United States District Court, D. Massachusetts
RICHARD D. BOSTWICK and RICHARD D. BOSTWICK as a CLASS OF ONE, Plaintiffs,
44 CHESTNUT STREET, et al., Defendants.
MEMORANDUM AND ORDER ON COMMONWEALTH DEFENDANTS'
MOTION TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
Richard D. Bostwick ("Plaintiff) asserts claims for
various civil rights violations allegedly stemming from the
Massachusetts Department of Public Health's denial of his
request for an adjudicatory hearing related to unauthorized
deleading at his home, and decisions made by the Land Court,
Middlesex Superior Court, and the Massachusetts Appeals Court
in various civil suits surrounding ongoing issues at his
property. [ECF No. 1 ("Complaint"
or"Compl.")]. Defendants Commonwealth of
Massachusetts Executive Office of Health and Human Services
Department of Public Health ("DPH'), Donna Levin
("Levin"), Paul N. Hunter ("Hunter"),
Warren M. Laskey ("Laskey"), the Land Court, the
Middlesex Superior Court ("Superior Court"), and
the Massachusetts Appeals Court ("Appeals Court")
(collectively, "Commonwealth Defendants") have
moved to dismiss the claims against them on the grounds that
the claims are barred by Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). [ECF No. 63]. For the reasons set
forth below, the Commonwealth Defendants' motion to
dismiss is GRANTED.
following facts are drawn from the Complaint, the
well-pleaded allegations of which are taken as true for the
purposes of evaluating the motion to dismiss. See Ruivo
v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir.
2014). As it may on a motion to dismiss, the Court has also
considered "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, 65-66 (1st Cir. 2008) (quoting In
re Colonial Mortg. Bankers Corp., 324 F.3d 12, 20 (1st
here, where the Plaintiff is proceeding pro se, the
Court "hold[s] pro se pleadings to less
demanding standards than those drafted by lawyers and
endeavors, within reasonable limits, to guard against the
loss of pro se claims due to technical
defects." Santiago v. Action for Bos. Cmty. Dev.,
Inc., No. 17-CV-12249-ADB, 2018 WL 5635014, at *2 (D.
Mass. Oct. 31, 2018) (quoting Dutil v. Murphy, 550
F.3d 154, 158 (1st Cir. 2008)). Accordingly, the Court
liberally construes Plaintiffs complaint. Foley v. Wells
Fargo Bank, N.A, 772 F.3d 63, 75 (1st Cir. 2014) (citing
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
owns a multi-family home at 44 Chestnut Street in Wakefield,
MA ("44 Chestnut Street"). [Compl. ¶ 1].
Between 2001 and 2002, Plaintiff worked with various
contractors, including the Classic Group, Inc. ("Classic
Group") and Leonard J. Sims ("Sims"), to
delead portions of 44 Chestnut Street, including nine window
units and a mantle. [ECF No. 1-1 ¶¶ 30, 82-84].
During a deposition on November 14, 2007, for an unspecified
action, Plaintiff discovered that one of the contractors
lacked the required licenses or permits for the deleading
work performed at 44 Chestnut Street, [Id. ¶
unspecified times, Plaintiff met up to fifteen times with
Paul Hunter, the director of the Childhood Lead Poisoning
Prevention Program ("CLPPP") at the Massachusetts
Department of Public Health ("DPH') concerning the
deleading activities at his property. [Compl.
¶40]. On May 30, 2008, Plaintiff submitted to DPH a
"Report and Evidence of Unauthorized Deleading" at
44 Chestnut Street by Sims and the Classic Group. [ECF No.
1-1 ¶ 33]. Hunter directed Plaintiff to work with Warren
Laskey to conduct a re-inspection of 44 Chestnut Street.
[Id. ¶ 34]. During the August 2008 inspection,
DPH determined that the deleading activities had been
conducted without the required permits and found that 44
Chestnut Street still had lead hazards, [id.].
Plaintiff was notified of this by letter dated August 21,
2008. [Id.]. On September 2, 2008, CLPPP filed an
unauthorized deleading complaint against 44 Chestnut Street
("Deleading Complaint"), which stated that DPH
would not issue a "Letter of Unauthorized
Deleading" for 44 Chestnut Street until Plaintiff
remediated the remaining lead hazards. [Id.
¶¶ 35-36]. The status of the deleading at 44
Chestnut Street has been publicly posted by DPH since 2008.
[Id. ¶ 37]. Plaintiff feels unable to market or
lease rental units at 44 Chestnut Street or to sell the
property. [Id. ¶ 43]. The approximate cost of
completing the deleading of 44 Chestnut Street has been
estimated to be $275, 888. [Compl. ¶49].
History of Administrative Proceedings and Prior
March 2, 2010, Plaintiff served DPH with a "Notice of
Claim for Adjudicatory Proceeding" concerning the
Deleading Complaint. [ECF No. 1-1 ¶38]. DPH denied the
request on April 12, 2010 and informed Plaintiff that
"[p]ursuant to 105 CMR 460.900, you are not entitled to
an adjudicatory hearing since, as you know, lead violations
remain on your property" [Id. ¶ 40]. On
May 7, 2010, Plaintiff filed an action in Superior Court
against DPH, the Classic Group, and various entities
associated with Sims seeking judicial review of this decision
("DPH Litigation"). [ECF No. 100-21]. On March 2,
2011, the Superior Court dismissed the complaint and entered
a declaratory judgment that "105 [C.M.R.] 460.900 is not
unconstitutional as applied to the facts of this case"
and "[t]hat the plaintiff has no present right to a
hearing, inspection or other relief from the Department of
Public Health or to include Leonard J. Sims [or] the Classic
Group, Inc., in any present claim against the Department of
Public Health." [Id. at 5].
September 2015, Plaintiff filed another action in Superior
Court alleging claims against 20 defendants, including DPH,
Hunter, Levin, Laskey, the Superior Court, and the Appeals
Court that substantially mirror the claims brought in the
action currently before the Court ("2015 Action").
See [ECF No. 1-1]. These defendants moved to dismiss
all claims against them. See [ECF No. 64-2]. On April 14,
2016, the Superior Court allowed the defendants' motion
to dismiss and held (1) that the claims asserted against DPH,
Hunter, Levin, and Laskey were barred by the doctrine of
claim preclusion based on the final judgment in the DPH
Litigation and (2) that the complaint failed to state a claim
for a constitutional violation or a violation of the
Americans with Disabilities Act ("ADA") claims.
[Id. at 5, 8-11]. The Superior Court entered a final
judgment for DPH, Hunter, Levin, Laskey, the Superior Court,
and the Appeals Court on May 17, 2018. See Judgment
Bostwick v. 44 Chestnut Street No.
2015-MISC-O5636(Mass. Super. Ct. May 17, 2018), Dkt No. 86
("Bostwick 2015"). Plaintiff noticed an appeal on
August 14, 2018, see Notice of Appeal, Bostwick
2015, No. 2015-MISC-05636 (Mass. Super. Ct. Aug. 14,
2018), Dkt. No. 89, but no appeal has yet been docketed with
the Appeals Court. The Court takes judicial notice of the
final judgment entered in the 2015 Action. See Maher v.
Hyde, 272 F.3d 83, 86 n.3 (1st Cir. 2001).
filed the present Complaint on December 6, 2017, which
attaches and repeatedly references the first amended
complaint from the 2015 Action. See [Compl.; ECF No. 1-1].
The Commonwealth Defendants moved to dismiss the claims
against them on April 6, 2018. [ECF No. 63]. Plaintiff
opposed their motion on May 11, 2018. [ECF No. 94].
of the Complaint asserts a claim for "Request for
District Court's Supervisory Jurisdiction over
Massachusetts Court(s) and Bankruptcy Court" against all
Commonwealth Defendants. [Compl. ¶¶130-133.11]. In
addition, the Complaint asserts the following claims, which