623 F. Supp. 542 | D. Mass. | 1985
MEMORANDUM AND ORDER
The Nashoba Valley Christian Fellowship, Inc. (the “Fellowship”) is a religious and charitable corporation dedicated to the propogation of the Christian religion. Martin Cassity, Jr. is an ordained minister and president of the Fellowship. Since 1976 Cassity and other members of the Fellowship have engaged in a “public street ministry” on the sidewalks of the town of Ayer, Massachusetts. The public street ministry involves handing out Gospel tracts, conversing with people of all ages in the town and encouraging them to visit the Fellowship’s church. From May, 1976 to March, 1983 Cassity and others openly and freely pursued their public street ministry without hinderance on the ways and sidewalks of the town of Ayer.
This lawsuit arises out of the alleged March, 1983 decision of Phillip Connors, the Ayer Chief of Police, to prevent Cassity and other members of the Fellowship from practicing their public street ministry. The complaint alleges numerous instances between May, 1983 and September, 1984 in which members of the Ayer police force “harassed” Cassity while he attempted to discuss his religious beliefs with others on Ayer sidewalks. In addition, the complaint alleges that on September 22, 1984 officer Kevin Ahern of the Ayer police arrested Cassity without probable cause and in an excessively brutal manner.
Cassity and the Fellowship have brought suit against the Town of Ayer, Connors, and Ahern alleging violations of 42 U.S.C. §§ 1983, 1985, and 1986 (Counts I and II), violations of the Massachusetts Civil Rights Act (Count III), malicious prosecution (Count IV), false imprisonment (Count V), assault and battery (Count VI), intentional infliction of emotional distress (Count VII), and “intentional harassment and interference in beneficial interest” (Count VIII).
A. Town of Ayer
The town of Ayer moves for dismissal of Counts IV-VIII (the state law tort claims) on the ground of sovereign immunity. Massachusetts General Laws Chapter 258 governs the scope of liability of municipalities in the Commonwealth. Section 10 of chapter 258 specifically excludes from its coverage each and every one of the state torts alleged in the complaint. Thus, Counts IV-VIII must be dismissed as against the town of Ayer.
The town also moves to dismiss Counts I and II insofar as they allege violations of 42 U.S.C. §§ 1985 and 1986. In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court held that proof of a class-based invidiously discriminatory motive is an element of the cause of action under 42 U.S.C. § 1985(3).
Finally, the town moves to dismiss the claims under the Massachusetts Civil Rights Act (the “Act”). Mass.Gen.Laws ch. 12, §§ 11H and 111. The town argues that such an action is precluded by chapter 258. In passing the Act, the Massachu
B. Police Chief Connors
Connors has moved to dismiss the state tort law claims.
C. Officer Ahern
Officer Ahern has moved to dismiss Count III, and partially dismiss Counts I and II. For reasons already discussed the motion is denied as to Count III and .allowed without prejudice as to Counts I and II insofar as those counts allege violations of 42 U.S.C. §§ 1985 and 1986.
To summarize, it is hereby ORDERED that:
1. Counts I and II are dismissed as to all the defendants, without prejudice, insofar
2. Counts IV-VIII are dismissed as against the town of Ayer.
3. Count VI is dismissed as against Connors.
4. All other motions are denied.
. At oral argument plaintiffs represented that Count VIII was more accurately described as a claim of intentional interference with an advantageous relationship. The Court rules that Count VIII reasonably is susceptible of such an interpretation.
. Section 1985(3) of 42 U.S.C. provides that if two or more persons conspire to deprive "any person, or class of persons of the equal protection of the laws” then the injured person may have an action for the recovery of damages. This is the only subsection of § 1985 that could conceivably apply to this case.
. “The decision in Bell v. Mazza may well be a double edged sword____ [T]he potential reach of the [Massachusetts Civil Rights Act] after Bell is a legitimate cause of concern to those ... who view its main purpose as offering an important remedy for deprivation of civil rights/civil liberties and who envision that its main purpose will be deleted (sic; "diluted”?) by the breadth of the statute’s reach.” R. Sherman & R. Goldman, The Development of the Massachusetts Civil Rights Act, 29 Boston Bar Journal (No. 4) 14 n. 4 (1985).
. In addition, Chapter 258 by its terms applies only to municipal "liability] for injury or loss of property or personal injury or death.” Mass. Gen.Laws ch. 258, § 2. In this case Cassity and the Fellowship seek, inter alia, declaratory and injunctive relief enjoining application of the town’s anti-loitering “policy” to their public street ministry. This is another reason for denying the town’s motion to dismiss Count III.
. Connors also moves to dismiss Counts I and II insofar as they rely on 42 U.S.C. §§ 1985 and 1986. For the reasons already discussed this motion is allowed .without prejudice.
. For purposes of this motion to dismiss all factual allegations of the complaint, of course, are taken as true. Armano v. Federal Reserve Bank of Boston, 468 F.Supp. 674, 675 (D.Mass.1979).