Penney v . Middleton CV-92-555-B 11/21/94 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Penney, et a l .
v. Civ. N o . 92-555-B
Town of Middleton, et a l .
O R D E R
Richard and Laura Penney and their children, Robert, Jason
and Suzanne, seek compensatory and punitive damages from the Town
of Middleton, its local school district, various local officials,
and a non-profit corporation. The Penneys contend that they
suffered from unlawful discrimination because they moved to Middleton from Massachusetts, and unlawful retaliation because of
things Richard and Laura did and said. Richard Penney also
claims that he was the victim of unlawful discrimination because
of a visual disability. The Penneys base their claims on the
constitutional rights to free speech, travel and equal
protection; § 504 of the Rehabilitation Act of 1973, 29 U.S.C.A.
§ 794; an agreement reached between the town and the United
States Department of Housing and Urban Development; and various
state law rights. Defendants have moved to dismiss parts of the complaint for failure to state a claim. They also invoke the
affirmative defenses of immunity, bankruptcy discharge, accord
and satisfaction, collateral estoppel, and res judicata. Before
I address the merits of this motion, I outline the case's
convoluted procedural history, the standard of review I use in
deciding the motion, and the complaint's allegations.
I. BACKGROUND
A. Procedural History
The Penneys filed their first federal court complaint in
this matter on October 3 0 , 1992. They named forty-five
defendants including the town of Middleton, and various officers
and agents of the town, and of neighboring towns. The complaint
contained twenty-three federal claims and ten pendent state law claims alleging a legion of civil rights violations and common
law torts. Within a few months, the Penneys amended their
complaint, making only minor changes.
In February 1993, the defendants moved for a more definite
statement and several defendants moved to dismiss the claims
against them. Following a status conference in April 1993, the
parties submitted a proposed case management order, and the
resulting order set guidelines for the progress of the case and
2 provided for the appointment of "lead defendants' counsel" to act
as spokesperson for the defendants. After the next status
conference, I ordered the Penneys to prepare a second amended
complaint identifying the defendants that were allegedly liable
for each cause of action and the facts on which each cause of
action was based. I also directed the parties to confer about
the plaintiffs' claims and the defendants' expected defenses in
order to clarify and narrow the genuine factual and legal issues.
The Penneys' second amended complaint, filed in June 1993,
reduced the number of defendants to thirty-three, and reorganized
their claims into thirty-six counts. At the end of August, lead
defendants' counsel moved to dismiss the complaint on procedural
grounds. On November 2 9 , 1993, I held hearing on the defendants'
motion to dismiss. At that time, I expressed my discouragement
with the quality of the second amended complaint. Following the hearing, I issued an order limiting motions and instructing the
Penneys to file a third amended complaint that would set out
their claims with greater precision. The Penneys filed the
present amended complaint on May 1 1 , 1994, and the defendants
filed a timely motion to dismiss.
3 B. Standard of Review
When considering a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6), a district court must take all well-pleaded
facts in the complaint as true and draw reasonable inferences in
favor of the plaintiff. Coyne v . City of Somerville, 972 F.2d
440, 442-43 (1st Cir. 1992). Well-pleaded facts, however, do not
include the plaintiffs' "unsupported conclusions or interpre-
tations of law." Washington Legal Found. v . Massachusetts Bar
Found., 993 F.2d 9 6 2 , 971 (1st Cir. 1993). Thus, a district
court need not accept subjective characterizations, bald
assertions, or conclusory descriptions. See Correa-Martinez v .
Arrillaga-Belendez, 903 F.2d 4 9 , 52-53 (1st Cir. 1990). Although
the "the line between 'facts' and 'conclusions' is often
blurred," it must be drawn, because [i]t is only when such conclusions are logically compelled, or at least supported, by the stated facts, that i s , when the suggested inference rises to what experience indicates is an acceptable level of probability that "conclusions" become "facts" for pleading purposes.
Dartmouth Review v . Dartmouth College, 889 F.2d 1 3 , 16 (1st Cir.
1989).
Under the general pleading requirements of Fed. R. Civ. P.
8(a)(2), the Penneys need only aver "a short and plain statement
4 of the claim showing that the pleader is entitled to relief."
Allegations of civil rights violations pursuant to 42 U.S.C.A. §
1983 need not meet a heightened pleading standard. Leatherman v .
Tarrant County Narcotics Unit, 113 S . C t . 1160, 1163 (1993)
(holding that Fed. R. Civ. P. 8(a)(2) applies to allegations
against municipalities in § 1983 actions and prevents a
heightened pleading standard). 1 Even the minimal requirements of
notice pleading, however, require the Penneys to plead sufficient
facts in each count so that "each general allegation [is]
supported by a specific factual basis." Fleming v . Lind-Waldock
& Co., 922 F.2d 2 0 , 23 (1st Cir. 1990). With this standard of
review in mind, I assume the truth of the complaint's allegations
and summarize them in the light most favorable to the Penneys.
C. Factual Background
Richard Penney has a less than total visual impairment that causes him to be classified under state law as "legally blind."
As a result, he is entitled to a partial real estate tax
1 The breadth of the holding in Leatherman and its effect on the existing case law requiring pleading particularity in § 1983 actions is currently unsettled in this circuit as well as others. See, e.g., Schultea v . Wood, 27 F.3d 1112, 1115 n.2 (5th Cir. 1994); Feliciano v . Dubois, 846 F. Supp. 1033, 1042 (D. Mass. 1994); Hall v . Dworkin, 829 F. Supp. 1403, 1409 (N.D.N.Y. 1993).
5 exemption. See N.H. Rev. Stat. Ann. § 72:37 (Supp. 1993).
The Penney family moved to Middleton, New Hampshire, from
Massachusetts in 1981. Since then, Richard and Laura Penney have
filed a series of petitions, administrative complaints, and legal
actions: invoking their right to a real estate tax exemption;
challenging the town's administration of a federally funded
community development block grant program; alleging
discrimination and retaliation because of a handicap; and
contesting an improper meeting of the Middleton School District.
In 1984, Richard Penney complained to acting chief of police
Roy Snyder that his son, Robert, was assaulted with a BB gun and
threatened with a rifle by boys in town. Roy Snyder failed to
properly investigate the incidents and did not commence a
prosecution of the boys involved. Between 1986 and 1992, Snyder,
acting in his official capacity as Middleton School District bus driver and coordinator: participated in the school district's
decisions suspending Robert and Jason Penney; subjected Suzanne
and Robert Penney to verbal abuse; and showed reckless disregard
and deliberate indifference to the children's safety.
Star Snyder, as a member of the school board for the Middleton
School District, either disregarded or tacitly authorized Roy
Snyder's actions.
6 Jeremy Johnson, in his capacity as police chief, twice
revoked Richard Penney's concealed weapon permit. In 1990,
Johnson frequently drove back and forth past the Penneys' house
intending to harass and intimidate them.
In May 1991, the Middleton Concerned Citizen Group, Inc.
("MCCG"), with Calvin Roach and Roy Snyder as officers, sued the
town and two selectmen, and later sought to amend the complaint
to add Richard Penney as a defendant. Richard Penney intervened
in the suit to protect his interests. In October 1991, Roy
Snyder made public statements that Richard Penney conspired with
a town selectman to receive town funds illegally. The suit was
dismissed in January 1992. At various times, the Middleton
School District has refused to comply with Richard Penney's
requests under New Hampshire's right-to-know law.
III. DISCUSSION
Apparently believing that quantity is more important than
quality, defendants support their motion with nearly 20 separate
arguments. I analyze their motion by first examining the
sufficiency of the Penneys' claims. I then address defendants'
immunity defenses and their contention that a prior bankruptcy
7 filing bars claims against Chief Johnson. Finally, I discuss
defendants' attempted reliance on the affirmative defenses of
accord and satisfaction, collateral estoppel and res judicata.
A. First Amendment Claims
The Penney children contend in Count I that the Middleton
School District and both Roy and Star Snyder are liable pursuant
to 42 U.S.C.A. § 1983 and the First Amendment because the
defendants retaliated against the children for things their
parents did and said. The children make a similar claim against
Chief Johnson in Count VIII. However, a § 1983 claim cannot be
predicated on a violation of another person's protected rights.
Dohaish v . Tooley, 670 F.2d 9 3 4 , 936-37 (10th C i r . ) , cert.
denied, 459 U.S. 826 (1982); Casanas v . De Leon, 633 F. Supp. 2 2 ,
23-24 (D.P.R. 1986); but see Dangler v . Yorktown Cent. Schools,
771 F. Supp. 625, 630-31 (S.D.N.Y. 1991). Since the children do not contend that their own First Amendment rights were chilled by
the conduct described in Count I , their First Amendment claims
must be dismissed.
Richard and Laura Penney allege in Count VIII that Chief
Johnson violated their First Amendment rights by repeatedly
driving slowly in front of their home in retaliation for things
the Penneys did and said. However, the Penneys have not alleged
8 that their right to speak out was in fact chilled by Johnson's
conduct and no such claim could credibly be made based upon the
facts alleged in the complaint. Accordingly, this claim must
also be dismissed. Sullivan v . Carrick, 888 F.2d 1 , 4 (1st Cir.
1989) ("[w]here a chilling effect is speculative, indirect or too
remote, finding an abridgment of First Amendment rights is
unfounded").
B. Right to Travel and Equal Protection
The Penney children base their right to travel and equal
protection claims in Count I on the contention that they were
mistreated by the school bus driver and chief of police. Richard
Penney contends in Count VII that Chief Johnson violated his
rights to travel and equal protection by twice revoking Penney's
pistol permit. The Penney family all allege in Count VIII that
Chief Johnson violated their rights to travel and to equal protection by driving slowly past their house to intimidate and
harass them.
Regardless of its source, the essence of the Penneys' right
to travel claims is their contention that they were treated
differently from other residents because they had moved to
Middleton from Massachusetts. See, e.g., Attorney Gen. of New
9 York v . Soto Lopez, 476 U.S. 8 9 8 , 901-05 (1986) (noting
relationship between right to free migration claim and equal
protection claim based upon right to travel); Bray v . Alexandria
Women's Health Clinic, 113 S . C t . 753, 763 (1993) (quoting Zobel
v . Williams, 457 U.S. 5 5 , 60 n.6 (1982) (explaining the right to
interstate travel protects against being discriminated against by
"'the erection of actual barriers to interstate movement' and
'being treated differently from intrastate travelers'"). Any
such claim must allege that the defendants purposely
discriminated against the plaintiffs because they had traveled
from one state to another. See Lipsett v . University of Puerto
Rico, 864 F.2d 8 8 1 , 896 (1st Cir. 1988) (unlawful discrimination
claim must allege facts showing discriminatory intent or
purpose).
The Penneys have not alleged that defendants purposely discriminated against them because they came from another state.
Instead, they merely assert that defendants violated their rights
to travel and equal protection. This type of conclusory pleading
is insufficient even under Fed. R. Civ. P. 8's liberal pleading
standard.
C. Rehabilitation Act Claims
Richard Penney alleges in Count VII that Chief Johnson
10 violated § 5 0 4 , by unjustly revoking his pistol permit solely
because of his disability. All of the Penneys allege in Count IV
that the defendants violated plaintiffs' rights under 24 C.F.R. §
8.56(k), a Department of Housing and Urban Development ("HUD")
regulation prohibiting retaliation against persons who
participate in a HUD investigation of a § 504 claim. The Penneys
base their claims both on an implied right of action pursuant to
§ 504 and a right to damages for violations of § 504 pursuant to
§ 1983.
Defendants apparently concede that a properly pleaded
complaint can state an implied cause of action pursuant to § 504
for both a violation of the statute itself and its implementing
regulations.2 Instead, they argue that: (1) the children's
implied right of action claim in Count IV cannot survive because
2 The First Circuit has recognized an implied right of action for violations of § 504 itself. See Cook v . Rhode Island, 10 F.3d 17 (1st Cir. 1993). Moreover, other courts have recognized that an implied right of action also exists in certain instances to enforce a statute's implementing regulations. See, e.g., Smith v . Dearborn Fin. Servs., Inc., 982 F.2d 976, 979 (6th Cir. 1993) (private right of action exists to enforce regulation if the right to enforce the regulation is implied by the authorizing statute); Hoyt v . S t . Mary's Rehabilitation Center, 711 F.2d 8 6 4 , 867 (8th Cir. 1983) (retaliation claim in violation of Department of Health and Human Services regulations is actionable under § 5 0 4 ) ; Dopico v . Goldschmidt, 687 F.2d 6 4 4 , 650-51 n . 5 (2d Cir. 1982) (recognizing right of action for implementing regulations based on implied right of action under § 5 0 4 ) .
11 the regulation they rely on protects only people who participate
in some way in a HUD investigation; (2) neither Count IV nor
Count VII states a claim for relief under § 1983; (3) neither the
town nor the school district can be held liable for a § 1983
violation on a respondeat superior theory (4) Star Snyder cannot
be held liable on a respondeat superior theory; and (5) the
Middleton Concerned Citizen Group, Inc. cannot be liable for a §
504 violation because it did not engage in "state action." I
address each argument in turn.
1. The Children's § 504 Claim
The regulation the Penneys rely on in Count IV provides in
pertinent part: No recipient or other person shall intimidate, threaten, coerce, or discriminate against any person for the purpose of interfering with any right or privilege secured by this part, or because he or she has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.
24 C.F.R. § 8.56(k) (1994). Defendants contend that the children
cannot base a claim on this regulation because they do not allege
that they complained, testified, assisted, or participated in a
HUD investigation conducted pursuant to § 504. I reject this
contention because the complaint plainly alleges that the
defendants violated the regulation by "intimidating and
12 discriminating against the Penney children for their parents'
making complaints to HUD, and for the Penneys' assistance and
participation in investigation of their complaints." (Emphasis
added).
2. § 504 Claims and § 1983
The United States Supreme Court has determined that a
federal statute may be privately enforced in a § 1983 claim
unless either "the statute did not create enforceable rights,
privileges, or immunities within the meaning of § 1983" or
"Congress has foreclosed such enforcement of the statute in the
enactment itself." Suter v . Artist M , 112 S.Ct. 1360, 1366
(1992) quoting Wright v . Roanoke Development and Housing
Authority, 479 U.S. 4 1 8 , 423 (1987). A statute will not be
deemed to have foreclosed a § 1983 enforcement action "unless the
state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to
preclude such private enforcement." Wright at 424. Finally, the
court has held that a state actor can establish that Congress
intended to foreclose a § 1983 enforcement action by
demonstrating that the statute's own enforcement mechanism is
comprehensive. Middlesex Cty. Sewerage Auth. v . National Sea
Clammers Ass'n, 453 U.S. 1 , 21 (1981).
13 Defendants contend that § 504's own implied private right of
action qualifies as a comprehensive remedial scheme that
precludes the Penneys from also basing their § 504 claims on §
1983. All but two courts that have considered whether a
plaintiff may bring a § 504 claim pursuant to § 1983 have come to
a different conclusion. See Pushkin v . Regents of Univ. of
Colo., 658 F.2d 1372, 1382 (10th Cir. 1981); Pendleton v .
Jefferson Local Sch. Dist., 1992 U.S. App. LEXIS 6294 *21 (6th
Cir. 1992); Madsen v . Boise State Univ., 976 F.2d 1219, 1225-26
(9th Cir. 1992) (Norris, J., dissenting); Independent Housing
Servs. v . Fillmore Ctr. Assoc., 840 F. Supp. 1328, 1345 (N.D.
Cal. 1993); Harris v . Board of Educ., 798 F. Supp. 1331, 1334
(S.D. Ohio 1992); Rothschild v . Grottenthaler, 716 F. Supp. 796,
801 (S.D.N.Y. 1989); Cordero-Martinez v . Aponte-Roque, 685 F.
Supp. 3 1 4 , 316 (D. P.R. 1988); Conlon v . City of Long Beach, 676 F. Supp. 1289, 1298 (E.D.N.Y. 1987); Meyerson v . Arizona, 526 F.
Supp. 129 (D.Ariz. 1981), aff'd on other grounds, 709 F.2d 1235
(9th Cir. 1983), vacated and remanded, 465 U.S. 1095 (1984);
Medley v . Ginsberg, 492 F. Supp. 1294 (S.D. W.Va. 1980); but see
Ruth Anne M . v . Alvin Indep. School Dist., 532 F. Supp. 4 6 0 , 476
(S.D. Texas 1982); Tyus v . Ohio Dep't of Youth Services, 606 F.
Supp. 239 (S.D. Ohio 1985). The Supreme Court's decision in
14 Franklin v . Gwinnett County Pub. Schools, 112 S . C t . 1028 (1992) does not cause me to question the wisdom of these decisions.
3. The town and the school district - municipal liability
The Penneys allege in Count IV that the school district and the town are liable for Roy Snyder's violations of § 504.
Richard Penney alleges in Count VII that the town is liable for
Chief Johnson's § 504 violations. To the extent that these
claims are based on an implied private right of action under §
504, plaintiffs are entitled to maintain claims against the
school district and the town on a respondeat superior theory.
Bonner v . Lewis, 857 F. Supp. 559, 566 (9th Cir. 1988); Glanz v .
Vernick, 756 F. Supp. 6 3 2 , 636 (D. Mass. 1991); Patton v .
Dumpson, 498 F. Supp. 933, 942 (S.D.N.Y. 1980). To the extent that the parties base their claims on § 1983,
however, the claims are subject to the same pleading requirements
as any other § 1983 claim. Neither the town nor the school
district may be liable for a § 1983 violation on a respondeat
superior theory. Monnell v . Department of Soc. Servs., 436 U.S.
658, 694 (1978). Instead, a § 1983 claim against a municipality
or a municipal subdivision, such as the school district, must
allege that: (1) a municipal policymaker intentionally adopted a
15 policy, implemented a training protocol or allowed a custom to
develop; (2) the challenged policy, training protocol or custom
caused a violation of federally protected rights; and (3) the
policymaker acted with at least deliberate indifference to the
strong likelihood that a violation of federally protected rights
will result from the implementation of the policy, training,
protocol or custom. Canton v . Harris, 489 U.S. 3 7 8 , 385 (1989);
Manarite v . City of Springfield, 957 F.2d 953, 958 (1st Cir.
1991), cert. denied, 113 S . C t . 113 (1992). Whether a municipal
employee's adoption of a policy or acquiescence in a custom will
be attributable to the municipality depends upon whether state
law authorizes the employee to "speak with final policymaking
authority for the local governmental actor concerning the action
alleged to have caused the particular constitutional or statutory
violation at issue." Jett v . Dallas Independent School Dist., 491 U.S. 7 0 1 , 738 (1989); see also Gonzalez v . Ysleta Indep. Sch.
Dist., 996 F.2d 745, 759 (5th Cir. 1993). Unless such a
policymaker either implements the challenged policy or allows an
established custom to be implemented, the municipality will not
be liable for a § 1983 violation. Jett, 491 U.S. at 738. Since
the Penneys have not alleged that any of defendants' § 504
violations were the result of an official policy, training
16 protocol or custom, their § 1983 claims against the school
district and the town in Counts IV and VII cannot succeed.
Richard Penney's claim against the town in Count VII
survives, however, because the complaint alleges that the town's
police chief violated Penny's § 504 rights by revoking his pistol
permit. The chief plainly acts as a municipal policymaker when
he decides on the criteria to be considered in granting or
denying a request for a gun permit. See N.H. Rev. Stat. Ann.
159:6, 6(b) (Supp. 1993).
4. Star Snyder - Supervisory Liability
The Penneys' allegations in Count IV against Star Snyder
also fail to state a § 1983 claim. A plaintiff suing a
supervisor under § 1983 must allege that (1) a subordinate
violated her constitutional rights; (2) the supervisor's acts or
omissions caused the subordinate's unconstitutional conduct; and (3) the supervisor was deliberately indifferent to the
constitutional rights of others in acting or failing to act.
Febus-Rodriguez v . Betancourt-Lebron, 14 F.3d 8 7 , 92 (1st Cir.
1994); Manarite, 957 F.2d at 955-56. The First Circuit has
determined that deliberate indifference requires "actual
knowledge [or willful blindness] of impending harm, easily
preventable." Manarite, 957 F.2d at 956 (quoting DesRosiers v .
17 Moran, 949 F.2d 1 5 , 19 (1st Cir. 1991)). Although the Penney
children alleged in Count I that Star Snyder "showed reckless
disregard and deliberate indifference to Roy Snyder's
deprivations" of their First Amendment rights, right to travel
and right to equal protection, the Penneys failed to include
similar allegations as to their rights under § 504 in Count IV.
Consequently, the Penneys' § 1983 claims against Star Snyder in
Count IV are dismissed.
5. The Middleton Concerned Citizens Group, Inc.
The Middleton Concerned Citizens Group, Inc. ("MCCG") is a
New Hampshire non-profit corporation. Roy Snyder and Calvin
Roach are officers of the corporation. Richard Penney alleges in
Count IV that MCCG violated § 504 and 24 C.F.R. 8.56(k) by
causing a lawsuit to be filed against him for complaints he made
to HUD. He makes this claim both directly under § 504 and under § 1983.
In order to maintain a § 1983 claim, a claimant must allege
state action by the defendant. Rodriques v . Furtado, 950 F.2d
805, 813 (1st Cir. 1991); Rodriguez-Garcia v . Davila, 904 F.2d
9 0 , 95 (1st Cir. 1990). In cases where a private party is
charged with a § 1983 violation, the claimant must allege that
either (1) the financial or regulatory relationship between the
18 state and the private actor is sufficiently strong that the
private entity's actions are deemed to be the actions of the
state; (2) the private actor allegedly exercised an exclusively
public function; or (3) a symbiotic relationship existed between
the state and the private actor. Rodriguez-Garcia, 904 F.2d at
96-97. Although this inquiry is necessarily fact specific, a §
1983 claim cannot survive if it does not allege facts that would
satisfy the state action requirement.
Here, Penney does not claim the MCCG engaged in state
action. Accordingly, his § 1983 claim against MCCG is dismissed.
However, the state action requirement does not apply to an
implied right of action under § 504. Thus, I reject defendants'
challenge to this claim.
D. Voluntary Compliance Agreement
Richard Penney alleges in Count V that Snyder and the town are liable under § 1983 because they violated a "Voluntary
Compliance Agreement" entered between HUD and the town that
allegedly prohibited the town from retaliating against the
Penneys. A claim under § 1983 must be based upon a claimed
violation of "rights, privileges or immunities secured by the
constitution and laws" of the United States. 42 U.S.C.A. § 1983.
A claim that certain defendants violated the terms of an
19 agreement between HUD and the town does not fulfill this
requirement. Accordingly, Count V is dismissed.
E. State Constitutional Claim
The Penney children claim a right to damages in Count I
based on a violation of the New Hampshire Constitution's equal
protection clause, N.H. Const., P t . 1 , Art. 1 4 . The law in this
circuit is that a plaintiff who chooses the federal forum cannot
expect a federal court to break new ground in recognizing rights
under state law that have not yet been identified by the state's
own courts. DCPB, Inc. v . City of Lebanon, 957 F.2d 913, 916
(1st Cir. 1992). Since the New Hampshire Supreme Court has so
far declined to recognize an implied right to damages for
violations of the P t . 1 , Article 14 of the state's constitution,
Rockhouse Mountain Property Owners Ass'n v . Town of Conway, 127
N.H. 593, 597-602 (1986), I grant defendants' motion to dismiss this claim.
F. Defamation Claim
Richard Penney asserts a defamation claim in Count IX that
he did not include in any of the prior complaints. I did not
give him permission to file this new claim and, because he has
already amended the complaint several times, he must first move
to amend the complaint before I will determine whether to allow
20 his new claim. Fed. R. Civ. P. 1 5 . Accordingly, Count IX is
dismissed without prejudice. Plaintiff may seek to add this
count to the amended complaint by filing a motion to amend within
10 days.
G. Punitive Damages
The parties agree that punitive damages are not available
against the town or the school district for the Penneys' § 1983
claims. See Smith v . Wade, 461 U.S. 3 0 , 55-56 (1983); City of
Newkirk v . Fact Concerts, 453 U.S. 2 4 7 , 271 (1981). The
defendants also contend, however, that punitive damages are not
available in § 504 actions. The Supreme Court's recent decision
in Franklin v . Gwinnett County Public Schools, held that a broad
spectrum of damages are available in Title IX cases, which are
closely analogous to § 504 cases. Franklin, 112 S . C t . at 1035-
38. Although the Court did not specifically address punitive damages, it relied on a well-established general presumption for
determining the availability of remedies: The general rule, therefore is that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.
Franklin, 112 S . C t . at 1035. The First Circuit has recently
interpreted the presumption of a full remedy, described in
21 Franklin to allow for exemplary damages for violations of the
implied right of action prohibiting retaliatory discharges under
the Occupational Safety and Health Act of 1970. Reich v .
Cambridgeport Air Systems, Inc., 26 F.3d 1187, 1194 (1st Cir.
1994). Other courts that have concluded that punitive damages
are unavailable in § 504 actions have not considered the Franklin
decision. See, e.g., United States v . Forest Dale, Inc., 818 F.
Supp. 9 5 4 , 970 (N.D. Tex. 1993); Glanz v . Vernick, 750 F. Supp.
3 9 , 45 (D.Mass. 1990); Gelman v . Department of Educ., 544 F.
Supp. 6 5 1 , 654 (D.Colo. 1982). Given the unsettled state of the
law concerning an appropriate remedy in § 504 actions, I decline
to dismiss the Penneys' § 504 claims for punitive damages. If
necessary, I will resolve the issue prior to trial.
H. Claims Against Johnson - Effect of a Bankruptcy Filing
Johnson moves to dismiss the Penneys' claims against him on the grounds that these claims were discharged by his 1993
bankruptcy. See 11 U.S.C. § 542(a). If the Penneys' claims
against Johnson have been discharged, he has nothing to fear from
this lawsuit. The plaintiffs will not be able to recover from
him personally and if his insurers refuse to defend the action in
his name, he could default without fear of the consequences.
However, a bankruptcy discharge does not prevent the Penneys from
22 naming Johnson in this lawsuit in an effort to recover from
Johnson's insurers. In Re Edgeworth, 993 F.2d 5 1 , 54 (5th Cir.
1993); In Re Shondel, 950 F.2d 1301, 1307 (7th Cir. 1991); In Re
Jet Florida Systems, Inc., 883 F.2d 9 7 0 , 976 (11th Cir. 1989).
Accordingly, defendant's motion to dismiss on this basis is
denied.
I. Federal Claims Against Roy Snyder: Absolute Immunity
To the extent that the Penney children's § 1983 claims in
Count IV against Roy Snyder depend on his alleged failure to
prosecute certain crimes committed against Robert Penney, Snyder
is absolutely immune from liability under federal law for any
decision he made not to prosecute someone. Harrington v . Almy,
977 F.2d 3 7 , 40 (1st Cir. 1992). Accordingly, this allegation
cannot be used to support Count IV.
Snyder also claims that he is absolutely immune from liability for the children's § 1983 claims based on the school
bus suspensions because he was acting as a prosecutor or a judge
when he allegedly committed these acts. The Supreme Court has
adopted a functional approach to the analysis of immunity claims.
Butz v . Economou, 438 U.S. 4 7 8 , 512-14 (1977). Thus, a person in
Snyder's position may be entitled to absolute immunity for acts
taken in his capacity as a school bus driver if he was acting at
23 the time in a role functionally comparable to that of a
prosecutor or a judge. See id.; see also Bettencourt v . Board of
Registration in Medicine, 904 F.2d 7 7 2 , 782-83 (1st Cir. 1990).
I cannot conclude from the complaint whether Snyder undertook the
acts the Penneys describe in a prosecutorial or judicial
capacity. Accordingly, I deny defendants' motion to dismiss on
this basis without prejudice to their right to present the issue
again in a properly supported motion for summary judgment. J. Federal Claims against Chief Johnson: Qualified Immunity
Richard Penney alleges in Count IV that Chief Johnson
revoked his gun permit in retaliation for complaints Penney made
to HUD. Johnson contends that his alleged conduct is protected
by the doctrine of qualified immunity. The essence of his argument is that clearly established law did not prohibit him
from engaging in the conduct described in the complaint and his
motives for undertaking the conduct cannot be considered in
determining whether he is entitled to qualified immunity.
Johnson's argument fails because it has been expressly rejected
by the First Circuit Court of Appeals on more than one occasion.
This issue was most recently raised in Broderick v . Roache, 996
F.2d 1294, 1298 (1st Cir. 1993). There, plaintiff claimed that
24 the defendant had retaliated against him because he had exercised
his First Amendment rights. The defendant claimed that he was
entitled to qualified immunity even if he intended to retaliate
against the plaintiff because his acts were lawful. In rejecting
this argument, the court stated: "The short answer to [the
defendant's] contention is that, in a recent decision not cited
by any of the parties, we rejected this very argument. See
Feliciano-Angulo v . Rivera-Cruz, 858 F.2d 4 0 , 45-47 (1st Cir.
1988)." Broderick, 996 F.2d at 1298.
I f , as Penney alleges, Chief Johnson purposely retaliated
against him because he had complained to HUD, Johnson may not
claim qualified immunity for his acts simply because the acts
might have been lawful if his motives had been pure. The motion
to dismiss on this basis is denied.
K. Defendants' Remaining Arguments Defendants invoke the affirmative defenses of accord and
satisfaction, collateral estoppel, and res judicata in support of
their motion to dismiss. I decline to address the merits of
these arguments because they would require me to look well beyond
the pleadings. See Fed. R. Civ. P. 12(b)(6); Maruho Co., Ltd. v .
Miles, Inc., 13 F.3d 6, 8 (1st Cir. 1993). Thus, defendants'
motion to dismiss on this basis is denied without prejudice to
25 their right to renew their arguments in a properly supported
motion for summary judgment.
III. CONCLUSION I enter the following order with respect to defendants'
motion to dismiss (document #143):
1. Count I is dismissed.
2. Plaintiffs' claims in Count IV against the town, the
school district, Star Snyder, and MCCG pursuant to 42 U.S.C.A. §
1983 are dismissed.
3. Count V is dismissed.
4. Richard Penney's right to travel and equal protection
claims in Count VII are dismissed.
5. Count VIII is dismissed. 6. Count IX is dismissed without prejudice.
In all other respects, defendants' motion to dismiss is
SO ORDERED.
Paul Barbadoro United States District Judge November 2 1 , 1994 c c : Sheldon M . Katz, Esq. Cynthia A . Satter, Esq. Timothy Bates, Esq.
26 Edward D. Philpot, Esq. Edward B . Mulligan, IV, Esq. Calvin Roach Gordon R. Blakeney, J r .