United States District Court, D. Massachusetts
JEFFREY D. SUMMERS and JEFFREY'S HOUSE, INC., Plaintiffs,
CITY OF FITCHBURG, et al., Defendants.
MEMORANDUM AND ORDER
J. Casper, United States District Judge.
Jeffrey D. Summers (“Summers”) and Jeffrey's
House, Inc. (“Jeffrey's House”)
(collectively, “Plaintiffs”) have filed this
lawsuit against Defendants City of Fitchburg
(“Fitchburg”) and Mark A. Goldstein
(“Goldstein”), Jeffrey P. Stephens
(“Stephens”), John J. Moran Sr.
(“Moran”), Robert Lanciani
(“Lanciani”), Phil Jordan (“Jordan”),
Sally Tata (“Tata”) and Kevin Roy
(“Roy”), individually and in their official
capacities as various Fitchburg officials (“Municipal
Defendants”) (collectively, with Fitchburg,
“Defendants”). Plaintiffs bring claims for
attorneys' fees and costs (Count I); abuse of process
(Count II); private nuisance (Count III); violations of the
Americans with Disabilities Act (Count IV) and the Fair
Housing Act (Count V); intentional infliction of emotional
distress (Count VI); and interference with advantageous
business relationships (Count VII). Defendants have moved to
dismiss the amended complaint. D. 19. For the reasons stated
below, the Court ALLOWS in part and DENIES in part the
Standard of Review
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts
alleged “plausibly narrate a claim for relief.”
Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012) (citation omitted). The Court
reads the complaint “as a whole” and must conduct
a two-step, context-specific inquiry.
García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013). First, the Court must perform
a close reading of the complaint to distinguish the factual
allegations from the conclusory allegations. Id.
Factual allegations must be accepted as true, while
conclusory allegations are not credited. Id. Second,
the Court must determine whether the factual allegations
present a “reasonable inference that the defendant is
liable for the misconduct alleged.” Haley v. City
of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))
(internal quotation mark omitted).
Court will dismiss a pleading that fails to include
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). To avoid dismissal, a
complaint must provide “‘a short and plain
statement of the claim showing that the pleader is entitled
to relief.'” García-Catalán,
734 F.3d at 102 (quoting Fed.R.Civ.P. 8(a)(2)). Labels and
conclusions or “a formulaic recitation of the elements
of a cause of action will not do.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). The
Court draws on its “judicial experience and common
sense” in determining whether a claim crosses the
García-Catalán, 734 F.3d at 103
(citation omitted). “This context-specific inquiry does
not demand ‘a high degree of factual
specificity.'” Id. (citation omitted).
following allegations are from Plaintiffs' amended
complaint, D. 18, and those documents incorporated into the
amended complaint-the authenticity of which is not
challenged, see Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 72 (1st Cir. 2014); Beddall v. State St. Bank
& Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)-and are
accepted as true in considering the motion to dismiss.
is the President, director and clerk of Jeffrey's House,
a Massachusetts organization that has operated four
“sober homes” in Fitchburg, Massachusetts since
2012. D. 18 ¶¶ 1-2. Sober homes serve those
recovering from drug and alcohol abuse by providing a
supportive living environment with other recovering
individuals. Id. at 3. Summers bought, repaired and
opened four properties to serve as the sober homes.
Id. at 3. The sober homes are located at 499 Water
Street, 10 Burnett Street, 33 Garnet Street and 205-207 High
Street in Fitchburg, respectively. Id. ¶ 2.
February 2, 2013, Curry, a Fitchburg Health Inspector at the
time, id. ¶ 4, made certain statements about
Jeffrey's House in a Worcester Telegram and Gazette
article, id. ¶ 13. In that same article,
Lanciani, the Fitchburg Building Commissioner at the time,
id. ¶ 6, was quoted as stating that “[a]
lodging house designation means the home must comply with
state building codes, including a sprinkler system and fire
alarms, ” id. ¶ 13.
two months later, on April 13, 2013, Stephens, a Fitchburg
Health Inspector at the time, id. ¶ 4,
performed an hour-long unannounced building inspection of 499
Water Street and noted several violations, id.
¶ 14. Four days later, Stephens returned to 499 Water
Street with Moran, the Fitchburg Building Inspector at the
time, id. ¶ 5, and the two found additional
violations, id. ¶ 14. Stephens and Moran
returned to 499 Water Street on May 13, 2013 to re-inspect
the previous violations and declared the improvements were
unsatisfactory. Id. ¶ 15.
months later, on August 21, 2013, Summers was “strongly
advised” to attend a meeting at Fitchburg City Hall to
discuss “illegal occupancy.” Id. ¶
16. Stephens, Moran and Lanciani attended the meeting and
Summers was told to cease and desist all operations.
Id. On September 11, 2013, Moran and Stephens
returned to 499 Water Street and confirmed that all
violations had been corrected. Id. ¶ 17.
December 5, 2013, Summers received a letter from Lanciani
sent to his property at 10 Burnett Street ordering him to
cease and desist operations due to zoning ordinance
violations for non-conforming use. Id.; D. 20-1. The
letter also indicated that there was “no evidence that
the building has been inspected” or that a license for
use as a boarding house was granted by the License
Commission. D. 20-1. Summers received a similar letter from
Lanciani sent at his property at 33 Garnett Street on January
22, 2014. D. 18 ¶ 18; D. 20-2.
then received a Summons and Order of notice on March 18, 2014
at all four of his properties, as well as at his home
address, from Goldstein, D. 18 ¶ 19, the Fitchburg
Assistant City Solicitor at the time, id. ¶ 3.
The Summons and Order directed Summers to appear in Worcester
Housing Court on April 25, 2014. Id. ¶ 19.
Summers attended the consolidated hearing before Judge Diane
H. Horan (“Judge Horan”) regarding his properties
at 10 Burnett Street, 499 Water Street and 33 Garnet Street.
D. 20-3. Lanciani and Goldstein appeared on behalf of
Fitchburg. D. 18 ¶ 20. Following the presentation of
evidence from both sides, Judge Horan ruled that Summers
could continue to operate the sober homes. Id.
Goldstein and Lanciani insisted that Summers request a
reasonable accommodation in writing. Id.
5, 2014, Summers wrote a letter to Lanciani and requested a
reasonable accommodation from Fitchburg's zoning
ordinances for his properties at 10 Burnett Street, 499 Water
Street and 33 Garnet Street, id. ¶ 21, and
indicated the current and maximum number of occupants of the
three respective properties, D. 20-4. Lanciani granted the
request and stated in a letter dated May 30, 2014 that
“[t]he City of Fitchburg will allow a reasonable
accommodation in their Zoning Ordinance concerning the use of
the above-referenced properties as a sober home for disabled
persons recovering from alcohol or drug addiction.” D.
18 ¶ 21; D. 20-5. Summers received a letter from
Goldstein on June 9, 2014 stating that the actions against
his properties had been dismissed. D. 18 ¶ 22; D. 20-6.
a month later, on July 10, 2014, Summers received, via
certified mail, a notice from Tata, Lieutenant of the
Fitchburg Fire Department at the time, D. 18 ¶ 9,
indicating that 10 Burnett Street, 499 Water Street and 33
Garnet Street were in violation of Mass. Gen. L. c 148,
§ 26H because they were being used as
“lodging/boarding homes and house more than six
residents, ” id. ¶ 23; D. 20-7. The
notice stated that Summers, pursuant to § 26H, was
responsible for the installation of fire protection systems
within six months. D. 18 ¶ 23; D. 20-7. The notice also
informed Summers of his right to appeal the notice to the
board of appeals of the fire safety commission within 45 days
pursuant to § 26H. D. 20-7. About six months later on
February 20, 2015, Summers received, via certified mail, a
notice from Roy and Jordan, D. 18 ¶ 24; D. 20-8, Chief
and Lieutenant, respectively, of the Fitchburg Fire
Department at the time, D. 18 ¶¶ 7-8. The notice
stated that, due to Summers's failure to install fire
protection systems at the three properties, he was being
fined $1, 000 pursuant to Mass. Gen. L. c. 148, § 27 and
that payment of the fine and installation of the systems must
be made on or before March 1, 2015. D. 20-8. The notice also
stated that the Fitchburg Fire Department would pursue legal
action if Summers failed to comply, but that “[i]t is
the Fitchburg Fire Department's position to work with you
to fulfill this statutory requirement, rather then [sic]
pursue the above course of action.” Id.
April 9, 2015, Summers received three letters from the
Fitchburg Fire Department summoning him to the Worcester
Housing Court for a hearing on May 1, 2015. D. 18 ¶ 25;
D. 20- 9. Summers attended the hearing before Judge Horan and
Goldstein, Jordan and Roy appeared on behalf of Fitchburg. D.
18 ¶ 25. Summers was then summoned back to Worcester
Housing Court on July 17, 2015 for contempt since Judge Horan
had ruled against him following the May 2015 hearing.
Id. ¶ 26; see D. 29 at 5. The contempt
charges were dropped, however, because Summers did not
receive proper notice of Judge Horan's ruling. D. 18
¶ 26. Summers informed Judge Horan that he could not
afford to install the fire protection systems at the three
properties, but would instead reduce the number of residents
of each property to five people-thus falling outside the
requirements of § 26H-pending further review.
Id. On July 28, 2015, Summers received a letter from
Goldstein requesting a statement that “you intend to
have no more than five (5) occupants residing in any of the
three properties.” Id. ¶ 27; D. 20-10.
The letter also stated that “[t]he Fire Department will
want to make sporadic inspections to verify the number of
individuals residing at the properties” and if Summers
agreed, a stipulation of dismissal could be prepared. D. 18
¶ 27; D. 20-10. ...