Signs for Jesus v. Town of Pembroke

2016 DNH 059

• Court: District Court, D. New Hampshire
• Decided: March 24, 2016
• Docket: Case No. 15-cv-482-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Signs for Jesus, et al.

v. Case No. 15-cv-482-PB Opinion No. 2016 DNH 059 Town of Pembroke, et al.

MEMORANDUM AND ORDER

Signs for Jesus and Hillside Baptist Church applied for a

permit to put up an electronic sign that would display religious

messages on Pembroke Street in Pembroke, New Hampshire. When

their application was denied, they filed this suit against the

Town of Pembroke, the Town’s Zoning Board of Adjustment, and the

Town’s Code Enforcement Officer, Everett Hodge. Plaintiffs

allege that the defendants’ actions violated the United States

and New Hampshire constitutions, and federal and state statutes.

After filing their answer, defendants responded with a partial

motion to dismiss pursuant to Federal Rules of Civil Procedure

12(b)(1), (3), and (6). Doc. No. 13.

I. BACKGROUND

In April 2015, Signs for Jesus and Hillside Baptist Church

(hereafter, collectively “the Church”) applied for a permit to

install an electronic sign on its property on Pembroke Street in Pembroke, New Hampshire.1 The purpose of the proposed sign was

to display daily Bible scriptures. In April 2015, Everett

Hodge, the Town of Pembroke’s Code Enforcement Officer, denied

the Church’s application. Doc. No. 1 at 7. The Church then

appealed Hodge’s decision to the Town of Pembroke’s Zoning Board

of Adjustment (“ZBA”), and filed a separate variance request.

Id. After a public hearing, the ZBA denied the Church’s

administrative appeal and its request for a variance. Id. at 8.

In August 2015, the Church requested rehearing pursuant to N.H.

Rev. Stat. Ann. § 677:2. Id. The ZBA denied the Church’s

requests at a subsequent hearing.

In November 2015, the Church filed its complaint here,

alleging that the Town’s actions and its sign ordinance are

unconstitutional, and violate federal and New Hampshire law.

Specifically, the Church’s complaint includes nine counts: four

claims invoking the United States Constitution (brought pursuant

to 42 U.S.C. § 1983); two claims based on the federal Religious

Land Use and Institutionalized Persons Act (“RLUIPA”); one claim

invoking the New Hampshire Constitution; and two claims based on

1 Signs for Jesus is a New Hampshire non-profit corporation “whose purpose is to publicly display daily Bible scriptures to the public via road signs.” Doc. No. 1 at 2. Hillside Baptist Church is a religious organization that owns property at 547 Pembroke Street (otherwise known as U.S. Route 3) in Pembroke, New Hampshire. 2 N.H. Rev. Stat. Ann. § 677:4. The complaint names as defendants

the Town of Pembroke, Pembroke’s ZBA, and Hodge, both

individually and in his official capacity as the Town’s Code

Enforcement Officer. The Church seeks declaratory, injunctive

and monetary relief.2 Id. at 24-25.

II. ANALYSIS

Defendants have filed a partial motion to dismiss pursuant

to Federal Rules of Civil Procedure 12(b)(1), (3), and (6).

Doc. No. 13. In their motion, defendants argue that I should

dismiss all claims against (1) the ZBA, (2) Hodge in his

official capacity as the Town’s a Code Enforcement Officer, and

(3) Hodge in his individual capacity. I take up each argument

in turn.

A. Claims Against the ZBA

Defendants first argue that I should dismiss plaintiffs’

claims against the ZBA, because the ZBA is merely a decision-

making body of the Town, and therefore is not an appropriate

2 Because it is somewhat unclear which claims plaintiffs are bringing against which defendant, I assume, for the purposes of this Order, that plaintiffs are bringing all of their claims against all of the defendants. I further assume that plaintiffs seek declaratory, injunctive, and monetary relief from each defendant on each of their claims.

3 separate defendant from the Town. To support this argument,

defendants point to two New Hampshire Supreme Court cases that

suggest that a municipality, not the municipality’s decision-

making body, is the appropriate defendant in a zoning appeal

case. See Kelley v. Hopkinton Village Project, 108 N.H. 206,

207 (1967); N.H. Highway Hotel, Inc. v. City of Concord, 119

N.H. 122, 124-26 (1979).

In response, plaintiffs argue that cases involving federal

claims “will frequently include both the town and the ZBA as

separate parties.” Doc. No. 17 at 2; see, e.g., Westchester Day

School v. Village of Mamaroneck, 504 F.3d 338, 353-54 (2d Cir.

2007); Grace United Methodist Church v. City of Cheyenne, 451

F.3d 643 (10th Cir. 2006); New Cingular Wireless PCS, LLC v.

City of Manchester, 2014 DNH 044. Plaintiffs also point to

RLUIPA’s text, which provides that both municipalities and

municipal departments are proper defendants to RLUIPA claims.

See 42 U.S.C. § 2000cc-5(4)(A). They further note that RLUIPA

grants a government discretion to change its policy or practice,

or to create specific exemptions, in order to avoid RLUIPA’s

preemptive force, 42 U.S.C. § 2000cc-3(e), and argue that a

conflict may arise between the Town and the ZBA regarding who

has the authority to grant such an exemption.

I need not decide whether the ZBA is an appropriate 4 separate defendant here. Admittedly, the ZBA appears to be

merely a subdivision of the Town, which cannot provide any

different or greater relief than the Town itself. Yet, whether

the ZBA remains a separate defendant or not, there will be no

meaningful difference in discovery, motion practice, or any

other significant aspect of this dispute. Because this is a

purely academic debate, then, I decline to decide whether the

ZBA is an appropriate separate defendant in this case.

Accordingly, I deny defendants’ motion to dismiss claims against

the ZBA.

B. Claims Against Hodge in his Official Capacity

Next, defendants contend that I should dismiss all claims

against Hodge in his official capacity because “the Plaintiffs

do not and cannot seek relief against Mr. Hodge which is

separate or distinct from that which they seek from the Town.”

Doc. No. 13 at 3. I agree.

An official-capacity suit is “in all respects other than

name, to be treated as a suit against the entity.” Kentucky v.

Graham, 473 U.S. 159, 166 (1985); see Surprenant v. Rivas, 424

F.3d 5, 19 (1st Cir. 2005); Wood v. Hancock County Sheriff's

Dep't, 354 F.3d 57, 58 n. 1 (1st Cir. 2003); Nereida–Gonzalez v.

Tirado–Delgado, 990 F.2d 701, 705 (1st Cir. 1993)). Put another

way, “official-capacity suits generally represent only another 5 way of pleading an action against an entity of which an officer

is an agent.” Monell v. New York City Dep't of Social Servs.,

436 U.S. 658, 690 n.55 (1978). Accordingly, “a string of

Supreme Court cases holds that a suit against a government

officer in his or her official capacity binds the agency or

other governmental entity, not the officer personally.” Am.

Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256,

1259 (1st Cir. 1993) (citing Graham, 473 U.S. at 166; Brandon v.

Holt, 469 U.S. 464, 471 (1985)).

In this case, plaintiffs have sued both the Town and Hodge

in his official capacity. Because a suit against a town officer

in his official capacity is essentially the same as a suit

against the town, Surprenant, 424 F.3d at 19, Hodge’s liability

in his official capacity “is indistinguishable from the” Town’s.

Wood, 354 F.3d at 58 n.1. Put plainly, it was redundant for

plaintiffs to sue both the Town and Hodge in his official

capacity. Because of that redundancy, it is appropriate to

dismiss plaintiffs’ claims against Hodge in his official

capacity here. See Decotiis v. Whittemore, 635 F.3d 22, 38 n.19

(1st Cir. 2011); Roman Catholic Bishop of Springfield v. City of

Springfield, 760 F. Supp. 2d 172, 184 (D. Mass. 2011)

(dismissing claims, including Section 1983 and RLUIPA claims,

against city officials sued in their official capacity as 6 redundant), rev’d on other grounds, 724 F.3d 78 (1st Cir.

2013)).

C. Claims Against Hodge in his Individual Capacity

Defendants also argue that I should dismiss all claims

against Hodge in his individual capacity because “each and every

action taken by Mr. Hodge and referenced in the Complaint was

taken in Mr. Hodge's capacity as Code Enforcement officer for

the Town.” Doc. No. 13 at 3. Thus, according to the

defendants, because the complaint “contains absolutely no

reference to any action taken by Mr. Hodge in his individual

capacity,” the complaint fails “to state a claim upon which

relief can granted against Mr. Hodge in his individual

capacity.” Id. I disagree.

Defendants’ argument rests upon misunderstanding of the

distinction between “official” and “individual” capacity suits.

As explained above, “official-capacity suits generally represent

only another way of pleading an action against an entity of

which an officer is an agent.” Monell, 436 U.S. at 690 n.55.

Individual-capacity suits, meanwhile, “seek to impose personal

liability upon a government official payable out of personal

assets.” Am. Policyholders Ins. Co. v. Nyacol Prods., Inc., 989

F.2d 1256, 1259 (1st Cir. 1993) (internal citation and emphasis

omitted). 7 In determining whether a suit involves an individual or

official-capacity claim, I am guided by the complaint.

Asociacion De Subscripcion Conjunta Del Seguro De

Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 26

(1st Cir. 2007). Thus, “the phrase ‘acting in their official

capacities’ is best understood as a reference to the capacity in

which the state officer is sued, not the capacity in which the

officer inflicts the alleged injury.” Hafer v. Melo, 502 U.S.

21, 26 (1991). Plaintiff may therefore sue a government officer

in his individual capacity even where the officer caused the

complained-of injury while acting within the scope of his

official duties. Id.; Flores Galarza, 484 F.3d at 26.

With those principles in mind, I return to defendants’

argument. Defendants contend that I should dismiss all claims

against Hodge in his individual capacity because the complaint

“contains absolutely no reference to any action taken by Mr.

Hodge in his individual capacity.” Doc. No. 13 at 3. Put

differently, defendants argue that the claims against Hodge in

his individual capacity fail because he was acting within the

scope of his official duties when he denied plaintiffs’

application. Yet, as explained above, the fact that Hodge

allegedly caused injury while acting within the scope of his

official duties does not bar an individual capacity suit against 8 him here. Hafer, 502 U.S. at 26. I therefore decline to

dismiss claims against Hodge in his individual capacity on that

basis.3

D. Section 677:4 Supplemental Jurisdiction

Finally, in their motion, defendants argue that I should

decline to exercise supplemental jurisdiction over plaintiffs’

claims brought pursuant to N.H. Rev. Stat. Ann. § 677:4. At a

subsequent in-chambers conference, however, the parties agreed

to stay plaintiffs’ state-law claims pending adjudication of

their federal claims. Based upon that understanding, I deny

defendants’ motion without prejudice as it relates to Counts

VIII and IX.

III. CONCLUSION

3 Defendants do not argue that I should dismiss the claims against Hodge in his individual capacity because he is entitled to qualified immunity. They also do not argue that the RLUIPA claim for damages against Hodge fails because RLUIPA does not permit such relief against a municipal officer sued in his individual capacity. Compare Cryer v. Spencer, 934 F. Supp. 2d 323, 333 (D. Mass. 2013) (explaining that, at least in the institutionalized person context, RLUIPA does not allow damages claims against municipal actors in their individual capacities), with Israelite Church of God in Jesus Christ, Inc. v. City of Hackensack, No. CIV.A. 11-5960 SRC, 2012 WL 3284054, at *6 (D.N.J. Aug. 10, 2012) (finding that RLUIPA’s land-use provision allows such claims). Because the parties do not address these issues, I do not reach them here.

9 For the reasons provided above, defendants’ motion to

dismiss (Doc. No. 13) is granted as to claims against Hodge in

his official capacity and is otherwise denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 24, 2016

cc: Pierre A. Chabot, Esq. Michael J. Tierney, Esq. Christopher Cole, Esq. Garry R. Lane, Esq. Meghan C. Carrier, Esq.