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Every v. Town of Littleton

United States District Court, D. New Hampshire

May 7, 2019

Robert Every, Plaintiff
Town of Littleton, New Hampshire; Andrew Dorsett, Town Manager; Milton Bratz, Selectman; Schuyler Sweet, Selectman; Edward Hennessey, Former Selectman; Paul Smith, Chief of Police; Stephen Cox, Former Detective Sergeant; and George McNamara, Former Public Works Director, Defendants


          Steven J. McAuliffe United States District Judge.

         On 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 Amendment.

         On November 2, 2018, Every filed an amended complaint. Defendants again move to dismiss plaintiff's claims. Every objects.

         Standard of Review

         When 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)).

         Generally, 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).


         For 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[1] and are fully described in the September, 2018, order.

         Every 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 restaurant.

         The 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.

         During 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.

         At some 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.

         Despite 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.

         When 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.[2] Am. Compl. ¶ 28-29.

         Every 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.”

         After 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.

         Every's 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. After ...

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