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MacFarlane v. Town of East Bridgewater

United States District Court, D. Massachusetts

June 23, 2015

JOHN C. MacFARLANE and AMY MacFARLANE, Plaintiffs,


JUDITH GAIL DEIN, Magistrate Judge.


This case arises out of an incident that occurred on October 20, 2013, when John R. Grillo, a detective in the East Bridgewater police department, went to the home of the plaintiffs, John C. MacFarlane and Amy MacFarlane, in order to investigate a complaint accusing the MacFarlanes of violating a town by-law pertaining to fencing requirements for residential swimming pools. The complaint had been made by Jeanne L. Bennett, a neighbor of the plaintiffs who was employed as the administrative assistant to the East Bridgewater chief of police. According to the plaintiffs, Mrs. Bennett and her husband, Leslie J. Bennett, have been engaged in a relentless campaign of harassment and intimidation against them for many years, and have enlisted assistance from the police and other town employees in carrying out their efforts to disturb, threaten and otherwise antagonize the MacFarlanes. They contend that Detective Grillo's investigation on October 20, 2013 had no legitimate basis, and was merely a pretext for furthering the Bennetts' personal campaign of harassment against them. By their Verified Complaint, the MacFarlanes have asserted claims against the Bennetts and Detective Grillo, as well as against the Town of East Bridgewater ("Town" or "East Bridgewater"), its Chief of Police, John Cowan, police sergeant Scott Allen, and the Town's Building Commissioner, Edward Gardner, for violations of their constitutional and state law rights.

The matter is presently before the court on the "Motion to Dismiss on Behalf of Defendants the Town of East Bridgewater, John Cowan, John R. Grillo, Scott Allen, and Edward Gardner" (Docket No. 8) (collectively, the "East Bridgewater defendants"). By their motion, the East Bridgewater defendants are seeking dismissal, pursuant to Fed.R.Civ.P. 12(b)(6), with respect to all of the MacFarlanes' claims against them, including their claims for violations of their civil rights under 42 U.S.C. § 1983 ("Section 1983") (Counts I and III); conspiracy to violate their civil rights pursuant to 42 U.S.C. § 1985 (Count II); violations of their rights under the Massachusetts Civil Rights Act ("MCRA") (Counts IV and VI); common law conspiracy to violate their civil rights under the MCRA (Count V); and invasion of their right to privacy under Mass. Gen. Laws ch. 214, §1B (Count VII). Although the plaintiffs have opposed the motion, [1] they have requested an opportunity to amend their Verified Complaint in the event this court rules in favor of the defendants.

For all the reasons described below, this court finds that the MacFarlanes have failed to state a claim for relief against the East Bridgewater defendants under any legal theory, and that all of the Counts against those parties must therefore be dismissed. Accordingly, the East Bridgewater defendants' motion to dismiss is ALLOWED. In accordance with this court's May 28, 2015 Scheduling Order, the plaintiffs may file any motion to amend their Complaint by July 17, 2015. However, the parties are hereby notified that in the absence of any cognizable federal claim, the matter will be remanded to state court.


When ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). "Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment." Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). "There is, however, a narrow exception for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.'" Id . (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).[2] Applying this standard to the instant case, the facts relevant to the East Bridgewater defendants' motion to dismiss are as follows.

The Dispute Between the MacFarlanes and the Bennetts

As described above, this case was triggered by an incident that occurred against the backdrop of a long running dispute between the MacFarlanes and the Bennetts, who live across the street from each other in East Bridgewater, Massachusetts. (See Compl. ¶¶ 9-10, 43, 54). The MacFarlanes claim that over the course of many years, the Bennetts have engaged in a relentless effort to harass, intimidate, disturb and humiliate them, as well as members of their family and guests at their home. (Id. ¶¶ 43, 54). For example, but without limitation, the plaintiffs allege that when they open their front door or spend time in their front yard, the Bennetts come outside and set up chairs directly facing the plaintiffs' home. (Id. ¶ 54(a)). The Bennetts then proceed to sit and stare at the plaintiffs, or members of the plaintiffs' family, for purposes of disturbing, annoying and harassing them. (Id.). In addition, according to the MacFarlanes, the Bennetts often yell vulgarities at them, aim spotlights and recording devices directly at their home, place items such as garbage, dog feces, gum and dead animals on or next to the plaintiffs' driveway, make obscene gestures to the MacFarlanes' children, and blow snow, grass clippings and debris onto the plaintiffs' property. (Id. ¶¶ 54(c), 54(d)-(i), 54(l)). Moreover, but again without limitation, the MacFarlanes complain that the Bennetts have followed them to work, built a snowman designed to look like Mr. MacFarlane with red liquid dribbled down its head, and placed a figure of a monkey with a rope around its neck in their front yard, which was meant to symbolize Mr. MacFarlane. (Id. ¶¶ 57-58, 59(c), (d)). They claim that these and other, similar actions have interfered with their privacy and caused them to suffer emotional distress. (See Id . ¶¶ 43, 52).

Throughout the time period when these events allegedly were taking place, Mrs. Bennett was employed as an Administrative Specialist or a Parking/Hearing Clerk for the East Bridgewater Police Department, where she reported directly to the Chief of Police, defendant John Cowen. (Id. ¶ 9). The plaintiffs allege that the Bennetts exploited Mrs. Bennett's position in the Police Department in order to carry out their campaign of harassment and intimidation against them. (Id. ¶ 44). For example, the MacFarlanes claim that the Bennetts lodged numerous baseless complaints against them with the East Bridgewater police, and that the police chose to pursue and investigate those complaints aggressively, only to find that they were lacking in merit. (Id.¶ 46). They also claim that on several occasions, police officers followed Mr. MacFarlane to work for no reason other than to intimidate, harass and humiliate him.[3] (Id. ¶ 49). In addition, the plaintiffs allege that before he assumed his present position as head of the East Bridgewater Police Department, Chief Cowan attempted to harass and intimidate Mr. MacFarlane by parking his vehicle near the plaintiffs' home and watching Mr. MacFarlane pack up his truck for work in the mornings. (Id.). According to the plaintiffs, Chief Cowan later told them that he was observing Mr. MacFarlane as a favor to Mrs. Bennett.[4] (Id.).

Complaint Regarding the Plaintiffs' Fence

The incident that ultimately led the plaintiffs to file the instant lawsuit was triggered by a complaint that Mrs. Bennett made to the police on September 6, 2013, at the time she was working as Chief Cowan's administrative assistant. (Id. ¶ 37). Specifically, Mrs. Bennett reported that the MacFarlanes had failed to install a fence around their pool that met the height requirements set forth in the Town's by-laws. (Id. ¶ 37; Compl. Ex. K). She further informed the police that she had notified the Town's Building Commissioner, defendant Edward Gardner, about the alleged by-law violation, but had not received a response from him. (Compl. Ex. K). Defendant Scott Allen, a Sergeant in the Police Department, instructed Detective Grillo to coordinate with the Building Commissioner in order to address Mrs. Bennett's complaint, as well as "any other similar situations in town that are identifiable." (Id.). He also instructed a second officer to compile a list of pools that appeared to violate the Town's by-law, so that Detective Grillo and Building Commissioner Gardner could devise an immediate course of action. (Id.). Accordingly, Detective Grillo was assigned responsibility for investigating and enforcing the by-law, which required that all outdoor residential swimming pools capable of holding water over 24 inches deep be surrounded by a fence measuring at least five feet in height (the "pool fencing by-law"). (See Id . ¶¶ 18, 29).

The plaintiffs contend that the police had no authority to investigate or enforce the local by-laws, and that Mrs. Bennett's complaint should have been handled solely by the Town's Building Commissioner. (See Id . ¶¶ 29-30, 40-41). Specifically, the plaintiffs rely on Mass. Gen. Laws ch. 40A, § 7, which provides in relevant part that "[t]he inspector of buildings, building commissioner or local inspector... shall be charged with the enforcement of the zoning ordinance or bylaw[.]" (Id. ¶ 30). It further provides that

[i]f the officer... charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.

Mass. Gen. Laws ch. 40A, § 7. Based on this statute, the MacFarlanes claim that the police should have instructed Mrs. Bennett to submit her complaint to Building Commissioner Gardner "so that a record of the request could be made so that the Building Commissioner could respond in writing, and so that the Plaintiffs' rights of appeal and other legal remedies [under the statute] could be preserved." (Compl. ¶ 40). They further allege that the police ignored the requirements of Mass. Gen. Laws ch. 40A, § 7 and, along with the Building Commissioner, "embarked on a campaign to intimidate, harass, threaten, badger, embarrass and humiliate the Plaintiffs[.]" (Id. ¶ 41).

Investigation of Plaintiffs' Alleged By-Law Violation

On September 23, 2013, Building Commissioner Gardner sent the MacFarlanes a letter regarding their alleged failure to comply with the Town's pool fencing by-law. (Compl. Ex. B). Specifically, in his letter, Gardner informed the plaintiffs in substantive part as follows:

Recently, the Planning/Building Department was informed, as a result of a town-wide review, that the pool enclosure located at [your property] currently does not appear to comply with the East Bridgewater Town By-Law regarding pool fences. The By-Law requires that all outdoor residential swimming pools capable of containing water over 24 inches deep be surrounded by a fence not less than five (5) feet in height at all times (copy of By-Law enclosed).

(Id.). Building Commissioner Gardner also instructed the MacFarlanes to "take the appropriate action to comply with this By-Law forthwith" and to contact him or Detective Grillo in the event they had any questions. (Id.). Although the record indicates that the plaintiffs owned a temporary swimming pool, they claim that it was not present at their property on September 23, 2013, and that there was no violation of the by-law at the time Gardner sent the letter. (See Compl. ¶¶ 27, 34-35; Compl. Ex. J at 2).

Notwithstanding Gardner's statement to the contrary, the plaintiffs contend that there had been no legitimate town-wide review of residents' compliance with the pool fencing by-law. (Id. ¶ 35). Thus, although the record establishes that Gardner sent enforcement letters to 12 homeowners in addition to the MacFarlanes, the plaintiffs insist that "the so-called town-wide' policy was orchestrated to avoid the appearance of bias/favoritism and was a mere pretext to unlawful actions and conduct that were directed at the Plaintiffs." (See Id . ¶¶ 26, 28, 32-33, 35).

After Gardner issued the notices regarding the alleged by-law violations, Detective Grillo conducted follow up visits to each of the targeted properties. (See Compl. Ex. J). On Sunday October 20, 2013, at approximately 10:45 a.m., he visited the MacFarlane's home. (Id.¶ 14). The MacFarlanes claim that Detective Grillo lacked probable cause, a warrant or other legal authority to conduct an investigation of their alleged by-law violation, and that his actions deprived them of their rights under the Constitution and laws of Massachusetts. (See id. ¶ 1).

The plaintiffs allege that when Detective Grillo arrived at their home, he parked his car on the street, walked up their front walkway and onto their front porch, and knocked on their front door. (See id. ¶ 14; Compl. Ex. A). They further allege that Mr. MacFarlane answered the door to find Detective Grillo standing on his porch. (See id.). According to the MacFarlanes, the defendant was wearing a firearm, which was clearly visible on his hip. (Compl. ¶ 14). He identified himself as an officer with the East Bridgewater Police Department, and explained that he was following up on the Building Commissioner's letter regarding the MacFarlanes' swimming pool. (Id. ¶¶ 14-15).

Allegedly, Mr. MacFarlane informed the defendant that there was no pool in his yard, but Detective Grillo proceeded to interrogate the plaintiff regarding his potential violation of the Town's pool fencing by-law. (See id. ¶¶ 15-16). In particular, Detective Grillo allegedly asked Mr. MacFarlane whether he had a portable pool, and whether the pool could hold more than 24 inches of water. (Id. ¶ 15). He also described the nature of the complaint that had been made against the MacFarlanes and inquired as to whether the plaintiffs' fence met the by-law's five foot height requirement. (Id. ¶ 16). When Mr. MacFarlane admitted to some uncertainty regarding the exact height of the fence, Detective Grillo allegedly walked toward the side of the house and approached the fence. (Id.). He then told Mr. MacFarlane, without measuring the fence, that one section was only four feet high, and that the height of the entire fencing structure needed to be five feet. (See id.).

The plaintiffs claim that despite Mr. MacFarlanes' representation that no pool was present at the property, Detective Grillo proceeded to carry on with his questioning. (Id. ¶ 17). Thus, according to Mr. MacFarlane, Detective Grillo asked whether the plaintiff had received a letter from the Building Commissioner regarding an alleged violation of the pool fencing by-law. (Id.). Allegedly, Mr. MacFarlane confirmed that he had received such a letter, dated September 23, 2013, and that there had been no pool on the property at that time either. (Id.). Nevertheless, Detective Grillo continued to pose questions to Mr. MacFarlane. (Id.). As described below, the plaintiffs claim that Detective Grillo lacked authority to investigate this matter pursuant to Mass. Gen. Laws ch. 40A, § 7, and that his "interrogation" of Mr. MacFarlane violated a number of their constitutional rights.

Additional factual details relevant to this court's analysis are described below where appropriate.


A. Motion to Dismiss ...

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