Federal Court Dismisses First Amendment and Equal Protection Claims – Comley v. Town of Rowley

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Comley v. Town of Rowley, __ F. Supp. 3d __, 2017 WL 4927664 (D. Mass. 2017)

On October 31, 2017, United States District Court Judge Rya Zobel granted defendants’ Motion for Judgment on the Pleadings in an action defended by PDP attorneys, John J. Davis and John M. Wilusz.

The plaintiff, Stephen B. Comley, Sr., is a Town of Rowley resident and founder of “We The People,” a whistleblower protection organization that monitors nuclear power plant safety. In May 2015, Mr. Comley presented a motion at Town Meeting directing the Board of Selectmen to request that the Nuclear Regulatory Commission hold a public hearing regarding the effectiveness of the Seabrook Nuclear Power Plant emergency evacuation plan. The motion carried. Following Town Meeting, political signs that Mr. Comley had posted on public property throughout Town allegedly “began to disappear,” while similar signs posted by others were left intact. Mr. Comley claimed the Board of Selectmen was somehow behind the sign removal. In a Verified Complaint filed in Essex Superior Court, he sued the Town and Board of Selectmen (in both their official and individual capacities) violating his First Amendment right to free speech, for violating his Fourteenth Amendment right to equal protection, and civil conspiracy. Defendants removed the case to Federal Court and, after filing an Answer, moved for relief under Rule 12(c).

In allowing defendants’ Motion for Judgment on the Pleadings, Judge Zobel first acknowledged that government has the power to preserve its property for the use to which it is lawfully dedicated. Such power, however, cannot be applied in a discriminatory manner which gives preference to the message of one speaker over another. Yet, to prevail on a First Amendment viewpoint discrimination claim, a plaintiff must show a “pattern” of unlawful favoritism. Mr. Comley, the Court ruled, alleged insufficient facts to show any such “pattern.” He pleaded nothing about where his signs or the other signs were posted, or indeed who posted the other signs. Absent such detail, “it is impossible to conclude that defendants allowed some signs to remain in similar locations from which they removed plaintiff’s signs, much less that they did so in a discriminatory manner.” Nor did Mr. Comley allege sufficient facts to show a retaliatory motive. Not only did he allege “nothing specific” about when defendants (in his belief) first removed the signs, the record actually showed that his signs began disappearing well before the May 2015 Town Meeting. “This cripples his effort to establish causation.”

Plaintiff’s equal protection claim fared no better. A “class of one” equal protection violation is only cognizable, explained the Court, where the plaintiff identifies specific similarly-situated comparators who were allegedly treated differently for no rational reason. Moreover, such similarity must be shown to “an extremely high degree.” Mr. Comley again made no such showing. Although he identified six other signs that were not similarly removed, he failed to allege precisely where such signs were posted (for example, in parks, playgrounds, along public ways, or on the lawn of Town Hall), or by whom. And, where a plaintiff fails to plausibly allege a constitutional violation, “any civil conspiracy claim based on such violations must also fail.” Finally, absent a viable civil rights claim against the individual Selectmen, plaintiff’s claim of municipal liability against the Town could not stand. Monell v. N.Y.C. Dep’t of Social Services, 436 U.S. 658, 698 (1978).

This decision demonstrates, once again, that under the Bell Atlantic and Iqbal pleading standard, a “bare bones” civil rights complaint will remain vulnerable to an early dismissal.

See the Daily News of Newburyport article “Federal judge dismisses lawsuit against Rowley