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Kimball v. Town of Provincetown

United States District Court, D. Massachusetts

January 26, 2016



WILLIAM G. YOUNG, Distict Judge.


Neal Kimball ("Kimball") and Dieter Groll ("Groll") (collectively, the "Plaintiffs") brought this action pro se under 42 U.S.C. §§ 1983 and 1988 and related Massachusetts state laws to recover damages for alleged violations that took place during the events surrounding their eviction from their office space. The Town of Provincetown (the "Town"), Officer Scott Chovanec ("Officer Chovanec"), and Chief of Police Jeff Jaran ("Chief Jaran") (collectively, the "Defendants"), moved to dismiss this case on statute of limitations grounds and for the Plaintiffs' failure to state a claim upon which relief may be granted.

A. Procedural History

On December 11, 2014, Kimball and Groll filed a complaint against the Defendants in this Court. Compl., ECF No. 1. The Defendants filed a motion to dismiss. Defs.' Mot. Dismiss Pl.'s Compl., ECF No. 11. On April 16, 2015, the Plaintiffs filed an amended complaint and an opposition to the Defendants' motion. Pls.' Am. Compl. ("Am. Compl."), ECF No. 19; Pls.' Opp'n Defs.' Mot. Dismiss Compl. Under Fed.R.Civ.P. 12(b)(6), ECF No. 18. The Defendants moved to dismiss the Plaintiffs' amended complaint, Defs.' Mot. Dismiss Pl.'s Am. Compl., ECF No. 25, and filed a supporting memorandum, Defs.' Mem. Supp. Mot. Dismiss Pls.' Am. Compl. ("Defs.' Mem."), ECF No. 26. The Plaintiffs filed an opposition to the Defendants' new motion. Pls.' Mem. Opp'n Defs.' Mot. Dismiss Pl.'s Am. Compl. Under Fed.R.Civ.P. 12(b)(6) ("Pls.' Opp'n"), ECF No. 31. On June 17, 2015, the Court heard the parties' oral arguments and took the Defendants' motion under advisement. Elec. Clerk's Notes, ECF No. 34.

B. Facts Alleged

The Plaintiffs, residents of Provincetown, each operated a business[1] out of a space owned by Richard Campbell ("the Landlord"), with Kimball as a tenant and Groll as an informal subtenant. Am. Compl. ¶¶ 8, 13, 14. In October 2011, the Landlord served Kimball with a 14-Day Notice to Quit for non-payment of rent, followed by a Summary Process Eviction Summons. Id . ¶ 15. The Plaintiffs did not contest the eviction and a default judgment was entered against Kimball on November 14, 2011. Id . ¶ 16. Relying on the ten-day period after the entry of judgment before the judgment could be executed, [2] the Plaintiffs planned to vacate the space by November 23, 2011. Id . ¶¶ 17-18.

On November 18, 2011, the Landlord, Officer Chovanec, and an employee of Outer Cape Locksmiths entered the office. Id . ¶ 19. The Landlord demanded that the Plaintiffs leave immediately or else be "physically removed from the property, " id. ¶ 20, while the Plaintiffs argued this demand was premature, see id. ¶ 24. The dispute continued later that day, and the Plaintiffs ultimately spent the night in the office to avoid relinquishing physical possession. Id . ¶ 31. When the Landlord and Officer Chovanec returned on November 19, 2011, the parties again argued, and Officer Chovanec proceeded to tell the Plaintiffs that they had fifteen minutes to gather their belongings and vacate the property, or else they would be arrested. Id . ¶ 32-33. At 12:30 PM, the Plaintiffs were escorted off the property. Id . ¶ 37. Later that day, Kimball suffered a severe panic attack. Id . ¶ 38.[3]

On December 8, 2011, the Deputy Sheriff delivered a Notice of Scheduled Eviction to the Plaintiffs, with the eviction scheduled for 10:00 AM on December 12, 2011. Id . ¶ 42. The Plaintiffs began to remove their remaining[4] belongings from the office on December 8, 2011. Id . ¶ 43. On December 11, 2011, Officer Chovanec appeared at the office and informed the Plaintiffs that he had received a "complaint" from one of Kimball's clients, who was attempting to "retrieve his file folder." Id . ¶ 47.[5] Officer Chovanec threatened to arrest Kimball if he did not turn in the client folder to the police station later that evening. Id . ¶ 51. When the Plaintiffs protested, Officer Chovanec responded, "[w]ell, I don't know what to tell you - perhaps if you fulfilled your business obligations more often, none of this would have happened." Id . ¶¶ 55-56.

Later on December 11, 2011, Chief Jaran arrived and asked Kimball to identify himself. Id . ¶ 57. Chief Jaran then proceeded to tell Kimball: "[O]fficer Chovanec told me before he went off duty that if you didn't get that folder to us tonight, we should go ahead and hook you up." Id . The Plaintiffs stopped packing their remaining belongings and instead focused exclusively on finding the client's folder by searching each box they had already packed. Id . ¶ 58. Because many of the packed boxes had already been moved from the office to the driveway outside the Plaintiffs' home, much of this searching was done outdoors "in the cold of mid-December" using flashlights. Id . The Plaintiffs never found the client's folder, but were not arrested. Id . ¶¶ 60-61.[6]

The Plaintiffs suffered mental distress after these incidents, including: "severe anxiety, acute stress, and insomnia during the spring and summer of 2012." Id . ¶ 80. Kimball was later diagnosed with "a stress-induced spasm of the interstitial muscle, " and he suffered heart attacks in the spring of 2013 and fall of 2013. See id. ¶ 81.

After presenting a demand letter to the Town, id. ¶ 78, the Plaintiffs filed suit in this Court.


The Plaintiffs have brought claims under the federal Civil Rights Act, 42 U.S.C. §§ 1983, alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution, as well as under the cognate Massachusetts Civil Rights Statute, Mass. Gen. Laws, ch. 12, § 11I (counts I and II). Am. Compl. ¶¶ 83-101. They also seek redress for reckless or intentional infliction of emotional distress (count V), id. ¶¶ 115-120, and defamation (counts VI and VII), id. ¶¶ 121-130. Finally, the Plaintiffs claim that they are entitled to damages from the Town for municipal and supervisory liability (count III), id. ¶¶ 96-101, and negligence (count IV), id. ¶¶ 102-114.

The Defendants, in their motion to dismiss, make two arguments. First, they assert that "[t]he majority of the Amended Complaint's allegations arise from events that fall outside the statute of limitations." Defs.' Mem. 4. Second, as to the remaining claims, the Defendants argue that ...

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