296 F. Supp. 3d 327
D.D.C.2017Background
- Comley, a Rowley resident and nuclear-safety activist, posted political signs on public property and along state highways in 2015; he alleges Town departments and MassDOT removed only his signs while leaving others' signs in place.
- He moved at a May 2015 Town Meeting requesting the NRC hold a public hearing on Seabrook evacuation plans; he alleges his signs began disappearing after that meeting.
- Complaint attached photographs of one of Comley’s signs and six other signs he contends remained; the complaint lacked specifics about locations, dates, or who posted the comparator signs.
- Town Board meeting minutes show board members received complaints and believed some signs might violate law; plaintiff did not plead facts establishing retaliatory motive beyond temporal sequence.
- Procedural posture: Comley sued Town, five selectmen (individual and official capacities), and MassDOT under 42 U.S.C. § 1983 and state regulation; Town moved for judgment on the pleadings and MassDOT moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal of Comley’s signs states a First Amendment viewpoint-discrimination claim | Comley: his signs were removed while other similar political signs remained, showing unlawful favoritism/viewpoint discrimination | Town: government may regulate signs on public property; plaintiff fails to plead comparators or factual pattern of favoritism | Court: Claim dismissed for failure to plead facts showing a pattern of unlawful favoritism (Counts I, V dismissed as to Town) |
| Whether removal constituted First Amendment retaliation for protected speech (Town Meeting motion) | Comley: removal followed his Town Meeting motion, implying retaliatory motive | Town: no factual allegations establishing causation; some removals preceded May 2015; permissible enforcement could have occurred regardless | Court: Retaliation claim insufficiently pleaded; Count II dismissed without prejudice to amend |
| Whether selective enforcement/equal protection (class-of-one) claim is pleaded | Comley: treated differently than similarly situated sign-posters | Town: plaintiff failed to identify highly similar comparators or explain similarity | Court: Equal protection claim fails for lack of adequately pleaded comparators (Count V dismissed) |
| Whether MassDOT and Town are proper defendants and whether regulatory claim against MassDOT is viable | Comley: MassDOT removed signs along state highways and violated 700 C.M.R. 3.02(2)(b)(4) | MassDOT: state agency immune under Eleventh Amendment; regulation does not create private right of action | Court: MassDOT's federal claims dismissed with prejudice; regulatory claim fails (Count VII dismissed) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (establishes plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must show plausibility, not merely possibility)
- West v. Atkins, 487 U.S. 42 (action under color of state law requirement for § 1983)
- Del Gallo v. Parent, 557 F.3d 58 (government may control speech on property it owns)
- McGuire v. Reilly, 386 F.3d 45 (distinguishing viewpoint discrimination and selective enforcement doctrines)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (pattern of unlawful favoritism required for viewpoint discrimination claim)
- Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134 (retaliation claim elements; causation; comparator pleading requirements)
- SBT Holdings, LLC v. Town of Westminster, 547 F.3d 28 (class-of-one equal protection standard)
- Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92 (Eleventh Amendment immunity for states and state agencies)
- Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (municipal liability under § 1983 requires a constitutional violation and an official policy or custom)