ORDER
The Report and Recommendation issued by Magistrate Patricia A. Sullivan on October 10, 2014, in the above-captioned matter is accepted and adopted pursuant to Title 28 United States Code § 636(b)(1). The Motions to Dismiss brought by all Defendants are granted, and Plaintiffs Second Amended Complaint is hereby dismissed in its entirety, with prejudice. Defendants shall have thirty days from the date of this Order to present the Court with any motions to recover counsel fees and expenses incurred in this matter. No judgment shall enter until all claims are resolved.
It is so ordered.
REPORT AND RECOMMENDATION
Keeping time, time, time,
In a sort of Runic rhyme,
To the tintinnabulation that so musically wells
From the bells, bells, bells, bells
Bells, bells, bells.
The Bells, Edgar Allen Poe (1848)
Pro se Plaintiff John Devaney believes that the excessive clapping, gonging, tolling pealing, ringing and chiming of the bells' of two neighboring churches — St. Thomas More Catholic Church (“St. Thomas Church”) and St. Peter’s by-the-Sea Episcopal Church (“St. Peter’s Church”) (collectively “the Churches”) — have profoundly disturbed his right to quiet enjoyment of his home, effectively forcing on him a call to worship that he does not want to hear. In his third essay to battle these bells, he has recast his complaint, now challenging their tintinnabulation based both on the First, Fifth and Fourteenth Amendments of the United States Constitution and on the Rhode Island common law of nuisance. He has named and joined as defendants
Because Mr. Devaney is pro se, this Court must review his pleading with liberality but not with complete disregard for the procedural and substantive protections that the law affords to these Defendants. Estelle v. Gamble,
The reasons for these recommendations follow.
I. FACTUAL
a. Mr. Devaney’s Claims
In July 1995, Mr. Devaney, his wife and four children moved into an older home in the bucolic seaside Town of Narragansett, Rhode Island, located three, blocks from the shores of Narragansett Bay; because of the cooling effect of the Bay breezes, the home has never been air-conditioned. ECF No. 5 at 2, 5. When the Devaney family moved into their Narragansett home, across the street stood St. Thomas Church and to the rear was St. Peter’s Church; both Churches had bell towers housing at least one bell. ECF No. 33 ¶ 11; ECF No. 5 at 1. However, at that time, the bell in St. Thomas’s belfry was inoperable and silent while St. Peter’s bell was unamplified, producing a “quaint” euphonious sound that Mr. Devaney described at the hearing as “a beautiful sound ... inviting.” ECF No. 5 at 2-3.
In approximately 2000 or 2001, St. Thomas repaired and upgraded its bell, adding electronic amplification, a motor, a timer and a clapper. ECF No. 5 at 2. At an unspecified point, St. Peter’s also added electronic amplification. ECF No. 5 at 3.
The impact of this accumulation of sound on Mr. Devaney has been catastrophic: despite no air-conditioning, he is forced to keep the storm windows closed and to wear earplugs, his marriage has collapsed and he has been alienated from his children. Fearful of the impact of the amplified sound, he refrains from inviting his infant grandchildren to his home. ECF No. 5 at 2. Further, as someone who professes no religion, Mr. Devaney alleges that he is deeply troubled by being forced to hear a call to worship in which he is not interested; he perceives that the amplified bells are forcing him to listen to proselytizing from which he cannot escape even in the privacy of his home.
b. Narragansett’s Noise Ordinance
Since at least 1986, the Town of Narragansett has had a Noise Ordinance. Narragansett, R. I., Code of Ordinances ch. 22, art. III (1986) (“Noise Ordinance”). The Town’s power to adopt such an ordinance derives from R.I. Const. art. XIII, § 2, which authorizes Rhode Island’s cities and towns to adopt home rule charters. Pursuant to Section 2-1-7 of the Narragansett Town Charter, the Narragansett Town Council may enact and amend ordinances for the preservation of the public peace, health, safety, and welfare of the inhabitants of the Town and for the protection of persons and property not inconsistent with the Rhode Island Constitution and laws enacted by the General Assembly in conformity with the powers reserved to the General Assembly. Pursuant to Section 2-1-9 of the Charter, a proposed ordinance is introduced at a public Council meeting but may not be passed until after it has been publicized and presented at a second meeting; a petition from twenty or more electors requires a public hearing. The power of Rhode Island’s communities to regulate excessive sound has been confirmed by the Rhode Island Supreme
The Noise Ordinance begins with findings by the Town Council regarding the competing public policy considerations that it was balancing. On one hand, the Council found that “[e]xcessive noise is a serious hazard to the public health, safety and welfare and the quality of life in a close urban society” and that “[e]ach person has a right to an environment reasonably free from noise which jeopardizes health or welfare or unnecessarily degrades the quality of life.” Noise Ordinance § 22-41(1), (4). On the other, the Council also found that “[c]ertain of the noise producing equipment in this community is essential to the quality of life and should be allowed to continue at reasonable levels with responsible regulation.” Id. § 22-41(3). The Ordinance declares it to be the policy of the Town to promote an environment free from excessive noise, “without unduly prohibiting, limiting or otherwise regulating the function of certain noise producing equipment which is not amenable to such controls and yet is essential to the quality of life in the community.” Id. § 22-41(5).
The Noise Ordinance squarely places bells in the category of “noise producing equipment which is not amenable to such controls and yet is essential to the quality of life in the community” by carving out two different exemptions that expressly include them. A nuanced analysis of the Noise Ordinance is necessary to an understanding of how each exemption operates in the context of the whole. In re Brown,
In Section 22-46, the Noise Ordinance establishes a prohibition on any “noise disturbance.” A noise disturbance is defined
Read holistically, the Narragansett Noise Ordinance reflects the special'place that the sound of bells occupies in the “quality of life of [its] community.” Noise Ordinance § 22-41(5). Further, the Town’s largely secular bell exemptions reflect the role that they have played in the history of New England, which resonates with their sounds. See generally Richard Cullen Rath, How Early America Sounded 50 (2003); Deborah Lubken, Joyful Ringing, Solemn Tolling: Methods and Meanings of Early American Tower Bells, 69 Wm. & Mary Q. 823 (2012). Currently, in Rhode Island, 38% of the cities and towns that have noise ordinances exempt bells in general, church bells in particular, or specifically bells used in religious worship.
After ten years of misery, Mr. Devaney took his instigation about the braying of the bells to the Town as permitted by the Noise Ordinance. Noise Ordinance § 22-46(b) (“Any person ... may be a complainant for the purposes of instituting action for any violation of this chapter”). In response, by letter dated August 26, 2010, the Town solicitor advised him that “the exemption contained within Section 22-54(b) [applicable only to bells used by places of worship] would control and, therefore, the noise from the church bell tower is exempt.” ECF No. 33 ¶ 14. The letter did not reference either the secular exemption for performances by bells in a tower in Section 22-50 or the secular exemption for signal bells in Section 22-54(a). Based on the pleadings, the next event in this drama was the institution of this litigation.
d. Procedural Background
On July 5, 2013, Mr. Devaney initiated this action, with a request to proceed in forma pauperis, triggering this Court’s obligation to screen pursuant to 28 U.S.C. § 1915. ECF Nos. 1, 2. Based on that review, I recommended that he be denied in forma pauperis status and that he be directed to amend his complaint, which named only the Rhode Island Attorney General and focused only on the Rhode Island Religious Freedom Restoration Act, R.I. Gen. Laws § 42-80.1-3, with no articulation of how the Act affects the bells of Narragansett. ECF No. 6. In response, Mr. Devaney filed his Amended Complaint, naming the Churches, the Town and Roman Catholic clerics ranging from the Bishop of Rhode Island, to the Papal Nuncio, to Pope Francis in Rome. Most of the Defendants (but not the Papal Nuncio or Pope Francis) were joined and promptly filed motions to dismiss arguing that the Amended Complaint still focused on the Religious Freedom Restoration Act and still failed to articulate any plausible linkage between it and Mr. Devaney’s frustration with the clanging of the bells. I again recommended that the Amended Complaint be dismissed with leave to replead a third time. This time, however, I included a caution that Mr. Devaney may not get another chance. ECF No. 30 at 8 n. 10.
Mr. Devaney timely filed the Second Amended Complaint on April 3, 2014. Instead of the Religious Freedom Restoration Act, it focuses on the Noise Ordinance, alleging that the Ordinance, which caused the Town to refuse to muffle the bells of St. Thomas and St. Peter’s Churches, violates the Establishment Clause of the First Amendment, constitutes an unlawful taking of his home in violation of the Fifth Amendment, has deprived him of property without due process of law in violation of the Fifth and Fourteenth Amendments, and singles him' out for disparate treatment in violation of the Equal Protection Clause of the Fourteenth Amendment. ECF No. 33.
The Defendants have all moved to dismiss under Fed.R.Civ.P. 12(b)(6),
II. STANDARD OF REVIEW
Rule 12(b)(6) permits this Court to dismiss an action for failure to state a claim upon which relief can be granted. See Fantini v. Salem, State Coll.,
Because a municipal ordinance is at the center of this case, I pause to assemble the state law principles applicable to interpreting ordinances. First, the Rhode Island Supreme Court directs that the same rules of construction used with statutes are applicable, Auger,
III. LEGAL ANALYSIS
Before turning to the core constitutional issues presented by the Second Amended Complaint, I dispose first of threshold pleading insufficiencies requiring that various aspects of the Second Amended Com-plaint be cured or trimmed away.
First, Mr. Devaney’s right to bring suit to redress constitutional deprivations cannot ride on the back of the Constitution itself, because it does not create a private right of action for the remedies he seeks. GeorgiaCarry.Org, Inc. v. Georgia,
Second, Mr. Devaney’s common law private nuisance claim against the Town lacks plausibility. His pleading— both the Amended and Second Amended Complaints — is pellucid in laying out the elements of a common law claim of private nuisance based on the actions of the two Churches in invading his home with unreasonable and unwelcome sound.
Third, the Churches and the Bishop argue that they did not pass the Ordinance and are private actors that cannot be held liable for an unconstitutional action by a state actor, like the Town, either pursuant to 42 U.S.C. § 1983 or pursuant to the Due Process Clause of the Fourteenth Amendment, which provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due pro-cess of law.” U.S. Const. amend. XIV, § 1; see Lugar v. Edmondson Oil Co., Inc.,
a. Standing
Before turning to the constitutional analysis, this Court must address and resolve Mr. Devaney’s standing even though Defendants neither briefed nor argued it. Merrimon v. Unum Life Ins. Co. of Am.,
Mr. Devaney has made a blunderbuss challenge to the constitutionality of the Noise Ordinance, contending that his injury — diminution in the value of his home, the loss of family and friends and the destruction of his peace of mind — has been caused by the Town’s refusal to muffle the bells because they are linked to religious places of worship. ECF No. 33 ¶ 14 (“If properly enforced the abusive liturgical bell ringing by the Catholic church and the Episcopal church would have to be abated.”). The fly in the ointment is that his injury is caused by the noise of bells; a declaration of unconstitutionality of the portion of the Noise Ordinance that exempts bells used in conjunction with places of worship would not silence the bells because the Ordinance also exempts both musical performances by tower bells and non-emergency signaling by stationary bells (subject to the one-minute-per-hour limit). Both of these exemptions are entirely secular with no special treatment for bells linked to places of worship. Since both Churches house stationary bells in towers, both may continue to ring their bells in reliance on either or both of these secular exemptions. And Mr. Devaney’s Second Amended Complaint makes no distinction, alleging only that his injury is caused by the tolling of the bells of St. Thomas and St. Peter’s Churches, including no mention whether they ring as signaling devices for more than one minute per hour.
•This specter — that a favorable decision barring enforcement of the only provision of the Noise Ordinance linked to religion may well not redress Mr. Devaney’s injury — raises a serious concern whether Mr. Devaney has standing to sue the Town based on an Establishment Clause violation. See Serv. Emps. Int’l Union, Local 5 v. City of Houston,
b. First Amendment
The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. “[It] has historically been an indefatigable sentry, patrolling the actions of government to prevent incursions upon our cherished religious liberty.” Fausto v. Diamond,
To guide federal courts in examining the Establishment Clause claims, the Supreme Court has developed an array of analytical tools. Ahlquist,
The most-used litmus is found in Lemon v. Kurtzman,
In Freedom From Religion Foundation v. Hanover School District, our Circuit deployed each approach seriatim.
The Town of Greece/Marsh test
While the Supreme Court has provided little or no guidance to lower courts regarding how to perform a Town of Greece/ Marsh analysis, it has conducted the inquiry by referring to secondary sources to determine whether a religious symbol constitutes a governmental endorsement of religion because this question is not merely one of historical fact, but rather “in large part a legal question to be answered on the basis of judicial interpretation of social facts.” Brooks v. City of Oak Ridge,
Narragansett’s decision to exempt performing and signaling bells — both secular and sectarian — reflects this historic legacy. See Harris v. City of Chicago,
It must also be noted that, unlike the legislative prayer found constitutional in Town of Greece and Marsh, the Town of Narragansett neither sponsors the chiming of the bells nor links its exemption to the religious content of the bells’ communications. Rather, it has merely exempted them from the regulatory impact of its Noise Ordinance, deeming them to constitute sounds “essential to the quality of life in the community,” and permitting them to ring agnostically without the limits placed on other sounds by the Noise Ordinance. Noise Ordinance § 22-41(5); see §§ 22-50, 22-54. Thus, the governmental coercion arguably present when a town sponsors legislative prayer at the opening of town board meetings is entirely missing from the bell ringing in Narragansett. Town of Greece,
In all, it is tempting to conclude that the Town of Greece/Marsh directive to interpret the Establishment Clause as permitting government action that preserves practices that are deeply embedded' in history and tradition ends the inquiry. Nevertheless, both Town of Greece and Marsh involved more developed factual records, Town of Greece having been decided at the summary judgment phase,
The Lemon /endorsement test
The first leg of the tripartite Lemon test requires an examination of the purpose of the Noise Ordinance. Hanover Sch. Dist.,
Even if the Court hypothesizes that the incremental exemption for signaling bells linked to places of worship was adopted as a permissive accommodation to avoid burdening religious speakers,
The second Lemon, leg examines the effects of the Town’s action. In giving content to the effects analysis, Justice O’Connor suggested that it be considered through the framework of endorsement. Lynch,
One might superficially posit that the general effect of the Noise Ordinance is to elevate the sound of bells above ambient levels in the Town, with catastrophic impact on Mr. Devaney, who has lost the quiet enjoyment of his home and who cannot escape the unwelcome religious content that the bells relentlessly inflict on him.
Here, the Town adopted a Noise Ordinance that exempts all performing bells, and partially exempts all non-emergency signaling bells, with an additional limited exemption for bells used in connection with places of worship; when Mr. Devaney complained, the Town declined to enforce the Ordinance based on the latter exemption.
Lemon’s third prong requires that the government conduct avoid entanglement with religion. Rogers,
Viewed most narrowly, the benefited institutions in Narragansett are the places of worship that use stationary bells for signaling; the aid they get from the Town is the ability to use their bells to signal without worrying about the one-minute-per-hour limit. However, there is no monitoring, administrative activity, interplay or interaction alleged between the Churches and the Town; Narragansett makes no financial contribution to encourage or assist with the ringing of the bells, nor is there any allegation of political divisiveness created by the bell exemption. Ahlquist,
While the Ordinance may benefit the Churches and other places of worship that have bells, the nature of the benefit is secular and totally unrelated to whatever content the Churches might choose to inject. Moreover, even if the Ordinance specifically exempted the religious speech of places of worship, “allowing people with religious faith to advance their religions is not what is meant by ‘establishment of religion;’ rather, for state action to constitute establishment of religion in violation of establishment clause, state action itself must constitute endorsement of religion.” Diehl v. Vill. of Antwerp,
The coercion test
The coercion test looks at whether the government is coercing “anyone to support or participate in religion or its exercise, or otherwise act[ing] in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ” Weisman,
Mr. Devaney’s Second Amended Complaint effectively claims that he is coerced to hear unwelcome and jarring sounds, including a call to “Christian prayer and devotion.” ECF No. 5 at 2. However, the Complaint does not claim, nor does it allege facts that permit the inference, that he has been coerced to participate in or support religion or into feigning participation in the Angelus or any other prayer; rather, he is annoyed by the interruption and injured because the sounds destroy his ability to peaceably enjoy his home. Impellizerri,
Permissive accommodation
The Supreme Court has long recognized a zone of permissible accommodation of religion within which governments may, and sometimes must,
To the extent that they have considered the question, courts have concluded that an exemption to a noise ordinance for church bells and chimes, even when allegedly content-based because linked to religious services, is a legitimate accommodation to religious belief. See Stokes v. City of Madison,
One final note: First Amendment jurisprudence often involves “fact-sensitive” cases, more appropriately decided at the summary judgment phase or after trial, based on a well-developed factual record. See, e.g., Town of Greece,
Based on the foregoing, I find that the Establishment Clause claim in Mr. Deva-ney’s Second Amended Complaint remains fatally deficient. It fails to allege facts plausibly permitting the inference that the content-neutral and largely secular bell exemptions to Narragansett’s Noise Ordinance constitute the impermissible establishment of religion. It does not allege that either the Town’s enactment of the Ordinance or its refusal to enforce it against the Churches (consistent with its terms) has the effect of coercing him, subtly or otherwise, into prayers or practices that are contrary to his beliefs. There is no allegation permitting the inference that a visitor to Narragansett, upon hearing the chiming of the bells, would conclude that it is a religious message established by the Town Council. There is no suggestion that Narragansett’s exemption for bells connected with places of worship is based on a purposeful or surreptitious attempt to express subtle governmental advocacy of a theistic message. Finally, there is no allegation that either the Town’s decision to enact the Ordinance or its decision not to enforce it against the Churches was accompanied by the religiously divisive political rhetoric that is a characteristic of governmental actions that do not survive First Amendment scrutiny. Mr. Devaney’s understandable
Mr. Devaney’s Equal Protection argument seems to be based on the privilege afforded to bell owners to ring their bells without the constraints imposed on other noise makers. He fails to note that he would get the same benefit if he built a bell tower and installed a bell. And if he opened a place of worship, he too would be able to ring his bell for more than a minute. If his Equal Protection claim is recast to focus on him as a victim of the bells, his concession at the hearing that he has been treated the same as every similarly situated person in Narragansett is fatal. Ayala-Sepulveda v. Municipality of San German,
d. Due Process
While far from a clarion of legal clarity, Mr. Devaney’s due process claim is grounded in the allegation that the value of his property has been diminished without due process of law. ECF No. 33 ¶ 18. Such a claim potentially arises under the Fifth Amendment based on an unjust taking or under the Due Process Clause of the Fourteenth Amendment based on a government action that deprived him of property without due process of law.
The takings claim, if one is intended, may be disposed of quickly: Mr. Devaney fails to allege that he “has run the gamut of state-court litigation in search of just compensation.” Marek v. Rhode Island,
e. Claims against Roman Catholic Bishop of Providence
The Second Amended Complaint speculates that the claim against the Roman Catholic Bishop of Providence (“the Bishop”) “will likely have evidentiary support
To the extent that Mr. Devaney’s claim rests on the Bishop’s status as a corporation sole and the ecclesiastical head of the diocese of which St. Thomas is a parish, it fails as a matter of well-settled Rhode Island law. In Doe v. Gelineau,
The Second Amended Complaint is also lacking if interpreted as an attempt to join the Bishop in his capacity as an individual who happens to work for the diocese, but not for St. Thomas Church. To survive a motion to dismiss, such a claim must rest either on factual allegations establishing that the individual personally participated in the specific acts that give rise to the alleged harm or on specific statutory authority that creates vicarious liability based on status. Banks v. Bowen’s Landing Corp.,
f. Supplemental Jurisdiction over Nuisance Claims
With no federal questions remaining, this Court must determine whether to exercise supplemental jurisdiction over Mr. Devaney’s state law private nuisance cause of action against the Churches. See 28 U.S.C. § 1367. “[T]he termination of the foundational federal claim does not divest the district court of power to exercise supplemental jurisdiction, but, rather, sets the stage for an exercise of the court’s informed discretion.” Senra v. Town of Smithfield,
In this instance, with the federal questions disposed of at the pleading stage, principles of comity auger strongly in favor of dismissal without prejudice, leaving Mr. Devaney free to bring his nuisance claims in state court. Hanover Sch. Dist.,
IV. Conclusion
I recommend that this Court grant all of the remaining motions to dismiss (ECF Nos. 37, 38, 39 and 40), dismissing with prejudice (i) all claims against all Defendants arising under 42 U.S.C. § 1983 based on the First, Fifth and Fourteenth Amendments of the United States Constitution; (ii) all state law claims against the Town of Narragansett; and (iii) all claims against the Roman Catholic' Bishop of Providence. In addition, I recommend that all claims arising under state law against the Churches be dismissed without prejudice to being refiled in the state court.
Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting party. See Fed.R.Civ.P. 72(b)(2); D.R.I. LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court’s decision. See United States v. Lugo Guerrero,
Oct. 10, 2014.
Notes
. Mr. Devaney also named Peter F. Kilmartin, Attorney General of the State of Rhode Island. Because the Second Amended Complaint is devoid of substantive factual allegations against the Attorney General, naming him only because R.I. Gen. Laws § 9-30-11 requires a plaintiff who challenges the constitutionality of a local ordinance to give him notice, I recommended that all claims against him be dismissed with prejudice and Senior
. These facts are derived from Mr. Devaney’s Second Amended Complaint. Because these motions arise under Fed.R.Civ.P. 12(b)(6), I take as true all well-pleaded factual allegations and afford Mr. Devaney the benefit of all reasonable inferences. Butler v. Balolia,
. Mr. Devaney does not specify from where he made his measurements or which set of bells was measured. The Narragansett Noise Ordinance requires that such a measurement should be done from the nearest property line of the affected property. Narragansett, R.I., Code of Ordinances ch. 22, art. III, § 22-46(a). For comparison, the Noise Ordinance defines a "noise disturbance’’ as a sound exceeding, at most (depending on the time of day and the location in the Town) 75 decibels. Id. § 22-47(a).
. At the hearing, Mr. Devaney éloquently added this allegation — it is entirely missing from his Second Amended Complaint. In the interests of efficiency, I accept it as true for purposes of this motion.
. No man is an island,
Entire of itself,
Every man is a piece of the continent,
A part of the main.
And therefore never send to know for whom the bell tolls;
It tolls for thee.
John Donne (1572-1631).
. During the years that Mr. Devaney has lived in Narragansett, the Noise Ordinance has twice been amended, in 2004 and again in 2011. Ch. 849, § 1, 7-7-2004; Ch. 946, § 1, 8-15-2011. The 2004 amendment added the bell-tower performance exemption. The 2011 amendment relaxed some of the sound constraints in the Ordinance, raising the permitted decibel levels and increasing the times when more sound is permitted. Ch. 946, § 1, 8-15-2011 (amending § 22-47(a)).
. In the alternative, a noise disturbance is a noise that exceeds ambient levels by five decibels. The alternative definition is applicable only when no maximum noise level applies. Noise Ordinance § 22-46(a).
. Bristol, R.I., Code § 10-42 ("nothing contained in this section shall prohibit performances by the ringing of bells in a tower”); Burrillville, R.I., Code § 16-42 ("nothing contained in this section shall prohibit performances by the ringing of bells in a tower”); Coventry, R.I., Code § 169-11 (permit generally required for sound equipment, but not required for “[c]hurch or clock carillons, bells or chimes”), Coventry, R.I., Code § 169-14 ("Devices used in conjunction with places of religious worship shall be exempt” from "[n]o person shall operate ... any stationary bell ... for more than one minute in an hourly period”); Cranston, R.I., Code § 8.20.010 ("maximum permissible sound pressure levels ... shall not apply to ... [a]ny bell or chime from any building clock, school or church”); Middletown, R.I., Code § 130.87 (“Devices used in conjunction with places of religious worship shall be exempt” from "no person shall operate ... any stationary bell ... intended primarily for non-emergency purposes ... for more than one minute in any hour”); New Shoreham, R.I., Code § 12-53(b) ("Devices used in conjunction with places of religious worship shall be exempt” from "no person shall operate ... any stationary bell ... intended primarily for non-emergency purposes ... for more than one minute in any hourly period”); Newport, R.I., Code § 8.12.150 ("Devices used in conjunction with on-going religious services shall be exempt” from "[n]o person shall operate ... any stationary bell ... for more than one minute in any one hour”); Newport, R.I., Code § 9.04.080 (“nothing herein contained shall be construed to prevent the tolling, at a moderate rate, of any such bells for lectures or any other lawful meeting”); North Kingstown, R.I., Code § 8-94 ("Devices used in conjunction with places of religious worship shall be exempt” from "no person shall operate ... any stationary bell ... intended primarily for non-emergency purposes ... for more than one minute in any hourly period”); North Smithfield, R.I., Code § 8-121 ("nothing contained in this section shall prohibit performances by the ringing of bells in a tower”); Portsmouth, R.I., Code § 257-14 ("Devices used in conjunction with places of religious worship shall be exempt” from “[njo person shall operate ... any stationary bell ... for more than one minute in any one hour”); Richmond, R.I., Code § 8.14.050 ("The following sounds shall be permitted ... [sjound generated by stationary non-emergency signaling devices includes bells ... for less than one minute in each hour ... [and] [sjound generated by bells or other devices used at places of religious worship”); Smith-field, R.I., Code § 252-9 ("The provisions of this chapter shall not apply to ... [sjound produced by church bells or church chimes when used as part of religious observances or services”); Tiverton, R.I., Code § 38-145 ("Devices used in conjunction with places of religious worship shall be exempt” from “[njo person shall operate ... any stationary bell ... for more than one minute in any one hour”); Warren, R.I., Code § 13.30 ("Devices used in conjunction with places of religious worship shall be exempt” from "[njo person
. St. Peter's Church also relies on Fed.R.Civ.P. 12(b)(1), asking this Court to focus on lack of federal subject matter jurisdiction based on the failure to plead a claim invoking federal law. I rejected that ground for dismissal of Mr. Devaney’s Amended Complaint, finding that his invocation of federal question jurisdiction cleared the threshold, though barely, so that consideration of the motions under Fed.R.Civ.P. 12(b)(6) was permissible. ECF No. 30 at 6-7. This Court accepted that recommendation. ECF No. 31. By contrast
. Under Rhode Island law, private nuisance "arises from the unreasonable use of one's property that materially interferes with a neighbor’s physical comfort or the neighbor’s use of his real estate.” Hydro-Mfg., Inc. v. Kayser-Roth Corp.,
. As a result, some courts have labelled First Amendment jurisprudence as "muddled.” Rogers v. Mulholland,
. St. Thomas Church argues that the add-on exemption allowing bells associated with places of worship to ring without regard to the one-minute-per-hour limit may be interpreted from a reading of the plain language of the Noise Ordinance as derived from a legislative determination that church bells are not a signal that might be confused with emergency signals (which also have no time limit). ECF No. 39-1 at 10. The difficulty with this interpretation is that secular bells do not sound differently from church bells, yet they remain subject to the time limit.
. For example, a bell used in conjunction with a place of worship might ring for more than one minute to signal the celebration of the Fourth of July.
. It must be noted that the religious content comes only from the bells of St. Thomas Church. St. Peter’s Church merely marks the hours, a secular function of bells well embedded in history. See Lubken, Joyful Ringing, Solemn Tolling: Methods and Meanings of Early American Tower Bells, 69 Wm. & Mary Q. 823, 832 (2012) (bells used to mark passage of time).
. If they have, they may be called to account as a result of Mr. Devaney's private nuisance claim against them. See Terhune,
. While Mr. Devaney purports to question the Town’s interpretation of its Ordinance (that the bells are exempt), ECF No. 33 ¶¶ 14-15, I find that the Noise Ordinance clearly exempts the ringing of the Church bells, so that the Town’s failure to enforce the Ordinance against the Churches is not a separate act inflicting a potential constitutional injury. Moreover, even if the Churches arguably were violating the Noise Ordinance, failure to enforce, standing alone, does not constitute the unlawful establishment of religion. Diehl v. Vill. of Antwerp,
. At least one court, in an unreported decision, has held that a noise ordinance that did not exempt churches, thereby stifling their ability to use their bells to proselytize and call the faithful to worship, violated the Free Exercise Clause. St. Mark Roman Catholic Par
. Understandable, of course, based on the assumption that the facts alleged in his pleading are true, as this Court must assume when assessing whether the Second Amended Complaint states a claim.