United States District Court, D. Massachusetts
DANNY M. KELLY, Plaintiff,
TOWN OF CHELMSFORD, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (#32).
Page Kelley United States Magistrate Judge.
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,
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.
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).
“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. 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.”).
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. (#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.
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.
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
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.) 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 on property owned by the
Town. (#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
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.
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
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.)
Summary Judgment Standard.
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).
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
42 U.S.C. § 1983 Claim.
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 ...