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Bostwick v. 44 Chestnut Street

United States District Court, D. Massachusetts

March 27, 2019

RICHARD D. BOSTWICK and RICHARD D. BOSTWICK as a CLASS OF ONE, Plaintiffs,
v.
44 CHESTNUT STREET, et al., Defendants.

          MEMORANDUM AND ORDER ON COMMONWEALTH DEFENDANTS' MOTION TO DISMISS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Plaintiff 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.

         I. BACKGROUND

         A. Factual Background

         The 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 Cir. 2003)).[1]

         As 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)).

         Plaintiff 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. ¶ 85].

         At 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].

         B. History of Administrative Proceedings and Prior Litigation

         On 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].

         In 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.[2] 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).

         C. Procedural History

         Plaintiff 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].

         II. discussion

         Count A 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 ...


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