| No. 10- . ___________________________________________________________________ Supreme Court of the United States. John Palermo and Julie Palermo, The Town of North Reading, Massachusetts, Respondent. On Petition for Writ of Certiorari to the United States PETITION FOR WRIT OF CERTIORARI. -i- Questions Presented. 1. Should this Court resolve the intercircuit as well as intracircuit conflict of whether in the wake of Ashcroft v. Iqbal et al., 556 U.S. ___ (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007), a heightened pleading standard should be imposed on civil rights plaintiffs alleging municipal liability under Monell v. New York City Dept. of Social Services, 436 U.S. 659(1978)? 2. Is a claim for constitutional injury under Monell sufficiently alleged when a town in bad faith, for its own profit and for no public purpose, schemes to use its eminent domain power to prevent owners of a buildable subdivision lot from constructing a home there and falsely appraises the lot as unbuildable when making its pro tanto offer? -ii-
Questions Presented For Review......................................................................................................i Table of Contents.............................................................................................................................ii Table of Authorities..........................................................................................................................iii Citations of Opinions and Orders....................................................................................................... Basis for Jurisdiction in this Court....................................................................................................... Constitutional and Statutory Provisions Implicated.............................................................................. Statement of the Case....................................................................................................................... Argument Supporting Allowance of the Writ..................................................................................... 1. There Is Conflict Among The Circuits As Well As 2. A Claim For Constitutional Injury Under Monell Is Appendix.....................................................................................................................................post
-iii- Table of Authorities.
Citations of Opinions and Orders. The unpublished opinion of the United States Court of Appeals for the First Circuit in John Palermo and Julie Palermo v. Town of North Reading, C.A. No. 09-1049, 2010 WL 1408815, decided April 9, 2010, affirming the District Court’s dismissal of petitioners’ amended civil rights complaint against respondent Town of North Reading, is set forth in the Appendix hereto(App. 1-8). The unpublished decision of the District Court for the District of Massachusetts in John Palermo and Julie Palermo v. Town of North Reading, Docket No. 05-11782-RWZ, decided November 14, 2008, dismissing petitioners’ amended civil rights complaint against respondent Town of North Reading, is set forth in the Appendix hereto(App. 9-12). The petitioners’ amended civil rights complaint against respondent Town of North Reading, filed in District Court on March 21, 2008, is set forth in the Appendix hereto(App. 13-20). Basis for Jurisdiction in this Court. The decision of the United States Court of Appeals for the First Circuit affirming the order of the District Court dismissing petitioners’ amended civil rights complaint against respondent Town of North Reading was decided on April 9, 2010; and this petition for writ of certiorari is filed within ninety (90) days of the date of the court of appeals’ decision. 28 U.S.C. § 2101(c). Supreme Court Rule 13.3. The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C. § 1254(1). Constitutional, Statutory and Rule Provisions United States Constitution, Amendment V: ...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 28 U.S.C. § 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1343(a)(4): (a) The district courts shall have original jurisdiction of any civil
action authorized by law to be commenced by any person: Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... Civil Rights Act–42 U.S.C. § 1986: Every person who, having knowledge that any of the wrongs
conspired to be done..., are about to be committed, and having
power to prevent or aid in preventing the commission of the Fed. R. Civ. P. 1: [The federal rules of civil procedure] ...shall be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 8(a)(1) & (2): (a) Claims for relief. A pleading that states a claim for relief
must contain: (2) a short and plain statement of the claim showing that the pleader is entitled to relief.... Fed. R. Civ. P. 12(b)(6): ...[T]he following defenses may at the option of the pleader be made by motion:...(6) failure to state a claim upon which relief can be granted.... Fed. R. Civ. P. 15(a)(1) & (2): (a) Amendments Before Trial. Mass. Gen. Laws, c. 12, § 11I: Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages. Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of litigation and reasonable attorney’s fees in an amount to be fixed by the court. Mass. Gen. Laws, c. 79, § 14: A person entitled to an award of his damages under this chapter or the body politic or corporate bound to pay the same, whether a petition has or has not been filed or award made under section six, seven, nine or ten, may petition for the assessment of such damages to the superior court of the county in which the property taken or injured was situated.... Statement of the Case. In 1927, a subdivision plan containing about 50-75 lots located in respondent Town of North Reading, Massachusetts(“respondent”or “the Town” ), was recorded in the Registry of Deeds for Middlesex County. The subdivision plan, known as “Holman Half Acres,” called for the construction of a series of 20-foot wide access roads all of which would connect the lots to North Street, the closest contiguous street accepted by the Town and part of its roadway system. None of these access roads were built because of the Depression and they became merely “paper streets” with their dimensions and location described only on the recorded subdivision plan. As time passed, some of these landlocked lots were sold and the Town’s Building Inspector issued building permits allowing the landowners to construct homes there as long as the lots were at least one acre, had sufficient frontage on one of the laid out paper streets and the landowners could access their own frontage by way of a meandering, informal gravel road which had gradually developed through the subdivision over time for the landowners’ use in accessing their lots. This gravel road (“the Old Gravel Road”) allowed access onto North Street on one side of the subdivision and Magnolia Street on the other side but it did not follow the dimensions or the direction of any of the paper streets on the subdivision plan as originally laid out. In fact, the road traversed other lots within the subdivision and was entirely one developed by necessity of those landowners living there. The Old Gravel Road became the principal means of ingress, egress and travel for every landowner living in the subdivision; and the Town maintained the road by plowing, sanding and other upkeep so that it could accommodate fire and emergency apparatus. In 1987, petitioners John Palermo and Julie Palermo(“petitioners”) purchased their 1.2 acre lot located on First Street, one of the paper streets laid out by the original subdivision plan. Like other subdivision landowners before them, petitioners----with the Town’s consent--- began in1996 to construct a 20-foot-wide gravel road connecting their lot’s frontage on First Street to the Old Gravel Road. Like the Old Gravel Road, petitioners’ own gravel road would accommodate emergency apparatus. The Town allowed petitioners’ construction and claimed that it—not the landowners---owned the Old Gravel Road, having plowed and maintained it for over 20 years, even placing a street sign on it calling it “First Street.” In 1997, however, some of the other landowners in the subdivision over whose parcel(s) the Old Gravel Road traveled from North Street, brought civil actions in state court against the Town, petitioners and other landowners (Janet M. Flynn et al. v. Town of North Reading et al., Civil Action No. 240309; David Bornstein et al. v. Town of North Reading et al., Civil Action No. 240310) seeking to enjoin the Town as well as other landowners in the subdivision from using the Old Gravel Road running across their property for access to lots within the subdivision. The plaintiffs in these suits wanted to force the Town to move the Old Gravel Road off of their property (so that they would get their land back) and construct the roads as shown on the 1927 subdivision plan. This litigation caused the Town’s building inspector to deny petitioners their building permit application until such time as the private way called First Street was completely constructed so that it was suitable for ingress and egress These lawsuits challenged the Town’s authority to allow the construction of several homes within the subdivision without a constructed roadway system as shown on the recorded plan and then to maintain the Old Gravel Road there which trespassed over some of the landowners’ parcels for the convenience of other landowners. If the plaintiffs prevailed, the Town faced the prospect of having to construct the roadway system as it was laid out in the 1927 recorded subdivision plan----at the Town’s expense. The Town had no money for this new construction. Given the lack of funding to install new roads in the subdivision and to prevent a further buildout of the subdivision (including the necessity for some low income housing) while this litigation proceeded, the Town’s board of selectmen, Community Planning Commission(CPC), building inspector, Town Administrator and its related departments decided upon a plan in 2000 to take by eminent domain all the land in the subdivision which was not built upon, including petitioners’ parcel on First Street. The asserted public purpose for this taking of approximately 50 acres would be passive recreation, i.e., a park. According to this scheme, the Town would claim that the land to be taken was unbuildable and pay the landowners depressed prices based on assessments by its hired appraisers that the parcels were unbuildable. In fact, the Town knew that each parcel is and was buildable as of right subject to a final build-out of the roadway system in accordance with Town standards. To fund these takings, the Town budgeted $1.7 million and taxed its residents this amount in a special assessment. In addition, it decided to sell conservation land nearby this subdivision to a developer for $1.2 million via “a land swap” which allowed the developer the right to build several single family homes on this land. Accordingly, this “land swap” with the developer involving nearby conservation land provided most, if not all, of the funding for the Town’s takings. In an effort to stop this process and give the Town another option, petitioners in August of 2004 prepared and submitted to the CPC a complete, official subdivision road plan meeting all current requirements and obligating all the landowners in the subdivision----not the Town----to share the cost ($150,000) of constructing the roads consistent with the 1927 subdivision plan. The CPC ignored petitioners’ submission since notice to all abutters would have been required, adopting petitioners’ submission would have proved that the buildable lots were worth about $300,000 each, dramatically increasing the Town’s cost of taking any of these parcels by eminent domain. In January of 2005, the Town began sending out through sealed bids its pro tanto checks to landowners in the subdivision for their various parcels, depressed sums based upon its independent assessments that the parcels were unbuildable. The Town awarded petitioners just $15,250 for their lot, a typical award made to most of the landowners. The Town’s eventual cost for taking all the parcels at these depressed prices was $1.2 million, a sum paid for by the “land swap” with the developer, leaving a surplus for the Town’s treasury of $500,000. On July 27, 2005, petitioners brought this civil action against the Town seeking damages which would give them fair market value for their lot(Count I) as well as declaratory relief that the Town’s conduct denied them equal protection of the laws and due process(Count II). In Count III, petitioners alleged that “the actions, decisions, and policies of the [Town] have deprived [them] of all economically beneficial use of the[ir] [lot]” and they sought a declaration that the Town has made an unconstitutional regulatory taking, without paying them just compensation, i.e., by making a patently insufficient pro tanto award of just $15,250 for their buildable property, entitling them to damages, attorney’s fees and costs. In Count IV, petitioners claimed that the Town’s actions in rejecting their plans for developing their parcel was done with a malicious intent to deprive them of their rights under the Massachusetts Civil Rights Act, G.L.c. 12, § 11I, for which they sought damages. They claimed a jury trial on all counts of their complaint. On September 8, 2005, the Town removed the action to the United States District Court for the District of Massachusetts, positing jurisdiction on 28 U.S.C.§ 1331, because of the federal question(s) presented by petitioners’ complaint, and on 28 U.S.C. § 1343(3), in view of the claimed deprivation of civil rights implicated by their allegations. Once in district court, the Town denied all of the material allegations of petitioners’ complaint. The parties agreed to stay this federal action “to allow [petitioners] to pursue their eminent domain claims in state court” so that a jury could determine the damages caused petitioners by the Town’s taking under Count I of their complaint. Following a final decision in State court, it was further agreed that the federal district court “will decide whether the state court decision renders this federal court action moot or whether and how this federal court action should proceed as to the civil rights claims.” A jury trial was held in the Middlesex Division of the Superior Court Department on Count I of the petitioners’ complaint on February 5-8, 2008(A. 47;80). In its pretrial memorandum, the Town asserted that its appraiser, William LaChance,
is expected to testify as to the fair market value of
the property at the time of the taking.... Additionally, Mr. LaChance is expected to testify that the subject property is an unbuildable lot. Moreover,
Mr. LaChance is expected to testify that even if the
[petitioners] can substantiate their claim that the lot
is buildable, there are significant regulatory and
physical hurdles that must be overcome in order
to obtain a building permit such that the lot is essentially unbuildable. At trial, however, LaChance testified that he always considered [petitioners’] lot to be buildable. In his opinion, the market value of petitioners’ property was $280,000.00, assuming that a passable road existed for access to the premises. He fixed the cost of building out First Street in 2008 at $140,000. Petitioners’ proof was that the lot was buildable and worth about $325,000. At the conclusion of the trial, the jury awarded petitioners damages for the Town’s taking under Count I in the amount of $184,000, together with 2% interest and costs. Upon return to the federal district court, petitioners amended their complaint to reflect the State court proceedings and refine their allegations(App. 13-20). Their amended complaint attached the same exhibits as their original complaint and restated the material facts but now contained just two counts, the first seeking damages for the unconstitutional regulatory taking which deprived petitioners of all economically beneficial uses of their land; the second count sought damages for the Town’s bad faith violation of petitioners’ federal and state civil rights(App. 18-20). In support of these claims, petitioners added the further allegations that the Town’s CPC, its planning board, was unwilling to allow them to build out First Street according to the rules and regulations for developing unaccepted streets then in force and that such treatment “was absolutely contrary to the treatment given to other property owners in North Reading”(App. 15-16). In addition, petitioners alleged (in their “Facts” section of the amended complaint) that the Town’s actions “through its obstruction of [petitioners’] attempts to get the lot permitted, and its rejection of its own appraiser (William LaChance’s) valuation of the Premises when awarding the pro tanto [amount of $15,250.00] to [petitioners], was done in bad faith”(App. 17). Furthermore, they claimed in Count II that the Town’s conduct in awarding a pro tanto to [them] that clearly ignored the appraisal conducted by its own appraiser, and by clearly misreporting the appraiser’s expected testimony to the court in its pretrial memorandum in the [State] Superior Court, were malicious acts of bad faith that required [petitioners] to institute an action pursuant to state law to challenge the pro tanto award....[and] [s]uch state court challenge resulted in significant legal fees, expert witness fees, lost wages for time spent in court and preparation for court, and financing fees incurred on the delay of receiving a just payment for the property taken by the [Town]. (App. 19-20). Petitioners sought damages, cost and attorney’s fees caused by this bad faith conduct by the Town(App. 20). The Town moved to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim because petitioners having already recovered $184,000.00 from a jury in response to the Town’s pro tanto award, they “are now attempting to seek additional recourse arising out of the same conduct via a purported “Regulatory Taking” Claim (Count I of the Amended Complaint) and a “Damages–Bad Faith” claim (Count II of the Amended Complaint).” It argued that the State statutory scheme for rectifying unjust compensation awards was petitioners’ exclusive remedy. As for Count II, it contended that petitioners had already received just compensation in the State proceedings and they allege no direct liability of the Town, only respondeat superior or vicarious liability, and no allegation of threats, intimidation or coercion for purposes of the State’s Civil Rights Act.. In opposition, petitioners claimed that proof of the Town’s bad faith conduct emerged in the State court proceedings and showed that the Town through its appraiser LaChance had known well before the taking in 2005 that their property was, in fact, buildable and worth at least $140,000. Yet despite this information from its own appraiser and in violation of the Massachusetts eminent domain statutory scheme, the Town in bad faith made a pro tanto award which bore no relationship at all to the known, admitted value of the land taken. In addition, they contended that “trial counsel for the [Town] in the state court action willfully misrepresented the expected testimony of its own trial appraiser, being the same appraiser who made the original appraisal for the [Town] from which the pro tanto [award] was calculated.” Specifically, what emerged in the State court proceedings was persuasive proof that in order to avoid building a costly road system for the landowners whom it had allowed to build homes there, the Town devised a plan to take petitioners’ unbuilt parcel (as well as other unbuilt parcels in the subdivision) by eminent domain in order to create a passive recreational area and that pursuant to this plan it (1) refused to allow petitioners to build out the road abutting their parcel thereby preventing its development; (2) made a depressed pro tanto award which the Town knew through its own appraiser was false; and (3) misrepresented the expected testimony of its appraiser in the State court proceedings, expecting that petitioners (as well as other affected landowners) would lack the financial resources to challenge these intentionally depressed valuations through court proceedings. As petitioners concluded, both 42 U.S.C. § 1983, and the Massachusetts Civil Rights Act, G.L.c. 12, § 11I, provide relief “when municipalities willfully ignore their obligations to its citizenry for fair and equitable treatment...[as here where] the Town...ignored its obligation...to fairly compensate them for the land taken, thus requiring [petitioners] to expend significant sums [of money], time and effort through litigation to obtain what they should have been awarded at the outset: fair compensation for a buildable lot, taken through eminent domain.” They argued that this abuse of power and financial coercion by the Town’s board of selectmen, Community Planning Commission(CPC), building inspector, Town Administrator and its related departments beginning in 2000 was compensable bad faith conduct by the Town itself under §1983because it was clear after the State court proceedings that the Town had pursued a policy, practice and plan to subvert any legitimate appraisal of these buildable lots, to deliberately undervalue them as unbuildable lots and for its own profit create depressed pro tanto amounts having no relationship to their actual value. Even counsel for the Town conceded at a Status Conference in July of 2008 in district court that the Town had “made a mistake” when it calculated the value of the land taken for purposes of making pro tanto awards to petitioners and other landowners. Petitioners therefore asserted that further discovery and a trial were necessary to determine whether this “mistake” by the Town was authentic for purposes of liability under §1983. On November 14, 2008, the district court, Zobel, J., allowed the Town’s motion to dismiss petitioners’ amended complaint(App. 9-12). It determined that petitioners’ claim in Count I seeking damages for the unconstitutional regulatory taking had been fully met and neutralized by the jury’s award of damages in the State court proceedings(App. 11). As for Count II, the motion judge ruled that the thrust of the claim seeks to hold the Town itself responsible for the actions of certain individuals working for the Town “who denied the requisite permits to develop the site and who ignored the appraiser’s opinion to offer a wholly inadequate award”(App. 11-12). Since the Town cannot be vicariously liable under §1983 for the conduct of its employees or representatives and because it is not a person for purposes of the State’s Civil Rights Act, there was no liability under Count II (App. 12). The court of appeals unanimously affirmed the dismissal on April 9, 2010(App. 1-8). It determined that the Town’s liability under Count II of the amended complaint was premised solely on the actions of municipal employees and representatives for which the Town itself is not liable under §1983(App. 4-5). While it observed that municipal liability can attach where “execution of a government’s policy or custom...inflicts the injury,” (id. quoting Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658, 694(1978)), the court of appeals concluded that petitioners “never made such a Monell claim until their appeal to this court”(App. 5). Responding to petitioners’ reliance on a paragraph of their amended complaint which sought relief for the “actions, decisions, and policies” of the Town which “deprived [petitioners] of all economically beneficial use of [their property],” the court ruled that this allegation was “not nearly sufficient to support a Monell claim because the complaint as a whole contained no factual assertions whatsoever regarding Town policy”(App. 5;7 citing Ashcroft v. Iqbal et al., 556 U.S.___ (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007)). The court thought that the entire premise of petitioners’ amended complaint was that petitioners had been treated differently from other property owner, not similarly in accordance with Town policy(App. 7). Argument Supporting Allowance of the Writ. 1. There Is Conflict Among The Circuits As Well As Within Some Circuits Whether In The Wake Of Ashcroft v. Iqbal et al., 556 U.S. ___ (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007) A Heightened Pleading Standard Should Be Imposed On Civil Rights Plaintiffs Alleging Municipal Liability Under Monell v. New York City Dept. of Social Services, 436 U.S. 659(1978). Congress enacted 42 U.S.C. § 1983, with the central goal of providing protection to those persons wronged by the “‘[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law....’” Owen v. City of Independence, Missouri, 445 U.S. 622, 650-651(1980) quoting Monroe v. Pape, 365 U.S. 167, 184(1961) and United States v. Classic, 313 U.S. 299, 326(1941). By creating an express federal remedy, Congress sought to “enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.”Hafer v. Melo, 502 U.S. 21, 28(1991) quoting Scheuer v. Rhodes, 416 U.S. 232, 243(1974) and Monroe v. Pape, 365 U.S. at 171-172(emphasis supplied). When a person injured by a municipality’s misconduct seeks to hold the municipality itself liable under § 1983, a majority of this Court in Monell v. New York City Dept. of Social Services, 436 U.S. 659, 691-695(1978), held that “a municipality cannot be held liable solelybecause it employs a tortfeasor or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691(1978). “Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694. See Canton v. Harris, 489 U.S. 378, 385(1989) quoting Springfield v. Kibbe, 480 U.S. 257, 267(1987) (O’Connor, J., dissenting). A plaintiff can plead a Monell claim by alleging (a) an express policy that causes a constitutional deprivation when enforced; (b) a widespread practice that is so permanent and well settled that it constitutes a custom or practice; or (c) an allegation that the constitutional injury was caused by a person with final policymaking authority. Monell, 436 U.S. at 690-691;694. By pleading one of the above, a plaintiff “distinguish[es] acts of the municipality from acts of the employees of the municipality, and thereby makes clear that municipal liability is limited to action for which the municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479(1986). Since Monell, the Court has refused to impose a heightened pleading standard on plaintiffs alleging a civil rights deprivation by municipalities. In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167-168(1993), it unanimously rejected a Fifth Circuit rule that a Monell plaintiff’s complaint state with factual detail and particularity the basis for her claim as incompatible with the liberal system of “notice pleading” exemplified by Fed. R. Civ. P. 8(a)(2). Id. at 168. It explained that “[p]erhaps if [the] Rules...were rewritten today, claims against municipalities under § 1983 might be subjected to added specificity requirements....But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Id.(emphasis supplied). This same theme of amending the Federal Rules in order to impose a stricter pleading standard was sounded again by the Court in Swierkiewicz v. Sorema, N.A., 534 U.S. 506(2002) when it unanimously refused to impose on a plaintiff pleading employment discrimination the heightened requirement of showing a prima facie case in his complaint. Id. at 512. As with suits for municipal liability under § 1983, there is no particularity requirement in Fed. R. Civ. P. 9(b) for employment discrimination suits and none is required absent an amendment of the Federal Rules. Id. Finally, in Jones v. Bock, 549 U.S. 199, 212-213(2007), the Court unanimously held that prisoners’ habeas corpus petitions need not allege or demonstrate exhaustion of administrative remedies in their complaints since under the Federal Rules this issue is to be raised by the defendant as an affirmative defense. Id. With the law in this posture, the Court decided Ashcroft v. Iqbal et al., 556 U.S.___; 129 S. Ct. 1937, 1949(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007). Absent any amendment of the Federal Rules, the Court revised the standards of Conley v. Gibson, 355 U.S. 41, 45-46(1957) for dismissing a complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. To survive such a motion now, the complaint’s factual—not legal---allegations are taken as true; and if the complaint so read contains sufficient factual matter to state a claim for relief that is plausible on its face, allowing the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged, dismissal is not warranted. Iqbal, 556 U.S. at ___;129 S. Ct. at 1949. Twombly, 550 U.S. at 570. The complaint’s factual allegations must be enough to raise the right to relief above the speculative level, assuming that all the allegations of the complaint are true, even if doubtful in fact. Twombly,550 U.S. at 555. This new standard “calls for enough fact to raise a reasonable inference that discovery will reveal evidence of” the defendant’s unlawful conduct, or enough factual heft to show that the pleader is entitled to relief. Id. at 556. This evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at ___; 129 S. Ct. at 1950. In Twombly,the sufficiency of the plaintiff’s complaint was addressed within the context of complex antitrust litigation, prompting an analysis fueled by the consideration that the defendant should not be put to the cost of protracted, costly discovery unless the complaint alleged enough facts to show that the claims had merit. Iqbal’s plaintiff sought relief under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388(1971), providing an implied private cause of action against federal officers who had allegedly violated his constitutional rights. Iqbal, 556 U.S. at ___; 129 S. Ct. at 1947-1948. However, the analysis of the complaint’s sufficiency was informed by the fact that even “minimally intrusive discovery” might deter or detract the high-level government defendants there “from the vigorous performance of their [national security] duties.” Id. at ___; 129 S. Ct. at 1953-1954. The Court’s Twombly-Iqbal analysis and its effect on the Federal Rules’ ethic of notice pleading as exemplified by Rule 8 have created as many questions as answers. Neither decision has convinced Congress or scholars that notice pleading which has characterized the Federal Rules since their inception survives these decisions. See, e.g., Wright & Miller, § 1216; West Group, Federal Practice & Procedure Supplemental Service § 1357, referencing The Notice Pleading Restoration Act of 2009, S. 1504(introduced in the Senate to reinstate pre-Twombly standards for a motion to dismiss); H.R. 4115, Open Access To Courts Act of 2009, § 2 (Notice Pleading Restoration); Testimony of Arthur R. Miller before the Subcommittee of the Constitution, Civil Rights and Civil Liberties, Oct. 27, 2009, Serial No. 111-36 at 6-30, available at http://judiciary.house.gov/ hearings/ hear 091027 1.html; Jay S. Goodman, Two New U.S. Supreme Court Cases Raise the Question: Is Notice Pleading Dead?, 58 Fed. R.I. B.J. 5(2010); Hon. John P. Sullivan, Twombly and Iqbal: The Latest Retreat From Notice Pleading, 43 Suffolk U. Law Rev. 1, 47-61(2009). Moreover, there is considerable uncertainty among the inferior federal courts about the precise dimensions of these decisions, given that (a) the author of Twombly’s majority analysis, Justice Souter, dissented in Iqbal about the way the standards he framed in Twombly were applied; (b) Twombly’s language endowing every reviewing court with the right to draw upon on its own “judicial experience and common sense” in assessing whether the plaintiff’s alleged facts have the ring of plausibility or are merely “conclusory” is open-ended; (c) both decisions were instigated in part by a dearth of facts in the complaints which could justify the costly, time-consuming discovery for defendants in complex litigation or ones distracted by national security; (d) both seem to reject the long held proposition under the Federal Rules that all inferences are to be drawn in favor of the pleader; and (e) both accomplish an amendment of Rule 8 by judicial interpretation, contrary to the Court’s earlier unanimous pronouncements in Leatherman, Swierkiewicz and Jones that it would not do so. Reflecting this uncertainty, the circuits are in conflict about whether in the wake of these decisions a heightened pleading standard should apply to civil rights plaintiffs alleging municipal liability under Monell. The First Circuit (in this case), the Third Circuit (Mitchell v. Township of Pemberton, 2010 WL 2540466 at 6(D.N.J. 6/17/2010)), the District of Columbia Circuit (Smith v. District of Columbia, 674 F. Supp. 2d 209, 211 & n.2(D. D.C. 2009)) and the Ninth Circuit (Ward v. Nevada, 2010 WL 1633461 at 5(D. Nev. 2/26/2010)) have all ruled that the Twombly-Iqbal standard applies in assessing these complaints. However, courts in the Fifth and Seventh circuits have refused to apply the Twombly-Iqbal standard, noting that Leatherman and its progeny provide the better approach for measuring a civil rights complaint alleging municipal liability. See Dwyer v. City of Corinth, Tex., 2009 WL 3856989 at 8-9(E.D. Tex. 11/19/2009); Bissessur v. Indiana Univ. Bd. of Trustees, 581 F.3d 599, 603(7th Cir. 2009)(“Our system operates on a notice pleading standard; Twombly and its progeny do not change this fact.”); Wiek v. Keane, 2010 U.S. Dist. LEXIS 47884 at 3-4(N.D. Ill. 2010); Miller v. City of Plymouth, 2010 U.S. Dist. LEXIS 35686 at 4(N.D. Ind. 2010). See also Smith v. Duffey, 576 F.3rd 336, 339-340(7th Cir. 2009)(Posner, J.)(“maybe” Twombly and Iqbal should be held to their own facts and the particular discovery issues they confronted). The courts in two other circuits (the Second and Sixth) have issued decisions pointing in both directions. Compare Colon v. City of New York, 2009 U.S. Dist. LEXIS 110520 at 2(E.D.N.Y. 2009)(Weinstein, Jack B., J.)(finding sufficient issues of fact under Monell and noting that ‘[n]either Twombly nor Iqbal can trump the Constitution.”) with Cuevas v. City of New York, 2009 WL 4773033 at 3-4(S.D.N.Y. 2009)(applying Twombly and Iqbal); compare Hutchinson Metropolitan Government of Nashville and Davidson County, 685 F. Supp. 2d 747, 750-751(M.D. Tenn. 2010)(following Iqbal reluctantly) with Lott v. Swift Transp. Co., Inc., 2010 U.S. Dist. LEXIS 25654 at 5(W.D. Tenn. 3/17/2010)(following Leatherman). The Court should resolve this blossoming disarray in the inferior federal courts, redefine with bright lines the contours of Twombly and Iqbal, and set forth the proper standard which should be applied to complaints brought by civil rights plaintiffs alleging municipal liability. 2. A Claim For Constitutional Injury Under Monell Is Sufficiently Alleged When A Town In Bad Faith, For Its Own Profit And For No Public Purpose, Schemes To Use Its Eminent Domain Power To Prevent Owners Of A Buildable Subdivision Lot From Constructing A Home There And Then Falsely Appraises The Lot As Unbuildable When Making Its pro tanto Offer. Under Leatherman, Swierkiewicz and Jones, petitioners are not held to a heightened pleading requirement nor are they required to plead specific facts to prove the existence of a municipal policy. Conclusory allegations of a policy or practice can support such a claim where petitioners allege enough facts to give the municipality fair notice of the claim because under the notice pleading regime of the Federal Rules, a defendant is owed “fair notice of what the...claim is and the ground on which it rests.” Conley v. Gibson, 355 U.S. at 47. Petitioners need not set forth all the details of their case against a municipality under § 1983 at the pleading stage, Leatherman, 507 U.S. at 168; even “boilerplate” allegations of an offensive municipal policy are generally sufficient; and petitioners’ factual allegations must be presumed to be true and should be liberally construed in their favor. Id. at 164; Scheuer v. Rhodes, 416 U.S. at 236. When read in the light most favorable to petitioners and with every fact recited therein assumed as true for the purposes of a motion to dismiss, the facts alleged in Count II of petitioners’ amended complaint state a viable claim against the Town for compensation under 42 U.S.C. § 1983. They allege that the Town itself for its own profit and for no public purpose implemented a coherent policy of taking by eminent domain unimproved parcels in a subdivision which was not going to be completed, making unfairly low pro tanto awards based on its false claim that these lots were unbuidlable, in order to force landowners like petitioners to accept unfairly low payments for their property or face protracted litigation in order to achieve compensation. Specifically, what emerged in the State court proceedings----as reflected by the facts recited in petitioners’ amended complaint---was proof that in order to avoid building a costly road system for the landowners whom it had allowed to build homes in an undeveloped subdivision, the Town devised a plan to take petitioners’ unbuilt parcel (as well as other unbuilt parcels in the subdivision) by eminent domain and pursuant to this plan it (1) refused to allow petitioners to build out the road abutting their parcel thereby preventing its development; (2) made a depressed pro tanto award which the Town knew was false; and (3) misrepresented the expected testimony of its appraiser in the State court proceedings, expecting that petitioners (as well as other affected landowners) would lack the financial resources to challenge these intentionally depressed valuations through court proceedings. For its own profit, for no public purpose and in order to escape liability in the pending lawsuits brought against it by Flynn et al., seeking to have a roadway system built for this undeveloped subdivision, the Town lied about these lots being unbuildable and then offered pro tanto award based on its false claim that they were not buildable, leaving petitioners and other affected landowners with the burden of paying attorney’s fees and court costs in order to expose the Town’s fraud. This is the constitutional injury above and beyond the taking itself (for which petitioners received compensation in State court) which deserves redress under § 1983 and Count II of petitioners’ amended complaint. The Town’s unlawful scheme could not be carried out in vacuo; and petitioners’ amended complaint justifiably identifies those actors who took part in devising this policy of financial coercion and abuse of power, i.e., the Town’s board of selectmen, its Community Planning Commission(CPC), its building inspector, the Town’s appraiser, Town Administrator and its related departments as well as the Town’s attorneys. As described by petitioners’ allegations, the Town is not vicariously liable; the Town itself devised this coherent, concerted policy in bad faith for no public purpose in order to profit from the predicament it had created when it allowed landowners to build on parcels located in an undeveloped subdivision, permitting them to use the Old Gravel Road for access, a road th Town claimed as its own. In addition, as petitioners’ allegations of fact make clear, the Town itself is the “moving force” behind this coherent municipal policy or practice of confecting false appraisals for its own profit and forcing its citizenry including petitioners into costly, time-consuming litigation in order to vindicate their right to just compensation. The Town’s conduct is an abuse of power and an exercise of financial coercion which § 1983 is designed to remedy with an award of damages. Count II of petitioners’ amended complaint fairly alleges this compensable constitutional injury against the Town and it should not have been dismissed. Conclusion. Respectfully submitted,
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