Roussel v. Mayo
| Decision Date | 30 November 2022 |
| Docket Number | 1:22-cv-00285-JAW |
| Parties | JOSEPH F. ROUSSEL, Plaintiff v. WILLIAM MAYO, et al., Defendants |
| Court | U.S. District Court — District of Maine |
RECOMMENDED DECISION ON DEFENDANTS' MOTION TO DISMISS
Plaintiff alleges his First Amendment rights were violated by the defendants, who are municipal employees of the City of Old Town. (Complaint, ECF No. 1.) Defendants move to dismiss Plaintiff's complaint. (Motion to Dismiss, ECF No. 6.)
Following a review of the record and after consideration of the parties' arguments, I recommend the Court grant Defendants' motion.
The facts set forth below are derived from Plaintiff's complaint. Plaintiff's factual allegations are deemed true when evaluating a motion to dismiss. McKee v Cosby, 874 F.3d 54, 59 (1st Cir. 2017).
Plaintiff a resident of Orrington, Maine, alleges that while on public property, he complained to Defendant Mayo, the town manager of Old Town, about information Plaintiff contends should have been made available through the “Freedom of Information Act.” (Complaint ¶¶ 6, 7, 10.) Plaintiff asked Defendant Mayo if a respirator would suffice as a “mask.” (Complaint ¶ 10.) Plaintiff alleges Defendant Mayo lost his temper, made some unprofessional remarks, said he felt “threatened,” and “ordered for the removal of Plaintiff by law enforcement officers named [as Defendants].” (Id.) Plaintiff was served with a trespass warning on October 7, 2021, which prohibited Plaintiff from accessing the public property. (Id. ¶¶ 9, 11.) Plaintiff maintains Defendants' actions violate his rights protected by the First and Fourteenth Amendments to the United States Constitution.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of “a claim for relief in any pleading” if that party believes that the pleading fails “to state a claim upon which relief can be granted.” In its assessment of the motion, a court must “assume the truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable inferences therefrom.” Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215 221 (D. Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To overcome the motion, a plaintiff must establish that his or her allegations raise a plausible basis for a fact finder to conclude that the defendant is legally responsible for the claim at issue. Id. The complaint may not consist entirely of “conclusory allegations that merely parrot the relevant legal standard.” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). Federal Rule of Civil Procedure 12(b)(6) “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A self-represented plaintiff is not exempt from this framework, but the court must construe his complaint ‘liberally' and hold it ‘to less stringent standards than formal pleadings drafted by lawyers.'” Waterman v. White Interior Sols., No. 2:19-cv-00032-JDL, 2019 WL 5764661, at *2 (D. Me. Nov. 5, 2019) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
Plaintiff first contends that by removing him from and prohibiting him from reentering public property, Defendants violated his First Amendment rights to free speech and to seek redress from public officials. (Complaint ¶ 19.) Relatedly Plaintiff alleges that Defendants retaliated against him for his protected speech. (Id.) Defendants contend in part that Plaintiff's complaint fails because although he has alleged that he was directed to leave and was subsequently barred from entering a public building, he was not deprived of his right to exercise his First Amendment rights in a public forum.
Plaintiff's claim is authorized by 42 U.S.C. § 1983, which provides a private right of action against a person who, under color of state law, deprives another of ‘any rights, privileges, or immunities secured by the Constitution and [federal] laws.'” Gray v. Cummings, 917 F.3d 1, 7 (1st Cir. 2019) (alteration in original) (quoting 42 U.S.C. § 1983). To maintain a claim under § 1983, a plaintiff must establish: “1) that the conduct complained of has been committed under color of state law, and 2) that this conduct worked a denial of rights secured by the Constitution or laws of the United States.” Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999).
In Perry Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37 (1983), the Supreme Court explained, “[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.” Id., 460 U.S. at 44. There are three types of public property for First Amendment purposes: traditional public forums, designated public forums, and public property which is not a forum either by tradition or designation. Id. at 45-46. Traditional public forums “are streets and parks which ‘have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'” Id. at 45 (quoting Hague v. CIO, 307 U.S. 496, 515 (1939). A designated public forum is “public property which the state has opened for use by the public as a place for expressive activity.” Perry Educ. Ass'n, 460 U.S. at 45. In both public forums and designated public forums, the government may enforce “[r]easonable time, place and manner regulations,” but “a content-based prohibition[] must be narrowly drawn to effectuate a compelling state interest.” Id. at 45-46; see also Jones v. Town of Milo, No. 09-CV-80-B-W, 2009 WL 1605409, at *12 (D. Me. June 5, 2009) () (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985)). Put another way, “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” Police Dep't of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
As to public property that has not been designated or recognized as a public forum, the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” U.S. Postal Serv. v. Greenburgh Civic Ass'n,453 U.S. 114, 129 (1981). “In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.” Perry Educ. Ass'n, 460 U.S. at 46.
“[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in activities covered by the First Amendment. Hartman v. Moore, 547 U.S. 250, 256 (2006). “Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.” Powell v. Alexander, 391 F.3d 1, 16-17 (1st Cir. 2004). “[I]t is obviously improper for officers to invoke criminal laws for retaliatory purposes.” Gericke v. Begin, 753 F.3d 1, 6 (1st Cir. 2014).
Plaintiff's factual allegations do not support a claim against the law enforcement officers. None of the officers is mentioned by name in any of Plaintiff's assertions regarding the underlying facts. The only allegation against the officers is that following the disagreement about the Freedom of Information Act and after stating that he felt threatened, Defendant Mayo “ordered for the removal” of Plaintiff from the public property by the law enforcement officers. Plaintiff does not allege what actions, if any, the officers took in response to the order. Plaintiff does not claim the law enforcement officers were involved in the encounter or even witnessed the encounter. The allegations in the complaint would not support a finding that the law enforcement officers had any retaliatory animus or sought to restrict Plaintiff's ability to speak based on his views. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ().
Plaintiff also has not alleged sufficient facts to support a finding that the public property was a traditional public forum or designated public forum. Plaintiff's allegations could support a finding that Defendant Mayo restricted Plaintiff's access to the public property and his ability to speak on the property based in part on the content of Plaintiff's speech. The mere fact that Plaintiff was removed from the property based on Plaintiff's statements, however, does not constitute a constitutional violation. As Perry suggests, the government generally may limit speech to some degree on public property that is not a public forum. See United States v Kokinda, 497 U.S. 720, 733 (1990) (); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985) (“Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral”). The issue is...
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