United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'Toole, Jr. United States District Judge.
se plaintiff Ronald Satish Emrit alleges various claims
against the defendant, National Grid, Inc., relating to the
delay and/or failure to provide him with financial assistance
pursuant to the Henry Shelton Act and the Low Income Home
Energy Assistance Program. The defendant National Grid has
moved to dismiss the Complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6) (dkt. no.
The defendant, however, has already answered the
Complaint. “A motion asserting [failure to
state a claim upon which relief can be granted] must be made
before pleading if a responsive pleading is allowed.”
the Court construes the motion as a motion for judgment on
the pleadings under Federal Rule of Civil Procedure 12(c).
See Rice v. New Eng. Coll., 676 F.2d 9, 10 (1st Cir.
1982) (converting motion to dismiss to motion for judgment on
the pleadings when affirmative defense asserted in answer);
see also Ford v. Lehman Capital, Civil Action No.
10-40092-FDS, 2012 WL 1343977, at *3 (D. Mass. Apr. 17, 2012)
(citing Patel v. Contemporary Classics of Beverly
Hills, 259 F.3d 123, 126 (2d Cir. 2001). The motion
stands unopposed. For the reasons outlined below, the
defendant's motion is GRANTED.
12(c) motion for judgment on the pleadings “is treated
much like a Rule 12(b)(6) motion to dismiss.”
Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26,
29 (1st Cir. 2008). The Court takes as true all well-pled
factual allegations, which must state a claim to relief that
is plausible on its face. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citations omitted).
initial matter, the Complaint does not contain sufficient
factual allegations to support the plaintiff's claims
that the defendant violated his rights under the Equal
Protection, Due Process, and Privileges and Immunities
Clauses-Counts III, IV, and V, respectively. Nor has the
plaintiff pled those claims by invoking 42 U.S.C. §
1983, which must be employed to bring such federal
constitutional claims. See Schomburg v. Johnson,
Civil Action No. 08-11361-GAO, 2009 WL 799466, at *2 (D.
Mass. Mar. 25, 2009). Generally, claims pled directly
pursuant to the Constitution entitle the defendant to
dismissal. Even construing the Complaint to allege causes of
action under § 1983, the allegations fall short of the
necessary pleading standard because the Complaint fails to
allege that the defendant acted under color of state law.
See Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir.
1997) (finding as an “essential element” of a
claim under § 1983 that the challenged conduct be
attributable to a person acting under color of state law).
Accordingly, Counts III, IV, and V are dismissed.
plaintiff also purports to bring a breach of contract claim
in Count I and a negligence claim in Count II of the
Complaint. He asserts that the defendant provided electric
power and natural gas to the residence he shared with a
roommate, and the plaintiff “frequently” paid the
monthly bills. (Compl. ¶ 14 (dkt. no. 1).) While these
allegations might be regarded as sufficient to allege the
existence of a contract for the supply of electricity and
gas, the Complaint does not assert a breach of that supposed
contract. There is no allegation, for example, that the
plaintiff duly paid for the service but the defendant did not
provide it. Rather, the Complaint alleges that the plaintiff
and his roommate requested financial assistance from the
defendant pursuant to some programs but did not receive the
requested assistance. There are no facts alleged that would
show that a failure to provide the requested assistance was a
breach of some undescribed contract. Similarly, the Complaint
fails to allege facts that would establish a duty of care
owed to the plaintiff by the defendant, the breach of which
could be remediable by a tort claim for negligence. While the
Complaint refers to some financial assistance programs, there
are no factual allegations that outline what obligations the
defendant owed him, and breached, under those programs. In
short, the Complaint lacks factual allegations sufficient to
outline common law claims that are plausible on their face.
See Iqbal, 556 U.S. at 678.
defendant's motion to dismiss (dkt. no. 30), construed as
a motion for judgment on the pleadings, is GRANTED. The
action is DISMISSED.
 Claims against the named co-defendant,
Community Action Partnership of Providence, were previously
dismissed for lack of personal jurisdiction over that
defendant. (Dkt. no. 24.)
 In its Answer (dkt. no. 28), the
defendant asserts the affirmative defense of failure to state
a claim upon which ...