marks omitted). The spreadsheet included Plaintiff as a source of
some ofthe calls.
In April2016, Plaintiff met with Mr. Handy at S&B's office where Mr. Handy
informed him that the City claimed that he was calling BPD for assistance too frequently.
Plaintiff denied making frivolous calls.
By letter dated April 7, 20 16, the Winooski Housing Authority advised Plaintiff
that it would cease making housing assistance payments to his landlord on May 1, 20 16
and would terminate his federal Section 8 Housing Choice Voucher if he did not obtain
another apartment by October 28, 2016. Because he was afraid oflosing his Section 8
Voucher and receiving a negative reference from S&B, on May 20, 2016, Plaintiff agreed
to settle the eviction action on S&B' s terms, which included an early termination of his
lease. Plaintiff alleges that he "suffered serious emotional and mental anguish because
he ... lost his possessory rights to his apartment" and was at risk for homelessness and
the loss ofhis Section 8 Voucher. Id. at 16, ,-; 118.
On May 4, 2016, a neighbor "assaulted and threatened Plaintiff with a metal pipe"
in front of the door to Plaintiff's apartment. Id. at 8, ,-;50. Plaintiff alleges that this
neighbor had repeatedly threatened him over the course of several months. Plaintiff
asserts that due to the City's "caller punishment policy," he feared that calling BPD
would result in the City taking action to "punish" him. Id. BPD responded to the May 4
incident, arrested the neighbor, and charged him with simple assault by menace and
disorderly conduct. The neighbor was subsequently ordered to have no contact with
Plaintiff and to stay at least ten feet away from him.
8

.--------------------------------

Plaintiff further asserts that he modified his conduct and refrained from calling for
BPD assistance on numerous other occasions when his safety, or the safety of others, was
in jeopardy. On one such occasion, Plaintiff believed there was a break-in at his
apartment but refrained from calling BPD. On another occasion, Plaintiff heard
neighbors threatening to shoot another person, but he again refrained from calling BPD.

D.

Plaintiff's Claims as set Forth in his Complaint.

Count One: Plaintiff alleges that the City's "caller punishment policy" violated
his First Amendment right to freedom of speech by threatening to impose penalties on
him for requesting BPD assistance, reporting potential crimes, and making complaints.

Count Two: Plaintiff asserts that the City's enforcement of its "caller punishment
policy" violated his First Amendment right to petition the government for assistance.

Count Three: Plaintiff alleges that the City violated his substantive due process
rights under the Fifth and Fourteenth Amendments by arbitrarily punishing him based on
his exercise of his First Amendment rights.

Count Four: Plaintiff asserts that, on its face and as applied, the City's Housing
Code is overly broad and void for vagueness under the Fourteenth Amendment.

Count Five: Plaintiff alleges that the City deprived him of procedural due process
by failing to provide him with notice and an opportunity to be heard.

Count Six: Plaintiff alleges that the City tortiously interfered with his contractual
relationship with S&B in violation of Vermont law.

Count Seven: Plaintiff asserts that the City exceeded its authority under Vermont
law by maintaining and enforcing the "caller punishment policy" in a manner designed to
punish Plaintiff and others for requesting BPD assistance, and by failing to provide due
process protections.

II.

Conclusions of Law and Analysis.
A.

Standard of Review.

"A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(l) when the district court lacks the statutory or constitutional power to adjudicate
it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In resolving a motion
9

to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the
complaint ... as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239,243
(2d Cir. 2014 ). '"A plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists."' Fountain v. Karim, 838 F.3d
129, 134 (2d Cir. 2016) (quoting Makarova, 201 F.3d at 113).
In adjudicating a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), the
court's inquiry is "guided by '[t]wo working principles[.]"' Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). First, "a court must accept as true all of the [factual] allegations contained in a
complaint[,]" a "tenet" that is, however, "inapplicable to legal conclusions." Iqbal, 556
U.S. at 678. "Second, only a complaint that ... contain[s] sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face[]' ... survives a
motion to dismiss." !d. at 678-79 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." !d. at 678.
"Determining whether a complaint states a plausible claim for relief will[] ... be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." !d. at 679. "Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice." !d. at 678. Likewise, a
court is not required to "accept as true a legal conclusion couched as a factual
allegation[.]" Brown v. Daikin Am. Inc., 756 F .3d 219, 225 (2d Cir. 2014) (internal
quotation marks omitted) (quoting Twombly, 550 U.S. at 555).
"The plausibility standard is not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at
678 (internal quotation marks omitted). "Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short of the line between possibility and
plausibility of entitlement to relief." !d. (internal quotation marks omitted).
10

The district court's role "is merely to assess the legal feasibility of the complaint,
not to assay the weight of the evidence which might be offered in support thereof."

DiFalco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010) (internal quotation
marks omitted); see also Glob. Network Commc'ns, Inc. v. City ofNew York, 458 F.3d
150, 155 (2d Cir. 2006) ("The purpose ofRule 12(b)(6) is to test, in a streamlined
fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without
resolving a contest regarding its substantive merits."). For this reason, the court does not
evaluate the credibility of the Complaint's factual allegations. See Wright v. MetroHealth

Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995) ("In considering a motion under Fed. R.
Civ. P. 12(b)( 6), it is not the function of the court to weigh the evidence or evaluate the
credibility of witnesses").

B.

Whether Plaintiff Must Plead State Action.

As a threshold issue, the City moves to dismiss all of Plaintiff's federal
constitutional claims brought under 42 U.S.C. § 1983 because Plaintiff has failed to
plausibly plead "state action." Plaintiff, in tum, argues that "state action" is not required
and relies on the "unconstitutional conditions doctrine."
Section 1983 provides:
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.
"Unlike a state, a municipality is a person within the meaning of Section 1983 [. ]"

Vives v. City ofNew York, 524 F.3d 346, 350 (2d Cir. 2008) (internal citation omitted). 3
3

Vives v. City ofNew York, 524 F.3d 346, 350 (2d Cir. 2008) ("[U]nlike individual defendants, a
municipality may not assert qualified immunity based on its good faith belief that its actions or
policies are constitutional[.] ... Thus, a municipality is liable for even its good faith
constitutional violations presuming that the municipality has a policy that causes those
violations.").
11

The governing standard for liability is set forth in Monell v. Dep 't of Soc. Servs. of City of
New York, 436 U.S. 658 (1978), wherein the Supreme Court held that in order to
maintain a § 1983 claim against a municipal defendant, a plaintiff must allege "action
pursuant to official municipal policy of some nature caused a constitutional tort." !d. at
691. The "state action doctrine" is therefore inapplicable and the City's motion to
dismiss Plaintiffs federal claims for failure to plausibly allege "state action" must be
DENIED.
Plaintiff fares no better with his reliance on the "unconstitutional conditions
doctrine." That doctrine applies when the government conditions the receipt of a benefit
on the plaintiffs forfeiture of a constitutional right.
We have said in a variety of contexts that the government may not deny a
benefit to a person because he exercises a constitutional right. . . . In so
holding, we have recognized that regardless of whether the government
ultimately succeeds in pressuring someone into forfeiting a constitutional
right, the unconstitutional conditions doctrine forbids burdening the
Constitution's enumerated rights by coercively withholding benefits from
those who exercise them.
Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2594-95 (2013) (internal
quotation marks omitted); Autor v. Pritzker, 740 F.3d 176, 183 (D.C. Cir. 2014)
("Appellants have pled a viable First Amendment unconstitutional conditions claim.
That is, they allege that the government has conditioned their eligibility for the valuable
benefit ofiTAC membership on their willingness to limit their First Amendment right to
petition government.").
In his Complaint, Plaintiff alleges he was at risk for losing his housing assistance
voucher from the City of Winooski Housing Authority. He does not, however, further
allege that the City of Winooski Housing Authority conditioned the continuation of his
voucher on his relinquishment of First Amendment rights, nor does he claim the City of
Burlington had any role in determining whether his voucher was continued. The
"unconstitutional conditions doctrine" does not apply in such circumstances.
To the extent that Plaintiff argues that the City "forced S&B to choose between a
significant benefit (maintaining its ability to rent 184 Church Street) and upholding Mr.
12

Montagna's rights at significant cost to itself (legal fees and loss of the ability to rent 184
Church Street)[,]" (Doc. 11 at 16), the "unconstitutional conditions doctrine" remains
inapplicable because he alleges no constitutional right that he was required to forfeit in
exchange for a governmental benefit that he would otherwise receive. Plaintiff cites no
authority that would authorize him to assert a claim on his landlord's behalf, and the
court has found none.
Although the parties have not briefed the applicable standard, the court
nonetheless determines whether the Complaint's allegations are sufficient to state a
plausible claim for relief. See Fed. R. Civ. P. 12(b)(6). Under Monell, a plaintiff must
plausibly allege a causal connection between the municipality's policy or custom and a
deprivation of his or her federal rights:
As our § 1983 municipal liability jurisprudence illustrates, however, it is
not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the "moving force"
behind the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.
Where a plaintiff claims that a particular municipal action itself violates
federal law, or directs an employee to do so, resolving these issues of fault
and causation is straightforward. Section 1983 itself "contains no state-ofmind requirement independent of that necessary to state a violation" of the
underlying federal right. In any § 1983 suit, however, the plaintiff must
establish the state of mind required to prove the underlying violation.
Accordingly, proof that a municipality's legislative body or authorized
decisionmaker has intentionally deprived a plaintiff of a federally protected
right necessarily establishes that the municipality acted culpably.
Similarly, the conclusion that the action taken or directed by the
municipality or its authorized decisionmaker itself violates federal law will
also determine that the municipal action was the moving force behind the
injury of which the plaintiff complains.

Bd. ofCty. Comm'rs ofBryan Cty., Okla. v. Brown, 520 U.S. 397,404-05 (1997)
(citation omitted). "Claims not involving an allegation that the municipal action itself

13

violated federal law, or directed or authorized the deprivation of federal rights, present
much more difficult problems of proof." !d. at 406.
In this case, Plaintiff alleges that the City used its "caller punishment policy" and
the vagueness and overbreadth of the Housing Code to pressure his landlord into
initiating eviction proceedings against him. Without these municipal policies and the
City's enforcement efforts, he contends that the City would have no leverage to coerce
his landlord into chilling his First Amendment rights.
The City points out that Director Ward's February 4, 2016letter allegedly
threatening to suspend S&B's certificate of compliance was sent only after S&B notified
Plaintiff that his lease would not be renewed. For pleading purposes, however, there is
more than one reasonable inference to be derived from the chronology of events.
Plaintiff alleges that his tenancy at 184 Church Street was routinely renewed until the
City allegedly used "a code angle" to pressure his landlord to curtail Plaintiffs calls to
BPD. He cites the City's emails and BPD's spreadsheets as evidence that there was a
causal relationship between the City's concerns regarding the frequency of his calls for
BPD assistance and S&B's decision not to renew his lease. Although there is a
significant issue in this case regarding whether the City or a private party caused
Plaintiffs injuries, 4 there is no requirement of"direct contact" between the City and
Plaintiff provided the causal chain establishes no intervening cause. See Brown, 520 U.S.
at 409 (requiring a plaintiff to establish "plaintiffs own injury flows from the
municipality's action, rather than from some other intervening cause").
Although a close question, at the pleading stage, Plaintiffs Complaint plausibly
traces his injuries of chilled First Amendment speech, early termination of his lease, and
emotional distress to the City's alleged "caller punishment policy" and Housing Code as
implemented by municipal employees. Dismissal of Plaintiffs § 1983 claims for failure

4

Section 1983 does not provide a remedy for "merely private conduct, no matter how
discriminatory or wrongful[.]" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(internal quotation marks omitted).
14

to state a plausible claim of municipal involvement in the alleged constitutional violations
is therefore DENIED.

C.

Whether Plaintiff Plausibly Alleges First Amendment Claims.

In Count One, Plaintiff alleges that the City's "caller punishment policy" chills his
freedom of speech to report crime and seek police assistance. In Count Two, he alleges
the same policy interferes with his right to petition the government to report crime and
seek police assistance. Because "[t]he Petition Clause[] ... was inspired by the same
ideals of liberty and democracy that gave us the freedoms to speak, publish, and
assemble[,] [t]hese First Amendment rights are inseparable, and there is no sound basis
for granting greater constitutional protection to statements made in a petition ... than
other First Amendment expressions." McDonald v. Smith, 472 U.S. 479, 485 (1985)
(citations omitted).
The City seeks dismissal of Plaintiff's First Amendment claims, arguing that not
only does Plaintiff fail to plausibly allege a "caller punishment policy" but "[a]bsent from
the Complaint is any allegation that the City or its agents ever directly attempted to
restrict [Plaintiff's] First Amendment rights." (Doc. 9 at 2.) Plaintiff responds that, at
the pleading stage, he has alleged sufficient facts to proceed to discovery where the full
extent of the City's involvement may be revealed.
"A [governmental policy or municipal ordinance] is presumptively inconsistent
with the First Amendment if it imposes a ... burden on speakers because of the content
oftheir speech." Simon & Schuster, Inc. v. Members ofNY State Crime Victims Bd.,
502 U.S. 105, 115 (1991). For this reason, policies "which permit the [g]overnment to
discriminate on the basis of the content of the message cannot be tolerated under the First
Amendment." !d. at 116 (internal quotation marks omitted).
"The First Amendment [also] guarantees 'the right of the people ... to petition the
[g]ovemment for a redress of grievances."' McDonald, 4 72 U.S. at 482. The
Constitution's guarantee that this right will not be abridged is one of the "most precious
of the liberties safeguarded by the Bill of Rights[.]" BE & K Constr. Co. v. Nat'l Labor

Relations Bd., 536 U.S. 516, 524 (2002) (internal quotation marks omitted). The First
15

Amendment thus protects "[t]he rights to complain to public officials and to seek ...
relief[.]" Gagliardi v. Viii. ofPawling, 18 F.3d 188, 194 (2d Cir. 1994); see also
Conquistador v. Hartford Police Dep 't, 2017 WL 959731, at *4 (D. Conn. Mar. 13,
20 17) ('" [I]t is axiomatic that filing a criminal complaint with law enforcement officials
constitutes an exercise of the First Amendment right to petition government for the
redress of grievances."') (quoting Estate of Morris ex rei. Morris v. Dapolito, 297 F.
Supp. 2d 680, 692 (S.D.N.Y. 2004)).
Neither the City's Housing Code nor its alleged "caller punishment policy" are
directed to the contents of speech, instead, they are directed to the frequency of calls for
police assistance, regardless of their content. In this respect, Plaintiffs claims in Counts
One and Two are more accurately characterized as a single retaliation claim for First
Amendment speech.
"To establish a retaliation claim under section 1983, a plaintiff 'initially [must]
show that [his] conduct was protected by the first amendment,' and that defendants'
conduct was motivated by or substantially caused by his exercise of free speech[.]"
Gagliardi, 18 F.3d at 194 (citation omitted). At the pleading state, the burden is not
onerous:
We ... conclude that the [plaintiffs] adequately have pleaded the requisite
nexus between the exercise of their First Amendment rights and subsequent
retaliatory conduct by the Municipal Defendants. The ultimate question of
retaliation involves a defendant's motive and intent, which are difficult to
plead with specificity in a complaint. Indeed, Rule 9(b) of the Federal
Rules of Civil Procedure provides that "[m ]alice, intent, knowledge and
other conditions of mind ... may be averred generally." While a bald and
uncorroborated allegation of retaliation might prove inadequate to
withstand a motion to dismiss, it is sufficient to allege facts from which a
retaliatory intent on the part of the defendants reasonably may be inferred.
!d. at 195 (citations omitted).

Plaintiff alleges that he called BPD to report crime and concerns for his safety and
well-being. He further alleges that the City sought to reduce or eliminate his speech by
tracking his calls to BPD and by using a "code angle" to pressure his landlord to reduce
his calls and curtail his First Amendment protected speech. Although the right to petition
16

the government, even for police assistance, is not "absolute" and a '"baseless [claim] is
not immunized by the First Amendment right to petition[,]"' McDonald, 472 U.S. at 484
(internal quotation marks omitted), 5 at the pleading stage, the court must accept as true
Plaintiffs factual allegations that his calls to BPD were for legitimate purposes.
"To state a claim under Section 19 83, a plaintiff must [also] allege facts indicating
that some official action has caused the plaintiff to be deprived of his or her constitutional
rights-in other words, there is an injury requirement to state the claim." Zherka v.
Amicone, 634 F.3d 642, 644 (2d Cir. 2011) (internal quotation marks omitted). "[P]rivate

citizens claiming retaliation for their [First Amendment speech] have been required to
show that they suffered an 'actual chill' in their speech as a result." !d. at 645.
"However, in limited contexts, other forms of harm have been accepted in place of this
'actual chilling' requirement." !d.; see also LaVertu v. Town of Huntington, 2014 WL
2475566, at *6 (E.D.N.Y. Apr. 4, 2014) ("Where a plaintiff has sufficiently alleged a
concrete harm, and in the absence of a subjective chilling requirement, Second Circuit
courts have only required a showing (1) that the First Amendment protected the
plaintiffs conduct, and (2) that 'defendants' conduct was motivated by or substantially
caused by [the plaintiffs] exercise of speech."'); Brink v. Muscente, 2013 WL 5366371,
at *7 (S.D.N.Y. Sept. 25, 2013) (observing that in private citizen cases, "various forms of
concrete harm have been substituted for the 'actual chilling' requirement.").
Here, Plaintiff alleges that his speech was chilled by the City's "caller punishment
policy" on at least two occasions when he refrained from calling BPD even though he
had legitimate reasons to do so. Plaintiff further asserts that the City's "caller
punishment policy" ultimately resulted in the early termination of his lease, jeopardized
his Section 8 housing voucher, and caused him to fear imminent homelessness. Even in
the absence of"' actual chilling[,]"' some courts have deemed similar allegations
sufficient to allege a First Amendment violation. See Zherka, 634 F.3d at 645.
5

As the City points out, courts have rejected "the notion that a city is powerless to protect its
citizens from unwanted exposure to certain methods of expression which may legitimately be
deemed a public nuisance." Members of City Council of City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 805 (1984).

17

Accepting Plaintiffs factual allegations as true, he has plausibly alleged a
retaliation claim under 42 U.S.C. § 1983 for his exercise of his First Amendment rights to
ftee speech and to petition the government. The City's motion to dismiss Plaintiffs First
Amendment claims as set forth in Counts One and Two is therefore DENIED.
D.

Whether Plaintiff's Substantive Due Process Claim is Duplicative of
His First Amendment Claims.

In Count Three of his Complaint, Plaintiff alleges that the City's "caller
punishment policy" violated his "substantive due process rights because [the City]
arbitrarily punished [him] based upon his exercise of his fundamental rights to freedom
of speech and to petition his government for redress of grievances." (Doc. 1 at 19,
~

144.) He alleges that the "caller punishment policy" does not advance any compelling

government interest and is not narrowly tailored to justify infringement of his right to
report potential crimes to BPD "free from arbitrary punishment." Id. at 20,

~

145.

"For a substantive due process claim to survive a Rule 12(b)( 6) dismissal motion,
it must allege governmental conduct that 'is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.'" Velez v. Levy, 401 F.3d 75, 93 (2d
Cir. 2005) (quoting Cty. ofSacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). In

Albright v. Oliver, 510 U.S. 266 (1994), the Supreme Court held that "[w]here a
particular Amendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the guide for analyzing these
claims." Id. at 273 (internal quotation marks omitted).
Plaintiffs Fifth and Fourteenth Amendment substantive due process claims are
wholly duplicative of his more particularized First Amendment claims and rely on the
same "explicit textual source of constitutional protection[.]" !d. (internal quotation marks
omitted). The Second Circuit's holding in Velez is directly on point:
[T]he context that is relied upon to make the alleged actions by the
defendants potentially shocking enough to sound in substantive due
process, also entails, under our cases, that no such cause of action can
survive defendant's motion to dismiss. What is allegedly shocking about
18

-------------------------

what the defendants[] did is either their intent to violate plaintiffs
fundamental First Amendment rights, or their motive to deprive her of
liberty without procedural due process. In other words, what would serve
to raise defendant's actions beyond the wrongful to the unconscionable and
shocking are facts which, if proven, would constitute, in themselves,
specific constitutional violations. And we have held that where a specific
constitutional provision prohibits government action, plaintiffs seeking
redress for that prohibited conduct in a § 1983 suit cannot make reference
to the broad notion of substantive due process. Because we believe that, as
a matter oflaw, defendants' purported actions would not[,] but for the
allegations of First Amendment violations, ... be sufficiently shocking to
state substantive due process claims, we conclude that plaintiffs
substantive due process claim is either subsumed in her more particularized
allegations, or must fail. Accordingly, we affirm the district court's
dismissal of Velez's substantive due process claim against all the
defendants.

Velez, 401 F .3d at 94 (citations omitted).
As in Velez, Plaintiff alleges no conduct which shocks the conscience other than
the violation of his First Amendment rights. As a result, his substantive due process
claim is "either subsumed in [his] more particularized allegations, or must fail." !d. The
court therefore GRANTS the City's motion to dismiss Count Three.

E.

Whether to Dismiss Plaintiff's Facial Challenges to the Housing Code.

In Count Four, Plaintiff asserts that the Housing Code's certificate of compliance
provisions are facially overbroad and void for vagueness under the Fourteenth
Amendment to the United States Constitution because they fail to sufficiently define the
terms "rectified," "violations of ... law," "major violations of ... law," "adjudicated
public nuisance type violations," or "appropriate remedial action." (Doc. 1 at 20, ,-r 147)
(internal quotation marks omitted). The City seeks dismissal of Plaintiffs facial claims,
arguing that the Housing Code serves a legitimate purpose, is neither overbroad nor
unduly vague, and did not cause Plaintiffs alleged injuries.
"[I]mprecise laws can be attacked on their face under two different doctrines."

City of Chicago v. Morales, 527 U.S. 41, 52 (1999). "First, the overbreadth doctrine
permits the facial invalidation of laws that inhibit the exercise of First Amendment rights
if the impermissible applications of the law are substantial when 'judged in relation to the
19

.---------------------

-------------------- - - - - - - - - - - - - - -

statute's plainly legitimate sweep."' !d. (quoting Broadrick v. Oklahoma, 413 U.S. 601,
615 (1973)). "Second, even if an enactment does not reach a substantial amount of
constitutionally protected conduct, it may be impermissibly vague because it fails to
establish standards for the police and public that are sufficient to guard against the
arbitrary deprivation of liberty interests." !d.
"[W]here conduct and not merely speech is involved, ... the overbreadth of a
statute must not only be real, but substantial as well, judged in relation to the statute's
plainly legitimate sweep." Broadrick, 413 U.S. at 615. "[T]he mere fact that one can
conceive of some impermissible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge." Members of the City Council ofLos Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 800 (1984). "[T]here must be a realistic danger
that the statute itself will significantly compromise recognized First Amendment
protections of parties not before the [c]ourt for it to be facially challenged on overbreadth
grounds." !d. at 801 (emphasis added).
If a challenged ordinance is "readily susceptible to a narrowing construction that
would make it constitutional, it will be upheld." Virginia v. Am. Booksellers Ass 'n, 484
U.S. 383, 397 (1988) (internal quotation marks omitted). "The overbreadth doctrine is
'strong medicine' that is used 'sparingly and only as a last resort."' N. Y State Club Ass 'n

v. City ofNew York, 487 U.S. 1, 14 (1988) (quoting Broadrick, 413 U.S. at 613).
An ordinance is void for vagueness if it fails to provide notice of what constitutes
a violation or if it encourages discriminatory or arbitrary enforcement. See Kolender v.

Lawson, 461 U.S. 352,357 (1983). In Graynedv. City ofRocliford, 408 U.S. 104 (1972),
the Supreme Court explained that "[v]ague laws offend several important values":
First, because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly. Vague laws may trap the innocent by not providing
fair warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the
20

attendant dangers of arbitrary and discriminatory application. Third, but
related, where a vague statute abut(s) upon sensitive areas of basic First
Amendment freedoms, it operates to inhibit the exercise of (those)
freedoms.

Grayned, 408 U.S. at 108-09 (footnotes and internal quotation marks omitted).
"Courts have looked with disfavor on facial vagueness challenges to statutes that
do not implicate fundamental rights." Farrell v. Burke, 449 F.3d 470, 495 (2d Cir. 2006).
However,
[the] cases ... recognize a different approach where the statute at issue
purports to regulate or proscribe rights of speech or press protected by the
First Amendment. Although a statute may be neither vague, overbroad, nor
otherwise invalid as applied to the conduct charged against a particular
defendant, [a plaintiff] is permitted to raise its vagueness or
unconstitutional overbreadth as applied to others. And if the law is found
deficient in one of these respects, it may not be applied to him either, until
and unless a satisfactory limiting construction is placed on the statute. The
general rule disfavoring facial vagueness challenges does not apply in the
First Amendment context.
!d. at 496 (citation omitted).

Because Plaintiff asserts that the Housing Code violates his First Amendment
rights, he need not allege that the challenged provisions are vague in all of their
applications. The Supreme Court has recently held that "our holdings squarely contradict
the theory that a vague provision is constitutional merely because there is some conduct
that clearly falls within the provision's grasp." Johnson v. United States, 135 S. Ct. 2551,
2561 (2015). 6
In Count Four, Plaintiffs facial overbreadth and vagueness challenges fall into
two categories: (1) suspensions of a landlord's certificate of compliance for a "violation"

6

See also Farrell v. Burke, 449 F.3d 470, 495 n.12 (2d Cir. 2006) (noting that a proponent of a
facial vagueness challenge need not establish that a statute is "impermissibly vague in all of its
applications" where First Amendment rights are at stake) (internal quotation marks omitted);
Johnson v. Quattlebaum, 664 F. App'x 290, 294 n.5 (4th Cir. 2016) (noting that the
"impermissibly vague in all of its applications" statement in Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 456 U.S. 950 (1982) has been abrogated by the Supreme Court's
decision in Johnson v. United States, 135 S. Ct. 2551,2561 (2015)).

21

or "major violation" of applicable law; and (2) suspensions for an "adjudicated public
nuisance type violation."
1.

Suspensions for Violations of Applicable Law.

"In a facial challenge to the overbreadth and vagueness of a law, a court's first
task is to determine whether the enactment reaches a substantial amount of
constitutionally protected conduct." Vill. ofHoffman Estates v. Flips ide, Hoffman
Estates, Inc., 455 U.S. 489, 494 (1982) (footnote omitted). The Housing Code authorizes
up to a one year suspension of an owner's certificate of compliance where "the fault for
noncompliance is determined to rest with the landlord, not the tenant(s)" and:
(1)
The occurrence of at least five ( 5) violations of any applicable city
or state ordinance or law within a particular rental unit within an eighteen
(18) month period which have not been rectified within the period of time
allowed by the enforcement officer;
(2)
The occurrence of at least two (2) major violations of any applicable
city or state ordinance or law within a particular rental unit within an
eighteen (18) month period which have not been rectified within the time
allowed by the enforcement officer[.]
HC § 18-20(a)(l) & (2).
The Housing Code defines an "applicable city ordinance or state law" as falling
within certain chapters and specific sections of the Housing Code. See HC § 18-20(h)
(setting forth references to what constitutes '"any applicable city ordinance or state law"'
for "purposes of' HC § 18-20). Contrary to Plaintiffs contentions, the Housing Code
also defines what constitutes a "[v]iolation[,]"7 a "[m]ajor violation[,]" 8 and a "[l]ife
threatening violation[.]" 9 See HC § 18-20(e). While not models of clarity, each ofthese
terms is narrowed by a requirement that the City establish a violation of applicable law
7

A "violation" is defined as "[a]ny noncompliance with city or state code requirements which
does not rise to the level of a major or life threatening violation[.]" HC § 18-20(e)(I).

8

A "major violation" is defined as "[a] violation of city or state code requirements which
adversely impacts the health, safety[,] or welfare of tenants, other residents of the building or the
general public, but not to the extent of being life threatening, including a violation of any of the
standards set forth in Section 18-19(c)." HC § 18-20(e)(2).
9

A "life threatening violation" is defined as "[a] violation of city or state code requirements
which poses an imminent threat to human life." HC § 18-20(e)(3).

22

thereby minimizing the likelihood that such provisions will be arbitrarily enforced. See
URI Student Senate v. Town ofNarragansett, 631 F.3d 1, 14 (1st Cir. 2011) ("In our
view, the requirement that a violation of law be committed as a condition precedent to
police intervention provides adequate guidance to ensure that the Ordinance is not
arbitrarily enforced.").
As Plaintiff alleges no First Amendment right to "violate any applicable city or
state ordinance or law," for purposes of his overbreadth challenge, he must "demonstrate
from the text of [the Housing Code] and from actual fact that a substantial number of
instances exist in which [these provisions of the ordinance] cannot be applied
constitutionally." NY State Club Ass 'n, 487 U.S. at 14. His Complaint falls far short of
this standard. Indeed, he does not plausibly allege any instance of unconstitutional
application, nor is one readily conceivable. If a tenant's calls for police assistance
constitute violations of applicable law (for example, disturbing the peace, disorderly
conduct by telephone, or false information to a police officer), he or she would be hard
pressed to argue that there is a First Amendment right to make such calls. Conversely,
there is scant likelihood that a tenant will make a legitimate call for police assistance and
nonetheless be deemed to have violated applicable law. Certainly, Plaintiff does not
allege that he was engaged in a violation of law when he made his calls to BPD. Nor
does he allege that his landlord's certificate of compliance was threatened on this basis.
He therefore fails to plausibly allege that there are a "substantial number of instances" in
which these provisions of the Housing Code "cannot be applied constitutionally." !d.
Plaintiffs facial vagueness challenge to these provisions of the Housing Code fails
for similar reasons. He does not plausibly allege that the Housing Code's prohibition on
violations of applicable law deter legitimate expression in a substantial number of cases.
See Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 60 (1976) (noting that a vagueness
challenge may only proceed where "the statute's deterrent effect on legitimate
expression" is '"both real and substantial"'). He also does not plausibly allege that the
defined terms "violation" and "major violation" are so vague as to provide inadequate

23

notice of what conduct is prohibited or to give rise to arbitrary or discriminatory
enforcement.
Because Plaintiffs Complaint does not plausibly allege facial overbreadth and
vagueness challenges to the Housing Code's certificate of compliance provisions insofar
as they address "violations" and "major violations" of "applicable city or state ordinance
or law[,]" HC § 18-20(a)(l) & (2), those challenges are DISMISSED.

2.

Suspensions for an "Adjudicated Public Nuisance Type
Violation."

Plaintiffs facial overbreadth and vagueness challenges to the Housing Code's
authorization of suspensions and revocations of certificates of compliance for an
"adjudicated public nuisance" pose a more difficult question. Under Vermont law, a
municipality may "define what constitutes a public nuisance, and ... provide procedures
and take action for its abatement or removal as the public health, safety, or welfare may
require." 24 V.S.A. § 2291(14). It is not clear, however, that the Housing Code defines a
"public nuisance" in a manner that avoids penalizing First Amendment speech, or in a
manner that permits reasonably prudent individuals to understand what conduct is
prohibited.
The Housing Code authorizes a suspension of a landlord's certificate of
compliance if "the fault for noncompliance is determined to rest with the landlord, not the
tenant(s)[,]" HC § 18-20(a), under the following circumstances:

***
(3) If the rental unit has been adjudicated to be a public nuisance since
receipt of the certificate of compliance; or
(4) The occurrence on the property of at least three (3) adjudicated public
nuisance type violations, including but not limited to, excessive and
umeasonable noise, public urination, or discharge of fireworks, firearms[,]
or airgun, within a twelve (12)-month period if the landlord has not taken
prompt and appropriate remedial action as determined by the enforcement
officer based on the severity of the violations. Appropriate remedial action
may mean a warning letter, a notice of termination[,] or a filing of an
ejectment action as determined appropriate by the enforcement officer.
Action will be considered prompt if it is taken within seven (7) days from
24

notification by the city to the landlord or agent. A suspension issued
pursuant to this subsection ... shall apply to the entire rental property
notwithstanding anything to the contrary herein.
An owner may request that the suspension be vacated and the certificate
reinstated after the suspension has been in effect for at least half of its
scheduled duration if the entirety of the violation(s) which resulted in the
suspension has been rectified. A determination to vacate a suspension and
restore the certificate shall be entirely within the discretion of the
enforcement officer and there shall be no right of appeal from such
determination. If an owner decides to voluntarily relinquish a certificate
during the term of suspension, the relinquishment shall be for the full term
of the suspension.
!d. (emphasis supplied).

Although Section 18-20 ofthe Housing Code defines "violation," "major
violation," and "life threatening violation," it does not define the term "public nuisance"
or "adjudicated public nuisance." The City points to City Code § 1-9(e), but that section
is not definitional in nature and does not cross reference § 18-20:
General penalty; continuing violations.
(e) Public nuisances. Any property within the city found to be maintained
in violation of any provisions of this code or which in any other way
endangers the health, safety[,] and welfare of the residents of the city is
hereby declared to be a public nuisance and may be ordered abated in any
manner provided by law.
HC § 1-9(e) (Doc. 9-3 at 5-6.)
Assuming arguendo that§ 1-9(e) applies to§ 18-20, it does not actually purport to
"define" a "public nuisance" but rather "declares" all code violations and anything that
"endangers the health, safety[,] and welfare of the residents of the city" to be a "public
nuisance." !d. at 6. This declaration is directed to "property" that is "maintained" in the
City. An "ordinary person exercising ordinary common sense" would not "sufficiently
understand" that repeated calls for police assistance may constitute a "public nuisance"
under this definition. Broadrick, 413 U.S. at 608 (internal quotation marks omitted).
The Housing Code's requirement that the "public nuisance type violation" be
"adjudicated" is not helpful in narrowing the term because it does not indicate whether
the "adjudication" must be made by the Housing Board, a court, or other tribunal, or
25

whether a determination by the City's code enforcement officer will suffice. Although
the Housing Code provides a mechanism for appealing a suspension, 10 it does not
indicate that the appeal process must be exhausted before a "public nuisance" is deemed
"adjudicated." In any event, while the right to an appeal a suspension is an important
mechanism for reducing arbitrary and discriminatory enforcement, the Housing Code
appears to leave it to the code enforcement officer's discretion to determine what
constitutes a "public nuisance" in the first instance. See HC § 18-20(a) ("Suspensions
shall be first imposed by the enforcement officer . . . If suspensions have been imposed
for at least one-half(l/2) of the total number of rental units located within the property,
the enforcement officer may apply the suspension of the certificate of compliance to the
entire rental property.").
Finally, although facial overbreadth may be cured by a narrowing state court's
interpretation, 11 it is not clear that Vermont law provides that guidance. The Vermont
Supreme Court has acknowledged that "the concept of public nuisance is vague and
amorphous," and a court must be "cautious to employ it in circumstances where its
application might intrude in the arena of speech and expression protected by both the
First and Fourteenth Amendments of the United States Constitution and the Vermont
Constitution[.]" Napro Dev. Corp. v. Town of Berlin, 376 A.2d 342, 345 (Vt. 1977). For
this reason, if First Amendment rights are at stake, the Vermont Supreme Court has held

10

The City cites HC § 1-9 as governing appeals but that section pertains only to general penalties
for acts which constitute violations that rise to the level of "criminal violations" and "civil
offenses." The appellate process for suspensions of certificates of compliance is governed by
HC §§ 18-49 through 18-59. See HC § 18-20(a) ("Suspensions shall be first imposed by the
enforcement officer and may be appealed pursuant to Section 18-49 et seq. of this chapter").
There is no right of appeal from a code enforcement officer's decision whether to vacate a
suspension. See id. ("A determination to vacate a suspension and restore the certificate shall be
entirely within the discretion of the enforcement officer and there shall be no right of appeal
from such determination.").
11

See Smith v. Goguen, 415 U.S. 566, 573 (1974) (ruling that overbreadth may be cured by a
state court's narrowing interpretation, however, "[w]here a statute's literal scope, unaided by a
narrowing state court interpretation, is capable of reaching expression sheltered by the First
Amendment, the doctrine demands a greater degree of specificity than in other contexts.").
26

that it is generally impermissible to leave the definition of a "public nuisance" to the
discretion of a governmental official or a court:
What is encountered with the sprawling doctrine of public nuisance is an
attempt to restrict First Amendment rights by means analogous to those
under "a statute sweeping in a great variety of conduct under a general and
indefinite characterization, and leaving to the executive and judicial
branches too wide a discretion in its application."
The common law of public nuisance may be a perfectly valid method by
which to implement a state's police power in certain defined circumstances
where, for example, it is used to restrain that which is prohibited by other
constitutionally appropriate standards. It may not be used, however, both to
define the standards of protected speech and to serve as the vehicle for its
restraint.
In the exercise of its police powers, the State has the authority to prevent or
abate nuisances, subject to constitutional limitations, and the General
Assembly has the authority to declare what shall be deemed nuisances and
to provide for their suppression. Whatever is declared a nuisance must be
so in fact, i.e., the merger of the concept in a concrete activity.
***
We believe that the public nuisance law provides an extraordinary remedy
for situations which truly demand one .... As Justice Tobriner stated in his
dissent in People ex rel. Busch v. Projection Room Theater, "The sword of
public nuisance is a blunt one, admirably designed to curb noxious odors or
to quell riots, but ill[-]suited to the delicate sphere of the First Amendment
where legal overkill is fatal."
!d. at 348-49 (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)) (citation

omitted).
Although the Vermont Supreme Court has not attempted to define a "public
nuisance" for all circumstances, it has held that "to be considered a public nuisance, an
activity must disrupt the comfort and convenience of the general public by affecting some
general interest." !d. at 346. On this basis, it recently affirmed an adjudication of a
"public nuisance" arising out of a partially destroyed, unsafe building after an evidentiary
proceeding before a town's select board and a court. See Bishop v. Town of Springfield,
2016 WL 6562418, at *3 (Vt. Nov. 4, 2016) (ruling that structure significantly destroyed
by fire was properly designated a "public nuisance" after expert testimony from a
27

----- - - - - - - - - - - - - - - - - - - - - - - -

structural engineer). It has, however, rejected a "public nuisance" claim where the
evidentiary proof was insufficient to show that the conduct in question "impact[ ed] a
right common to the general public." Vermont v. Howe Cleaners, Inc., 2010 VT 70, ,-r 49,
188 Vt. 303, 330, 9 A.3d 276, 294 (ruling trial court properly dismissed claim because
there was insufficient evidence that hazardous waste which had migrated offsite rose to
the level of a "public nuisance"). These cases reveal that the determination of "public
nuisance" is fact dependent and that a "vague and amorphous" definition of the term
cannot be used to deprive an individual of First Amendment rights. Napro Dev. Corp.,
376 A.2d at 345.
Without an adequate definition of "public nuisance" to guide a code enforcement
officer's discretion in enforcing the Housing Code, such a provision has the potential to
be facially overbroad (by sweeping in protected conduct) and facially void for vagueness
(by failing to specify what conduct is prohibited). It also presents a risk of arbitrary and
discriminatory enforcement. This is because "the more important aspect of [the]
vagueness doctrine is not actual notice, but ... the requirement that a legislature establish
minimal guidelines to govern law enforcement." Kolender, 461 U.S. at 358 (internal
quotation marks omitted). For these reasons, Plaintiff has plausibly alleged that the
Housing Code's use of the undefined term "adjudicated public nuisance type violation"
fails to provide "sufficient guidance to eliminate the threat of arbitrary enforcement[.]"
Farrell, 449 F.3d at 493.
The City's reliance on URI Student Senate v. Town ofNarragansett for a contrary
conclusion is misplaced. There, a State university organization, students, and landlords
asserted claims against a town and town officials, alleging, among other things, that an
"umuly gathering" municipal ordinance was unconstitutional on its face. The First
Circuit stated that it "need not linger long" over plaintiffs' overbreadth challenge as the
constitutional right of association "has never been expanded to include purely social
gatherings" but is rather "contingent on the presence of underlying individual rights of
expression protected by the First Amendment." URI Student Senate, 631 F .3d at 12.

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In contrast, in this case, Plaintiff has identified a First Amendment right to petition
for police assistance. See Gagliardi, 18 F.3d at 194 (holding First Amendment protects
"[t]he rights to complain to public officials and to seek ... relief[.]"). Plaintiff has
further plausibly alleged that the Housing Code's "public nuisance" provisions have the
potential to jeopardize his First Amendment speech.
With regard to the plaintiffs' facial vagueness challenge in URI Student Senate,
the First Circuit observed that plaintiffs "bemoan[ed] the Ordinance's use of undefined
terms such as 'substantial disturbance,' 'public nuisance,' and 'a significant segment of a
neighborhood."' URI Student Senate, 631 F.3d at 13. While acknowledging that these
terms "might be problematic" if"read in a vacuum," the First Circuit concluded they
were not facially vague because "[t]he Ordinance contains additional terms that supply
concrete guidance as to the behavior that it prohibits and the circumstances in which it
can be enforced." !d. at 14. The First Circuit cited the Ordinance's preamble which
contained a "plainly articulated purpose" which provided "a significant contextual clue"
to assist in "inform[ing] the meaning of the contested language." !d. at 15 (internal
quotation marks omitted). In contrast, the City points to no comparable language in the
Housing Code that serves a similar purpose.
More importantly, in URI Student Senate, the First Circuit held that the
Ordinance's use of the undefined term "public nuisance" was constitutionally permissible

only because the Ordinance required that the "public nuisance" include "conduct
constituting a violation of law" meaning "some law other than the Ordinance itself." !d.
at 14 (internal quotation marks omitted). It was this "condition precedent" that
"provide[ d] adequate guidance to ensure that the Ordinance is not arbitrarily enforced."
!d. (citing Grayned, 408 U.S. at 112) (noting that existence of particularized enforcement
context may undercut claim of vagueness). The First Circuit accordingly held that "in
order to impose liability ... the prosecution m[ u]st prove that a gathering creating a
substantial disturbance involving a violation of law occurred both at the time of the initial
posting [of the violation sticker] and when the subsequent intervention took place." !d. at

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15. "Police intervention at a residence is not enough, by itself, to establish an Ordinance
violation." Id.
The challenged provisions of the Housing Code at issue in this case do not require
that an "adjudicated public nuisance type violation" violate the law, let alone a law other
than the Housing Code. Moreover, police intervention at a residence, without more, is
apparently sufficient to establish a violation. URI Student Senate is thus clearly
distinguishable.
Because Plaintiff plausibly alleges that the Housing Code affords inadequate
notice of when First Amendment speech may give rise to an "adjudicated public nuisance
type violation," and imposes inadequate limitations on when and how a code enforcement
officer may make this determination, his facial overbreadth and vagueness challenges
may proceed. See Fed. R. Civ. P. 12(b)(6). The City's motion to dismiss Count Four's
facial challenges to the "adjudicated public nuisance type violation" provisions of the
Housing Code must therefore be DENIED.

F.

Whether to Dismiss Plaintiff's Overbreadth and Vagueness As-Applied
Challenge to the Housing Code.

Pursuant to Fed. R. Civ. P. 12(b)(l), the City moves to dismiss Plaintiffs asapplied challenges to the Housing Code on the ground that he lacks standing as the
certificate of compliance provisions do not apply to him. Plaintiff counters that even
though the certificate of compliance provisions are directed to landlords, he has been
harmed by their overbreadth and vagueness because he has allegedly been adjudicated a
"public nuisance" and "violator of the law." In Count Four he alleges:
149. Relying on the vagueness inherent in the Compliance Ordinance, the
defendant arbitrarily and unilaterally alleged [Plaintiff] to have caused
"adjudicated public nuisance type violations" and/or "violations of ...
law."
150. Relying on the vagueness inherent in the Compliance Ordinance, the
defendant improperly pressured S&B to threaten or undertake an eviction
action against [Plaintiff] for requesting BPD assistance.
151. The defendant's unconstitutionally broad and vague Compliance
Ordinance prevented and prevents [Plaintiff] from knowing whether he
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could face eviction or threats of eviction based on his requests for BPD
assistance, other constitutionally protected activity, or other conduct not
listed but potentially prohibited by the ordinance.
(Doc. 1 at 20-21, ,-r,-r 149-51.)
The issue of Plaintiffs standing to bring as-applied challenges must be addressed
first because "[i]n its constitutional dimension, standing imports justiciability: whether
the plaintiff has made out a 'case or controversy' between himself and the defendant
within the meaning of Art[icle] III." Warth v. Seldin, 422 U.S. 490, 498 (1975). "This is
the threshold question in every federal case, determining the power of the court to
entertain the suit." I d. "As an aspect of justiciability, the standing question is whether
the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to
warrant his invocation of federal-court jurisdiction and to justifY exercise of the court's
remedial powers on his behalf." Id. at 498-99.
The City is correct that an indirect injury will generally not confer standing to
assert an as-applied challenge. This standard, however, is not inflexible.
The fact that the harm to petitioners may have resulted indirectly does not
in itself preclude standing. When a governmental prohibition or restriction
imposed on one party causes specific harm to a third party, harm that a
constitutional provision or statute was intended to prevent, the indirectness
of the injury does not necessarily deprive the person harmed of standing to
vindicate his rights. But it may make it substantially more difficult to meet
the minimum requirement of Art[icle] III: to establish that, in fact, the
asserted injury was the consequence of the defendants' actions, or that
prospective relief will remove the harm.
I d. at 504-05 (citation omitted).

A plaintiffs burden to establish the elements of standing "increases over the
course oflitigation." Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011); see

also Bldg. & Canst. Trades Council ofBuffalo, NY & Vicinity v. Downtown Dev., Inc.,
448 F.3d 138, 145 (2d Cir. 2006) ("each element of standing 'must be supported in the
same way as any other matter on which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the successive stages of the litigation."')
(quoting Lujan v. Deft. of Wildlife, 504 U.S. 555, 561 (1992)). Here, Plaintiffs
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Complaint fails to plausibly plead standing for his as-applied overbreadth and vagueness
challenges for two separate reasons.
1.

Standing to Bring an As-Applied Overbreadth Challenge.

"Overbreadth challenges are a form of First Amendment challenge and an
exception to the general rule against third-party standing." Farrell, 449 F.3d at 498
(citation omitted). "All overbreadth challenges are facial challenges, because an
overbreadth challenge by its nature assumes that the measure is constitutional as applied
to the party before the court." !d. Plaintiffs as-applied overbreadth challenge is thus
included in his facial challenge to the Housing Code and does not survive as a separate
claim. It is therefore DISMISSED.
2.

Standing to Bring an As-Applied Vagueness Challenge.

"When the challenge is vagueness 'as-applied,' there is a two-part test: a court
must first determine whether the statute gives the person of ordinary intelligence a
reasonable opportunity to know what is prohibited and then consider whether the law
provides explicit standards for those who apply it." !d. at 486 (quoting United States v.
Nadi, 996 F.2d 548, 550 (2d Cir. 1993)) (internal quotation marks omitted). "Thus, all

vagueness challenges-whether facial or as-applied-require [a court] to answer two
separate questions: whether the statute gives adequate notice, and whether it creates a
threat of arbitrary enforcement." !d. at 485.
For an as-applied vagueness challenge to the Housing Code's "public nuisance"
provisions, Plaintiff must allege that he: "( 1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Where, as here, a plaintiff seeks injunctive relief, he "must also prove that the identified
injury in fact presents a 'real and immediate threat of repeated injury."' Kreisler v.
Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013) (quoting Shain v. Ellison,

356 F.3d 211, 215 (2d Cir. 2004)).
"To establish injury in fact, a plaintiff must show that he or she suffered 'an
invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or
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imminent, not conjectural or hypothetical."' Spokeo, Inc., 136 S. Ct. at 1548 (quoting
Lujan, 504 U.S. at 560). An injury is "particularized" if it "affect[s] the plaintiff in a

personal and individual way." !d. (internal quotation marks omitted). For an injury to be
"concrete," "it must actually exist." !d. (internal quotation marks omitted).
In support of his as-applied vagueness claim, other than conclusory allegations,
Plaintiff does not allege when, how, and by whom he was "adjudicated" a "public
nuisance." See Iqbal, 556 U.S. at 678 (holding '"labels and conclusions'" insufficient to
state a plausible claim for relief). At best, he alleges that the City relied on these
provisions of the Housing Code in its communications with his landlord without ever
applying them to Plaintiff, or suspending his landlord's certificate of compliance on that
basis. Although standing may be based on "injury produced by determinative or coercive
effect upon the action of someone else[,]" Bennett v. Spear, 520 U.S. 154, 169 (1997), as
currently framed, Plaintiff's allegations regarding how the Housing Code caused his
injuries remain conclusory and unparticularized. The City's motion to dismiss Plaintiff's
as-applied vagueness challenge to the Housing Code in Count Four is therefore
GRANTED.
G.

Whether Plaintiff's Procedural Due Process Claim Must Be Dismissed.

In Count Five, Plaintiff alleges that the City violated the Fourteenth Amendment's
guarantee of procedural due process when, without affording Plaintiff notice or an
opportunity to be heard, it threatened S&B 's certificate of compliance. The City
contends that it never compelled S&B to evict Plaintiff and, to the extent Plaintiff alleges
he was denied due process in his eviction proceeding, Plaintiff's recourse was to
challenge his eviction under Vermont law.
"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 & Water Div. v. Craft, 436
U.S. 1, 9 (1978). "To succeed on a claim of procedural due process deprivation under the
Fourteenth Amendment-that is, a lack of adequate notice and a meaningful opportunity

33

to be heard-a plaintiff must first establish that state action deprived him of a protected
property interest." Spinelli v. City ofNew York, 579 F.3d 160, 168 (2d Cir. 2009).
In determining whether Plaintiff alleges a plausible violation of procedural due
process, the court considers first whether he has been deprived of a protected property or
liberty interest. If so, the court determines what process was due to protect that interest.
See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) ("At the outset, then, we

are faced with what has become a familiar two-part inquiry: we must determine whether
[plaintiff] was deprived of a protected interest, and, if so, what process was his due.").
The Supreme Court has held that constitutionally protected 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." Bd. of
Regents of State Calls. v. Roth, 408 U.S. 564, 577 (1972); see Golden v. City of
Columbus, 404 F.3d 950, 955 (6th Cir. 2005) (recognizing "two bases for such non-

unilateral legitimate claims of entitlement: state statutes and contracts, express or
implied, between the complaining citizen and the state or one of its agencies.").
"Although the underlying substantive interest is created by 'an independent source such
as state law,' federal constitutional law determines whether that interest rises to the level
of a 'legitimate claim of entitlement' protected by the Due Process Clause." Craft, 436
U.S. at 9. A protected property interest "may take many forms" and "extend[s] well
beyond actual ownership of real estate, chattels, or money." Roth, 408 U.S. at 572, 576.
It must, however, have "some ascertainable monetary value[.]" Town of Castle Rock v.

Gonzales, 545 U.S. 748, 766 (2005) (internal quotation marks omitted).

As a leaseholder, Plaintiff had a protected property interest in his tenancy at 184
Church Street. See 9 V.S.A. § 4463(b) ("No landlord may directly or indirectly deny a
tenant access to and possession of the tenant's rented or leased premises, except through
proper judicial process."). Plaintiff concedes that he was not deprived of procedural due
process in his eviction proceeding. Accordingly, his procedural due process claim cannot
rest on his threatened eviction.

34

Plaintiffs claim that he has a right to notice and an opportunity to be heard when
his behavior gives rise to a threatened suspension of his landlord's certificate of
compliance, while perhaps reflecting a desirable change in the law, is insufficient to state
a claim because he must show "more than an abstract need or desire for [additional notice
and an opportunity to be heard]. He must have more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577.
Similarly, Plaintiff cannot rest his procedural due process claim solely on the
damage to his reputation because "[t]he Supreme Court has made clear that a procedural
due process claim cannot rest upon reputational harm alone." URI Student Senate, 631
F.3d at 9 (citing Paul v. Davis, 424 U.S. 693, 701 (1976)). "A party who claims a
violation of [his] procedural due process rights based on reputational harm must [also]
show that the challenged governmental action adversely impacted some right or status
previously enjoyed by [him] under substantive state or federal law." ld. at 10. This
requirement of "stigma plus" is not satisfied by a claim that "a tenant has a right to
peaceable enjoyment of a rented dwelling free from eviction[.]" Id. at 11.
Because Plaintiff identifies no protected property interest in the Housing Code's
certificate of compliance provisions that would afford him a right to notice and an
opportunity to be heard when his landlord's certificate of compliance is threatened by his
alleged behavior, he fails to state a plausible claim for relief. See Fed. R. Civ. P.
12(b)(6). The court therefore GRANTS the City's motion to dismiss Plaintiffs
procedural due process claim in Count Five.
H.

Whether to Dismiss Plaintiff's State Law Claims.

Finally, the City moves to dismiss Plaintiffs state law claims solely on the ground
that this court should not exercise supplemental jurisdiction over those claims once
Plaintiffs federal claims have been dismissed. See 28 U.S.C. § 1367(c)(3); CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) ("[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of factors ... will point toward
declining to exercise jurisdiction over the remaining state-law claims."). Because the
court has determined that several of Plaintiffs federal law claims may proceed, the City's
35

sole ground for dismissal of Plaintiffs state law claims is now moot. The City's motion
to dismiss Plaintiffs state law claims is therefore DENIED.

CONCLUSION
For the reasons stated above, the City's motion to dismiss (Doc. 9) is GRANTED
IN PART and DENIED IN PART. The court DISMISSES Count Three (Substantive
Due Process violation) and Count Five (Procedural Due Process violation). The court
DISMISSES that portion of Count Four alleging facial and as-applied overbreadth and
vagueness challenges to HC § 18-20(a)(l) & (2) permitting a suspension of a landlord's
certificate of compliance for a "violation" or "major violation" of "applicable city or state
ordinance or law[.]" The court also DISMISSES that portion of Count Four that sets
forth Plaintiffs as-applied overbreadth and vagueness challenges to the HC § 18-20(a)(3)
& (4) permitting a suspension based on an "adjudicated public nuisance type violation."
All other grounds for dismissal are DENIED.

J'f

SO ORDERED.

Dated at Burlington, in the District of Vermont, this_/_ day of June, 2017.

C~dge

United States District Court

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