United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTIONS TO DISMISS FOR
FAILURE TO STATE A CLAIM AND FOR LACK OF
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
conjunction with state tort claims, Plaintiffs, who are town
residents, brought this suit pursuant to 42 U.S.C. 1983 and
the Maine Civil Rights Act as well as a Maine Freedom of
Access Act claim against a Maine municipality and two town
employees seeking compensatory damages, punitive damages,
injunctive relief, declaratory relief, and attorney's
fees stemming from an alleged trespass on the construction
site of one of the Plaintiff's single family residence.
In this seemingly straightforward, but surprisingly
complicated motion to dismiss, the Court concludes that the
Plaintiffs' state tort claims are barred by the
applicable statute of limitations, and that the federal and
state constitutional claims either do not state a claim or
are barred by qualified immunity. The Court remands the state
freedom of access act claim to state court.
March 27, 2018, Elvin and Randall Copp (the Copps), filed a
complaint in Cumberland County Superior Court for the state
of Maine alleging various state tort claims, violations of
their United States and Maine constitutional rights, as well
as a violation of the Maine Freedom of Access Act (FOAA) by
the Defendants. State Court Record, Attach. 3
Compl. (ECF No. 2) (2018 Compl.). On May 7,
2018, the Defendants filed a Notice of Removal to this Court.
Notice of Removal (ECF No. 1). On May 21, 2018, the
Defendants moved to dismiss the Copps' complaint under
Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1).
Mot. to Dismiss for Failure to State a Claim and Mot. to
Dismiss for Lack of Subject Jurisdiction (ECF No. 4)
(Defs.' Mot.). The Copps responded on June 11,
2018 and the Defendants filed their reply on June 25, 2018.
Resp. in Opp'n to Dismiss for Failure to State a
Claim and Mot. to Dismiss for Lack of Subject
Jurisdiction (ECF No. 5) (Pls.' Opp'n);
Reply to Resp. in Opp'n to Dismiss for Failure to
State a Claim and Mot. to Dismiss for Lack of Subject
Jurisdiction (ECF No. 6) (Defs.' Reply).
The Alleged Facts
Copps are residents of the town of Cumberland of Cumberland
County, Maine. 2018 Compl. ¶¶ 2-3. William
R. Shane is the town manager of the town of Cumberland and
William Longley is the code enforcement officer (CEO) for the
town of Cumberland. Id. ¶¶ 5-6. The town
of Cumberland is a Maine municipality. Id. ¶ 4.
Basis for Complaint
Copp owns a parcel of property (the Copp property) located
off Pointer Way in Cumberland, as shown on town of Cumberland
Tax Map R-07, Lot 57C. Id. ¶ 7. Around July 28,
2009, the Copps began construction of a single-family
residence on the Copp property after acquiring their first
building permit from Mr. Longley. Id. ¶ 11.
Randall Copp has since supervised the construction of his
single-family residence. Id. ¶ 8. The Copps
were issued a building permit around May 8, 2014 for the
single-family residence and they performed work continuously
for 180 days. Id. ¶¶ 13-14. The Copp property
was posted “No Trespassing.” Id. ¶
15. Around August 5, 2015, without a request for inspection
or authorization to enter the property, Randall Copp found
Mr. Longley on the Copp property. Id. ¶ 16.
September 24, 2015, the Copps had requested that any town
official enter the property in the presence of either of the
Copps. Id. ¶ 17. On or about September 24,
2015, the Copps took a photo of Mr. Shane entering and
exiting the Copp property when neither Elvin Copp nor Randall
Copp was present. Id. ¶¶
about October 27, 2015, the Copps received a Notice of
Violation for Corrective Action (the Notice). Id.
¶ 20. The Notice stated that Mr. Longley had conducted a
road inspection of the Copp property on September 24, 2015.
Id. ¶ 21. This was the first Notice the Copps
had received that Mr. Longley entered the Copp property on
September 24, 2015. Id. The Notice was corrected on
January 20, 2016 (Corrected Notice), and it cited a violation
of Ordinance § 315-76(A) for “lack of progress or
inspection during the 6 months after issuance, hence the
permit has expired on or about 11-08-2014” but did not
contain details as to how Mr. Longley made this determination
over one year from the date of the alleged expiration.
Id. ¶ 22.
town board conducted a hearing concerning the Corrected
Notice on February 11, 2016, as proscribed by §
315-77(D)(3) of the ordinance. Id. ¶
At this hearing, the Copps put forth their appeal, along with
photographs, invoices, drawings and additional evidence,
which included the testimony of Randall Copp, addressing the
alleged violations contained in the Corrected Notice.
Id. ¶ 24. Randall Copp testified that the
camera he installed at the entrance of the property captured
Mr. Shane entering and exiting the property on September 24,
2015 and that he had notified both Mr. Shane and Mr. Longley
on two prior occasions that towns employees were not
authorized to be on the Copp property without the presence of
either himself or Elvin Copp. Id. ¶¶
25-26. Randall Copp also testified with photographs that the
Copp property was posted “No Trespassing” prior
to September 24, 2015. Id. ¶ 27.
end of the Copps' presentation, the town board found that
it lacked jurisdiction to determine issues of trespass.
Id. ¶ 28. Counsel for the Copps objected to any
evidence obtained by Mr. Longley from his road inspection,
claiming it was improper and unlawfully obtained.
Id. ¶ 29. Mr. Longley made several statements
“regarding a proposed Consent Agreement and testified
as to the intent and the motivation of the Plaintiffs with
regards to said Consent Agreement” and subsequently,
“introduced a copy of the unsigned Consent Agreement
into evidence.” Id. ¶¶ 30-31. The
Copps view as improper Mr. Longley's statements about the
Consent Agreement and his introduction of the unsigned
agreement into evidence. Id. The board accepted Mr.
Longley's testimony derived from his unauthorized entry
onto the Copp property. Id. ¶ 32.
initial testimony, Mr. Longley conceded that progress may
have been made during the six months following the issuance
of the most recent building permit and that he had no
evidence that a period of 180 days had lapsed since May 8,
2014 without continued progress. Id. ¶ 33. Mr.
Longley also acknowledged that the Copps presented him with
photos taken prior to the Corrected Notice but that he failed
and refused to view the photos. Id. ¶ 34.
Counsel for the Copps sought to cross-examine Mr. Longley,
but the chair of the town board denied this request.
Id. ¶ 35. The town board considered issues,
testimony, and documents outside the scope of the Corrected
Notice. Id. ¶ 36.
Copps provided testimony and documentation pursuant to §
315(C) of the ordinance, submitted a description of the
intended use of the land and buildings, and provided further
detail as Mr. Longley required, such as letters from both an
engineering firm and an architect. Id. ¶ 42.
Mr. Longley neither testified nor submitted evidence that the
Copps knew or should have known that a demolition permit was
required for the conversion of the manufactured office
building to a single-family residence. Id. ¶
44. The Copps relied on Mr. Longley's issuance of the
building permit to proceed with the conversion in their
application. Id. ¶ 45.
end of the hearing, a motion to adopt the corrective actions
of the Corrected Notice was submitted and passed without a
statement of findings or conclusions. Id.
¶¶ 37-38. The town board determined that the Copps
had made progress during the 180 days after May 8, 2014, the
date the town issued the permit, and that the permit did not
expire on November 8, 2014. Id. ¶ 46. While the
town board concluded there was no violation of ordinance
§ 315-76(A) and no lapse in the current building permit,
the board continued the “Stop Work Order” that
Mr. Longley implemented with the Corrected Notice
“since no building permit is valid [, ] no continued
road construction is authorized or allowed until all
violations have been corrected to the satisfaction of the
Town of Cumberland.” Id. ¶ 47. The town
board required the Copps to request a “demolition
permit or additional information to Mr. Longley”
despite no notice from Mr. Longley that such a permit was
required. Id. ¶ 48. The board also enforced
the demolition ordinance. Id. ¶
49. No. notice of the board's decision
was provided to the Copps or their counsel within seven days
of this decision. Id. ¶ 50.
Copps' request for reconsideration stated that the
board's decision failed to apply the proper standard set
forth in § 315-77(B)(1) of the ordinance. Id.
¶ 51. The Copps asserted the board failed and refused to
determine whether Mr. Longley's decisions were in
conformity with the town's ordinances, to interpret the
meaning in cases of uncertainty as provided in ordinance
§ 315-77(B)(1), and to determine if Mr. Longley's
entry on to the Copps' property was conducted in
accordance with IRC-R § 104.6. Id. ¶¶
Copps served a Notice of Claim pursuant to the Maine Tort
Claims Act (MTCA), 14 M.R.S. § 8107 et seq, on
the Defendants on or about March 29, 2016. Id.
¶ 54. Around February 27, 2017, the Copps made a FOAA,
1 M.R.S. § 400 et seq, request regarding all
records referencing their property specifically held by Mr.
Shane and Mr. Longley, and the Copps received an
acknowledgement that their request was received on or about
March 2, 2017. Id. ¶ 56. The Copps made another
FOAA request on March 30, 2017. Id. ¶ 57. The
Copps were not provided with requested information and their
request was denied. Id. ¶ 58.
Copp v. Town of Cumberland Board of Adjustment &
Rule 80B Appeal
The 2016 Complaint
March 25, 2016, Elvin Copp and Randall Copp filed a complaint
in the Cumberland County Superior Court for the state of
Maine. Notice of Removal Attach. 1, Docket
Entries at 1, No. 2:16-cv-00213-JDL (ECF No. 1). The
Copps' 2016 Complaint contained 139 paragraphs and four
counts. Notice of Removal Attach. 2, Compl.
at 1-13, No. 2:16-cv-00213-JDL (ECF No. 2) (2016
Compl.) Many of the factual allegations in the 2016
Complaint are identical to the factual allegations in the
2018 Complaint now pending before the Court. Compare 2016
Compl. ¶¶ 6-7, 12, 14, 16, 18-20, 22, 28-33,
36, 39-42, 50-51, 53-60, 62, 72-73, 78-80, 82, 89-90,
with 2018 Compl. ¶¶ 11-15, 17-21,
2016 Complaint contained four counts: (1) Count One-the 80B
appeal, (2) Count Two-Due Process Violations in the
Corrective NOV, (3) Count Three-Due Process Violations by the
Board of Adjustment and Appeals, and (4) Count Four- Civil
Rights Due Process Violations. 2016 Compl. at 1-13.
Count Two alleged that the Corrective NOV failed to provide
them with “sufficient notice of the claims against
them.” Id. ¶ 93. Count Three alleged that
the town board had violated their due process rights in the
following ways: (1) by considering evidence improperly or
unlawfully obtained by the town CEO and town manager, (2) by
hearing evidence from the town CEO and manager beyond the
alleged violations in the Corrective NOV, (3) by refusing to
permit counsel for the Copps to cross-examine the CEO in
violation of 30-A M.R.S. § 2691(3)(D), (4) by improperly
allowing the CEO to submit documents not provided to Copps
before the hearing, (5) by failing to include a statement of
findings and conclusions in violation of 30-A M.R.S. §
2691(3)(E), (6) by failing to provide a written notice of its
decision to the Copps within seven days of its decision in
violation of 30-A M.R.S. § 129, and (7) by failing to
provide findings of fact, conclusions of law, interpretation
of the ordinances or any other written notice of its
decision. Id. ¶¶ 121-30. Count Four
alleged that the Defendants had deprived the Copps of a
protected property interest without due process of law in
violation of the Maine and United States Constitutions.
Id. ¶¶ 137-39.
Copp v. Town of Cumberland Board of Adjustment &
Appeals: The Prior Federal Case
Copps' 2016 lawsuit against the town board briefly
visited the federal court before being remanded to state
superior court. Copp v. Town of Cumberland Board
of Adjustment & Appeals, No. 2:16-cv-00213-JDL. On
April 22, 2016, the town board filed a notice of removal from
state to federal court on the ground that the Copps'
claims of constitutional violations were presumably pursuant
to 42 U.S.C. § 1983. Notice of Removal. On June
10, 2016, the Copps filed a notice of voluntary dismissal,
giving notice that they were voluntarily dismissing Counts II
through IV of their Complaint to allow them to pursue their
Rule 80B appeal in Maine Superior Court. Pls.' Notice
of Voluntary Dismissal Without Prejudice of Counts II-IV
Pursuant to F. R. Civ. P. 41(a)(1)(a) (I) (ECF
No. 9). On June 29, 2016, the Copps moved to have the case
remanded to state court, Pls.' Mot. to Remand
(ECF No. 14), and on June 30, 2016, this Court remanded the
case to the state of Maine Superior Court. Order Granting
an Unopposed Mot. to Remand to State Ct. (ECF No. 15).
The Facts and Procedure Before the Superior and Supreme
federal case is the second lawsuit in which the Copps have
challenged the actions of the town of Cumberland Board of
Adjustment & Appeals. In Copp v. Town of
Cumberland Board of Adjustment & Appeals, No.
AP-16-012, 2017 WL 1398185, at *1-2, 2017 Me. Super. LEXIS
75, at *1-5 (Mar. 9, 2017), a Maine state Superior Court
Justice provided the background for this first lawsuit. Elvin
Copp is the father of Randall Copp, and Elvin, not Randall,
owns the parcel of land on Pointer Way in Cumberland, where
the Copps have been building a single-family residence.
Id., 2017 WL 1398185, at *1, 2017 Me. Super. LEXIS
75, at *1. In July 2009, the Copps obtained their first
building permit for the residence and began construction and
subsequently, the town CEO issued them a series of building
permits. Id., 2017 WL 1398185, at *1, 2017 Me.
Super. LEXIS 75, at *2. On May 14, 2015, the CEO issued the
permit that became the source of controversy for the first
January 20, 2016, the CEO issued the Copps a Corrected Notice
of Violation Order for Corrective Action (NOV), which
included a description of the violations the CEO observed
while at the property on September 24, 2015, a stop work
order, and the corrective action that the Copps were required
to take before the town would reissue a building permit.
Id., 2017 WL 1398185, at *1, 2017 Me. Super. LEXIS
75, at *2-3. The CEO found that the construction did not
conform with the plans the Copps had submitted for their
permit. Id., 2017 WL 1398185, at *1, 2017 Me. Super.
LEXIS 75, at *3. On November 8, 2014, the building permit
that the town had issued on May 8, 2014 expired because the
Copps had made no progress over the six months. Id.
The stop work order prohibited all construction on the
property until the town was satisfied that the violations had
been corrected and the town issued the NOV that required the
Copps to take certain corrective actions before the town
would reissue the building permit. Id., 2017 WL
1398185, at *1-2, 2017 Me. Super. LEXIS 75, at *3-4.
January 27, 2016, the Copps appealed the NOV to the town
board. Id., 2017 WL 1398185, at *2, 2017 Me. Super.
LEXIS 75, at *4. In their appeal, they argued that their
building permit had not expired, that the stop work order was
not the proper remedy for the alleged violations, and the NOV
should be dismissed because the CEO's entrance onto their
property on September 24, 2015 was illegal. Id.
February 11, 2016, the town board heard the appeal.
Id. The attorney for the Copps, Randall Copp, the
CEO, counsel for the CEO and town, a concerned neighbor, and
the town manager all made presentations to the town board.
Id. The town board voted to uphold the NOV
“except for the CEO's finding that the permit
expired on November 8, 2014.” Id. (alterations
in original). On February 22, 2016, the Copps filed a motion
for reconsideration pursuant to 30-A M.R.S. §
2691(3)(F). Id. The town's attorney opposed the
motion and on March 10, 2016, the town board denied the
motion for reconsideration. Id., 2017 WL 1398185, at
*2, 2017 Me. Super. LEXIS 75, at *4-5.
March 25, 2016, the Copps filed an appeal pursuant to Maine
Rule of Civil Procedure 80B. Id., 2017 WL 1398185,
at *2, 2017 Me. Super. LEXIS 75, at *5.
Proper Party on Appeal
Copps brought the Rule 80B appeal against the town board
itself. Under Maine law, a zoning board of appeals “is
not a proper party to an appeal in the Superior Court from
its own decision.” Id. (quoting Boothbay
Harbor v. Russell, 410 A.2d 554, 559 (Me. 1980)).
“The municipal officers or the CEO would be the proper
defendants.” Id. (citation omitted). The
Superior Court Justice noted that the Copps had not moved to
amend their complaint and the town board had not moved to
dismiss the Rule 80B appeal, but she concluded that the
appeal should be dismissed because it was moot. Id.,
2017 WL 1398185, at *3, 2017 Me. Super. LEXIS 75, at *5-6.
Superior Court Justice noted that the Copps had submitted
“revised building plans, obtained a demolition permit,
and adhered to the Board's required action in the NOV in
order to have the stop work order lifted, which was
achieved.” Id., 2017 WL 1398185, at *3, 2017
Me. Super. LEXIS 75, at *6. After reviewing the mootness
doctrine, the Superior Court Justice wrote:
In this case, plaintiffs complied with the decision that they
appealed, and the Town has lifted the stop work order and
issued plaintiffs a new permit. The demand for judgment in
plaintiffs' complaint asks the court to remand this case
to the Board for a new hearing. At this point, remand would
not provide plaintiffs any effective relief to justify the
application of limited judicial resources. Plaintiffs'
claim is thus moot.
Id., 2017 WL 1398185, at *4, 2017 Me. Super. LEXIS
75, at *8. The Court then considered and rejected the
possibility that the Copps' claim fit within one of the
exceptions to the mootness doctrine. Id., 2017 WL
1398185, at *4, 2017 Me. Super. LEXIS 75, at *9. She
concluded that the issues the Copps were presenting were not
matters of great public concern and that they were not likely
to be repeated. Id., 2017 WL 1398185, at *4-5, 2017
Me. Super. LEXIS 75, at *10-11.
Superior Court concluded that the Copps had not named the
proper party to their Rule 80B appeal and “the court
can no longer provide plaintiffs with any real or effective
relief” because they had “fully complied with the
Board's decision and their claim is moot.”
Id., 2017 WL 1398185, at *5, 2017 Me. Super. LEXIS
75, at *11-12. The Court sustained the position of the Board
of Adjustment & Appeals. Id., 2017 WL 1398185,
at *5, 2017 Me. Super. LEXIS 75, at *12.
The Maine Supreme Judicial Court
October 24, 2017, the Maine Supreme Judicial Court in a
memorandum of decision issued a brief order, affirming the
Superior Court. Copp v. Town of Cumberland,
No. Cum-17-137, 2017 Me. Unpub. LEXIS 105 (Oct. 24, 2017). It
read in part:
Contrary to the Copps' contention, their claims that the
Board erred were rendered moot when they complied with the
NOV. Upon the Copps' compliance with the NOV, the CEO
lifted the stop work order, and the Copps were free to
continue building their home. There remains no practical
effect resulting from the resolution of their claims to
justify our review.
Id. at *1.
The 2018 Complaint
noted earlier, the Copps' 2018 Complaint contains many of
the same allegations that formed the basis for their 2016
Complaint. This time, however, the Copps posit nine counts:
(1) Count One-Trespass against Mr. Shane, (2) Count
Two-Trespass against Mr. Longley, (3) Count Three-Intentional
Infliction of Emotional Distress (IIED) against all
Defendants, (4) Count Four-Negligent Infliction of Emotional
Distress (NIED) against all Defendants, (5) Count Five-
Nuisance against Mr. Shane and Mr. Longley, (6) Count Six-42
U.S.C. § 1983 against Defendants Shane and Longley, (7)
Count Seven-42 U.S.C. § 1983 against the town of
Cumberland, (8) Count Eight-5 M.R.S. § 4682 against all
Defendants, and (9) Count Nine-Violation of Maine's
Freedom of Access Act. 2018 Compl. at 8-17.
Motion to Dismiss for Lack of Subject Matter
12(b)(1) motion questions whether a court has subject matter
jurisdiction over the action before it. United States v.
Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n.6 (1st Cir.
2005) (internal citation omitted). “If the Court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3). The plaintiff has the burden to
sufficiently allege facts that illustrate that he or she is
proper party to invoke federal subject-matter jurisdiction.
Dubois v. United States Dep't of Agric., 102
F.3d 1273, 1281 (1st Cir. 1996). When ruling on a Rule
12(b)(1) motion, the Court “must construe the complaint
liberally, treating all well-pleaded facts as true and
indulging all reasonable inferences in favor of the
plaintiff.” Aversa v. United States, 99 F.3d
1200, 1209-10 (1st Cir. 1996). “[T]he court may [also]
consider whatever evidence has been submitted.”
Motion to Dismiss for Failure to State a Claim
12(b)(6) requires dismissal of a complaint that
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To state a claim, a
complaint must contain, among other things, “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). That is, a
complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v Twombly, 550 U.S. 550, 570 (2007)). A claim is
facially plausible when “the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “Plausible . . . means something more
than merely possible and gauging a pleaded situation's
plausibility is a ‘context-specific' job that
compels [the Court] ‘to draw on' [the judge's]
‘judicial experience and common sense.'”
Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012) (quoting Iqbal, 556 U.S.
plausibility inquiry necessitates a two-step pavane.”
García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013) (citing
Rodríguez-Reyes v. Molina- Rodríguez,
711 F.3d 49, 53 (1st Cir. 2013)). “First, the court
must distinguish ‘the complaint's factual
allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).'” Id. (citation omitted).
“Second, the court must determine whether the factual
allegations are sufficient to support ‘the reasonable
inference that the defendant is liable for the misconduct
alleged.'” Id. (citation omitted).
POSITION OF THE PARTIES A. The Defendants'
contend that the Copps' tort claims of trespass,
nuisance, NIED, and IIED, are all subject to the MTCA and are
time-barred by its two-year statute of limitations.
Defs.' Mot. at 6-7. They say since the Copps
filed their Complaint on March 27, 2018, “any tort
claims that accrued before March 27, 2016 are time-barred . .
. . [and] Plaintiffs do not allege any facts to suggest that
any of their tort claims accrued after March 27, 2016.”
Id. at 7. Defendants aver that:
The only events that the Plaintiffs allege occurred after
that date are:  service by the Plaintiffs of a notice of
claim (on March 29, 2016);  a request by Mr. Longley to
inspect the Property (February of 2017);  requests by the
Plaintiffs to the Town for documents under the Maine Freedom
of Access Act, 1 M.R.S. §§ 400 to 414
(“FOAA”) (February 27, 2017 and March 30, 2017);
 an acknowledgement of the Plaintiffs' FOAA request by
the Town's attorney (March 2, 2017); and  the
Town's denial of the Plaintiffs['] FOAA requests
(date not specified).
Id. The Defendants argue that these events do not
relate to their tort claims. Id. at
7-8. Alternatively, the Defendants argue that
Mr. Longley and Mr. Shane are not liable under the MTCA
because the Defendants assert that discretionary function
immunity shields them because they were engaged in functions
as government employees previously recognized as protected
under discretionary function immunity. Id. at 8-10
(citing various Maine state law precedent).
Defendants assert the majority of Copps' civil rights
claims are barred by Maine Rule of Civil Procedure 80B's
exclusivity. Id. at 11. The Defendants claim that
direct review “pursuant to Maine Rule of Civil
Procedure 80B is exclusive unless inadequate.”
Id. (citing Colby v. York Cty. Comm'rs,
442 A.2d 544, 547 (Me. 1982)). In their eyes, to the degree
the Copps' claims stem from “irregularities of the
process” at the town board hearing, they are barred by
claim preclusion since the Copps have largely asserted the
same claims here as they did in their Rule 80B appeal.
Id. at 12.
response to the Copps' procedural due process claim, the
Defendants argue that the First Circuit views
“procedural due process challenges to local land-use
and zoning decisions with considerable skepticism, ”
and that Rule 80B provides a means to complain of alleged
procedural violations, as the Plaintiffs have. Id.
at 15 (citing Brockton Power LLC v. City of
Brockton, 948 F.Supp.2d 48, 67 (D. Mass. 2013) (quoting
Creative Env'ts, Inc. v. Estabrook, 680 F.2d
822, 832 n.9 (1st Cir. 1982)). Thus, the Defendants argue,
the Copps cannot make out a procedural due process claim.
to the substantive due process claim, the Defendants contend
that “a plaintiff ‘must plausibly 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.'” Id. at 16
(quoting Gianfrancesco v. Town of Wrenthem, 712 F.3d
634, 639 (1st Cir. 2013)). They assert that because
“the Plaintiffs do not allege anything more than
procedural irregularities ...