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Van Dyke v. Town of Dexter

United States District Court, D. Maine

November 29, 2018

LINDA VAN DYKE, Plaintiff,
TOWN OF DEXTER, et al., Defendants.


          Nancy Torresen United States Chief District Judge.

         Through 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).


         The 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).[1] 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. ¶ 4.

         The 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.

         The 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.

         The 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.


         Rule 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).


         More than one year has passed since the Town of Dexter's Findings and Order became final.[2] 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 Defendants.

         Pursuant 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 or health.”).

         In this case, the Town of Dexter has found, among other things, that the structure was “dangerous” under Maine law.[3] 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.

         I. The Plaintiff's ...

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