Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nesbitt v. City of Methuen

United States District Court, D. Massachusetts

June 26, 2018

CHRISTOPHER F. NESBITT, Plaintiff,
v.
CITY OF METHUEN, METHUEN POLICE DEPARTMENT, RONALD PARRINO, FRANK KORN AND MICHAEL PAPALARDO, Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Christopher Nesbitt (“Nesbitt”) brings claims against the City of Methuen, the Methuen Police Department, Ronald Parrino (“Parrino”), Frank Korn (“Korn”) and Michael Papalardo (“Papalardo”) arising out of the towing of his vehicle after an accident and the subsequent purportedly unlawful retention and possible sale of the vehicle by the towing company, Valley Towing Inc. D. 1. Defendant Ronald Parrino moves to dismiss the complaint against him, D. 21, and Defendants Frank Korn, Michael Papalardo, and the City of Methuen move for judgment on the pleadings in their favor, D. 27. Nesbitt filed an amended complaint, D. 31. For the reasons explained below, the Court ALLOWS the motion to dismiss, D. 21, ALLOWS the motion for judgment on the pleadings, D. 27, and STRIKES the amended complaint filed by Nesbitt, D. 31.

         II. Standard of Review

         On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court “must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)). Similarly, in evaluating a motion for judgment on the pleadings under Rule 12(c), the Court must “view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom.” Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (quoting R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006)). “[A] court may enter judgment on the pleadings only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment.” Aponte-Torres v. Univ. Of Puerto Rico, 445 F.3d 50, 54 (1st Cir. 2006). In reviewing a motion under either rule, the Court may consider “documents the authenticity of which are not disputed by the parties[, ] documents central to plaintiffs' claim[] [and] documents sufficiently referred to in the complaint.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (citation omitted).

         III. Factual Background

         Unless otherwise noted, these facts are as alleged by Nesbitt and are assumed true for the purposes of considering both of the motions. On December 17, 2016, Nesbitt was in a car accident in Methuen, Massachusetts, and his car was ordered towed by the Methuen Police. D. 1 ¶ 16. Valley Towing, Inc., towed the car. D. 1 ¶ 16. Valley Towing Inc. and Nesbitt had a series of conversations about the vehicle regarding the insurance appraisal of the vehicle and payment for the storage costs of the vehicle. D. 1 ¶¶ 17-21. On February 10, 2017, a representative from Nesbitt's insurer conducted an appraisal. D. 1 ¶ 21. On May 18, 2017, Nesbitt was informed by the owner of Valley Towing, Parrino, that Valley Towing had sold the car to another company, Fram's Auto, to be junked. D. 1. ¶¶ 23, 24. Nesbitt contacted Fram's Auto and the owner stated to Nesbitt that the vehicle had been destroyed, but that he was unable to provide Nesbitt with any documentation. D. 1 ¶ 25. Nesbitt then contacted the Methuen Police Department to request that they investigate the destruction of his vehicle as a crime, but two Methuen Police Department officers, Korn and Papalardo, informed him that they would not do so. D. 1 ¶¶ 26, 27. On June 23, 2017, Nesbitt learned that Valley Towing had held an auction for the car on June 21, 2017. D. 1 ¶ 32. Nesbitt's insurer subsequently paid Valley Towing for the towing and storage bill. D. 1 ¶ 34. Nesbitt brings claims against all the Defendants under 42 U.S.C. § 1983.

         IV. Procedural History

         Nesbitt filed this complaint on July 10, 2017. D. 1. Parrino has moved to dismiss, D. 21, Korn and Papalardo moved for judgment on the pleadings, D. 27, and the Court heard argument on the two motions. D. 32. On the day of motion hearing, Nesbitt filed an amended complaint with the Court. D. 31. The Court took the motions under advisement. D. 32.

         V. Discussion

         A. Parrino's Motion to Dismiss

         To state a claim for relief under Section 1983, Nesbitt must allege that Parrino engaged in conduct “under color of state law” and that such conduct “worked a denial of rights secured by the Constitution or by federal law.” Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st Cir. 2013) (quoting Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997)). There are three ways a private entity or person, like Parrino, may be deemed to act under the color of state law: first, if the private entity “assumes a traditional public function when performing the challenged conduct;” second, “if the challenged conduct is coerced or significantly encouraged by the state;” or third, if the state could be deemed a “joint participant” in the challenged conduct. Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011) (citation omitted).

         To determine whether Parrino acted under color of state law, then, it is necessary to first identify the challenged conduct. The complaint alleges that Parrino is a member of the City of Methuen Licensing Board, which is responsible for overseeing automobile dealer licenses, and the owner of Valley Towing, Inc. D. 1 ¶¶ 10, 24, 61. The complaint, however, does not identify any conduct taken by Parrino in his capacity as a member of the City of Methuen Licensing Board that Nesbitt contends violated Nesbitt's rights. The complaint does generally allege that Parrino “participated personally in the unlawful conduct challenged herein, ” and that he “failed to take the necessary steps to prevent the acts that resulted in the unlawful conduct.” D. 1 ¶ 10. The only specific conduct by Parrino, however, alleged in the complaint is Parrino's informing Nesbitt that the car had been sold for junking. D. 1 ¶ 24. That conduct does not meet any of the three tests for a private party acting under color of state law. Parrino's informing Nesbitt that the car had been sold for junking is not an act that is traditionally a public function, as a public function has “been interpreted narrowly” to include only functions such as “holding elections, exercising eminent domain, and operating company-owned municipalities, ” Strahan v. AT&T Mobility LLC, 270 F.Supp.3d 535, 541 (D. Mass. 2017); Parrino was not encouraged or coerced into undertaking the act by any state actor; and there is no alleged state involvement in the act as a joint participant. Thus, Nesbitt has failed to plead facts sufficient to state a claim for relief under Section 1983.

         At the motion hearing, Nesbitt contended that Parrino acted in his capacity as a member of the City of Methuen Licensing Board improperly to award licenses to businesses that unlawfully seize cars from their rightful owners. D. 32. The currently operative complaint, however, contains no allegations ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.