United States District Court, D. Massachusetts
CHRISTOPHER F. NESBITT, Plaintiff,
CITY OF METHUEN, METHUEN POLICE DEPARTMENT, RONALD PARRINO, FRANK KORN AND MICHAEL PAPALARDO, Defendants.
MEMORANDUM AND ORDER
J. Casper United States District Judge
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.
Standard of Review
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).
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.
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.
Parrino's Motion to Dismiss
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).
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.
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