United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION TO DISMISS
Torresen United States Chief District Judge.
various tort and constitutional claims, Plaintiff Linda Van
Dyke challenges the Town of Dexter's actions and ultimate
determination that her home constituted a dangerous building
under Maine law. Defendants Town of Dexter and Albert
Tempesta seek dismissal of the case. The Plaintiff did not
respond to the motion to dismiss. I GRANT
the Defendants' Motion to Dismiss. (ECF No. 15).
following relevant facts are taken from the Amended
Complaint, which are presumed true for purposes of this
Motion to Dismiss, and from the June 8, 2017 Findings and
Order of the Town Council of the Town of Dexter
(“Findings and Order”) (ECF No.
16-4). The Plaintiff is a legal resident of
Conroe, Texas, and she owns real property at 119 Main Street,
in Dexter, Maine, which is the subject of the instant
lawsuit. Am. Compl. ¶¶ 1, 6 (ECF No. 20). The Town
of Dexter is a governmental entity in Dexter, Maine, and
Albert Tempesta is the Code Enforcement Officer
(“CEO”) for the Town of Dexter.
Am. Compl. ¶¶ 2-3. Leslie Steeg is the
Plaintiff's neighbor in Dexter, Maine. Am. Compl. ¶
Town of Dexter was made aware of possible code violations and
other issues with the Plaintiff's property. Am. Compl.
¶¶ 21, 23, 28. The Plaintiff has not resided at or
visited her Dexter property since 2014. Findings and Order 2.
During that time, Ms. Van Dyke's property fell into a
state of disrepair and the Town of Dexter decided that an
inspection of the property was necessary to determine if the
structure was habitable. Findings and Order 2. After the
inspection, by letter dated April 26, 2016, Ms. Van Dyke was
informed that her property was “unsafe for human
habitation.” Findings and Order 2. On September 13,
2016, CEO Tempesta sent a letter to Ms. Van Dyke setting a
deadline of September 27, 2016, to contact the Town. Findings
and Order 2. Ms. Van Dyke responded by letter on October 28,
2016, indicating that she was working with an architect to
remedy the deficiencies. Findings and Order 3. CEO Tempesta
made an additional inspection of the property on May 9, 2017,
which found that the conditions had continued to deteriorate.
Findings and Order 3.
Dexter Town Council held a dangerous building hearing on May
11, 2017. Findings and Order 1. Ms. Van Dyke was given notice
of the hearing, and, although she was not present, she was
represented by an attorney at the hearing. Findings and Order
2. On June 8, 2017, the Dexter Town Council issued its
“Findings and Order” that determined Ms. Van
Dyke's structure was a dangerous building. Ms. Van Dyke
was given thirty days to address the six areas specifically
found to be deficient and to make the necessary repairs to
bring the building out of its state of disrepair. Findings
and Order 4. The Findings and Order also provided notice to
Ms. Van Dyke that if she did not make the necessary repairs,
the building would be demolished as authorized by Maine law.
Findings and Order 4.
Findings and Order instructed Ms. Van Dyke that she could
challenge the findings of the Town Council by timely filing
an appeal pursuant to Maine Rule of Civil Procedure 80B.
Findings and Order 5. Counsel for the Town and CEO Tempesta
has represented that no appeal was filed from the Town of
Dexter's Findings and Order, and the Plaintiff has not
asserted otherwise. Since no appeal was filed, the Town of
Dexter's Findings and Order are now final. The Town
Council recorded its Findings and Order in the Penobscot
County Registry of Deeds. Findings and Order 5.
12(b)(6) governs a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). The purpose of a motion under Rule
12(b)(6) is to test the sufficiency of the complaint. A
motion to dismiss may be granted only if, after accepting all
allegations in the complaint as true and drawing all
reasonable inferences in favor of the non-movant, the
plaintiff is not entitled to relief. See Rockwell v. Cape
Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994). While the
court draws all reasonable factual inferences in the light
most favorable to a plaintiff, it rejects unsupported
allegations, bald assertions, and legal conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983)
(“It is not . . . proper to assume that [plaintiff] can
prove facts that it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged.”). Plaintiffs are therefore required to
provide the grounds of their entitlement to relief beyond
mere labels and conclusions. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). A claim has facial
plausibility when a plaintiff pleads factual content
sufficient for the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556).
than one year has passed since the Town of Dexter's
Findings and Order became final. The Plaintiff now challenges
the Town's decision by asserting various constitutional
violations and torts. Specifically, Ms. Van Dyke claims
violations of: the Takings Clause under the 5th Amendment of
the Maine and federal Constitutions (Count I); the Due
Process Clause (Count I); Maine's dangerous building
statute, 17 M.R.S.A. § 2857, (Count II); the 4th
Amendment of the Maine and federal Constitutions (Count III);
and 42 U.S.C. § 1983 (Count IV). She also brings claims
sounding in negligence/abuse of process (Count V);
intentional infliction of emotional distress (Count VI);
negligent infliction of emotional distress (Count VII);
defamation and false light (Count VIII); negligent hiring
(Count IX); negligent supervision and training (Count X); and
invasion of privacy (Count XI). From reading the Amended
Complaint, it is unclear which claims are brought against
which Defendant or Defendants. Throughout the Amended
Complaint there are references to “Defendant” and
“Defendants” and use of the singular and plural
possessive forms. For purposes of this Order, I assume that
all the federal claims are asserted against all the
to Maine law, a municipality may, after providing a building
owner with both notice and hearing, adjudge a building or
structure to be dangerous or a nuisance. See 17
M.R.S.A. § 2851. The town then has authority to
“make and record an order prescribing what disposal
must be made of that building or structure.”
Id. (stating that when municipality determines that
structure qualifies as “dangerous building, ” it
can issue “an order prescribing what disposal must be
made of that building or structure”). Under appropriate
circumstances, the municipality may order a building or
structure demolished after adjudging it to be dangerous or a
nuisance. See Michaud v. Bangor, 196 A.2d 106, 109
(Me. 1963) (“The act of demolition, properly premised,
was within the ordinant power of the city and was, therefore,
not ‘ultra vires'.”); see also
Eugene McQuillin, The Law Of Municipal Corporations §
24.560 (3d ed. 1989) (“[A] municipality in the exercise
of its police power may, without compensation, destroy a
building or structure that is a menace to the public safety
case, the Town of Dexter has found, among other things, that
the structure was “dangerous” under Maine
The Town ordered: (1) that the Town Clerk serve the Order on
the Plaintiff, (2) that multiple repairs be made to the
building within 30 days, and (3) that if the Order is not
complied with within 30 days of service, the Town Council is
authorized to make arrangements to demolish the dangerous
building. Findings and Order 4. The Order notified the
Plaintiff of her right to appeal under Maine Rule of Civil
Procedure 80B. Findings and Order 4. No. appeal was filed
pursuant to Rule 80B, making the Town of Dexter's
Findings and Order final.
The Plaintiff's ...