Comley v. Town of Rowley

• Decision Date: 31 October 2017
• Docket Number: CIVIL ACTION NO. 17–10038–RWZ
• Citation: 296 F.Supp.3d 327
• Parties: Stephen B. COMLEY v. TOWN OF ROWLEY, Town of Rowley Board of Selectmen, Joseph Perry, Individually and as Selectman, Robert Snow, Individually and as Selectman, Clifford Pierce, Individually and as Selectman, G. Robert Merry, Individually and as Selectman, David Petersen, Individually and as Selectman, and Commonwealth of Massachusetts Department of Transportation/highway Division
• Court: U.S. District Court — District of Massachusetts

296 F.Supp.3d 327

Stephen B. COMLEY

v.TOWN OF ROWLEY, Town of Rowley Board of Selectmen, Joseph Perry, Individually and as Selectman, Robert Snow, Individually and as Selectman, Clifford Pierce, Individually and as Selectman, G. Robert Merry, Individually and as Selectman, David Petersen, Individually and as Selectman, and Commonwealth of Massachusetts Department of Transportation/highway Division

CIVIL ACTION NO. 17–10038–RWZ

United States District Court, D. Massachusetts.

Signed October 31, 2017

Thomas E. Beatrice, Salem, MA, for Stephen B. Comley.

John J. Davis, John M. Wilusz, Pierce, Davis & Perritano, LLP, Boston, MA, Jesse M. Boodoo, Office of the Attorney General (MA), Boston, MA, for Town of Rowley.

MEMORANDUM OF DECISION

RYA W. ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff Stephen B. Comley brings this 42 U.S.C. § 1983 lawsuit against the Town of Rowley ("Town"), the Town's Board of Selectmen ("Board"), five named selectmen in their individual and official capacities (collectively, "Town defendants"), and the Massachusetts Department of Transportation ("MassDOT") to vindicate his rights to free speech and equal protection. He alleges that defendants removed his political signs posted on Town property and along state highways but allowed others' signs to remain. Defendants move to dismiss and for judgment on the pleadings.

I. Factual Background

The facts are recited as alleged in plaintiff's complaint (Docket # 1–2). See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 5 (1st Cir. 2011).

Comley is a Rowley resident and longtime nuclear safety activist dedicated to raising awareness of the dangers he perceives from the nearby Seabrook Power Plant. To that end, he posted signs on public property throughout the Town in 2015 urging attention to his concerns and related issues.¹ At a Town Meeting in May 2015, he moved that the Board request the United States Nuclear Regulatory Commission to hold a public hearing concerning Seabrook's evacuation plans.

Following that meeting, plaintiff's signs "began to disappear" from their locations around Town (Complaint, at ¶ 16), about which he pleads nothing beyond that they "were posted in areas and locations customarily used by other individuals without restraint relating to elections [and] to express political views." Id., at ¶ 15. Plaintiff subsequently discovered that the Board had "instructed or vicariously instructed departments of the town to remove his signs," id., at ¶ 16, even as "other similar signs of political nature posted by other individuals or citizens of the town were not so removed." Id., at ¶ 17. MassDOT also removed plaintiff's signs from Route 1A and Route 1 in the Towns of Ipswich, Rowley, Newbury, Newburyport, and Salisbury. Id., at ¶ 23. However, the complaint is devoid of any detail as to that conduct.

At a Board meeting in November 2015,² defendant Merry explained that the Board had received complaints about plaintiff's signs and opined that any signs posted on utility poles violated state law. See Docket # 39–2, at 4. Defendant Petersen likewise assumed that the signs were unlawful, saying, "If the signs are gone, they're gone, and we can't waste time tracking down signs put up illegally on Town property." Id.

Plaintiff brought the present action in Essex Superior Court. Docket # 7. The complaint alleges five counts of violations of his constitutional rights to free speech and equal protection under 42 U.S.C. § 1983 (Counts I–V), one count of civil conspiracy against Town defendants (Count VI), and one count of violation of 700 C.M.R. 3.02(2)(b)(4) against MassDOT. Town defendants removed the case to federal court on January 9, 2017, Docket # 1, and now move for judgment on the pleadings. Docket # 33. MassDOT, which had not yet been served at the time of removal, neither consented to nor joined the removal, but now moves to dismiss. Docket # 31.

II. Legal Standard

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Id. The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is essentially the same as that for deciding a Rule 12(b)(6) motion. Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005).

For purposes of a motion to dismiss, the court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. See Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49, 52–53 (1st Cir. 2013). In addition to facts and documents included in or incorporated into the complaint, the court "may also consider ‘documents incorporated by reference in [the complaint], matters of public record, and other matters susceptible to judicial notice.’ " Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008) (alteration in original) (quoting In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003) ).

III. Analysis

A. Constitutional Claims (Counts I–V)

In Counts I through V, plaintiff alleges a variety of somewhat duplicative constitutional claims. Count I alleges free speech violations under the First Amendment and/or the Massachusetts Declaration of Rights, and Count II invokes these same rights in stating a § 1983 violation. Because the latter is the appropriate cause of action for the former violations, I treat them as one claim under Count II. Counts III and IV seek injunctive relief and attorneys' fees, which do not amount to independent causes of action. See Payton v. Wells Fargo Bank, N.A., No. 12-11540, 2013 WL 782601, at *6 (D. Mass. Feb. 28, 2013) ("[I]njunctive relief is not a stand-alone cause of action under Massachusetts or federal law."). Count V, styled a claim for "selective enforcement," is ambiguously pleaded but appears to invoke the Fourteenth Amendment's equal protection clause. Cf. McGuire v. Reilly, 386 F.3d 45, 62–63 (1st Cir. 2004) (noting few substantive differences between oft-confused doctrines of First Amendment viewpoint discrimination and Fourteenth Amendment selective enforcement).

Whether under the First or Fourteenth Amendment, to prevail on a § 1983 claim, a plaintiff must plausibly allege both the violation of a constitutional right and that the alleged violation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). A public employee generally "acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." Id. at 50, 108 S.Ct. 2250.

1. First Amendment Viewpoint Discrimination

Plaintiff alleges that in 2015, he "and other citizens of the town" posted political signs on public property throughout the Town of Rowley. Complaint, at ¶ 14. Claiming that Town defendants "instructed or vicariously instructed departments of the town" to remove his signs,³ plaintiff maintains that "other similar signs of political nature posted by other individuals ... were not so removed." Id., at ¶¶ 16–17. In support, he attached as Exhibit 2 to his complaint seven photographs—the first showing an example of his own signs, and the remaining six purporting to show others' signs that were not removed.⁴ He further avers that this court may take judicial notice of the ubiquity of political signage on public property during election season.

Although plaintiff offers no facts specifying the locations of his signs, I accept as true for this analysis his allegation that all signs were removed from public property. It is "well settled that the government need not permit all forms of speech on property that it owns and controls. The government, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Del Gallo v. Parent, 557 F.3d 58, 68 (1st Cir. 2009) (citations omitted). Plaintiff does not challenge that power itself, but rather the discriminatory manner with which he argues it was applied in removing only his signs. "The essence of a viewpoint discrimination claim is that the government has preferred the message of one speaker over another," in violation of the First Amendment. McGuire, 386 F.3d at 61–62 (citing Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) ). To prevail on this claim, plaintiff must show "a pattern of unlawful favoritism." Thomas v. Chicago Park Dist., 534 U.S. 316, 325, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) ("Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears").

Plaintiff has failed to plead sufficient facts in support of such a pattern. Although he contends that, following the May 2015 Town Meeting, his signs were removed while "other similar signs of political nature posted by other individuals ... were not so removed," Complaint at ¶¶ 16–17, plaintiff's photographs of such other signs reveal remarkably little. Plaintiff has pleaded nothing about when the other signs were placed where or by whom. Even as to his own signs, the plaintiff does not specify where he posted them. In the absence of such information, it is impossible to conclude that defendants allowed some signs to remain in similar locations from which they removed plaintiff's signs, much less that they did so in a discriminatory manner.

2. First Amendment Retaliation

Although it is not precisely pleaded, plaintiff's First Amendment claim could...