Alston v. Town of Brookline

Decision Date30 March 2018
Docket NumberCIVIL ACTION NO. 15–13987–GAO
Parties Gerald ALSTON, Plaintiff, v. TOWN OF BROOKLINE, MASSACHUSETTS, Brookline Board of Selectmen, Betsy Dewitt, Kenneth Goldstein, Nancy Daly, Jesse Mermell, Neil Wishinsky, Bernard Greene, Ben Franco, Nancy Heller, Sandra Debow, Joslin Murphy, each of them in his or her individual and official capacity, and Local 950, International Association of Firefighters, Defendants.
CourtU.S. District Court — District of Massachusetts

308 F.Supp.3d 509

Gerald ALSTON, Plaintiff,
v.
TOWN OF BROOKLINE, MASSACHUSETTS, Brookline Board of Selectmen, Betsy Dewitt, Kenneth Goldstein, Nancy Daly, Jesse Mermell, Neil Wishinsky, Bernard Greene, Ben Franco, Nancy Heller, Sandra Debow, Joslin Murphy, each of them in his or her individual and official capacity, and Local 950, International Association of Firefighters, Defendants.

CIVIL ACTION NO. 15–13987–GAO

United States District Court, D. Massachusetts.

Filed March 30, 2018


308 F.Supp.3d 516

Brooks A. Ames, Brookline Justice League, Inc., Brookline, MA, for Plaintiff.

Douglas I. Louison, Joseph A. Padolsky, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, Patricia Correa, Office of Town Counsel, Brookline, MA, David Duncan, Naomi R. Shatz, Zalkind Duncan & Bernstein, Joseph A. Padolsky, Louison, Costello, Condon & Pfaff, LLP, Martin R. Rosenthal, John M. Becker Sandulli Grace, P.C. Boston, MA, for Defendants.

OPINION AND ORDER

George A. O'Toole, Jr., United States District Judge

The magistrate judge to whom this case was referred issued two reports and recommendations ("the R & Rs") (dkt. nos. 188 & 189) addressing the motions to dismiss filed by the Town of Brookline defendants (dkt. no. 110) and the individual defendants (dkt. no. 112), respectively. The R & Rs recommend that paragraphs of the third amended complaint be stricken as surplusage. They also recommend rejecting the defendants' arguments that certain claims apparently pled by the plaintiff are barred either by the Rooker–Feldman doctrine or by principles of claim preclusion to the extent that they allege facts that pre-date the termination of the plaintiff's prior Norfolk County action. The defendants filed timely objections to the latter of these recommendations.1

1 After reviewing the parties' submissions concerning the objections, I agree that the Rooker – Feldman Doctrine does not bar the present case, but I conclude

308 F.Supp.3d 517

that the doctrine of claim preclusion does apply, because the claims at issue could have or should have been brought in the prior action. See O'Neill v. City Manager of Cambridge , 428 Mass. 257, 700 N.E.2d 530, 532–33 (1998) ; Heacock v. Heacock , 402 Mass. 21, 520 N.E.2d 151, 153 (Mass. 1988) ; Martin v. Ring , 401 Mass. 59, 514 N.E.2d 663, 664 (1987). The plaintiff may only assert claims that post-date the final judgment of the Norfolk Superior Court case.

Accordingly, I ADOPT the R & Rs (dkt. nos. 188 & 189) insofar as portions of the third amended complaint are stricken, but I SUSTAIN the defendants' objection as stated above with respect to claim preclusion.

It is SO ORDERED.

REPORT AND RECOMMENDATION ON TOWN DEFENDANTS' PARTIAL MOTION TO DISMISS (# 110).

M. Page Kelley, United States Magistrate Judge

I. Introduction.

This is a civil rights action in which a former firefighter for the Town of Brookline (the Town), Gerald Alston, who is Black, alleges that he was racially discriminated against by the Town, certain town officials in their individual and official capacities, and the firefighters' union. This motion to dismiss only concerns Alston's claims against the Town.

Specifically, Alston brought this action against the Town, the Board of Selectmen (the Board), the Town Counsel, and the Human Resources Director (collectively, the Town defendants)1 alleging that they are liable under §§ 1981 and 1983 because of a custom of racial discrimination in Town governance and because of their actions as policymakers for the Town. Alston claims that the Town defendants violated his Fourteenth Amendment right to equal protection by enforcing the policy, and that they violated his First Amendment rights to freedom of speech and to petition the government for redress of grievances by retaliating against him. (# 108 ¶¶ 192–197.)2 For the reasons outlined below, the court recommends that Town Defendants' Partial Motion to Dismiss (# 110) be allowed in part and denied in part.

II. Procedural History.

On December 1, 2015, Alston filed a 55–page complaint in which he was the sole plaintiff. (# 1.) Alston alleged that the Town defendants, individual defendants, and the firefighters' union to which Alston had belonged had violated his rights in much the same way he alleges in the present complaint. Id. On January 12, 2016, the Town defendants moved to dismiss the complaint for failure to state a claim (## 10, 11) on essentially the same grounds as they do in the present motion. Compare # 11 at 22 with # 111 at 15–16; # 11 at 18 with # 111 at 21.

308 F.Supp.3d 518

Before the court acted on the motion to dismiss, Alston filed a first amended complaint on January 26, 2016, which was styled as a class action. (# 21.) The amended complaint added seven new plaintiffs who claimed that they, too, had been racially discriminated against by the Town. Id. Two of the plaintiffs withdrew from the complaint two weeks later. (## 30, 31.) The Town again moved to dismiss the case on the same grounds as in the original motion but added arguments concerning why the new plaintiffs were not properly joined in Alston's case. (## 34, 35.)

On September 2, 2016, this court issued a Report and Recommendation to the District Court, O'Toole, J., recommending that the first amended complaint be dismissed without prejudice for failure to conform to Federal Rules of Civil Procedure 3 8 and 20, and that all plaintiffs other than Alston be required to file new, separate lawsuits. (# 72.)4 The court did not address the substance of the Town defendants' pending motion to dismiss because the court ordered Alston to file a new complaint. Id. at 39. Judge O'Toole adopted the Report and Recommendation in part. (# 75.)5

On October 21, 2016, Alston filed a second amended complaint. (# 78.) The Town defendants and individual defendants jointly moved to strike portions of it under Rule 12(f) (# 86) and moved alternatively for a more definite statement under Rule (12)(e) (# 88). This court issued an Order in which ## 86 and 88 were granted in part and denied in part. (# 106.)

Alston then filed the now-operative third amended complaint. (# 108.) The Town defendants have once again moved to dismiss (# 110); Alston responded in opposition (# 133);6 and the Town defendants replied (# 135).7 An oral argument on this motion was held on January 5, 2018.

308 F.Supp.3d 519

The Town defendants' motion to dismiss is limited to (1) portions of the third amended complaint relating to "policy choices by the Town regarding the powers and jurisdiction that various Town committees should have," including the Town Meeting's amendment of a bylaw to remove jurisdiction over employee complaints of racial discrimination from a certain commission, and a claim that the bylaw as amended is unconstitutional; and (2) portions of the complaint "relating to alleged discrimination against third parties by unrelated actors spanning decades." (# 110 at 2, # 111 at 3.) The Town defendants do not seek dismissal of Alston's claims against the Town defendants arising from an alleged hostile work environment and Alston's ultimate termination. (# 111 at 1–2.)8 The Town defendants explain that they seek dismissal of "large sections of the Complaint that are lengthy and that would needlessly expand the scope of discovery to the prejudice of the Town and third parties when they have nothing to do with Plaintiff's alleged injury or wrongdoing by the Selectmen, who are the ‘Policymaker’ for purposes of establishing Section 1981 and/or 1983 municipal liability in this case." Id. at 2.

In order to determine whether the complained-of material is relevant or should be stricken, the court must first describe both the facts of the case and the particular factual allegations to which defendants object. The court will then discuss the legal framework of Alston's claims. Finally, applying this law to the facts, the court determines that certain allegations should be stricken, while others should remain in the complaint.

II. Allegations in the Third Amended Complaint.

The third amended complaint alleges that the Town's policy, practice, and custom of protecting and encouraging acts of racial discrimination and disparate treatment (the custom)9 was the driving force behind the racially-motivated wrongs inflicted on Alston. See generally # 108. As explained above, a substantial procedural history exists in this matter and previous orders of the court set out the facts of the case at length, see, e.g. , # 72 (Report and Recommendation on Motions to Dismiss). While only those facts germane to the pending motion will be repeated here, because of the nature of the analysis those facts must be set out in detail.

A. Facts Pertaining to Alston.

Alston joined the Brookline Fire Department (BFD) in 2002. (# 108 ¶ 2.) On May 30, 2010, Paul Pender, a lieutenant in the BFD, left a voicemail on Alston's phone in which he called Alston...

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  • Alston v. Town of Brookline
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 7, 2021
    ...with evaluating how — if at all — that state-court judgment affected Alston's federal-court claims. See Alston v. Town of Brookline, 308 F. Supp. 3d 509, 516 (D. Mass. 2018). The defendants invoked the doctrine of claim preclusion and "ask[ed] the court to excise the facts alleged in the fi......
  • Town of Brookline v. Alston
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 27, 2021
    ...that Alston could not bring any claims that he either brought or could have brought in the Norfolk litigation. Alston v. Brookline, 308 F. Supp. 3d 509, 516 (D. Mass. 2018). The judge granted summary judgment in favor of the town on Alston's remaining claims, concluding that there was no ge......
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    • United States
    • U.S. District Court — District of Maine
    • January 12, 2023
    ... ... inferences therefrom in the pleader's favor.” ... Alston v. Spiegel , 988 F.3d 564, 571 (1st Cir. 2021) ... (quoting Santiago v. Puerto Rico , 655 ... unconstitutional on its face, the inquiry is ... straightforward.” Alston v. Town of Brookline , ... 308 F.Supp.3d 509, 533 (D. Mass. 2018). “A plaintiff ... can ... ...
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    ... ... inferences therefrom in the pleader's favor.” ... Alston v. Spiegel , 988 F.3d 564, 571 (1st Cir. 2021) ... (quoting Santiago v. Puerto Rico , 655 ... unconstitutional on its face, the inquiry is ... straightforward.” Alston v. Town of Brookline , ... 308 F.Supp.3d 509, 533 (D. Mass. 2018). “A plaintiff ... can ... ...
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