United States District Court, D. Massachusetts
STEPHEN B. COMLEY
TOWN OF ROWLEY, TOWN OF ROWLEY BOARD OF SELECTMEN, JOSEPH PERRY, Individually and as Selectman, ROBERT SNOW, Individually and as Selectman, CLIFFORD PIERCE, Individually and as Selectman, G. ROBERT MERRY, Individually and as Selectman, DAVID PETERSEN, Individually and as Selectman, and COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF TRANSPORTATION/HIGHWAY DIVISION
MEMORANDUM OF DECISION
ZOBEL SENIOR UNITED STATES DISTRICT JUDGE
Stephen B. Comley brings this 42 U.S.C. § 1983 lawsuit
against the Town of Rowley (“Town”), the
Town's Board of Selectmen (“Board”), five
named selectmen in their individual and official capacities
(collectively, “Town defendants”), and the
Massachusetts Department of Transportation
(“MassDOT”) to vindicate his rights to free
speech and equal protection. He alleges that defendants
removed his political signs posted on Town property and along
state highways but allowed others' signs to remain.
Defendants move to dismiss and for judgment on the pleadings.
facts are recited as alleged in plaintiff's complaint
(Docket # 1-2). See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 5 (1st Cir. 2011).
is a Rowley resident and longtime nuclear safety activist
dedicated to raising awareness of the dangers he perceives
from the nearby Seabrook Power Plant. To that end, he posted
signs on public property throughout the Town in 2015 urging
attention to his concerns and related issues. At a Town Meeting
in May 2015, he moved that the Board request the United
States Nuclear Regulatory Commission to hold a public hearing
concerning Seabrook's evacuation plans.
that meeting, plaintiff's signs “began to
disappear” from their locations around Town (Complaint,
at ¶ 16), about which he pleads nothing beyond that they
“were posted in areas and locations customarily used by
other individuals without restraint relating to elections
[and] to express political views.” Id., at
¶ 15. Plaintiff subsequently discovered that the Board
had “instructed or vicariously instructed departments
of the town to remove his signs, ” id., at
¶ 16, even as “other similar signs of political
nature posted by other individuals or citizens of the town
were not so removed.” Id., at ¶ 17.
MassDOT also removed plaintiff's signs from Route 1A and
Route 1 in the Towns of Ipswich, Rowley, Newbury,
Newburyport, and Salisbury. Id., at ¶ 23.
However, the complaint is devoid of any detail as to that
Board meeting in November 2015,  defendant Merry explained
that the Board had received complaints about plaintiff's
signs and opined that any signs posted on utility poles
violated state law. See Docket # 39-2, at 4.
Defendant Petersen likewise assumed that the signs were
unlawful, saying, “If the signs are gone, they're
gone, and we can't waste time tracking down signs put up
illegally on Town property.” Id.
brought the present action in Essex Superior Court. Docket #
7. The complaint alleges five counts of violations of his
constitutional rights to free speech and equal protection
under 42 U.S.C. § 1983 (Counts I-V), one count of civil
conspiracy against Town defendants (Count VI), and one count
of violation of 700 C.M.R. 3.02(2)(b)(4) against MassDOT.
Town defendants removed the case to federal court on January
9, 2017, Docket # 1, and now move for judgment on the
pleadings. Docket # 33. MassDOT, which had not yet been
served at the time of removal, neither consented to nor
joined the removal, but now moves to dismiss. Docket # 31.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The standard
for evaluating a Rule 12(c) motion for judgment on the
pleadings is essentially the same as that for deciding a Rule
12(b)(6) motion. Pasdon v. City of Peabody, 417 F.3d
225, 226 (1st Cir. 2005).
purposes of a motion to dismiss, the court accepts all
well-pleaded factual allegations as true and draws all
reasonable inferences in the plaintiff's favor. See
Rodríguez-Reyes v. Molina-Rodríguez, 711
F.3d 49, 52-53 (1st Cir. 2013). In addition to facts and
documents included in or incorporated into the complaint, the
court “may also consider ‘documents incorporated
by reference in [the complaint], matters of public record,
and other matters susceptible to judicial notice.'”
Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008)
(alteration in original) (quoting In re Colonial Mortg.
Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003)).
Constitutional Claims (Counts I-V)
Counts I through V, plaintiff alleges a variety of somewhat
duplicative constitutional claims. Count I alleges free
speech violations under the First Amendment and/or the
Massachusetts Declaration of Rights, and Count II invokes
these same rights in stating a § 1983 violation. Because
the latter is the appropriate cause of action for the former
violations, I treat them as one claim under Count II. Counts
III and IV seek injunctive relief and attorneys' fees,
which do not amount to independent causes of action. See
Payton v. Wells Fargo Bank, N.A., No. 12-11540, 2013 WL
782601, at *6 (D. Mass. Feb. 28, 2013) (“[I]njunctive
relief is not a stand-alone cause of action under
Massachusetts or federal law.”). Count V, styled a
claim for “selective enforcement, ” is
ambiguously pleaded but appears to invoke the Fourteenth
Amendment's equal ...