Freeman v. Town of Hudson

• Decision Date: 15 April 2013
• Docket Number: No. 12–1356.,12–1356.
• Citation: 714 F.3d 29
• Parties: Charles FREEMAN and Daniela Freeman, Plaintiffs, Appellants, v. TOWN OF HUDSON, Town of Hudson Conservation Committee, Town of Hudson Police Department, Thomas Crippen, David Stephens, Richard Braga, Debbie Craig, Paul Byrne, David Esteves, Jeff Wood, Thomas Thorburn, Commonwealth of Massachusetts Department of Environmental Protection and Joseph Bellino, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

714 F.3d 29

Charles FREEMAN and Daniela Freeman, Plaintiffs, Appellants,

v.TOWN OF HUDSON, Town of Hudson Conservation Committee, Town of Hudson Police Department, Thomas Crippen, David Stephens, Richard Braga, Debbie Craig, Paul Byrne, David Esteves, Jeff Wood, Thomas Thorburn, Commonwealth of Massachusetts Department of Environmental Protection and Joseph Bellino, Defendants, Appellees.

No. 12–1356.

United States Court of Appeals, First Circuit.

April 15, 2013.

Barry Bachrach, with whom The Law Office of Barry Bachrach was on brief, for appellants.

Jonathan M. Silverstein, with whom Janelle M. Austin and Kopelman and Paige, P.C. were on brief, for appellee Town of Hudson.

James A. Sweeney, Assistant Attorney General, with whom Martha Coakley, Attorney General, and Ronald F. Kehoe, Assistant Attorney General, were on brief, for appellee Joseph Bellino.

Before HOWARD, RIPPLE^* and LIPEZ, Circuit Judges.

HOWARD, Circuit Judge.

Plaintiffs Charles and Daniela Freeman appeal the dismissal of their section 1983 suit against the Town of Hudson, Massachusetts, one of its agencies, and several state and local officials. The events giving rise to this suit grew out of an allegation that the Freemans had breached a conservation restriction appurtenant to their Hudson home. Like the magistrate judge and district judge, we conclude that the Freemans' complaint does not plead facts sufficient to support any of their federal claims, and we therefore affirm the judgment.

I. Background

As the dismissal was entered pursuant to Federal Rule of Civil Procedure 12(b)(6), we take the facts from the Freemans' complaint and draw all reasonable inferences in their favor. San Juan Cable, LLC v. P.R. Tel. Co., 612 F.3d 25, 28 (1st Cir.2010). According to the complaint, what began as a dispute between neighbors turned into a concerted effort by the Town and the Commonwealth of Massachusetts to deprive the Freemans of their constitutional rights. The plaintiffs insinuate a common sentiment, if not a common objective, running through the defendants' actions. For ease of exposition, however, we dissever the allegations into smaller episodes.

A. Conservation Commission Defendants

In late fall of 2009, Hudson Police Sergeant Thomas Crippen, the Freemans' neighbor, informed the Hudson Conservation Commission that the Freemans were building a tree house in a conservation restriction area (“Parcel B”) on their property.In response, the Commission ordered the Freemans to cease and desist from any further activity in Parcel B until a scheduled Commission meeting in early December 2009. The property had previously been subject to an Order of Conditions issued by the Commission in 2007.

At the December meeting, Mr. Freeman conceded that the tree house was built in the conservation restriction area and agreed to move it. The Commission then questioned whether the Freemans were complying with state and local land-use laws relating to their property. Although the Commission had previously issued a Certificate of Compliance for the property (7 Freeman Circle) in 2008, a few weeks after the December meeting it determined that the Freemans had subsequently breached their obligations and that additional work was necessary to remedy the violations.

As a consequence, in January 2010 the Freemans' engineer presented a preliminary plan relating to remediation at 7 Freeman Circle. It appears that the Commission viewed this plan as insufficient, as it warned the Freemans that it would involve the Massachusetts Department of Environmental Protection (“DEP”) if the Freemans did not comply with its determinations. In June 2010 the Commission issued a new Order of Conditions for 7 Freeman Circle detailing what modifications were required. The Freemans appealed this order to DEP.

Once involved in the case, DEP indicated that state enforcement would follow if the Freemans and the Commission could not resolve the issue at the local level. In response, the Freemans terminated their appeal of the Order of Conditions in September and began compliance work. Unaware that the Freemans had dropped the appeal, Commission Administrator Debbie Craig, accompanied by police escort, served Mr. Freeman a cease and desist order the same day that work began. For the next several days, members of the Commission ordered Mr. Freeman not to work on the property while they ascertained the legal status of the Freemans' appeal. On each of these visits to the Freemans' property, the Commission members were accompanied by Hudson Police officers.

The Freemans allege that throughout this process the defendants displayed heavy-handed tactics toward them and their associates. At a January meeting, Commission Chairman Paul Byrne and Commission Member David Esteves spoke with open hostility toward Mr. Freeman.¹ Moreover, Byrne and Craig spoke disparagingly about Mr. Freeman to third parties during the course of the ongoing dispute. Also, Esteves uprooted a portion of a silt fence on the Freemans' property, claiming that it was installed incorrectly, although a subsequent determination indicated that the fence met all installation requirements. According to the complaint, this hostile attitude pervaded DEP thinking as well.² The complaint includes emails written by Joseph Bellino, a DEP employee, to show that DEP officials lacked impartiality in dealing with the Freemans.³

The Freemans further contend that, while zealously enforcing land-use laws against them, the Commission took little or no action against the Freemans' neighbors—the Crippens and the MacPhees. The Crippens had constructed a pool in the 100–foot buffer zone adjacent to Parcel B, and the MacPhees had cut down trees in Parcel B and laid down planks for a walking path. In neither case did the Commission issue an order, and the Freemans assert that these violations largely went uncorrected.

B. Police Department Defendants

In retaliation for the Freemans' dispute with the Crippens, the Police Department defendants purportedly pursued trumped-up criminal charges against Mr. Freeman. After an unpleasant encounter with Mr. Freeman, neighbor Dana MacPhee spoke with Crippen and Hudson Police Captain David Stephens about Mr. Freeman's conduct. Without further investigating the matter, Stephens filed charges against Mr. Freeman for criminal harassment and threat to commit a crime. Although Mr. Freeman had committed no physical acts of violence, Stephens successfully argued to the court that Mr. Freeman should not be given notice of his probable cause hearing because he posed an imminent threat of violence to MacPhee. Stephens and Crippen both spoke with the prosecutor about the case on separate occasions. By January 2012, all charges had been dropped against Mr. Freeman.

C. Building Commissioner Defendant

Finally, the Freemans claim that Hudson Building Commissioner Jeff Wood selectively enforced zoning laws against Mr. Freeman, who had posted a sign advertising his company at a work site. The complaint avers that the posting of such signs is standard practice among contractors, but Wood issued a violation notice to the property owner for displaying the sign.⁴

II. Discussion

A. Standard of Review

Our review of a district court's dismissal of a complaint under Rule 12(b)(6) is de novo. See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir.2011). As such, we are free to affirm an order of dismissal on any basis made apparent from the record. See Cook v. Gates, 528 F.3d 42, 48 (1st Cir.2008). In order to survive a motion to dismiss, the complaint must include “enough detail to provide a defendant with ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Ocasio–Hernández, 640 F.3d at 12 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While we need not give weight to legal conclusions contained in the complaint, “[n]on-conclusory factual allegations ... must [ ] be treated as true.” Id.

B. Scope of the Record

Before moving to the heart of the Freemans' appeal, we consider the question of which documents were properly before the district court when it decided the motion to dismiss. On a motion to dismiss, a court ordinarily may only consider facts alleged in the complaint and exhibits attached thereto, Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993), or else convert the motion into one for summary judgment. Id.;Fed.R.Civ.P. 12(d). Here, the Freemans appended twenty-five exhibits to their complaint. Subsequently, both parties submitted a flurry of extrinsic exhibits for the district court's consideration on the motion to dismiss. The court took account of some documents but excluded others. The Freemans challenge the court's decision not to consider six documents that they submitted, while simultaneously suggesting that the court relied on those very same documents in its order, presumably to the Freemans' detriment.⁵

Under certain “narrow exceptions,” some extrinsic documents may be considered without converting a motion to dismiss into a motion for summary judgment. Watterson, 987 F.2d at 3. These exceptions include “documents the authenticity of which are not disputed by the parties; ... official public records; ... documents central to plaintiffs' claim; [and] ... documents sufficiently referred to in the complaint.” Id. The plaintiffs' submissions do not fit into any of these enumerated categories.

The Freemans sought to have the court consider excerpts from the depositions of MacPhee and Stephens, given in connection with a separate civil suit, as documents sufficiently referred to in the complaint. While the complaint does make passing reference to testimony from MacPhee and Stephens, the proposed exhibits consist of excerpts that are unrelated to any matter discussed in the complaint, and therefore cannot be taken as referenced therein. The mere mention of the depositions in the complaint does not amount to sufficient reference. See Goldman v....