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Belezos v. Board of Selectmen

United States District Court, D. Massachusetts

March 29, 2019

NICHOLAS G. BELEZOS, on behalf of himself and all others similarly situated, Plaintiffs,
v.
BOARD OF SELECTMEN of Hingham, Massachusetts, in their official capacity, on behalf of themselves and all others similarly situated, Defendants.

          MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO DISMISS (DOCKET ENTRY # 13)

          Marianne B. Bowler, United States Magistrate Judge.

         Pending before this court is a motion to dismiss filed by defendants Board of Selectmen of the Town of Hingham sued in their official capacity (“defendants” or “Selectmen”) to dismiss all eight claims brought by plaintiff Nicholas G. Belezos, on behalf of himself and all others similarly situated (“plaintiff” or “Belezos”).[1] (Docket Entry # 13). After conducting a hearing, this court took the motion (Docket Entry # 13) under advisement.

         PROCEDURAL BACKGROUND

         The amended complaint alleges the following eight causes of action against the Selectmen: (1) a “Massachusetts Statutory Violation” that erection of speed limit signs in violation of section 18 of Massachusetts General Law chapter 90 (“section 18”) and “set forth in” section two of Massachusetts General Law chapter 85 (“section two”) is ultra vires and therefore void (Count I); (2) a “Massachusetts Regulatory Standards Violation” of “‘Procedures for Speed Zoning on State and Municipal Roads'” that erection of speed limit signs is ultra vires (“Count II”); (3) a “Massachusetts Regulatory Standards Violation” of “‘The Massachusetts Amendments to the 2009 Manual on Uniform Traffic Control Devices'” that erection of speed limit signs is ultra vires (Count III); (4) a “Deliberate and Reckless Fabrication of False Evidence” to erect speed limit signs without regulatory authority in violation of the Due Process Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 (“section 1983”) (Count IV); (5) a corresponding failure to train, supervise, and discipline in violation of the Due Process Clause of the Fourteenth Amendment under section 1983 vis-à-vis the violation of law in Count IV (Count V); (6) a “Deliberate and Reckless Fabrication of False Evidence” by issuing a traffic citation under an illegal speed limit sign in violation of the Due Process Clause of the Fourteenth Amendment under section 1983 (Count VI); (7) a corresponding failure to train, supervise, and discipline in violation of the Due Process Clause of the Fourteenth Amendment under section 1983 vis-à-vis the violation in Count VI (Count VII); and (8) an “Unconstitutional Lack of Evidentiary Safeguard” in violation of procedural due process under the Fourteenth Amendment in violation of section 1983 (Count VIII). (Docket Entry # 11).

         Plaintiff first brought several substantially identical statutory and constitutional claims concerning the same speeding ticket issued to plaintiff against the same defendants in Massachusetts Superior Court (Plymouth County) (“state court”) in Belezos v. Board of Selectmen of the Town of Hingham, Civil Action No. PLCV2014-01018B (“Belezos”). (Docket Entry # 15-1). The court allowed the defendants' Mass. R. Civ. P. 12(c) motion (“Rule 12(c) motion”). (Docket Entry # 8-7). A final judgment reciting the ruling and a prior allowance of a Mass. R. Civ. P. 12(b)(6) motion issued two days later on September 29, 2016. (Docket Entry # 8-7, p. 11). On appeal, the Massachusetts Appeals Court (“MAC”) upheld the dismissal on another ground, namely, that plaintiff “waived his right to contest the” ticket “by failing to pursue the remedy expressly provided for by the Legislature.” (Docket Entry # 8-8, p. 4). Rather, plaintiff paid the ticket, which the MAC noted “‘operate[d] as a final disposition of the matter.'” (Docket Entry # 8-8, p. 4) (quoting Mass. Gen. Laws ch. 90c, § 3). The Massachusetts Supreme Judicial Court (“SJC”) denied plaintiff's application for further appellate review. (Docket Entry # 8-9). Thereafter, plaintiff filed this action in United States District Court for the District of Massachusetts (“federal court”).

         The eight claims in this action are also similar to the claims in two previous actions brought in federal court by plaintiff's counsel, Frederic Zotos, Esq. (“Zotos”). After unsuccessful attempts to obtain relief in state court, Zotos challenged the legitimacy of the speed limit signs in Hingham in Zotos v. Town of Hingham, et al., Civil Action No. 12-11126-JGD (D. Mass. Sept. 19, 2013) (“Zotos I”), and again in Zotos v. Town of Hingham, et al., Civil Action No. 13-13065-DJC (D. Mass. March 25, 2016) (“Zotos II”). (Docket Entry ## 8-3, 8-6). In a lengthy opinion on the merits, the court in Zotos I rejected Zotos' claims and dismissed the action. (Docket Entry # 8-3). The First Circuit upheld the dismissal. (Docket Entry # 8-4). Zotos filed Zotos II prior to the First Circuit's decision in Zotos I. (Docket Entry # 8, p. 2) (Docket Entry ## 8-4, 8-5). On March 25, 2016, the court in Zotos II issued a comprehensive opinion and dismissed that action. (Docket Entry # 8, p. 2) (Docket Entry # 8-6).

         STANDARD OF REVIEW

         The standard of review for a Rule 12(b)(6) motion is well established. To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face” even if “actual proof of [the] facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007); Miller v. Town of Wenham, Mass., 833 F.3d 46, 51 (1st Cir. 2016). The “standard is ‘not akin to a “probability requirement, ” but it” requires “more than a sheer possibility that a defendant has acted unlawfully.” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (internal citations omitted). “[a]ll reasonable inferences” are drawn “in the pleader's favor.” Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016).

         “Exhibits attached to the complaint are properly considered part of the pleading ‘for all purposes,' including Rule 12(b)(6).” Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (internal citations omitted). This court may also “consider matters of public record and facts susceptible to judicial notice.” U.S. ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201, 208 (1st Cir. 2016). It is therefore permissible to “take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand.” Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990); see, e.g., Bluetarp Financial, Inc. v. Matrix Constr. Co., Inc., 709 F.3d 72, 78 n.4 (1st Cir. 2013) (taking judicial notice of related state court cases). Accordingly, the Rule 12(b)(6) record (Docket Entry # 8) includes the state court pleadings and opinions regarding the relevant cases attached to defendants' motion (Docket Entry # 13) and plaintiff's opposition (Docket Entry # 15).

         FACTUAL BACKGROUND

         On September 28, 2011, Belezos was issued a civil motor vehicle infraction (“CMVI”) for speeding by a Hingham police officer on Gardner Street in Hingham, Massachusetts “under the authority of Mass. Gen. L. ch. 90, ¶ 18.” (Docket Entry # 11, ¶ 15). The officer cited Belezos for operating a vehicle at a rate of speed in excess of a 30 mile-per-hour rate of speed as posted on “a 30 m.p.h. Speed Limit sign” on Gardner Street. (Docket Entry # 11, ¶ 15). The only evidence presented against Belezos at a subsequent CMVI hearing was the “prima facie evidence of the fact[] stated in the citation, ” namely that he exceeded the posted, 30 mile-per-hour speed limit sign. (Docket Entry # 11, ¶ 17) (Docket Entry # 11-3). “At the conclusion of the hearing, the clerk-magistrate found” Belezos responsible for the speeding infraction in violation of section 18 and Belezos paid the $100 assessment. (Docket Entry # 11, ¶¶ 18-20). Gardner Street is understood by locals as split into two sections: an “upper” section which is north of Route 53 and a “lower” section which is south of Route 53. (Docket Entry # 11, ¶¶ 27, 29). The citation issued to Belezos was on upper Gardner Street. (Docket Entry # 11-3). Upper Gardner Street has two, 30 mile-per-hour speed limit signs on a white, reflective rectangle with black lettering. (Docket Entry # 11, ¶ 24). Lower Gardner Street has seven 25 mile-per-hour signs. (Docket Entry # 11, ¶ 27). At least five of these seven signs are on yellow, square reflective plaques with black lettering. (Docket Entry # 11, ¶ 27). Three of the five plaques have an accompanying “THICKLY SETTLED” diamond-shaped plaque, also on a yellow reflective background with black lettering. (Docket Entry # 11, ¶ 27). Upper Gardner Street has no such “THICKLY SETTLED” signs and, as stated in the amended complaint, is not thickly settled. (Docket Entry # 11, ¶ 24) (Docket Entry # 15).

         Turning to the relevant Massachusetts speeding laws, which the amended complaint quotes, section two of Massachusetts General Laws chapter 85 (“chapter 85”) authorizes cities and towns to erect and maintain traffic signs in their jurisdiction. (Docket Entry # 11, ¶ 6). The statute reads in relevant part that “‘speed control signs may be established only in accordance with the provisions of section eighteen of chapter ninety.'” (Docket Entry # 11, ¶ 6) (quoting chapter 85, section two) (emphasis omitted).

         Sections 17 and 18 of Massachusetts General Laws chapter 90 (“chapter 90”) also govern speeds and signage along Massachusetts roadways. The amended complaint quotes each statute. Section 17 of chapter 90 (“section 17”) reads in relevant part:

[1] No. person operating a motor vehicle on any way shall run it at a rate of speed greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public. [2] Unless a way is otherwise posted in accordance with the provisions of section eighteen, it shall be prima facie evidence of a rate of speed greater than is reasonable and proper as aforesaid (1) if a motor vehicle is operated on a divided highway outside a thickly settled or business district at a rate of speed exceeding fifty miles per hour for a distance of a quarter of a mile, or (2) on any other way outside a thickly settled or business district at a rate of speed exceeding forty miles per hour for a distance of a quarter of a mile, or (3) inside a thickly settled or business district at a rate of speed exceeding thirty miles per hour for a distance of one-eighth of a mile, or . . .. [4] If a speed limit has been duly established upon any way, in accordance with the provisions of said section, operation of a motor vehicle at a rate of speed in excess of such limit shall be prima facie evidence that such speed is greater than is reasonable and proper; . . ..

Mass. Gen. Laws ch. 90, § 17 (emphasis added); (Docket Entry # 11, ¶ 11) (emphasis as to certain language in section 17 omitted). In contrast to section 17, section 18 “permits the imposition of a different speed limit so long as certain procedures are followed.” Police Dep't of Hingham v. Zotos, 2012 WL 1689189, at * 1 (Mass. App. Ct. May 16, 2012). Section 18 reads in pertinent part:

The city council, the transportation commission of the city of Boston, the board of selectmen, park commissioners, a traffic commission or traffic director, or the department, on ways within their control, may make special regulations as to the speed of motor vehicles and may prohibit the use of such vehicles altogether on such ways . . . No. such regulation shall be effective until there shall have been erected . . . signs, conforming to standards adopted by the department, setting forth the speed or other restrictions established by the regulation . . ..

Mass. Gen. Laws ch. 90, § 18. Based on the enabling authority in section 18, the Massachusetts Department of Transportation Highway Division (“MassHwy”) promulgated the aforementioned regulatory standards entitled “Procedures for Speed Zoning on State and Municipal Roadways” (“MassHwy Procedures”). (Docket Entry # 11-1). That document explains the process of obtaining a traffic engineering study which, in turn, leads to an approved “Special Speed Regulation” that allows the posting of a numerical speed limit sign on a Massachusetts roadway such as Gardner Street. (Docket Entry # 11, ¶ 8(a)) (Docket Entry # 11-1). In pertinent part, it reads as follows:

Chapter 90, Section 18 authorizes the posting of numerical speed limits on all roadways in Massachusetts. The foundation for the actual posting of a speed limit is a thorough traffic engineering study. After a study has been completed, a Special Speed Regulation is drafted and approved by the governing authority of the roadway, the Registry of Motor Vehicles and MassDOT. All posted regulatory speed limit signs must adhere to this approval process. If a speed limit is posted without this procedure, it is in violation of Chapter 90, Section 18, and is therefore considered illegal and unenforceable.

(Docket Entry # 11-1, pp. 4-5) (emphasis added);[2] (Docket Entry # 11, ¶ 8) (quoting above with emphasis added to first and last sentences). Indeed, the MassHwy Procedures emphasizes the foundational requirement of an engineering study for speed limit signs. (Docket Entry # 11-1, p. 3) (“[s]peed limits shall be established only after an engineering and traffic investigation has been conducted”); (Docket Entry # 11-1, p. 3) (“comprehensive engineering study” is “prerequisite to establishing speed regulations and posting speed limits”); (Docket Entry # 11, ¶ 41) (emphasis omitted).

         “The Massachusetts Amendments to the 2009 Manual on Uniform Traffic Control Devices” (“MUTCD”) also addresses the regulatory standards for speed limit signs. (Docket Entry # 11-2). Quoted at length in the amended complaint, the MUTCD explains the “85- percentile method” and the process for a city or town to erect an enforceable speed limit sign:[3]

Section 10A-8 Speed Control Of the special regulations adopted by municipalities under the provisions of Chapter 90, Section 18 of the General Laws, the most commonly used is the special regulation of the speed of motor vehicles. Considerable data including speed observations and trial runs must be obtained by municipal officials, usually the Police Department. The final determination is based upon the 85-percentile method, which is that speed at or below which 85% of the vehicles observed were actually traveling. Department representatives are available to demonstrate the proper method for conducting the necessary studies and drafting the covering regulation, upon written request of local offices.
Procedure for Establishment of Legal Speed Zones
(1) The municipality is to conduct proper studies and submit data to the Department. (Municipalities usually accept the available services of the Department in conducting studies and assembling the data).
(2) After the speed zones, proposed by the local authorities, are reviewed by the Department, they are returned to the municipality for formal adoption by the rule-making body. During this time, the municipality is responsible for any and all hearings required for adoption.
(3) Upon receipt of notice of formal adoption by the municipality, the Department, acting jointly with the Registry, will certify and approve.
(4) Certified regulation is returned to municipality.
(5) Official Speed Limit signs may then be installed in accordance with the specific provisions of the ...

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