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Cousins v. Town of Tremont

United States District Court, D. Maine

March 10, 2017

ROBERT L. COUSINS and JUDY A. COUSINS, Plaintiffs
v.
TOWN OF TREMONT, et al., Defendants

          AMENDED RECOMMENDED DECISION ON DEFENDANTS' MOTION TO DISMISS AND UPON REVIEW OF PLAINTIFFS' AMENDED COMPLAINT UNDER 28 U.S.C. § 1915 [1]

          John C. Nivison U.S. Magistrate Judge

         In this action, Plaintiffs Robert and Judy Cousins allege Defendants violated their civil rights in connection with a fire that destroyed their home and restaurant. The matter is before the Court on Defendants' partial motion to dismiss.[2] (Motion, ECF No. 40.) Through the motion, Defendants, citing Plaintiffs' failure to state an actionable claim and the Court's previous order dismissing certain claims, seek the dismissal of some of the claims asserted in Plaintiffs' amended complaint. (ECF No. 36.)

         After a review of the pleadings and the record, I recommend the Court grant in part and deny in part Defendants' motion. In addition, because Plaintiffs are proceeding in forma pauperis and have asserted new claims against additional defendants, the amended complaint is subject to review in accordance with 28 U.S.C. § 1915(e). Following the review, I recommend the Court dismiss several of the additional claims and defendants.

         I. Procedural History

         Plaintiffs commenced the action on December 3, 2014, with a thirteen-page complaint against twenty defendants, including five John Doe defendants. (Complaint, ECF No. 1.) The gravamen of the original complaint was Defendants' alleged failure of extinguish a fire on the property of Plaintiffs' home and business, the former Cap'n Nemo's Restaurant, in the Village of Bass Harbor, Tremont, Maine (the property). Plaintiffs alleged Defendants exercised complete authority over efforts to combat the fire, yet intentionally permitted the building and adjacent property owned by Plaintiffs and their son to burn to a total loss.

         On December 30, 2014, after a review pursuant to 28 U.S.C. § 1915(e)(2), the Court concluded Plaintiffs failed to assert an actionable claim against certain individuals, and dismissed the claims asserted against the individuals. The dismissed individuals were Defendants Porier, LaPrade, Kelly, Weir, Tracy Patton, Wayne Patton, Sanborn, Thomas Chisolm, Samuel Chisolm, Gilley, Jr. and five John Does.[3] (Order Affirming the Recommended Decision of the Magistrate Judge, ECF No. 8.) The Court, however, ordered service of the complaint on Defendants Keith Higgins, Heath Higgins, Tadd Jewett, Matthew Tetreault, and Matthew Lindsley. Counsel entered an appearance, waived service of the complaint, and filed a motion to dismiss on behalf of all remaining defendants. (ECF Nos. 11 - 14.)

         Plaintiffs opposed the motion to dismiss and requested leave to file an amended complaint. (ECF Nos. 15 - 17.) Through their proposed amended complaint (ECF No. 16-1), Plaintiffs reasserted their core claims, attempted to cure certain deficiencies in their original complaint with respect to the dismissed individuals, and proposed to join some new defendants.

         The Court denied Plaintiffs' motion for leave to amend, citing the futility of the proposed amendments, and granted Defendants' motion to dismiss. (Decision and Order, ECF No. 23.) In its assessment of the motion to dismiss and motion for leave to amend, the Court considered whether Plaintiffs had stated (1) a claim under the First Amendment; (2) a substantive due process claim; (3) an equal protection claim; (4) a § 1985 conspiracy claim; (5) a § 1986 “failure to prevent” claim; (6) a claim under the Americans with Disabilities Act; and (7) a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act. The Court dismissed the federal claims with prejudice, denied as futile Plaintiffs' attempt to assert additional federal claims, and declined to exercise supplemental jurisdiction over any remaining state law claims. The Court also denied Plaintiffs' subsequent motion to alter or amend its judgment. (Order on Motion for Reconsideration, ECF No. 28.)

         On appeal, the First Circuit “affirmed in part and vacated and remanded in part.” (Judgment of United States Court of Appeals, ECF No. 33.) The First Circuit upheld the dismissal with prejudice of Plaintiffs' First Amendment claims, but reversed the dismissal of Plaintiffs' substantive due process and equal protection claims. The First Circuit did not address the Court's futility assessment of Plaintiffs' attempt to allege ADA and RICO claims and, consequently, the Court's assessment was undisturbed.

         Following remand, at the Court's direction, Plaintiffs filed a further amended complaint (ECF No. 36), which is now the operative pleading in the case. In the amended complaint, however, Plaintiffs did not simply assert the claims within the scope of the First Circuit's decision. Instead, Plaintiffs significantly expanded the action to include sixteen counts, including some counts against new defendants.

         Through their motion to dismiss, Defendants object to Plaintiffs' attempt to reassert previously dismissed claims other than Plaintiffs' substantive due process, equal protection, and state law claims. Defendants also argue that as to certain new claims, Plaintiffs have failed to assert claims upon which they are entitled to relief.

         II. Background Facts

         In the amended complaint, Plaintiffs allege a variety of facts regarding events that transpired over several years. The essence of Plaintiffs' allegations are summarized below.

         Plaintiffs allege that when they purchased the property in 2005, Defendant Patton was the Tremont Volunteer Fire Department Assistant Chief. (Am. Compl., ECF No. 36, ¶ 27.) Defendant Patton was also a member of the Tremont Planning Board. When Plaintiffs' permits (presumably related to the use of or construction on the property) were presented to the Planning Board, Defendant Patton recused himself, but was “spitting mad.” (Id. ¶ 28.) According to Plaintiffs, when Defendant Patton subsequently became Chief of the Fire Department, he prohibited his personnel from patronizing Plaintiffs' restaurant. (Id. ¶ 29.) Defendant Patton's daughter and her domestic partner had worked for the prior owners. (Id.) Plaintiffs contend Defendant Samuel Chisolm, the Chief of the Southwest Harbor Fire Department, also instructed his personnel not to patronize Plaintiffs' business. (Id. ¶ 30.)

         In 2007, the Town of Tremont placed Plaintiffs' business on the agenda of several town meetings to address alleged violations of their amusement permit. Defendant Patton, who would eventually be replaced as fire chief by Defendant Keith Higgins, lodged several complaints regarding parking violations on the property. At one meeting, Defendant Patton stated he did not know if Plaintiff Judy Cousins was “Mrs. Cousins, or whatever, ” which statement Plaintiffs allege defamed Plaintiff Judy Cousins' character. (Id. ¶ 40.) Defendant Heath Higgins also made false statements regarding Plaintiffs' hours of operation. (Id. ¶ 41.)

         Plaintiffs assert the MD Islander and Defendant Good “wrote up the defamatory meetings and spread unfounded allegations[, ] … intentionally disparaging [Plaintiffs'] reputation with no fact checking.” (Id. ¶ 37.) Defendant Brecklin is the editor of the MD Islander. (Id.)

         While Plaintiffs were away and unavailable, Defendant Heath Higgins, also a selectperson, called an executive session of the board of selectpersons, evidently to discuss unidentified accusations made by an unidentified complainant, which accusations were published in the MD Islander. (Id. ¶¶ 43 - 44.) By a vote of 4 - 1, the Board determined that Plaintiffs' business had not violated its entertainment license. (Id. ¶ 45.)

         In 2008 and 2009, Plaintiffs were involved in a dispute with the Town regarding the width of the Flat Iron Road, which abuts Plaintiffs' property. (Id. ¶ 51.) The matter eventually was resolved favorably to Plaintiffs. (Id. ¶ 52.) Plaintiffs allege that with respect to the selectperson meetings regarding the issue, the MD Islander “printed disparaging false light, ” and that the “disparaging statements were intended to induce others not to deal with” Plaintiffs. (Id. ¶¶ 53, 54.)

         Plaintiffs assert they heard rumors that should their premises ever catch fire, the fire department would let it burn (id. ¶ 55), and that the Tremont Volunteer Fire Department “bragged around town that they would not extinguish a fire at [Plaintiffs' property] as witnesses have and will verify.” (Id. ¶ 89.)

         According to Plaintiffs, Defendant Keith Higgins informed the Board of Selectpersons that Plaintiffs' had “uncorrected life safety violations” even though they “had corrected 6 of 7.” (Id. ¶ 57.) He also inaccurately stated that Plaintiffs had borrowed a fire suppression system in order to pass a fire marshal inspection, and returned it after the inspection. (Id. ¶ 59.) In April and March of 2011, Defendant Keith Higgins stated at meetings of the Board of Selectpersons that the Fire Marshall would shut down Plaintiffs' business (id. ¶¶ 61 - 65), when in fact, the Fire Marshal increased the authorized maximum occupancy from 23 to 35. (Id. ¶ 66.)

         On June 4, 2012, Defendant Keith Higgins alleged parking violations on the property related to a trailer holding lobster traps (id. ¶ 67), but the Sheriff concluded there was no violation. (Id. ¶ 69.) Plaintiffs allege that Defendant Keith Higgins' allegation was invalid and that the allegation and Defendant Good's “recharacterization” of the allegations “resulted in acts of violence against Plaintiffs such as the slashing of tires, smashing in two windshields, and shooting out of other miscellaneous windows with a pellet gun, ” and “were a major contributing factor that led to the fire that consumed most everything [they] owned.” (Id. ¶ 68.)

         When Plaintiffs applied for a special amusement permit and liquor license in 2012, the Town of Tremont granted the request, evidently despite Defendant Keith Higgins' opposition. (Id. ¶¶ 71 - 72.) The Fire Marshal wrote that Plaintiffs “didn't have a long list of deficiencies as was stated by the MDI reporter.” (Id. ¶ 73.)

         Defendant Heath Higgins reported to a state health inspector that Plaintiffs kept meat in unsanitary conditions. The inspector conducted a surprise inspection and Plaintiffs passed. (Id. ¶¶ 74 - 75.) Defendant Heath Higgins also told the public that Plaintiffs were “bad” and that the public should not go to their establishment. (Id. ¶ 77.)

         On December 4, 2013, a fire started on Plaintiffs' property. When the Tremont Fire Department responded, Plaintiff Robert Cousins informed Defendant Captain Heath Higgins that the fire was only the size of a campfire and he simply needed one more fire extinguisher to put it out. Defendant Heath Higgins instructed Plaintiff to leave, and then proceeded to let the structure burn. (Am. Compl. ¶¶ 78 - 86.) Plaintiffs maintain that Defendant Chief Keith Higgins' assertion that the fire was too dangerous to fight was “overstated on purpose, and it was reported as such in the media.” (Id. ¶ 87.) Witnesses on the scene, including at least one firefighter, expressed anger and frustration at the failure to fight the fire. (Id. ¶¶ 97, 109.) Plaintiffs also allege Defendant Keith Higgins supplied false information to the Southwest Harbor Volunteer Fire Department and to certain mutual aid fire companies to prevent them from putting the fire out. (Id. ¶¶ 93 - 99.) Plaintiffs maintain that Defendant Samuel Chisolm, by his conduct on the scene, “was also demonstrably predisposed to allow [Plaintiffs' property] to burn.” (Id. ¶ 113.)

         Plaintiffs allege that an unidentified junior firemen stole a computer from the vehicle of Plaintiffs' son, and that Defendants allowed a fishing boat on the property to burn and chopped holes in it to prevent salvage. (Id. ¶¶ 116 - 117.) Defendants Tetreault and Lindsley, also firemen, removed a business sign from Plaintiffs' property and the sign has not been returned. (Id. ¶¶ 122, 128.)

         In the months following the fire, Defendant Sanborn “repeatedly sprayed gravel by ‘peeling out' at Plaintiffs [sic] son-in-law.” (Id. ¶ 139.) Plaintiffs assert Defendant Sanborn and Defendant Thomas Chisolm also taunted Plaintiff Robert Cousins' 93-year- old mother by shouting expletives and revving their engines in front of her home. (Id. ¶ 140.)

         After the fire, Defendant Sanborn gave a thumbs up gesture to Plaintiffs' daughter while driving a fire truck back to the station. (Id. ¶ 149.) Defendant Lindsley opposed efforts to fund reconstruction after the fire. (Id. ¶ 148.) Defendant Keith Higgins changed his Facebook profile picture to a picture of the business engulfed in flames. (Id. ¶ 150.)

         Plaintiffs further allege that Defendant Nickerson, the local code enforcement officer, unjustifiably found violations of setback requirements that have impeded Plaintiffs' effort to rebuild. (Id. ¶¶ 152 - 158.) Defendant Nickerson and Defendant Reed, the Town Manager, issued a stop work order arbitrarily and irrationally. (Id. ¶¶ 159, 164.) The Town of Tremont denied Plaintiffs' request for a hearing on the matter. (Id. ¶ 166.)

         Plaintiff Robert Cousins is a 100% disabled veteran. According to Plaintiffs, Defendant Good inaccurately reported in the MD Islander that Plaintiff Robert Cousins had not proved his disabled status. (Id. ¶ 141.)

         III. Discussion

         A. Standard of Review

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of “a claim for relief in any pleading” if that party believes that the pleading fails “to state a claim upon which relief can be granted.” In its assessment of the motion, a court must “assume the truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable inferences therefrom.” Blanco v. Bath Iron Works Corp., 802 F.Supp.2d 215, 221 (D. Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To overcome the motion, the plaintiff must establish that his allegations raise a plausible basis for a fact finder to conclude that the defendant is legally responsible for the claim(s) at issue. Id.

         To the extent in their amended complaint, Plaintiffs seek to assert claims against individuals or entities who are not presently defendants, because Plaintiffs are proceeding in forma pauperis, Plaintiffs' amended complaint is subject to screening in advance of service in accordance with title 28 U.S.C. § 1915. When a party is proceeding in forma pauperis, “the court shall dismiss the case at any time if the court determines, ” inter alia, that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). “Dismissals [under 28 U.S.C. § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). In order to state a claim against the additional proposed defendants, Plaintiffs must establish that their allegations raise a plausible basis for a fact finder to conclude that the particular defendant is legally responsible for the claim at issue. Blanco, 802 F.Supp.2d at 221.

         Although a pro se plaintiff's complaint is subject to “less stringent standards than formal pleadings drafted by lawyers, ” Haines v. Kerner, 404 U.S. 519, 520 (1972), the complaint may not consist entirely of “conclusory allegations that merely parrot the relevant legal standard, ” Young v. Wells Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal standard applied to the pleadings of pro ...


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