United States District Court, D. New Hampshire
J. McAuliffe United States District Judge.
January 16, 2018, pro se plaintiff, Robert Every, filed suit
against the Town of Littleton, New Hampshire, as well as
several town officials, advancing various state and federal
claims generally relating to criminal charges filed by the
Town of Littleton against Every on July 6, 2016. Defendants
moved to dismiss Every's claims, and, on September 11,
2018, the court granted defendants' motion, but allowed
Every the opportunity to file an amended complaint with
respect to his claims under the Fourteenth Amendment, based
on defendants' having allegedly singled out Every for
enforcement, as well as claims brought under the Fourth
November 2, 2018, Every filed an amended complaint.
Defendants again move to dismiss plaintiff's claims.
ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable
inferences in favor of the pleader.” SEC v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the
complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation and internal punctuation omitted). The
“plausibility” standard is satisfied if the
factual allegations in the complaint, along with reasonable
inferences, show more than a mere possibility of liability.
Walbridge v. Northeast Credit Union, 299 F.Supp.3d
338, 342 (D.N.H. 2018) (citing Germanowski v.
Harris, 854 F.3d 68, 71 (1st Cir. 2017)).
a court must decide a motion to dismiss exclusively upon the
allegations set forth in the complaint and the documents
specifically attached, or convert the motion into one for
summary judgment. See Fed.R.Civ.P. 12(2). There is,
however, an exception to that general rule, as “[a]
district court may also consider ‘documents
incorporated by reference in [the complaint], matters of
public record, and other matters susceptible to judicial
notice.'” Giragosian v. Ryan, 547 F.3d 59,
65 (1st Cir. 2008) (quoting In re Colonial Mortgage
Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003))
(alterations in original).
purposes of resolving the motion to dismiss, the factual
allegations set forth in Every's amended complaint and
the attached exhibits must be taken as true. The facts
asserted by Every in his amended complaint are substantially
similar to those alleged in his original
complaint and are fully described in the September,
is the sole director and officer of the Esterhill Boat
Service Corporation. He holds a controlling interest in the
stock. He makes all policy and operational decisions for the
corporation. The Esterhill Boat Service Corporation owns a
building located at 551 Meadow Street in Littleton, New
Hampshire, in which two restaurants, Asian Garden and Bagel
Depot, operate. Every has no ownership interest in either
Meadow Street building is “below the level of sewer,
” so it cannot employ “gravity flow to the sewer
line, ” like most other buildings. Am. Compl., p. 5.
Instead, the building uses a pump station to pump sewage from
the building into the town's sewer line on Meadow Street.
The building's pump/utility room includes a pump chamber,
lift stations, and other systems that facilitate the disposal
process. Every designed and rebuilt the pump system, and he
oversees and maintains the pump/utility room. According to
Every, he “has overseen the installation, maintained
and worked on all the alarm systems, safety systems, primary
and back-up systems in the pump/utility room and considers
them his intellectual property.” Am. Compl. ¶ 50.
Every keeps in the pump room “information and manuals
on the [pump] system, ” as well as his notes on the
system. Id. at ¶ 51. He also “leaves his
tools in the pump/utility room with the expectation they will
not be disturbed, . . . because he restricts access to the
room based solely on his own discretion.” Id.
at 51. According to Every, “[n]o one enters the
pump/utility room without the plaintiff being there or his
express permission.” Id. at 51. The only way
to access the pump room is through the offices of AllStaff
Services (another business located in the 551 Meadow Street
Building). Every says that the AllStaff Services staff
contacts him for permission before allowing anyone access.
much of the time relevant to this proceeding, the Asian
Garden held a wastewater permit. The other business -Bagel
Depot - did not have a wastewater permit (something Every
says he repeatedly told town officials). Every has never
personally had (or been required to have) a wastewater
permit, since he does not (personally) own the building, nor
does he occupy it, nor does he personally make any discharges
into the town sewer system. As he puts it, “[t]he
plaintiff maintains no presence in the building insofar as
discharging [sewage] into the sewer system. The plaintiff
neither runs a business out of the building nor introduces
sewage into the Littleton sewer system beyond occasionally
getting a cup of coffee and a bagel in Bagel Depot -
something Littleton Police officers also do.” Am.
Compl. ¶ 48.
point, the town began having problems with its sewer system,
problems that Every alleges were “out of control and .
. . widespread.” Am. Compl. ¶ 10. In his amended
complaint, Every describes a December, 2016, incident in
which “gallons of sewage” erupted onto Meadow
Street, and he cites a July, 2017, news article that
discusses Littleton's sewage problems and the town's
remediation efforts. Am. Compl. ¶ 21, and Exh. E. Every
attributes the town's sewage problems to several other
town businesses, including McDonald's, Shaw's, and
the 99 Restaurant.
these much larger businesses that discharged wastewater into
the public sewer system, Every says the town targeted the
building owned by Esterhill Boat Service Corporation as a
potential source of its sewer problems, and initiated an
enforcement action. Every asserts that the property was
targeted, at least in part, because Chief of Police Paul
Smith held a personal grudge against him, one arising from an
incident that occurred many years ago.
Every learned of the enforcement action, he says he wrote a
letter to the town selectmen and a number of town officials,
dated July 29, 2016, requesting a meeting, so he might
explain the situation and address the town's concerns.
That letter was ignored, as were Every's follow-up
efforts to meet with town officials. About this same time, a
local newspaper printed a front-page article that incorrectly
identified Every as the owner of the Meadow Street building,
and stated that he was responsible for the town's sewer
problems. Additional articles portraying Every in a negative
light soon followed in other newspapers. Every complains that
the tone of those articles (which, he says, imply that Every
is “pretty much responsible for Littleton's sewer
issues”) differed from the media's coverage of
other town sewer-related issues. Am. Compl. ¶ 28-29.
claims that the town knew that the Meadow Street building was
owned by the Esterhill Boat Service Corporation, rather than
Every personally. See Am. Compl., ¶ 35 and Exh.
C, Letter from Town of Littleton (document no. 8-1) at 3.
Nevertheless, Every was criminally charged with violating
Chapter 13, Article V, Section 3(II)(D) of the Littleton
sewer ordinance, which prohibits persons from discharging (or
causing to be discharged) “[s]olid or viscous
substances in quantities or of such size capable of causing
obstruction to the flow in sewers, or other interference with
the proper operation of the wastewater facilities.”
Every was charged, the Littleton Police Department sought and
obtained a warrant to inspect the grease traps at the Asian
Garden and Bagel Depot restaurants. While the amended
complaint is not entirely clear, Every seems to allege that
the search warrant was deficient for two reasons. First, he
seems to say that Littleton police officers falsely swore to
material facts in the affidavit supporting the application
for the warrant. Every's amended complaint does not
provide additional details in that regard, but in his
original complaint, Every alleged that the warrant
application falsely represented that (a) Every personally
owned the building, and (b) Every held an “Industrial
Discharge Class III Permit.” Neither statement is
literally true. And, says Every, the officers who applied for
the warrant knew or should have known that those statements
were false. Second, Every says Detective Cox (and a uniformed
Littleton police officer whose name Every does not know)
exceeded the scope of the warrant when they searched an area
not covered by the warrant: the pump room.
criminal case proceeded to trial. Every asserts that various
forms of alleged prosecutorial misconduct occurred during his
trial, including the prosecutor's rehearsal of witnesses,
witness collusion, and the prosecutor's ignoring
witness's concerns regarding the charge against Every.