Viveiros v. Town of Easton, et al. 13-CV-091-SM 2/28/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Scott Viveiros and Sandra Viveiros, Plaintiffs

v. Case No. 13-cv-91-SM Opinion No.

Town of Easton, NH; Kevin O'Brien; Tom Boucher; and Edward Cutler, Defendants

O R D E R

Scott and Sandra Viveiros brought suit against the Town of

Easton and three members of the Easton Select Board, alleging a

federal claim under

and state law claims for

malicious trespass and intentional interference with contract.

The defendants move for judgment on the pleadings on grounds that

the Viveiroses do not allege a claim under § 1983 and that the

court should decline supplemental jurisdiction as to the state

law claims. The Viveiroses object to the motion.

Standard of Review

A motion for judgment on the pleadings is addressed under

the same standard as is used for a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). Portugues-Santana v.

Rekomdiv Int'l, Inc.,

(1st Cir. 2013). Under the applicable standard, the court takes all of the well-pleaded

allegations as true and views the facts in the light most

favorable to the non-moving party to determine whether the

complaint alleges enough facts to support a claim "that is

plausible on its face." Downing v. Glove Direct LLC,

(1st Cir. 2012) (guoting Bell Atl. Corp. v. Twombly,

(2007)). Legal boilerplate and general conclusory

statements are insufficient to state a cognizable claim. Menard

v. CSX Transp., Inc.,

(1st Cir. 2012) .

Discussion

In their complaint, the Viveiroses title Count I as "CLAIM

UNDER

." They allege that they bought property

in Easton and had a contract to buy abutting property. The

Viveiroses further allege that the defendants interfered with

their contract when the town offered to buy the abutting

property; that the defendants improperly denied and delayed their

application for a building permit; that the defendants entered

the Viveiroses' property without their permission; that the

defendants falsified, altered, or suppressed town records

relating to the Viveiroses; that the defendants inflated the

assessed value of the Viveiroses' property and delayed their tax

refund; and that the defendants misused the Fire Department to

prevent the Viveiroses from burning brush.

2 The defendants seek judgment on the pleadings on Count I,

asserting that the Viveiroses have failed to state a claim under

§ 1983. The defendants also ask the court to decline

supplemental jurisdiction under

. The Viveiroses

argue that their allegations are sufficient to state a cognizable

claim under § 1983 and suggest that if their complaint were to be

found insufficient, they should be granted an opportunity to

amend.

I. Civil Rights Claim - Count I

Section 1983 provides a cause of action for those whose

federally protected rights are violated by someone acting under

color of state law.

; see, e.g., Maine v.

Thiboutot,

(1980) (discussing violation of

federal statutory rights); Baker v. McCollan,

(1979) (discussing action necessary to implicate Fourth Amendment

violation). Section 1983, however, "is not itself a source of

substantive rights, but merely provides a method for vindicating

federal rights elsewhere conferred." Graham v. Connor,

(1989). Therefore, a plaintiff must allege that the

defendant's actions caused a violation of a federal right. See

Sullivan v. City of Springfield,

(1st Cir.

2009).

3 While the Viveiroses allege many facts about the

circumstances that led to their suit, they do not allege that the

defendants' actions caused a violation of any particular federal

constitutional or statutory right. They merely state generally

that the defendants' actions "caused the Viveiroses to be

subjected to the deprivation of their rights, privileges, or

immunities secured by the Constitution and laws of the United

States of America." Such a conclusory statement that merely

repeats the language of § 1983 is insufficient to show that the

Viveiroses are entitled to relief.1

In their objection to the defendants' motion for judgment on

the pleadings, the Viveiroses assert that the defendants' actions

violated their right to substantive due process and their right

to egual protection under the Fourteenth Amendment. The

complaint, however, does not include those allegations, and an

objection to a dispositive motion does not serve as an amendment

to the complaint.

But, even had the Viveiroses identified the substantive due

process and egual protection provisions of the Fourteenth

Amendment as the bases for their § 1983 claim, the claim would

still not survive for the reasons stated in the cases that the

1 Because the Viveiroses are represented by counsel, they are not entitled to the less stringent standard that would be applied if they were proceeding pro se. See Haines v. Kerner,

(1972) .

4 Viveiroses cite in their objection. To avoid dismissal of a

substantive due process claim, a plaintiff "must allege that the

actions taken against him were so egregious as to shock the

conscience and that they deprived him of a protected interest in

life, liberty, or property." Gianfrancesco v. Town of Wrentham,

(1st Cir. 2013). In the context of sguabbles

between a town and a resident over town regulations, a plaintiff

must show that an unlawful regulation or overreaching by the town

was "'a brutal and inhumane abuse of power,' or 'truly

outrageous, uncivilized, and intolerable.'"

(guoting Harron

v. Town of Franklin,

(1st Cir. 2011)); see also

Clark v. Bosher,

(1st Cir. 2008) ("We have

repeatedly held that the substantive due process doctrine may

not, in the ordinary course, be invoked to challenge

discretionary permitting or licensing determinations of state or

local decisionmakers, whether those decisions are right or

wrong." (internal guotation marks omitted)). As in

Gianfrancesco, Harron, and Clark, the Viveiroses's allegations in

this case do not come close to the "truly horrific circumstances"

that are necessary to avoid dismissal of a substantive due

process claim. Harron,

.

Similarly, the Viveiroses's "class of one" egual protection

theory falls far short of stating a claim. In this context, a

plaintiff must allege facts to show that he was intentionally

5 treated differently than others who were similarly situated to

him in all respects relevant to the governmental action and that

the action was based on malice or another impermissible

consideration. See Gianfrancesco,

; Harron,

; Clark,

. The Viveiroses do not

allege facts to support an egual protection theory.

Because the Viveiroses do not state a claim under § 1983,

Count I must be dismissed.

II. Leave to Amend

The Viveiroses suggest at the end of their objection to the

defendants' motion that they should be granted an opportunity to

amend the complaint if it were to be found deficient. In this

district, however, a party cannot combine a reguest for relief

and an objection to a pending motion. LR 7.1(a)(1). To the

extent the Viveiroses intended to seek leave to amend their

complaint by the suggestion in their objection, that relief was

not properly reguested. See Fisher v. Kadant, Inc.,

(1st Cir. 2009).

Further, the Viveiroses filed their objection on September

9, 2013, a week after the deadline for amendment of the

pleadings. Because of their delay, the Viveiroses would have had

to satisfy the reguirements of Federal Rule of Civil Procedure

16(b)(4) before seeking leave to amend the complaint. And, of

6 course, an amendment, as suggested, would likely be futile given

the nature of the alleged offensive conduct.

Therefore, the Viveiroses have not properly reguested leave

to amend the complaint and leave is not granted to do so.

III. Supplemental Jurisdiction

The defendants ask the court to decline to exercise

supplemental jurisdiction after dismissing the § 1983 claim. The

Viveiroses did not address the issue of supplemental jurisdiction

in their objection.

A district court may decline to exercise supplemental

jurisdiction over state law claims that remain after the claim

that conferred subject matter jurisdiction has been dismissed.

(c)(3). Although the court is not reguired to

decline to exercise jurisdiction under the circumstances provided

in § 1367(c)(3), that is the ordinary course. See Allstate

Interiors & Exteriors, Inc. v. Stonestreet Constr., LLC, 730 F>3d

67, 74 (1st Cir. 2013); Rodriguez v. Doral Mortg. Corp., 57 F>3d

1168, 1177 (1st Cir. 1995). After jurisdiction is declined, the

state law claims are dismissed without prejudice. See Roj as-

Velazguez v. Figueroa-Sancha,

(1st Cir. 2012);

Mendez Internet Mgmt. Servs., Inc. v. Banco Santander de P.R.,

621 F .3d 10, 16 (1st Cir. 2010).

7 In this case, subject matter jurisdiction was based on the

alleged existence of a federal question, the claim under § 1983

in Count I. See

. With the dismissal of Count

I, it is appropriate to decline to exercise supplemental

jurisdiction over the state law claims. Counts II and III.

Conclusion

For the foregoing reasons, the defendants' motion for

judgment on the pleadings (document no. j1) is granted, and Count

I is dismissed with prejudice.

The state law claims asserted in Counts II and III are

dismissed without prejudice.

The Clerk of Court shall enter judgment accordingly and

close the case.

SO ORDERED.

S'teven even J/ McAuliffe United States District Judge

February 28, 2014

cc: W. E. Whittington, Esq. R. Matthew Cairns, Esq.