Melville v. Town of Adams

• Decision Date: 27 March 2014
• Docket Number: C.A. No. 13–cv–30051–MAP.
• Citation: 9 F.Supp.3d 77
• Court: U.S. District Court — District of Massachusetts
• Parties: Paula MELVILLE, Plaintiff, v. TOWN OF ADAMS, et al., Defendants.

9 F.Supp.3d 77

Paula MELVILLE, Plaintiff
v.
TOWN OF ADAMS, et al., Defendants.

C.A. No. 13–cv–30051–MAP.

United States District Court, D. Massachusetts.

Signed March 27, 2014.

9 F.Supp.3d 83

Paula Melville, Adams, MA, pro se.

Nancy Frankel Pelletier, David S. Lawless, Jeffrey J. Trapani, Robinson Donovan, PC, Springfield, MA, John O. Mirick, Mirick, O'Connell, Demallie & Lougee, Worcester, MA, Bart Q. Hollander, Attorney General's Office, Springfield, MA, Gregory P. Howard, J. Norman O'Connor, Jr., Donovan & O'Connor, North Adams, MA, Joseph L. Delorey, Boston, MA, for Defendants.

MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTIONS TO DISMISS (Dkt. Nos. 11, 13, 18, 30, 35, 52 & 61)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff Paula Melville, a former elected member of the Town of Adams Board of Selectmen (“the Board”), brought this twenty-one count suit challenging certain restrictions the Board imposed upon her during her tenure. Defendants are: the Town of Adams; Michael Ouellette, member of the Board; Arthur Harrington, member of the Board; Jason Hnatonko, member of the Board; Scott Nichols, member of the Board; Jonathan Butler, Adams Town Administrator; Erica Samson, Director of the Council on Aging of the Town of Adams; Donald Poirot, Chief of Police of the Town of Adams; the law firm of Mirick, O'Connell, Demallie & Lougee, LLP; Corey Higgins, Special Counsel for the Town of Adams; Demitrios Moschos, Special Counsel for the Town of Adams; AFSCME Counsel 93, AFL–CIO; Nadine Kennedy, Staff Representative to the Clerical Unit of the Town of Adams; The Massachusetts Office of the Attorney General; Jonathan Sclarsic, Assistant Attorney General; the Berkshire County's Sheriff's Office; and Ronald Clark, Process Server in the Civil Process Division. In April and May 2013, Defendants filed a number of motions to dismiss. (Dkt. Nos. 11, 13, 18, 30, 35, & 52.) The court referred these motions to Magistrate Judge Kenneth P. Neiman for report and recommendation (“R & R”).

On January 10, 2014, Judge Neiman issued his R & R, to the effect that Defendants'

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motions be allowed in part and denied in part. (R & R, Dkt. No. 61.) Specifically, he proposed that all claims and all Defendants be dismissed, except for Counts I, II, III, V, XII, XVI, XX and XXI, as alleged against Defendants Ouellette, Harrington, Hnatonko, Nichols, and the Town of Adams.

Upon de novo review, 28 U.S.C. § 636(b), and after consideration of the parties' objections, the court will adopt the Magistrate Judge's recommendation for the reasons set forth below.

II. FACTS

The facts of the case are set forth in detail in the R & R at pages 91–96. The essential background, as drawn from the complaint, (Dkt. No. 1), is at this point not in dispute. The facts relevant to this memorandum are as follows.¹

Plaintiff was elected to the Board on May 3, 2010. On February 25, 2011, Plaintiff received her copy of the Town Administrator's 2012 proposed budget. At least part of the budget was to be treated as confidential. The proposed budget, if adopted, was going to impose significant cuts to the Adams' Council on Aging, and, as a result, several employees would face termination.

On February 28, 2011, Plaintiff, disturbed by the proposed budget, visited the Council on Aging. There, she allegedly made comments about the proposed cuts to those employees who would be affected by them. Upon learning of the comments, other members of the Board were concerned that Plaintiff had revealed confidential information. They were also troubled that Plaintiff's conversations occurred outside the presence of the employees' union representative.

As a result of these concerns, the Board, also on February 28, 2011, called an emergency meeting to address Plaintiff's comments. Notice of the meeting came to Plaintiff only two hours prior to its commencement and informed her that there would be a “discussion of the charges/allegations concerning [Plaintiff].” Plaintiff did not attend the meeting.

Assisted by Attorney–Defendants Higgins and Moschos, the Board adopted four orders. Order One disavowed Plaintiff's comments about the proposed budget, in an attempt to eliminate any prospect of municipal liability. Order Two directed Plaintiff not to discuss “town business” directly with town department heads or any other town employee without the permission of the Town Administrator. Order Three, finding Plaintiff to have released confidential information, referred her to the State Ethics Commission. Order Four prohibited Plaintiff from entering town department premises without the prior permission of the Town Administrator. This final order exempted the town hall, police stations, the library, town parks, recreation departments, and the Board's chambers.

In April 2011, the Board voted to privately censure Plaintiff for the February incident. On May 9, 2012, Plaintiff resigned from the Board after an election in which she was not on the ballot.

On February 27, 2013, Plaintiff brought this suit against Defendants, predominantly targeting the orders issued at the February 28, 2011, emergency meeting. In April and May 2013, Defendants filed a number of motions to dismiss, contending that Plaintiff failed adequately to plead any cause of action. The Magistrate Judge, on January 10, 2014, issued his R &

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R on those motions. On January 24, 2014, Plaintiff filed her objection to the R & R, (Dkt. No. 62), which was rebutted by several Defendants, (Dkt. Nos. 70 & 71). Then, on February 7, 2014, Defendants Butler, Harrington, Hnatonko, Nichols, Ouellette, Poirot, Samson, and the Town of Adams, filed their own objection to the R & R. (Dkt. No. 73.) These objections are now before the court.

III. DISCUSSION

A motion to dismiss will be denied if Plaintiff's complaint contains “sufficient factual matter” to sustain a claim for relief that is actionable as a matter of law and “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 668, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Fed.R.Civ.P. 12(b)(6). If a complaint fails to set forth “factual allegations, either direct or inferential, respecting each element necessary to sustain recovery under some actionable legal theory,” then dismissal is appropriate. Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.2005) (internal citations omitted).

A. Due Process and Rules of Professional Conduct Claims Against Attorney Defendants

In response to the emergency meeting, Plaintiff filed a complaint pursuant to the Open Meeting Law with the Office of the Massachusetts Attorney General. M.G.L. ch. 30A, § 23(f). In her complaint now before this court, Plaintiff has asserted a due process claim against the Office of the Massachusetts Attorney General and Defendant Sclarsic for taking six months to respond to that filing (Count XIV). The Magistrate Judge recommended that the claim be dismissed as Plaintiff failed to oppose Defendants' motion, the Eleventh Amendment barred the suit, and qualified immunity shielded Defendants.

Plaintiff also brought two claims under the Massachusetts Rules of Professional Conduct against Defendant Higgins, Defendant Moschos, and the law firm of Mirick, O'Connell, Demallie & Lougee, LLP, for their role in assisting the Board at the emergency meeting (Counts X and XI). The Magistrate Judge also recommended that these counts be dismissed as Plaintiff did not oppose Defendants' motions, and the Rules of Professional Conduct do not create an independent cause of action. See Fishman v. Brooks, 396 Mass. 643, 649, 487 N.E.2d 1377 (1986). The counts could also not be construed as claims for legal malpractice, as Plaintiff did not allege any attorney-client relationship. See DeVaux v. Am. Home Assurance Co., 387 Mass. 814, 817, 444 N.E.2d 355 (1983).

Neither side objects to the Magistrate Judge's persuasive analysis on these claims. Noting the lack of objection, and agreeing with the conclusions, the court will adopt the recommendation and dismiss Counts X, XI, and XIV.

B. Substantive Due Process Claims Against Union Defendants

Following the events of February 28, 2011, Defendant Kennedy made statements disapproving of Plaintiff's actions and supporting the Board's response. As a result, Plaintiff alleged a substantive due process claim against Defendants AFSCME Council 93, AFL–CIO, and Defendant Kennedy (Count XVII). In Plaintiff's view, Defendant Kennedy's statements gave credence to the other allegedly unlawful events. However, as the Magistrate Judge noted, Plaintiff did not allege any state action or any conduct that “shocked the conscience” to sustain a substantive due process claim. See, e.g., Harron

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v. Town of Franklin, 660 F.3d 531, 536 (1st Cir.2011).

Though Plaintiff objects, (Pl.'s Objections 3–4, Dkt. No. 62), the court agrees that the absence of state action or sufficiently shocking conduct is fatal to this claim. It will therefore adopt the recommendation and...