DesVergnes v. Seekonk Water Dist., Civ. A. No. 77-1251-C.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtWilliam E. Hickey, Quincy, Mass., John J. Graham, Boston, Mass., for Seekonk Water Dist
Citation448 F. Supp. 1256
Docket NumberCiv. A. No. 77-1251-C.
Decision Date14 April 1978
PartiesRoger G. DesVERGNES and Heritage Homes of Attleboro, Inc., Plaintiffs, v. The SEEKONK WATER DISTRICT, a Municipal Corporation, Barbara R. Mann, Harold G. Devine, Jr., and Paul R. Tortolani, Defendants.

448 F. Supp. 1256

Roger G. DesVERGNES and Heritage Homes of Attleboro, Inc., Plaintiffs,
v.
The SEEKONK WATER DISTRICT, a Municipal Corporation, Barbara R. Mann, Harold G. Devine, Jr., and Paul R. Tortolani, Defendants.

Civ. A. No. 77-1251-C.

United States District Court, D. Massachusetts.

April 14, 1978.


448 F. Supp. 1257

Michael J. Duggan, Stephen D. Clapp, Armstrong, Pollis & Clapp, North Attleboro, Mass., for plaintiffs.

William E. Hickey, Quincy, Mass., John J. Graham, Boston, Mass., for Seekonk Water Dist.

Alvin Jack Sims, Brockton, Mass., for Barbara R. Mann, Larry C. Kenna, Lawrence B. Litwak, Choate, Hall & Stewart, Boston, Mass., for Harold G. Devine and Paul R. Tortolani.

MEMORANDUM

CAFFREY, Chief Judge.

This civil rights action, which seeks both monetary damages and injunctive relief, is brought under 42 U.S.C.A. §§ 1983, 1985, and the equal protection clause of the Fourteenth Amendment of the United States Constitution. Jurisdiction is invoked under 28 U.S.C.A. §§ 1331 and 1343,1 and the amount-in-controversy, exclusive of interest and costs, allegedly exceeds $10,000. Now before the Court are motions by the three individual defendants to dismiss the complaint and for the award of reasonable attorney fees, as well as plaintiffs' motion for a preliminary injunction. By answer, defendant Seekonk Water District has asserted, inter alia, the affirmative defenses of lack of jurisdiction and failure to state a claim upon which relief can be granted. At this stage, the material facts alleged in the complaint will be construed in the light most favorable to plaintiffs and taken as admitted. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976).

Plaintiff Heritage Homes of Attleboro, Inc. (Heritage), is a corporation organized under the laws of the Commonwealth of Massachusetts and having a usual place of business in Attleboro, Massachusetts. Plaintiff Roger G. DesVergnes is the president, treasurer, and sole stockholder of Heritage, and a resident of Attleboro. Defendant Seekonk Water District (District), is a municipal corporation established by 1945 Mass.Acts ch. 381. It consists of all the inhabitants who are liable to taxation in the Town of Seekonk and who reside within specified boundaries. The members of the District, through the administrative body of an elected Board of Water Commissioners, regulate the provision and use of water within the District. Id. §§ 1, 2, 9. Water use charges are levied against members by the Commissioners. Id. § 10. Individual members of the District have the exclusive right to vote on significant matters placed on the agenda of annual and special meetings. Defendants Barbara R. Mann, Harold G. Devine, and Paul R. Tortolani are voting members of the District and residents of Seekonk. Neither of these latter three defendants is alleged to be a state, county or local official.

The complaint declares that Heritage acquired by purchase a tract of land in Seekonk

448 F. Supp. 1258
for construction of a moderate-income housing subdivision. On February 1, 1976, prior to the actual purchase, DesVergnes met with two members of the Board of Water Commissioners, informed them of the contemplated housing development, and emphasized to them that a decision by him to go forward with the land acquisition and development was dependent upon a corresponding decision by the District to supply water to the proposed development. The two Commissioners allegedly informed DesVergnes that the District already planned to extend its boundaries to encompass his locus, that existing water supplies were adequate to service the described project, and that the parcel met all the criteria for inclusion within the District, thus making actual inclusion, which only could be effectuated by vote of a majority of the individual District members,2 "a mere formality" in the minds of DesVergnes and the Commissioners

In reliance upon only these oral representations, Heritage purchased the property on April 26, 1976 for $300,000, and DesVergnes obligated himself personally as the guarantor of notes payable to Taunton Cooperative Bank in the amount of $375,000. Heritage then submitted a written application to the Commissioners for formal inclusion of the locus within the District. The Commissioners caused that application to appear as Article 17 in the Warrant for the District's Annual Meeting. The Warrant also contained an Article 18, which sought inclusion within the District of a substantially similar, but apparently noncompeting, parcel that a Monterey Corporation planned to develop separately for moderate-income housing.

The gravamen of plaintiffs' complaint is that after the Warrant for the Annual Meeting was made public, defendants Mann, Devine, and Tortolani began intentionally and knowingly misrepresenting to other voting members of the District that the Heritage subdivision would consist of "Federally subsidized low-income housing," and/or housing consisting of "shacks," designed to attract "low-income" and/or "colored" people to the Town of Seekonk. Defendants allegedly made these misrepresentations with knowledge of plaintiffs' existing financial commitment and of the dire consequences to the corporate and individual plaintiffs if their application were denied. At the Annual Meeting on May 11, 1976, after being informed by the Commissioners that both proposed subdivisions satisfied existing criteria and that water supplies were adequate to service both developments, District members rejected plaintiffs' application to extend the District's boundaries by a vote of 66 to 8. At the same meeting, the voters approved by a vote of 25 to 6 the inclusion within the District of the Monterey Corporation's property. Construction on plaintiffs' development immediately halted and all subsequent efforts to gain inclusion within the District have failed.

Plaintiffs claim that defendants' conduct incited in the voting members class-based, discriminatory prejudice against and fear of the plaintiffs, in particular, and low-income people and racial minorities, in general. It

448 F. Supp. 1259
is also alleged that a conspiracy existed whose unlawful purpose was to subvert the regulatory scheme of the District. Plaintiffs conclude their complaint by charging that defendants' actions fostered an arbitrary, capricious distinction between Heritage and other water applicants, and caused the vote of disapproval of the Heritage parcel

As to damages, plaintiffs claim that deprivation of the planned use of their property has caused continuing monetary damages in the sum of $10,000 per month since June 1, 1976. Plaintiffs also claim the imminent and irreparable loss of the assets, goodwill, and future earning power of Heritage, as well as personal insolvency and loss of future earning power on the part of Des-Vergnes.

For relief, plaintiffs demand:

(1) judgment against each defendant in the amount of $500,000, plus interest and costs;

(2) a preliminary injunction ordering the District to permit Heritage to extend a presently existing water main to its property at its own expense, and to purchase water from the District at the presently existing rate; and

(3) a permanent injunction mandating that the District extend its boundaries to include the Heritage locus, and supply water to the subdivision and its future owners in the same manner and on the same basis as water is supplied to all other members of the District.

I

Motions to Dismiss

A. 42 U.S.C.A. § 1983

Plaintiffs' complaint concedes that defendant Water District is a municipal corporation created by a special act of the State legislature. Although such an entity may not be able to assert the defense of governmental immunity under all provisions of the Civil Rights Acts, it is well-established that the District's municipal status imposes a jurisdictional barrier to the § 1983 claims for monetary and injunctive relief, because the District is not a "person" within the meaning of § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 512-13, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 191-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Sethy v. Alameda County Water District, 545 F.2d 1157, 1159-61 (9th Cir. 1976) (en banc). Accordingly, plaintiffs' § 1983 cause of action should be dismissed against the Seekonk Water District because it appears from the face of the complaint that this Court lacks jurisdiction under 28 U.S.C.A. § 1343(3), as was alleged in the District's answer. See City of Kenosha v. Bruno, supra, 412 U.S. at 513, 93 S.Ct. 2222.

The individual defendants move to dismiss plaintiffs' § 1983 claim on the ground that the complaint fails to allege the necessary statutory element that the actions of these defendants were performed "under color of any statute, ordinance, regulation, custom or usage, of any State or Territory . . . ." 42 U.S.C.A. § 1983.

The lone reference to unlawful action by the three individual defendants is found in paragraph 18 of the complaint. At most, that allegation charges that Mann, Devine, and Tortolani, in their capacities as private citizens and as District members, maliciously provoked a class-based, public debate by falsely labeling plaintiffs' proposed housing development as designed for occupancy by low-income and minority persons. The complaint does not assert that at the time of these activities Mann, Devine, or Tortolani were public officials of either the Commonwealth of Massachusetts, Bristol County, or the Town of Seekonk, or were members of the Board of Water Commissioners. Plaintiffs attempt to close this logical gap by arguing that these private individuals may be held liable under § 1983 because they were jointly engaged with a state actor, namely, the Water District, in the deprivation

448 F. Supp. 1260
of civil rights. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), qu...

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5 practice notes
  • Canlis v. San Joaquin Sheriff's Posse Comitatus, No. 78-3134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 28, 1981
    ...652, 662 (F.D.Pa.1978); United States ex rel. Hoss v. Cuyler, 452 F.Supp. 256, 279 (E.D.Pa.1978); DesVergnes v. Seekonk Water District, 448 F.Supp. 1256, 1260 (D.Mass.1978), modified on other grounds, 601 F.2d 9 (1st Cir. 1979); Coggins v. McQueen, 447 F.Supp. 960, 966 n.6 (E.D.Pa.1978); Cu......
  • Barry v. DISTRICT OF COLUMBIA BD. OF ELECTIONS, Civ. A. No. 78-127.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 14, 1978
    ...Amendments, require an elected official in the District to leave office prior to qualifying as an eligible candidate for election to a 448 F. Supp. 1256 noncoterminous office. Beyond this, the decision reached herein does not speak. The rights claimed by plaintiffs are not immutable, as Let......
  • Fantasy Book Shop, Inc. v. City of Boston, Civ. A. No. 80-2585-MC.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 16, 1982
    ...of their membership in the class, and that the criteria defining that class were invidious. DesVergenes v. Seekonk Water District, 448 F.Supp. 1256, 1261 (D.Mass.1978); Harrison v. Brooks, 519 F.2d 1358, 1359-60 (1st Cir. 1975); Bricker v. Crane, 468 F.2d 1228, 1232-1233 (1st Cir. Plaintiff......
  • Des Vergnes v. Seekonk Water District, Civ. A. No. 77-1251-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 10, 1979
    ...defendants Devine and Tortolani. MEMORANDUM AND ORDER CAFFREY, Chief Judge. An Order was filed in Des Vergnes v. Seekonk Water Dist., 448 F.Supp. 1256 (D. Mass. 1978), on April 14, 1978, which dismissed plaintiffs' complaint. A lengthy Memorandum analyzing the reasons underlying the Order w......
  • Request a trial to view additional results
5 cases
  • Canlis v. San Joaquin Sheriff's Posse Comitatus, No. 78-3134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 28, 1981
    ...652, 662 (F.D.Pa.1978); United States ex rel. Hoss v. Cuyler, 452 F.Supp. 256, 279 (E.D.Pa.1978); DesVergnes v. Seekonk Water District, 448 F.Supp. 1256, 1260 (D.Mass.1978), modified on other grounds, 601 F.2d 9 (1st Cir. 1979); Coggins v. McQueen, 447 F.Supp. 960, 966 n.6 (E.D.Pa.1978); Cu......
  • Barry v. DISTRICT OF COLUMBIA BD. OF ELECTIONS, Civ. A. No. 78-127.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 14, 1978
    ...Amendments, require an elected official in the District to leave office prior to qualifying as an eligible candidate for election to a 448 F. Supp. 1256 noncoterminous office. Beyond this, the decision reached herein does not speak. The rights claimed by plaintiffs are not immutable, as Let......
  • Fantasy Book Shop, Inc. v. City of Boston, Civ. A. No. 80-2585-MC.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 16, 1982
    ...of their membership in the class, and that the criteria defining that class were invidious. DesVergenes v. Seekonk Water District, 448 F.Supp. 1256, 1261 (D.Mass.1978); Harrison v. Brooks, 519 F.2d 1358, 1359-60 (1st Cir. 1975); Bricker v. Crane, 468 F.2d 1228, 1232-1233 (1st Cir. Plaintiff......
  • Des Vergnes v. Seekonk Water District, Civ. A. No. 77-1251-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 10, 1979
    ...defendants Devine and Tortolani. MEMORANDUM AND ORDER CAFFREY, Chief Judge. An Order was filed in Des Vergnes v. Seekonk Water Dist., 448 F.Supp. 1256 (D. Mass. 1978), on April 14, 1978, which dismissed plaintiffs' complaint. A lengthy Memorandum analyzing the reasons underlying the Order w......
  • Request a trial to view additional results

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