Kelly v. Town of Chelmsford

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#32).

          M. Page Kelley United States Magistrate Judge.

         I. Introduction.

         Danny M. Kelly, pro se, filed a complaint against the Town of Chelmsford, asserting that Chelmsford “intentionally, willingly, wantonly and culpably allows a religious Holiday display to be on Town property at School Street and Main Street in blatant violation of the First Amendment, ” in violation of 42 U.S.C. § 1983. (#1 at 1, 5.)^[1] He requests “declaratory, compensatory, emotional and punitive damages in an amount to be determined by the Court.” Id. at 5. Chelmsford moved for summary judgment. (#32.) Mr. Kelly opposed, and Chelmsford replied. (##35-37.) Because Mr. Kelly has offered no evidence that Chelmsford owned, knew about, or otherwise sanctioned the display, this court recommends that the Town's motion for summary judgment be allowed.

         II. Facts.

         Discovery in this matter consisted only of written discovery. (#33 at 3.) No. depositions were taken and no documents produced other than a picture of the display attached to the complaint by Mr. Kelly. Id. In determining whether summary judgment is proper, the court views the record in the light most favorable to Mr. Kelly and draws all reasonable inferences in his favor. Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011); Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006).

         A “document filed pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court recognizes that in this case, not only is Mr. Kelly acting pro se, he is also incarcerated in connection with the civil commitment petition filed by the government under 18 U.S.C. § 4246, thus further impeding his ability to litigate this matter.^[2] Still, at the summary judgment stage, even a pro se, incarcerated plaintiff must produce “‘specific facts sufficient to deflect the swing of the summary judgment scythe.'” Mancini v. City of Providence by & through Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (quoting Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003)). Here, the court will consider events “within the plaintiff's personal knowledge, ” attested to by Mr. Kelly, such as answers to interrogatories or requests for admission, or set out in his pleadings, as facts for purposes of summary judgment. Noviello v. City of Boston, 398 F.3d 76, 84-85 (1st Cir. 1998). That said, “‘conclusory allegations, improbable inferences, acrimonious invective, or rank speculation' will not suffice.” Mancini, 909 F.3d at 38 (quoting Ahern, 629 F.3d at 54). The facts upon which the court may rely at the summary judgment stage “typically [are] set forth in affidavits, depositions, and the like, [and] must have evidentiary value; as a rule, ‘[e]vidence that is inadmissible at trial, such as inadmissible hearsay, may not be considered on summary judgment.'” Noviello, 398 F.3d at 84 (quoting Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998)); United States v. Coloplast Corp., 327 F.Supp.3d 300, 304 (D. Mass. 2018) (“Summary judgment cannot be resisted by pointing to evidence that would ultimately be inadmissible at trial.”).

         The facts set out below are undisputed except where noted. Mr. Kelly is a resident of Chelmsford. (#8 at 1.) A picture of the display is found at the end of his complaint; at the bottom of the picture, Mr. Kelly attests that it was taken on December 17, 2015, just a few days before the complaint was filed on December 22, 2015.^[3] (#1 at 7.) The picture is blurry. Id. The display consists of three large free-standing letters, spelling out the word “JOY.” Id. The “J” and “Y” are red, while the “O” is white. Id. There are white carvings on the “O” consisting of a star at the top of the letter, and inside the letter, three silhouettes. Id.

         Looking at the picture, one cannot clearly see what the silhouettes depict. In a pleading, Mr. Kelly refers to the silhouettes as “a Nativity Scene Icon.” (#36 at 1.) He further describes them as “[a] star over a manger holding a baby with people praying with hands clasped.” Id. at 4. These descriptions of the silhouettes are facts within Mr. Kelly's personal knowledge, since one may infer that he has seen the display. In addition, the court notes that red and white are traditional Christmas colors, and the word “joy” is commonly used to celebrate the Christmas season, for example, it is frequently found on Christmas cards. Therefore, the court will accept for summary judgment purposes that in fact, the display references the birth of Jesus.

         In the picture, the display is located within a few feet of a flag pole flying an American flag. (#1 at 7.) Directly behind the display is a small tombstone or, perhaps, an historical marker of some kind. Id. There are two buildings within a few feet of the display, one on either side of the display, which appear to be colonial-style houses. Id. Whether they are homes or businesses cannot be discerned from the picture. The plot of land on which the display stands is small, and could possibly be part of the yard of the house in the background of the picture; in fact, in the background one can see what appears to be a car in a driveway. Id.

         In his answers to interrogatories, Mr. Kelly states that the JOY display stood “for at least the Christmas season of 2012, 2013 & 2015.” (#34-6 at 1.)^[4] He states that it “goes up around Thanksgiving” and “is taken down in early January.” Id. at 5. In 2015, “it seemed to be taken down earlier.” Id. He alleges that the display was located on the corner of School Street and Main Street in Chelmsford^[5] on property owned by the Town.^[6] (#1 at 7; #34-6 at 1.) Mr. Kelly states that he would go by the intersection where the display was located “at least four times a day.” (#34-6 at 11.)

         Mr. Kelly has “no idea who owns the display.” Id. at 1. Chelmsford asserts that it did not learn of the display's existence until Mr. Kelly filed this action, which the court understands to mean Chelmsford denies owning the display. (#34-4 at 2.) Chelmsford has no documents concerning complaints about private displays on Town property during the years of 2013, 2014, and 2015. (#34-3 at 1.) Chelmsford has no policies or police procedures regarding private displays on town property. Id.

         Mr. Kelly avers that his wife, May DeViney, made oral complaints to the town in 2012 and 2013 which “went nowhere, ” as the “Town's manager's office just told her they would notify the Building Inspector. The display would just remain until the end of the Christmas season.” (#34-6 at 7.) The court does not consider Mrs. DeViney's alleged complaints to be competent evidence as they are inadmissible hearsay. Noviello, 398 F.3d at 84-85.

         Mr. Kelly never made any written complaint to the Town prior to filing this lawsuit, nor did he call anyone to complain about the display. (#34-6 at 7, 13.) Neither party possesses any documentation relating to complaints made to the Town regarding the display. (##34-2 at 1; 34-3 at 1.)

         III. Summary Judgment Standard.

         The purpose of summary judgment is “to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.” Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 394 F.3d 40, 42 (1st Cir. 2005) (internal quotation and citation omitted). The party moving for summary judgment bears the initial burden of asserting the absence of a genuine issue of material fact and “support[ing] that assertion by affidavits, admissions, or other materials of evidentiary quality.” Mulvihill, 335 F.3d at 19; Fed.R.Civ.P. 56(c). An issue is “genuine” if the record allows a rational factfinder to resolve it in favor of either party. Borges ex. rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010). A fact is “material” only “if its existence or nonexistence has the potential to change the outcome of the suit.” Id. at 5. Once the moving party asserts the absence of genuine issues of material fact, the non-movant must demonstrate the existence of a factual dispute with requisite sufficiency to proceed to trial. Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006).

         IV. The Law.

         In weighing whether a factual dispute is “material, ” the court must examine the substantive law of the case, because “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         A. 42 U.S.C. § 1983 Claim.

         Title 42 U.S.C. § 1983 is a procedural mechanism through which constitutional and statutory rights are enforced. Albright v. Oliver, 510 U.S. 266 (1994).

The legal framework pertaining to a section 1983 claim is well established. ‘Section 1983 supplies a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law.' Redondo-Borges v. U.S. Dep't of HUD,421 F.3d 1, 7 (1st Cir. 2005) (quoting Evans v. Avery,100 F.3d 1033, 1036 (1st Cir. 1996)). To make out a viable section 1983 claim, a plaintiff must show both that the ...