Devaney v. Kilmartin
| Decision Date | 12 February 2015 |
| Docket Number | C.A. No. 13–510L. |
| Citation | 88 F.Supp.3d 34 |
| Parties | John DEVANEY, Plaintiff, v. Peter F. KILMARTIN, Attorney General for the State of Rhode Island; Town Of Narragansett; St. Thomas More Catholic Church, Narragansett Pier, Rhode Island; St. Peters by-the-Sea Episcopal Church; and the Roman Catholic Bishop of Providence, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
John Devaney, Narragansett, RI, pro se.
Marc Desisto, Desisto Law, Amanda R. Prosek, Morrison Mahoney, LLP, Eugene G. Bernardo, II, Partridge, Snow & Hahn LLP, Providence, RI, for Defendants.
The Report and Recommendation issued by Magistrate Patricia A. Sullivan on October 10, 2014, in the above-captioned matter is accepted and adopted pursuant to Title 28 United States Code § 636(b)(1). The Motions to Dismiss brought by all Defendants are granted, and Plaintiff's Second Amended Complaint is hereby dismissed in its entirety, with prejudice. Defendants shall have thirty days from the date of this Order to present the Court with any motions to recover counsel fees and expenses incurred in this matter. No judgment shall enter until all claims are resolved.
It is so ordered.
Pro se Plaintiff John Devaney believes that the excessive clapping, gonging, tolling pealing, ringing and chiming of the bells of two neighboring churches—St. Thomas More Catholic Church (“St. Thomas Church”) and St. Peter's by-the-Sea Episcopal Church (“St. Peter's Church”) (collectively “the Churches”)—have profoundly disturbed his right to quiet enjoyment of his home, effectively forcing on him a call to worship that he does not want to hear. In his third essay to battle these bells, he has recast his complaint, now challenging their tintinnabulation based both on the First, Fifth and Fourteenth Amendments of the United States Constitution and on the Rhode Island common law of nuisance. He has named and joined as defendants1 the Churches, the Roman Catholic Bishop of Providence based on his alleged supervisory authority over St. Thomas Church, and the Town of Narragansett based on its Noise Ordinance, which is at the vertex of this case. All four Defendants have challenged the viability of this Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Mr. Devaney has failed to state a federal claim arising under the Constitution, but rather has only state law claims against St. Thomas Church and St. Peter's Church, which should be resolved in the state court. Their motions have been referred to me for report and recommendation.
Because Mr. Devaney is pro se, this Court must review his pleading with liberality but not with complete disregard for the procedural and substantive protections that the law affords to these Defendants. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Kenda Corp. v. Pot O'Gold Money Leagues, 329 F.3d 216, 225 n. 7 (1st Cir.2003). Viewed through this lens, I find that the constitutional claims in the Second Amended Complaint remain deeply flawed and recommend that this Court dismiss them. I also recommend that the state law nuisance claims against the Town and all claims against the Roman Catholic Bishop of Providence be dismissed for failure to state a claim. Finally, I recommend that this Court exercise its discretion to decline to exercise jurisdiction over the remaining state law claims and that they be dismissed without prejudice.
The reasons for these recommendations follow.
In July 1995, Mr. Devaney, his wife and four children moved into an older home in the bucolic seaside Town of Narragansett, Rhode Island, located three blocks from the shores of Narragansett Bay; because of the cooling effect of the Bay breezes, the home has never been air-conditioned. ECF No. 5 at 2, 5. When the Devaney family moved into their Narragansett home, across the street stood St. Thomas Church and to the rear was St. Peter's Church; both Churches had bell towers housing at least one bell. ECF No. 33 ¶ 11; ECF No. 5 at 1. However, at that time, the bell in St. Thomas's belfry was inoperable and silent while St. Peter's bell was unamplified, producing a “quaint” euphonious sound that Mr. Devaney described at the hearing as “a beautiful sound ... inviting.” ECF No. 5 at 2–3.
In approximately 2000 or 2001, St. Thomas repaired and upgraded its bell, adding electronic amplification, a motor, a timer and a clapper. ECF No. 5 at 2. At an unspecified point, St. Peter's also added electronic amplification. ECF No. 5 at 3.
Since then, the bells of St. Thomas chime four times on Saturday and Sunday, three times on Monday through Friday, in addition to marking weddings, funerals and other special occasions; at 6 p.m. daily, the bells of St. Thomas ring out a call to pray “the Christian prayer and devotion, the ‘Angelus.’ ” ECF No. 5 at 2. Meanwhile, the bells of St. Peter's mark the hours during daylight. ECF No. 5 at 2–3. Mr. Devaney has measured the intensity level of the chiming, gonging, clapping, pealing and pounding of these bells and alleges that it has approached 100 decibels.3 ECF No. 5 at 2.
The impact of this accumulation of sound on Mr. Devaney has been catastrophic: despite no air-conditioning, he is forced to keep the storm windows closed and to wear earplugs, his marriage has collapsed and he has been alienated from his children. Fearful of the impact of the amplified sound, he refrains from inviting his infant grandchildren to his home. ECF No. 5 at 2. Further, as someone who professes no religion, Mr. Devaney alleges that he is deeply troubled by being forced to hear a call to worship in which he is not interested; he perceives that the amplified bells are forcing him to listen to proselytizing from which he cannot escape even in the privacy of his home.4 To paraphrase the poet, far from “a piece of the continent, [a] part of the main,” these bells have paradoxically isolated Mr. Devaney from family and friends, making him “an island, [e]ntire of itself.”5
Since at least 1986, the Town of Narragansett has had a Noise Ordinance. Narragansett, R. I., Code of Ordinances ch. 22, art. III (1986) (“Noise Ordinance”). The Town's power to adopt such an ordinance derives from R.I. Const. art. XIII, § 2, which authorizes Rhode Island's cities and towns to adopt home rule charters. Pursuant to Section 2–1–7 of the Narragansett Town Charter, the Narragansett Town Council may enact and amend ordinances for the preservation of the public peace, health, safety, and welfare of the inhabitants of the Town and for the protection of persons and property not inconsistent with the Rhode Island Constitution and laws enacted by the General Assembly in conformity with the powers reserved to the General Assembly. Pursuant to Section 2–1–9 of the Charter, a proposed ordinance is introduced at a public Council meeting but may not be passed until after it has been publicized and presented at a second meeting; a petition from twenty or more electors requires a public hearing. The power of Rhode Island's communities to regulate excessive sound has been confirmed by the Rhode Island Supreme Court. State ex rel. Providence v. Auger, 44 A.3d 1218, 1231 (R.I.2012) (). The Noise Ordinance carries the presumption that it was properly adopted with notice and an opportunity for a hearing made available to all residents of the Town, including Mr. Devaney.6 Id. at 1226 (); Laverty v. Roberts, 414 A.2d 461, 462 (R.I.1980) ().
The Noise Ordinance begins with findings by the Town Council regarding the competing public policy considerations that it was balancing. On one hand, the Council found that “[e]xcessive noise is a serious hazard to the public health, safety and welfare and the quality of life in a close urban society” and that “[e]ach person has a right to an environment reasonably free from noise which jeopardizes health or welfare or unnecessarily degrades the quality of life.” Noise Ordinance § 22–41(1), (4). On the other, the Council also found that “[c]ertain of the noise producing equipment in this community is essential to the quality of life and should be allowed to continue at reasonable levels with responsible regulation.” Id. § 22–41(3). The Ordinance declares it to be the policy of the Town to promote an environment free from excessive noise, “without unduly prohibiting, limiting or otherwise regulating the function of certain noise producing equipment which is not amenable to such controls and yet is essential to the quality of life in the community.” Id. § 22–41(5).
The Noise Ordinance squarely places bells in the category of “noise producing equipment which is not amenable to such controls and yet is essential to the quality of life in the community” by carving out two different exemptions that expressly include them. A nuanced analysis of the Noise Ordinance is necessary to an understanding of how each exemption operates in the context of the whole. In re Brown, 903 A.2d 147, 149 (R.I.2006) ().
In Section 22–46, the Noise Ordinance establishes a prohibition on any “noise disturbance.” A noise disturbance is defined7 as a noise that...
To continue reading
Request your trial
-
Am. Trucking Ass'ns v. Alviti
...district court cases support Defendants' position. See Donahue v. City of Bos., 264 F. Supp. 2d 74 (D. Mass. 2003); Devaney v. Kilmartin, 88 F. Supp. 3d 34 (D.R.I. 2015). But delving deeper, both are distinguishable: in stating that the party contesting constitutionality bears the burden of......
-
Shurtleff v. City of Bos., Civil Action No. 18-cv-11417-DJC
...Lynch v. Donnelly, 465 U.S. 668, 688-89, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J. concurring); see Devaney v. Kilmartin, 88 F. Supp. 3d 34, 50 (D.R.I. 2014) (treating the endorsement test as having "amplified" the Lemon test). Under the endorsement test, the Court must consider w......
-
Shurtleff v. City of Bos.
...test." Lynch v. Donnelly, 465 U.S. 668, 688-89, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J. concurring); see Devaney v. Kilmartin, 88 F.Supp.3d 34, 50 (D.R.I. 2014) (treating the endorsement test as having "amplified" the Lemon test). Under the endorsement test, which parallels part......
-
Am. Trucking Ass'ns v. Alviti
...district court cases support Defendants' position. See Donahue v. City of Bos., 264 F.Supp.2d 74 (D. Mass. 2003); Devaney v. Kilmartin, 88 F.Supp.3d 34 (D.R.I. 2015). But delving deeper, both are distinguishable: in stating that the party contesting constitutionality bears the burden of a b......
-
Between a Rock and a Hard Place: the Struggle to Analyze School Board Prayer and a New Method of Establishment Clause Analysis
...to apply the purely historical approach to the School Board's prayer policy and instead applying Lemon); Devaney v. Kilmartin, 88 F. Supp. 3d 34, 50 (D.R.I. 2015) (refusing to uphold the ringing of church bells under Town of Greece based solely on history and tradition); Smith v. Jefferson ......