Belezos v. Board of Selectmen of Hingham, Massachusetts

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

NICHOLAS G. BELEZOS, on behalf

of himself and all others

similarly situated,

Plaintiffs,

v. CIVIL ACTION NO.

17-12570-MBB

BOARD OF SELECTMEN of

Hingham, Massachusetts,

in their official capacity,

on behalf of themselves and

all others similarly situated,

Defendants.

MEMORANDUM AND ORDER RE:

DEFENDANTS’ MOTION TO DISMISS

(DOCKET ENTRY # 13)

March 29, 2019

BOWLER, U.S.M.J.

Pending before this court is a motion to dismiss filed by

defendants Board of Selectmen of the Town of Hingham sued in

their official capacity (“defendants” or “Selectmen”) to dismiss

all eight claims brought by plaintiff Nicholas G. Belezos, on

behalf of himself and all others similarly situated (“plaintiff”

or “Belezos”).1 (Docket Entry # 13). After conducting a

1 The body of the first amended complaint identifies the

Selectmen as “the Chief Elected and Executive Officers of the

Town” of Hingham, who are “sued in their official capacity . .

..” (Docket Entry # 11, ¶ 5). The proposed class of defendants

consists of “[t]he board of selectmen, the city council, the

transportation commission of the City of Boston, park

commissioners, a traffic commission or traffic director, or the

secretary of the Department of Transportation . . . or any

hearing, this court took the motion (Docket Entry # 13) under

advisement.

PROCEDURAL BACKGROUND

The amended complaint alleges the following eight causes of

action against the Selectmen: (1) a “Massachusetts Statutory

Violation” that erection of speed limit signs in violation of

section 18 of Massachusetts General Law chapter 90 (“section

18”) and “set forth in” section two of Massachusetts General Law

chapter 85 (“section two”) is ultra vires and therefore void

(Count I); (2) a “Massachusetts Regulatory Standards Violation”

of “‘Procedures for Speed Zoning on State and Municipal Roads’”

that erection of speed limit signs is ultra vires (“Count II”);

(3) a “Massachusetts Regulatory Standards Violation” of “‘The

Massachusetts Amendments to the 2009 Manual on Uniform Traffic

Control Devices’” that erection of speed limit signs is ultra

vires (Count III); (4) a “Deliberate and Reckless Fabrication of

False Evidence” to erect speed limit signs without regulatory

authority in violation of the Due Process Clause of the

Fourteenth Amendment under 42 U.S.C. § 1983 (“section 1983”)

(Count IV); (5) a corresponding failure to train, supervise, and

public official” of Massachusetts “who erected or maintained

Speed Limit signs . . . designating a special speed regulation

lawfully made under the authority of Mass. Gen. L. ch. 90, ¶ 18”

(Docket Entry # 11, ¶ 60), which requires “‘a thorough traffic

engineering study . . ..’” (Docket Entry # 11, ¶ 8) (quoting

Mass. Gen. Laws ch. 90, ¶ 18).

discipline in violation of the Due Process Clause of the

Fourteenth Amendment under section 1983 vis-à-vis the violation

of law in Count IV (Count V); (6) a “Deliberate and Reckless

Fabrication of False Evidence” by issuing a traffic citation

under an illegal speed limit sign in violation of the Due

Process Clause of the Fourteenth Amendment under section 1983

(Count VI); (7) a corresponding failure to train, supervise, and

discipline in violation of the Due Process Clause of the

Fourteenth Amendment under section 1983 vis-à-vis the violation

in Count VI (Count VII); and (8) an “Unconstitutional Lack of

Evidentiary Safeguard” in violation of procedural due process

under the Fourteenth Amendment in violation of section 1983

(Count VIII). (Docket Entry # 11).

Plaintiff first brought several substantially identical

statutory and constitutional claims concerning the same speeding

ticket issued to plaintiff against the same defendants in

Massachusetts Superior Court (Plymouth County) (“state court”)

in Belezos v. Board of Selectmen of the Town of Hingham, Civil

Action No. PLCV2014-01018B (“Belezos”). (Docket Entry # 15-1).

The court allowed the defendants’ Mass. R. Civ. P. 12(c) motion

(“Rule 12(c) motion”). (Docket Entry # 8-7). A final judgment

reciting the ruling and a prior allowance of a Mass. R. Civ. P.

12(b)(6) motion issued two days later on September 29, 2016.

(Docket Entry # 8-7, p. 11). On appeal, the Massachusetts

Appeals Court (“MAC”) upheld the dismissal on another ground,

namely, that plaintiff “waived his right to contest the” ticket

“by failing to pursue the remedy expressly provided for by the

Legislature.” (Docket Entry # 8-8, p. 4). Rather, plaintiff

paid the ticket, which the MAC noted “‘operate[d] as a final

disposition of the matter.’” (Docket Entry # 8-8, p. 4)

(quoting Mass. Gen. Laws ch. 90c, § 3). The Massachusetts

Supreme Judicial Court (“SJC”) denied plaintiff’s application

for further appellate review. (Docket Entry # 8-9).

Thereafter, plaintiff filed this action in United States

District Court for the District of Massachusetts (“federal

court”).

The eight claims in this action are also similar to the

claims in two previous actions brought in federal court by

plaintiff’s counsel, Frederic Zotos, Esq. (“Zotos”). After

unsuccessful attempts to obtain relief in state court, Zotos

challenged the legitimacy of the speed limit signs in Hingham in

Zotos v. Town of Hingham, et al., Civil Action No. 12-11126-JGD

(D. Mass. Sept. 19, 2013) (“Zotos I”), and again in Zotos v.

Town of Hingham, et al., Civil Action No. 13-13065-DJC (D. Mass.

March 25, 2016) (“Zotos II”). (Docket Entry ## 8-3, 8-6). In a

lengthy opinion on the merits, the court in Zotos I rejected

Zotos’ claims and dismissed the action. (Docket Entry # 8-3).

The First Circuit upheld the dismissal. (Docket Entry # 8-4).

Zotos filed Zotos II prior to the First Circuit’s decision in

Zotos I. (Docket Entry # 8, p. 2) (Docket Entry ## 8-4, 8-5).

On March 25, 2016, the court in Zotos II issued a comprehensive

opinion and dismissed that action. (Docket Entry # 8, p. 2)

(Docket Entry # 8-6).

STANDARD OF REVIEW

The standard of review for a Rule 12(b)(6) motion is well

established. To survive a Rule 12(b)(6) motion to dismiss, the

complaint must contain “enough facts to state a claim to relief

that is plausible on its face” even if “actual proof of [the]

facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 556, 570 (2007); Miller v. Town of Wenham, Mass., 833 F.3d

46, 51 (1st Cir. 2016). The “standard is ‘not akin to a

“probability requirement,” but it” requires “more than a sheer

possibility that a defendant has acted unlawfully.” Saldivar v.

Racine, 818 F.3d 14, 18 (1st Cir. 2016) (internal citations

omitted). “[a]ll reasonable inferences” are drawn “in the

pleader’s favor.” Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42

(1st Cir. 2016).

“Exhibits attached to the complaint are properly considered

part of the pleading ‘for all purposes,’ including Rule

12(b)(6).” Trans-Spec Truck Service, Inc. v. Caterpillar Inc.,

524 F.3d 315, 321 (1st Cir. 2008) (internal citations omitted).

This court may also “consider matters of public record and facts

susceptible to judicial notice.” U.S. ex rel. Winkelman v. CVS

Caremark Corp., 827 F.3d 201, 208 (1st Cir. 2016). It is

therefore permissible to “take judicial notice of proceedings in

other courts if those proceedings have relevance to the matters

at hand.” Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990);

see, e.g., Bluetarp Financial, Inc. v. Matrix Constr. Co., Inc.,

709 F.3d 72, 78 n.4 (1st Cir. 2013) (taking judicial notice of

related state court cases). Accordingly, the Rule 12(b)(6)

record (Docket Entry # 8) includes the state court pleadings and

opinions regarding the relevant cases attached to defendants’

motion (Docket Entry # 13) and plaintiff’s opposition (Docket

Entry # 15).

FACTUAL BACKGROUND

On September 28, 2011, Belezos was issued a civil motor

vehicle infraction (“CMVI”) for speeding by a Hingham police

officer on Gardner Street in Hingham, Massachusetts “under the

authority of Mass. Gen. L. ch. 90, ¶ 18.” (Docket Entry # 11, ¶

15). The officer cited Belezos for operating a vehicle at a

rate of speed in excess of a 30 mile-per-hour rate of speed as

posted on “a 30 m.p.h. Speed Limit sign” on Gardner Street.

(Docket Entry # 11, ¶ 15). The only evidence presented against

Belezos at a subsequent CMVI hearing was the “prima facie

evidence of the fact[] stated in the citation,” namely that he

exceeded the posted, 30 mile-per-hour speed limit sign. (Docket

Entry # 11, ¶ 17) (Docket Entry # 11-3). “At the conclusion of

the hearing, the clerk-magistrate found” Belezos responsible for

the speeding infraction in violation of section 18 and Belezos

paid the $100 assessment. (Docket Entry # 11, ¶¶ 18-20).

Gardner Street is understood by locals as split into two

sections: an “upper” section which is north of Route 53 and a

“lower” section which is south of Route 53. (Docket Entry # 11,

¶¶ 27, 29). The citation issued to Belezos was on upper Gardner

Street. (Docket Entry # 11-3). Upper Gardner Street has two,

30 mile-per-hour speed limit signs on a white, reflective

rectangle with black lettering. (Docket Entry # 11, ¶ 24).

Lower Gardner Street has seven 25 mile-per-hour signs. (Docket

Entry # 11, ¶ 27). At least five of these seven signs are on

yellow, square reflective plaques with black lettering. (Docket

Entry # 11, ¶ 27). Three of the five plaques have an

accompanying “THICKLY SETTLED” diamond-shaped plaque, also on a

yellow reflective background with black lettering. (Docket

Entry # 11, ¶ 27). Upper Gardner Street has no such “THICKLY

SETTLED” signs and, as stated in the amended complaint, is not

thickly settled. (Docket Entry # 11, ¶ 24) (Docket Entry # 15).

Turning to the relevant Massachusetts speeding laws, which

the amended complaint quotes, section two of Massachusetts

General Laws chapter 85 (“chapter 85”) authorizes cities and

towns to erect and maintain traffic signs in their jurisdiction.

(Docket Entry # 11, ¶ 6). The statute reads in relevant part

that “‘speed control signs may be established only in accordance

with the provisions of section eighteen of chapter ninety.’”

(Docket Entry # 11, ¶ 6) (quoting chapter 85, section two)

(emphasis omitted).

Sections 17 and 18 of Massachusetts General Laws chapter 90

(“chapter 90”) also govern speeds and signage along

Massachusetts roadways. The amended complaint quotes each

statute. Section 17 of chapter 90 (“section 17”) reads in

relevant part:

[1] No person operating a motor vehicle on any way

shall run it at a rate of speed greater than is

reasonable and proper, having regard to traffic and

the use of the way and the safety of the public. [2]

Unless a way is otherwise posted in accordance with

the provisions of section eighteen, it shall be prima

facie evidence of a rate of speed greater than is

reasonable and proper as aforesaid (1) if a motor

vehicle is operated on a divided highway outside a

thickly settled or business district at a rate of

speed exceeding fifty miles per hour for a distance of

a quarter of a mile, or (2) on any other way outside a

thickly settled or business district at a rate of

speed exceeding forty miles per hour for a distance of

a quarter of a mile, or (3) inside a thickly settled

or business district at a rate of speed exceeding

thirty miles per hour for a distance of one-eighth of

a mile, or . . .. [4] If a speed limit has been duly

established upon any way, in accordance with the

provisions of said section, operation of a motor

vehicle at a rate of speed in excess of such limit

shall be prima facie evidence that such speed is

greater than is reasonable and proper; . . ..

Mass. Gen. Laws ch. 90, § 17 (emphasis added); (Docket Entry #

11, ¶ 11) (emphasis as to certain language in section 17

omitted). In contrast to section 17, section 18 “permits the

imposition of a different speed limit so long as certain

procedures are followed.” Police Dep’t of Hingham v. Zotos,

2012 WL 1689189, at * 1 (Mass. App. Ct. May 16, 2012). Section

18 reads in pertinent part:

The city council, the transportation commission of the

city of Boston, the board of selectmen, park

commissioners, a traffic commission or traffic

director, or the department, on ways within their

control, may make special regulations as to the speed

of motor vehicles and may prohibit the use of such

vehicles altogether on such ways . . . No such

regulation shall be effective until there shall have

been erected . . . signs, conforming to standards

adopted by the department, setting forth the speed or

other restrictions established by the regulation . .

..

Mass. Gen. Laws ch. 90, § 18. Based on the enabling authority

in section 18, the Massachusetts Department of Transportation

Highway Division (“MassHwy”) promulgated the aforementioned

regulatory standards entitled “Procedures for Speed Zoning on

State and Municipal Roadways” (“MassHwy Procedures”). (Docket

Entry # 11-1). That document explains the process of obtaining

a traffic engineering study which, in turn, leads to an approved

“Special Speed Regulation” that allows the posting of a

numerical speed limit sign on a Massachusetts roadway such as

Gardner Street. (Docket Entry # 11, ¶ 8(a)) (Docket Entry # 11-

1). In pertinent part, it reads as follows:

Chapter 90, Section 18 authorizes the posting of

numerical speed limits on all roadways in

Massachusetts. The foundation for the actual posting

of a speed limit is a thorough traffic engineering

study. After a study has been completed, a Special

Speed Regulation is drafted and approved by the

governing authority of the roadway, the Registry of

Motor Vehicles and MassDOT. All posted regulatory

speed limit signs must adhere to this approval

process. If a speed limit is posted without this

procedure, it is in violation of Chapter 90, Section

18, and is therefore considered illegal and

unenforceable.

(Docket Entry # 11-1, pp. 4-5) (emphasis added);2 (Docket Entry #

11, ¶ 8) (quoting above with emphasis added to first and last

sentences). Indeed, the MassHwy Procedures emphasizes the

foundational requirement of an engineering study for speed limit

signs. (Docket Entry # 11-1, p. 3) (“[s]peed limits shall be

established only after an engineering and traffic investigation

has been conducted”); (Docket Entry # 11-1, p. 3)

(“comprehensive engineering study” is “prerequisite to

establishing speed regulations and posting speed limits”);

(Docket Entry # 11, ¶ 41) (emphasis omitted).

“The Massachusetts Amendments to the 2009 Manual on Uniform

Traffic Control Devices” (“MUTCD”) also addresses the regulatory

standards for speed limit signs. (Docket Entry # 11-2). Quoted

at length in the amended complaint, the MUTCD explains the “85-

2 Page numbers refer to the docketed page.

percentile method” and the process for a city or town to erect

an enforceable speed limit sign:3

Section 10A-8 Speed Control

Of the special regulations adopted by municipalities

under the provisions of Chapter 90, Section 18 of the

General Laws, the most commonly used is the special

regulation of the speed of motor vehicles.

Considerable data including speed observations and

trial runs must be obtained by municipal officials,

usually the Police Department. The final

determination is based upon the 85-percentile method,

which is that speed at or below which 85% of the

vehicles observed were actually traveling. Department

representatives are available to demonstrate the

proper method for conducting the necessary studies and

drafting the covering regulation, upon written request

of local offices.

Procedure for Establishment of Legal Speed Zones

(1) The municipality is to conduct proper studies and

submit data to the Department. (Municipalities

usually accept the available services of the

Department in conducting studies and assembling the

data).

(2) After the speed zones, proposed by the local

authorities, are reviewed by the Department, they are

returned to the municipality for formal adoption by

the rule-making body. During this time, the

municipality is responsible for any and all hearings

required for adoption.

(3) Upon receipt of notice of formal adoption by the

municipality, the Department, acting jointly with the

Registry, will certify and approve.

(4) Certified regulation is returned to municipality.

3 The MassHwy Procedures likewise address the 85-percentile

method and the process for a municipality to erect a legal and

enforceable speed limit sign. (Docket Entry # 11-1, pp. 5-15,

21).

(5) Official Speed Limit signs may then be installed

in accordance with the specific provisions of the

approved speed regulation.

(6) The Special Speed Regulation is then enforceable

against violators.

(Docket Entry # 11-2, pp. 11-12) (emphasis added); (Docket Entry

# 11, ¶ 10) (quoting above language and emphasizing certain

portions).

The MassHwy Procedures defines “Speed Limit signs” as

“rectangular in shape, with black numerals on a white

reflectorized background.” (Docket Entry # 11-1, p. 22) (Docket

Entry # 11, ¶ 8(c)) (emphasis omitted). The MassHwy Procedures

also addresses advisory speed limit signs, which are yellow in

color with black numerals. (Docket Entry # 11, p. 6). Advisory

speed limit signs or so-called “Advisory Speed plaque[s]” “shall

not be installed until the advisory speed has been determined by

an engineering study.” (Docket Entry # 11-1, p. 19) (emphasis

omitted); (Docket Entry # 11, p. 7) (emphasis omitted). In

addition, “[t]he Advisory Speed plaque shall only be used to

supplement a warning sign and shall not be installed as a

separate sign installation.” (Docket Entry # 11-1, p. 19)

(emphasis omitted); (Docket Entry # 11, p. 7) (emphasis

omitted). As also stated in the MassHwy Procedures:

Unlike regulatory speed signs, advisory speed signs can be

erected by municipalities without any further approval

provided they comply with the M.U.T.C.D. Also, advisory

speeds are not enforceable, since their intent is to advise

motorists of an appropriate speed through a particular

condition, not regulate it.

(Docket Entry # 11-1, pp. 19-20) (emphasis added and underlining

omitted); (Docket Entry # 11, p. 8) (quoting above language with

emphasis).

As stated in a January 2012 letter from Mary-Joe Perry, the

district highway director of MassHwy District 5, to Zotos, a

search of “the District’s Records” found no evidence that a

special speed regulation “was ever issued” for Gardner Street.

(Docket Entry # 11-9). Minutes of an August 2015 meeting

submitted by a Traffic Committee of the Town of Hingham to the

Board of Selectman state that:

The Lower Gardner Street Association is requesting

signs for speed enforcement as well as an extension of

the sidewalk. There are currently 30 MPH speed signs

but there is no record of them. Most residential

neighborhoods have a speed limit of 30 MPH as it is

and this neighborhood is thickly settled as well.

Sgt. Horte conducted a speed study and found the

average speed travelled is 37 MPH which is not

excessive. The signs which are currently posted are

not permitted but are still enforceable. The question

is whether they are challenged in court, if it would

they would be found to be illegal and the Town might

be sued. Sgt. Horte has contacted Town Counsel about

this and will be speaking with them this week.

(Docket Entry # 11-10) (Docket Entry # 11, ¶ 28) (emphasis

omitted). As to Gardner Street, “the 85th percentile speed of

motor vehicles travelling” on the street “is greater than 40

m.p.h., which is also greater than” either of the posted 30

mile-per-hour and 25 mile-per-hour speed limit signs on the

street. (Docket Entry # 11, ¶ 29). A 2012 “GPS Survey [of]

Posted Speed Limits [for the] Town of Hingham” conducted by

Zotos, plaintiff’s current counsel, reflects that 66% of the

speed limit signs surveyed under the town’s jurisdiction “lacked

a required Special Speed Regulation.” (Docket Entry # 11-8, pp.

1-2). As stated in the amended complaint, there are at least 26

speed limit signs “posted on the public roadways under the sole

jurisdiction of the Town of Hingham” which do not have “approved

special speed regulations on file with MassDOT,” presumably at

the time Belezos filed the amended complaint in March 2018.

(Docket Entry # 11, ¶ 30) (citing the 2012 GPS Survey, table

three, at pp. 5-6, listing 60 signs without special speed

regulations). In an August 2012 letter to the “Board of

Selectmen” of the “Town of Hingham,” i.e., defendants, Neil

Boudreau (“Boudreau”), a state traffic engineer, acknowledged

receipt of a July 2012 letter and the GPS survey from Zotos.

(Docket Entry # 11, ¶ 40) (Docket Entry # 11-16, p. 1). Citing

table three in the GPS survey, Boudreau’s letter to the

Selectmen notes that the Massachusetts Department of

Transportation “is required . . . to give chapter 85, ‘Section 2

Notice to the Town of Hingham regarding the special speed

regulations listed as improperly installed.’” (Docket Entry #

11, ¶ 40) (Docket Entry # 11-16, p. 3).

From September 28, 2011 to January 28, 2018, the Town

issued 1,247 traffic citations on roadways in Hingham that did

not have “approved special speed regulations on file with

MassDOT.” (Docket Entry # 11, ¶ 33(a)). The amended complaint

seeks to certify a class of individuals who received traffic

citations for violating “a special speed regulation lawfully

made under the authority of [section 18], i.e., operating a

vehicle at a rate of speed in excess of a Speed Limit sign (R2-

1), where (in fact) there is no such approved special speed

regulation, and who . . . suffered or experienced an adverse

legal consequence . . . from September 28, 2011, to the date of

the judgment in this action.” (Docket Entry # 11, ¶ 58).

DISCUSSION

Defendants move to dismiss all eight counts on the grounds

of claim preclusion, the merits, and the Rooker-Feldman

doctrine. (Docket Entry # 14). Plaintiff opposes dismissal.

(Docket Entry # 15).

A. Claim Preclusion

Defendants maintain that the Belezos decision bars

relitigation of the claims raised in the amended complaint in

Belezos and those that plaintiff could have raised. (Docket

Entry # 14). Plaintiff points out that he “no longer seeks

vacatur of his traffic citation” although “he continues to seek

declaratory relief that the Selectmen’s erection and enforcement

of unauthorized speed limit signs violates the applicable

statutes and regulatory standards, and therefore these signs are

illegal and unenforceable.” (Docket Entry # 15, p. 6).

Plaintiff also submits that the MAC’s decision and judgment in

Belezos on appeal did not address the merits (Docket Entry # 8-

8) (“[i]t is unnecessary to reach the merits of Belezos’s

claims”) and supersedes the preclusive effect of the trial

court’s judgment. (Docket Entry # 15).

“‘Under federal law, a federal court must give to a state-

court judgment the same preclusive effect as would be given that

judgment under the law of the state in which that judgment was

entered.’” McDonough v. City of Quincy, 452 F.3d 8, 16 (1st

Cir. 2006) (quoting Torromeo v. Fremont, 438 F.3d 113, 115 (1st

Cir. 2006)). Accordingly, Massachusetts law determines the

effect of the state court judgment in Belezos as a bar to this

section 1983 action. Giragosian v. Ryan, 547 F.3d 59, 63 (1st

Cir. 2008) (Massachusetts law determines “whether appellant’s §

1983 action is barred by the doctrine of res judicata”).

In Massachusetts, claim preclusion “‘prevents relitigation

of all matters that were or could have been adjudicated in the

action.’” Kobrin v. Bd. of Registration in Med., 832 N.E.2d

628, 634 (Mass. 2005) (internal citations omitted). It “is

based on ‘[c]onsiderations of fairness and the requirements of

efficient judicial administration,’ which ‘dictate that an

opposing party in a particular action as well as the court is

entitled to be free from attempts to relitigate the same

claim.’” DeGiacomo v. City of Quincy, 63 N.E.3d 365, 368–69

(Mass. 2016) (addressing “res judicata,” which encompasses claim

and issue preclusion); Santos v. U.S. Bank Nat’l Ass’n, 54

N.E.3d 548, 554 (Mass. App. Ct. 2016) (claim preclusion based on

premise “that the party to be precluded has had the incentive

and opportunity to litigate the matter fully in the first

lawsuit”); see also Anderson v. Phoenix Inv. Counsel of Boston,

Inc., 440 N.E.2d 1164, 1167 (Mass. 1982) (both claim and issue

preclusion “‘relieve parties of the cost and vexation of

multiple lawsuits, conserve judicial resources, and, by

preventing inconsistent decisions, encourage reliance on

adjudication’”) (quoting Allen v. McCurry, 449 U.S. 90, 94

(1980)).

Under Massachusetts law, claim preclusion requires three

elements: “‘(1) the identity or privity of the parties to the

present and prior actions; (2) identity of the cause of action;

and (3) prior final judgment on the merits.’” RFF Family

P’ship, LP v. Ross, 814 F.3d 520, 531–32 (1st Cir. 2016)

(internal citations omitted). Identity of the parties exists

because plaintiff brought both the Belezos action and this

action against the same defendants.4

As to the second element and as explained in an oft-cited

Massachusetts appeals court case, “A claim is the same for res

judicata purposes if it is derived from the same transaction or

series of connected transactions.” Saint Louis v. Baystate Med.

Ctr., Inc., 568 N.E.2d 1181, 1185 (Mass. App. Ct. 1991) (citing,

inter alia, Restatement (Second) of Judgments § 24(1) (1982)).

The assessment of “‘[w]hat factual grouping constitutes a

“transaction”, and what groupings constitute a “series”,’” is

“‘“determined pragmatically.”’” Saint Louis v. Baystate Med.

Ctr., Inc., 568 N.E.2d at 1185 (quoting Restatement (Second) of

Judgments § 24(2) (1982)). More narrowly, claims are identical

for purposes of claim preclusion “if they are based on ‘the same

transaction, act, or agreement, and seek redress for the same

wrong.’”5 Ajemian v. Yahoo!, Inc., 987 N.E.2d 604, 610 (Mass.

App. Ct. 2013), cert. denied 138 S. Ct. 1327 (2018) (internal

citations and brackets omitted). Overall, “[c]laim preclusion

applies ‘even though the claimant is prepared in a second action

to present different evidence or legal theories to support his

4 The proposed plaintiff classes cover a different time period.

The body of the amended complaint in Belezos adds additional

defendants not included in the case at bar.

5 Under either framework, the second element is met in the case

at bar.

claim.’” Bagley v. Moxley, 555 N.E.2d 229, 232 (Mass. 1990)

(internal citation omitted); accord Massaro v. Walsh, 884 N.E.2d

986, 990 (Mass. App. Ct. 2008).

Examining the amended complaints evidences the identicality

of the claims. See generally Massaro v. Walsh, 884 N.E.2d at

990 (“[c]omparison of the complaints reveals that the doctrine

of claim preclusion applies”). In Belezos, plaintiff challenged

defendants’ statutory authority to post the 30-mile-per-hour

speed limit signs on Gardner Street (and other public roadways

in Hingham) without a traffic engineering study under “‘the 85-

percentile method’” or a special speed regulation in accordance

with the MUTCD and MassHwy Procedures promulgated under the

enabling authority of sections two and 18. (Docket Entry # 15-

1, ¶¶ 4, 23-24, 26, 27, 33, 34, 40). The Belezos amended

complaint does not limit the statutory and constitutional claims

to Gardner Street and the deficient speed limit signs on that

street.6 (Docket Entry # 15-1, ¶ 4, 33-39, 50). Quoting section

17, the amended complaint in Belezos alleges that defendants

lacked the statutory authority to post and enforce the speed

6 The Belezos amended complaint fails to identify these Hingham

roadways by name. The claims in the amended complaint in this

action are not limited to Gardner Street and the speed limits

signs on that street. As discussed below, the amended complaint

identifies the Hingham roadways and relies on documents in

existence when Belezos filed the amended complaint in the

Belezos action.

limit signs. (Docket Entry # 15-1, ¶¶ 30, 35, 95-96).

Plaintiff’s September 28, 2011 speeding citation provided the

basis for the challenges. (Docket Entry # 15-1, ¶¶ 42-50). The

amended complaint also raised class allegations and sought class

certification of a plaintiff class of Massachusetts residents

receiving speeding citations based on illegal and unenforceable

speed limit signs in violation of the MassHwy Procedures and the

MUTCD. (Docket Entry # 15-1, ¶¶ 51-59)). Finally, as stated in

the Belezos amended complaint, town policies grounded on

widespread practices of the Board of Selectmen, i.e.,

defendants, include routinely enforcing the speed limit signs by

issuing traffic citations. (Docket Entry # 15-1, ¶¶ 17, 35-37,

41, 44).

In the case at bar, plaintiff complains about the same

process, or lack thereof, on the part of the same defendants in

erecting and enforcing the 30-mile-per-hour speed limit signs on

Gardner Street (including the “advisory” 25-mile-per-hour signs)7

without the foundation of a traffic engineering study and a

7 The amended complaint identifies five traffic citations for

speeding in excess of “Advisory Speed Plaques,” four of which

predate the amended complaint in Belezos. (Docket Entry # 11, ¶

36). The fifth traffic citation predates the September 27, 2016

ruling on defendants’ Rule 12(c) motion by four months. (Docket

Entry # 11, ¶ 36) (Docket Entry # 8-7). In setting out the

class action allegations, the amended complaint in Belezos does

not distinguish between advisory signs and so-called “R2-1”

speed limit signs denoted in the amended complaint in this

action.

special speed regulation in contravention of the MassHwy

Procedures and the MUTCD enacted under the enabling statutes,

sections two and 18. (Docket Entry # 11, ¶¶ 6-10, 12, 27, 15,

24-28, 33).8 Other posted speed limit signs and/or advisory

speed plaques on Hingham roadways also lack the foundation of a

traffic engineering study and/or a special speed regulation. In

particular, the amended complaint identifies by name the

following Hingham roadways as having speed limit signs,

including advisory speed plaques, that lack the foundation of an

engineering study and/or a special speed regulation: Cushing

Street (Docket Entry # 11, ¶ 42) (citing June 2011 Massachusetts

Department of Transportation Road Safety Audit (Docket Entry #

11-17)); Beal Street, West Street, and Fort Hill Street (Docket

Entry # 11, ¶¶ 34, 45-47) (citing July 2006 Town of Hingham

Corridor Study (Docket Entry # 11-19) and the 2012 GPS Study by

Zotos (Docket Entry # 11-8));9 Bear Cove Park Drive (Docket Entry

8 The amended complaint in the case at bar more frequently cites

and relies upon section two than the amended complaint in

Belezos does.

9 The aforementioned 2012 GPS Survey by Zotos, which existed

well before plaintiff filed the amended complaint in Belezos,

likely supports the allegation in the Belezos amended complaint

that 60 speed limit signs on Hingham roadways lacked a record of

special speed regulations. (Docket Entry # 15-1, ¶ 34) (“there

are sixty (60) speed limit signs on the public roadways in the

Town of Hingham for which there is no record of any special

speed regulations (either in the Town or the MassDOT files)

having been formally adopted in accordance with the applicable

statutes and procedures”); (Docket Entry # 11-8, p. 2) (noting

Zotos’ identification of “sixty (60) speed limit signs for which

# 11, ¶¶ 31, 34) (citing May 2010 Board of Selectmen minutes

that proposed speed signs for the drive “cannot be enforced”

(Docket Entry # 11-11), and 2012 GPS Study by Zotos (Docket

Entry # 11-8)); Free Street, Longmeadow Road, Prospect Street,

Shipyard Drive, French Street, Grenadier Road, Martins Lane,

North Street, Ship Street, Spring Street, Water Street, and

Tuckers Lane (Docket Entry # 11, ¶¶ 30, 34 (citing 2012 GPS

Study by Zotos (Docket Entry # 11-8)); Conservatory Park (Docket

Entry # 11, ¶ 35 (citing May 2014 Board of Selectmen minutes);

South Street (Docket Entry # 11, ¶¶ 37-38) (citing 2012 Board of

Selectmen minutes for two 2012 meetings); and High Street

(Docket Entry # 11, ¶ 39) (citing February 2016 Board of

Selectman minutes). Plaintiff had ample means to develop claims

based on these Hingham roadways when he filed the December 2014

amended complaint or, as to High Street, prior to the September

27, 2016 ruling on defendants’ Rule 12(c) motion in Belezos.

See Saint Louis v. Baystate Med. Ctr., Inc., 568 N.E.2d at 1186

(claim preclusion “recognizes that the same policy applies when

a specific rearticulation of the claim (through expression of a

new theory of grounds for relief), arising out of the same life

situation, could have been, but was not, raised in the prior

litigation”) (citing Restatement (Second) of Judgments § 24 cmt.

there was no record (either in the Town or the Mass DOT files)

of any Special Speed Regulations having been issued”).

a, b (1982); see Restatement (Second) of Judgments § 24 cmt. a,

¶ 4, and cmt. b., ¶ 3 (1982). As explained previously, the

Belezos amended complaint encompasses Hingham roadways other

than Gardner Street. (Docket Entry # 15-1, ¶ 4, 33-39, 50).

Plaintiff’s September 28, 2011 speeding ticket on Gardner

Street, its enforcement, and the street’s lack of a special

speed regulation to support the signs again play a prominent

role in this action.10 (Docket Entry # 11, ¶¶ 15-20, 24-26)

(Docket Entry # 11-3). As in Belezos, the Selectmen knew or

constructively knew about the speed limit signs on Gardner

Street and the fact that there was no special speed regulation

“pertaining thereto.” (Docket Entry # 11, ¶ 26) (Docket Entry #

15-1, ¶¶ 41, 44). In both Belezos and this action, town

policies of the Board of Selectmen, i.e., defendants, include

failing to remove or erecting speed limit signs that lack a

special speed regulation; failing to train, supervise, and

10 The case at bar includes the additional facts of the Board of

Selectmen’s August 2015 minutes not in existence at the time

plaintiff filed the amended complaint but in existence prior to

the court’s merits’ based decision in Belezos. (Docket Entry #

11, ¶ 28) (Docket Entry # 8-7). The amended complaint also adds

the fact of a traffic citation issued in December 2014 to an

individual for traveling in excess of a posted speed limit on

Bare Cove Park Drive in Hingham. (Docket Entry # 11, ¶ 32).

Mindful of the policies that underlie claim preclusion in

Massachusetts, these additional facts supporting the same

transaction or series of transactions do not preclude the

application of claim preclusion. See Saint Louis v. Baystate

Med. Ctr., Inc., 568 N.E.2d at 1185; Heacock v. Heacock, 520

N.E.2d 151, 153 (Mass. 1988).

discipline Town of Hingham personnel to remove or erect speed

limit signs that lack a special speed regulation; issuing

plaintiff traffic citations for violating a special speed

regulation made under section 18 when, in fact, the sign lacked

a foundational special speed regulation; failing to train,

supervise, and discipline regarding issuing such traffic

citations; and allowing a lack of evidentiary safeguards by not

having a special speed regulation pertaining to posted signage

on Gardner Street and various other Hingham roadways. (Docket

Entry ## 11, 15-1).

Overall, the Belezos action is founded upon the same legal

rights of defendants’ statutory non-compliance and

unconstitutional conduct of erecting and enforcing speed limit

signs on Gardner Street and other Hingham roadways that

plaintiff seeks to litigate in piecemeal fashion in the case at

bar.11 See Fassas v. First Bank & Trust Co. of Chelmsford, 233

N.E.2d at 925 (“question in the instant case is not only whether

the plaintiffs’ present theory could have been pressed under the

pleadings in the prior suit, but whether the two suits are

founded on the violation of the same legal rights”). In light

11 In the present motion, defendants do not address class

certification. Instead, they moved for an extension of time to

address plaintiff’s motion for class certification after this

court’s ruling on the motion to dismiss. (Docket Entry # 19).

This court allowed the extension.

of the above, the second element of claim preclusion is

satisfied. See generally Bagley v. Moxley, 555 N.E.2d at 232

(“gravamen of the plaintiffs’ complaint in both Bagley II and

Bagley III was the same; the plaintiffs claimed ownership of the

disputed land”); Fassas v. First Bank & Trust Co. of Chelmsford,

233 N.E.2d at 925 (“it appears that all the facts relating to

possible noncompliance” as to foreclosure “were known to the

plaintiffs at the time of the prior suit” alleging fraud in

issuing the note and mortgages); Brown v. Healey, Civil Action

No. 16-10983-IT, 2017 WL 2903222, at *2 (D. Mass. July 7, 2017)

(equal protection claim challenging state gun licensing scheme

arose out of same act and sought redress for same wrong as state

court action challenging denial of plaintiff’s renewal

application); Danastorg v. US Bank Nat’l Ass’n, Civil Action No.

15-11512-ADB, 2017 WL 841274, at *5 (D. Mass. Mar. 2, 2017)

(finding identicality inasmuch as claims in each action “arise

out of the parties’ conduct in connection with the Agreement,

including Danastorg’s attempts to purchase the Property and her

dissatisfaction with US Bank’s performance under the

Agreement”).

Furthermore, the fact that plaintiff does not seek to

vacate the September 28, 2011 traffic conviction in the case at

bar does not preclude the application of claim preclusion to

this action because this action derives from the same

transaction and series of connected transactions of defendants’

enforcement and erection of speed limit signs on Gardner Street

and seeks redress for the same wrong. In fact, plaintiff admits

that “he continues to seek declaratory relief that the

Selectmen’s erection and enforcement of unauthorized speed limit

signs violates the applicable statutes and regulatory standards,

and therefore these signs are illegal and unenforceable.”12

(Docket Entry # 15, p. 6) (emphasis added).

Turning to the third element, the trial court in Belezos

decided the statutory ultra vires and constitutional section

1983 claims on the merits (Docket Entry # 8-7, pp. 2-10) and

entered a final judgment on the merits (Docket Entry # 8-7, p.

11). See generally In re Sonus Networks, Inc., 499 F.3d 47, 60

& n.6 (1st Cir. 2007) (discussing “‘on the merits’” for purposes

of issue preclusion and, to a lesser degree, claim preclusion).

In pertinent part, the opinion reads as follows:

The core issue raised again by Zotos, now on behalf

of Belezos, is: Did Hingham have the right to install

that sign, and did the Hingham police have the authority

to enforce a speed limit on Gardner St[.]? For the benefit

12 The declaratory relief sought in Belezos and in the case at

bar is strikingly similar. (Docket Entry # 15-1, pp. 49-52)

(Docket Entry # 11, pp. 52-54). In any event, plaintiff fails

to sufficiently argue that claim preclusion does not apply to

actions seeking declaratory relief thereby waiving any such

argument. See Curet-Velázquez v. ACEMLA de Puerto Rico, Inc.,

656 F.3d 47, 54 (1st Cir. 2011) (“[a]rguments alluded to but not

properly developed before a magistrate judge are deemed

waived”); Coons v. Indus. Knife Co., Inc., 620 F.3d at 44.

of Belezos and for posterity, the court shall echo the

historic findings made earlier against Zotos, and now

states without equivocation, “Yes, they did.”

. . . Each of the constitutional challenges by Belezos must

suffer the same fate as those raised by Zotos, for they are

the same. I cite to the decisions of Magistrate Dein and

Judge Casper with their exhaustive analysis of those claims

and their rulings in favor of Hingham. But, to make this

record clear, I find that Hingham and its police department

did not violate any substantive or procedural rights of

Belezos, they did not fabricate evidence, nor did they

apply a defective evidentiary standard, they did not fail

to train[,] supervise or discipline their officers, they

did not unjustly enrich themselves, they did not in any way

violate the equal protection provision of our Constitution,

violate his civil rights, or do anything to “shock the

judicial conscience.” All counts in the First amended

Complaint are DISMISSED.

(Docket Entry # 8-7, pp. 4-6). The final judgment recites the

decision and two other rulings and dismisses the complaint of

“Belezos, on behalf of himself and all others similarly situated

. . ..” (Docket Entry # 8-7, p. 11).

Plaintiff nevertheless maintains there was no judgment on

the merits because the MAC affirmed the trial court on a

different ground by stating “It is unnecessary to reach the

merits of Belezos’s claims because he waived his right to

contest the civil motor vehicle infraction . . ..” (Docket

Entry # 8-8) (Docket Entry # 15, p. 22). Citing a First Circuit

decision addressing Massachusetts issue preclusion, In re

Baylis, 217 F.3d 66, 70-71 (1st Cir. 2000) (quoting Restatement

(Second) of Judgments § 27 cmt. o (1982)), plaintiff argues that

“the MAC’s judgment” in Belezos “supersedes” the trial court’s

judgment. (Docket Entry # 15, p. 22).

As explained in Baylis, if the trial court’s judgment is

based on two issues, either one of which provides sufficient

standing “‘to support the result,’” Restatement (Second) of

Judgments § 27 cmt. i, o (1982), and “‘the appellate court’

affirms on one ground and passes on the other, ‘the judgment is

conclusive only as to the first determination.’” In re Baylis,

217 F.3d at 71 (quoting Restatement (Second) of Judgments § 27

cmt. o (1982)) (internal brackets omitted). Baylis is

distinguishable because the trial court in Belezos did not enter

a judgment based on two issues, either one of which “‘standing

independently would be sufficient to support the result.’” Id.

at 71 (quoting Restatement (Second) of Judgments § 27 cmt. i

(1982)). In affirming the trial court, the MAC did not

adjudicate one of two alternative grounds for the trial court’s

judgment. Rather, it affirmed the trial court based on an

entirely different ground. Issue preclusion applies in such

circumstances. Klimowicz v. Deutsche Bank Nat’l Tr. Co., 264 F.

Supp. 3d 309, 317 (D. Mass. 2017), aff’d, 907 F.3d 61 (1st Cir.

2018). The court in Klimowicz rejected the plaintiff’s argument

“that the determination of the issue did not have the level of

finality sufficient to apply the doctrine of issue preclusion

because her appeal was dismissed for failure to post a bond”

even though the lower court considered the merits and entered a

judgment which was subject to appeal. Id. at 317 & n.6

(“Plaintiff had an opportunity to appeal the judgment is

sufficient to satisfy the final judgment requirement under

Massachusetts law”).

Furthermore, the matter before this court involves the

application of claim preclusion rather than issue preclusion.

Claim preclusion applies to a final judgment even if it is

subject to an appeal. Restatement (Second) of Judgments § 13

cmt. f (1982). If the appeals court reverses the trial court,

the trial court’s “judgment ceases to be final.” Id. The MAC

did not reverse the trial court’s judgment. Rather, it affirmed

the judgment for a different reason. Moreover, unlike the

higher court in Baylis, which questioned the lower court’s

alternative ruling, see In re Baylis, 217 F.3d at 71, the MAC’s

decision in Belezos did not question the trial court’s ruling.

In sum, claim preclusion bars litigation or relitigation of

all of plaintiff’s individual claims.

B. The Merits

In the alternative, the merits of plaintiff’s substantive

and procedural due process claims in counts IV to VIII under

section 1983 are subject to dismissal on the merits.

1. Substantive Due Process

The substantive component of the due process clause

prescribes “certain offensive government actions ‘regardless of

the fairness of the procedures used to implement them.’”

Aguilar v. United States Immigration and Customs Enforcement

Division of the Dep’t of Homeland Sec., 510 F.3d 1, 21 (1st Cir.

2007) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

A violation of substantive due process occurs “from state

actions that are ‘arbitrary and capricious,’ ‘run counter to the

concept of ordered liberty,’ or ‘appear shocking or violative of

universal standards of decency.’” Ford v. Bender, 768 F.3d 15,

23-24 (1st Cir. 2014) (quoting Amsden v. Moran, 904 F.2d 748,

753-54 (1st Cir. 1990)). Put another way, the official action

is unconstitutional “‘when it “can properly be characterized as

arbitrary, or conscience shocking, in a constitutional sense.”’”

Espinoza v. Sabol, 558 F.3d 83, 87 (1st Cir. 2009); accord Dutil

v. Murphy, 550 F.3d 154, 160 (1st Cir. 2008) (substantive due

process violation occurs when “government’s conduct is so

‘egregiously unacceptable, outrageous, or conscience-shocking’

that ‘the constitutional line has been crossed’”) (internal

citations omitted).

In general, state action constitutes “conscience shocking”

behavior when the behavior involves “physical or psychological

abuse, or significant interference with a protected

relationship, such as the parent-child relationship.” McConkie

v. Nichols, 446 F.3d 258, 261 (1st Cir. 2006) (lies told by

police detective during interrogation to induce confession did

not shock the conscience). The threshold for an action to

qualify as conscience shocking is high. Doe v. Devonshire, 181

F.Supp.3d 146, 154 (D. Mass. 2016) (student’s suspended housing

privileges as punishment did not shock the conscience); see

Maldonado v. Fontanes, 568 F.3d 263, 273 (1st Cir. 2009)

(Mayor’s alleged conduct of authorizing the seizing of public

housing tenants’ pets did not violate the tenants’ substantive

due process rights); accord McConkie, 446 F.3d at 261

(“conscience-shocking executive action ‘must be stunning,

evidencing more than humdrum legal error’”).

Counts IV to VII allege substantive due process violations

respectively in erecting illegal speed limit signs and issuing

the citation under the illegal speed limit sign along with

corresponding failure to train, supervise, and discipline

allegations. (Docket Entry # 11). Plaintiff submits that the

violations at issue are grounded in the notion that government

agents may not deliberately fabricate evidence or continue to

permit wrongs, and that doing so “shocks the conscience.”

(Docket Entry # 15). Plaintiff initially alleges that the

charges against him and the proposed class are false. He

compares defendants’ conduct to that of the defendants in Limone

v. Condon, 372 F.3d 39 (1st Cir. 2004), where the defendants

were alleged to have fabricated incriminating evidence and

withheld exculpatory evidence against three men on trial for

first-degree murder. The court found that by purposely

suborning false testimony from a key witness and suppressing

exculpatory evidence to protect the actual murderers who were

being groomed as informants for the FBI, the defendants violated

a fundamental concept of the American justice system. Id. at

44-45.

There are a number of significant differences between the

case at bar and Limone. First and foremost, the gravity of the

situations is not the same. A traffic citation is non-criminal

in nature and any fabrication of evidence is simply not as

significant as coercing false testimony and withholding

exculpatory evidence in a first-degree murder trial. Second,

contrary to plaintiff’s assertion, defendants’ conduct does not

“mirror – in the constitutional sense – the intolerable conduct

in Limone.” (Docket Entry # 15). In Limone, the plaintiff was

allegedly being framed for a crime that he did not commit. Id.

at 44-45. The defendants, knowing that the plaintiff did not

commit the crime, nonetheless fabricated evidence against him to

serve an ulterior motive – protecting a future FBI informant.

Id. This is substantially different from the alleged conduct of

defendants in this case, in which the only use of purportedly

fabricated evidence rests on the posted speed limits.

Defendants’ conduct would perhaps be more in line with Limone

had they fabricated evidence that a motorist was going faster

than he or she was, which the complaint does not state or

reasonably infer. In any event, defendants’ conduct here does

not mirror that of Limone and does not shock the judicial

conscience as they did not fabricate evidence in the manner, to

the degree, and with the severe ramifications as in Limone.13

Plaintiff next argues that defendants fabricated evidence

by posting speed limits that were lower than they should have

been. He relies on Kennie v. Nat. Res. Dep’t of Dennis, 889

N.E.2d 936 (Mass. 2008), to support this assertion. The Kennie

case dealt with the Massachusetts Civil Rights Act, which

requires that the defendant’s words and conduct be threatening,

intimidating, or coercive. See id. at 938. The court, in

analyzing the coercive nature of the defendant’s conduct, found

that the defendant’s statements to the plaintiff that “he was

‘mandated to do whatever it takes to prevent docks’ from being

built in the area,” taken together with his alleged conduct of

placing shellfish in the area around the dock to intentionally

inflate the concentration of shellfish in the area, were

sufficiently coercive because the defendant knew that this would

13 In making this finding, this court recognizes that Belezos

lost his job as a delivery man as a result of the speeding

violation. (Docket Entry # 11, ¶ 23).

prevent the plaintiff from getting a permit for the dock. Id.

at 939. It was in this context that the court stated that the

conduct would be conscience-shocking and violative of

substantive due process. Id. at 942 n.14-15.

The case at bar differs from the circumstances in Kennie.

In Kennie, the court found enough evidence to support the

conclusion that the defendant increased the amount of shellfish

in the area to prevent the plaintiff from going forward with a

permit application. In this case, plaintiff has not alleged

that defendants did anything to fabricate the results of the

traffic studies or anything to tamper with them. Plaintiff’s

allegation is that defendants erected at least 26 street signs

that displayed speeds lower than what the studies found or that

the studies did not exist to support the signage. Citing no

authority, he argues that the erection of these signs “is

essentially fabricated evidence.” (Docket Entry # 15). With no

allegations that defendants tampered with or fabricated the

results of the studies, Kennie is distinguishable and

defendants’ conduct was not conscience-shocking and did not

violate plaintiff’s substantive due process right.

Finally, plaintiff cites Rose v. Village of Peninsula, 839

F. Supp. 517 (N.D. Ohio 1993) (“Rose I”), and Rose v. Village of

Peninsula, 875 F. Supp. 442 (N.D. Ohio 1995) (“Rose II”), to

argue that the actual posting of these signs with incorrect

speeds violates his right to substantive due process. Both

opinions are part of the same case, with Rose I addressing a

motion to dismiss and Rose II addressing a summary judgment

motion. Although the case is from Ohio, Rose deals with a set

of circumstances similar to the case at bar. The plaintiff in

Rose challenged a speeding citation he received for going 52

miles-per-hour on a highway with a posted speed sign of 35

miles-per-hour. Rose I, 839 F. Supp. at 519. Rose alleged that

the speed limit for that street was statutorily set at 50 miles-

per-hour, and that the defendants intentionally lowered the sign

to 15 miles-per-hour in order to catch motorists speeding and

generate more municipal revenue through the citations. Id. at

525. The court in Rose I found that this conduct could violate

the plaintiff’s substantive due process rights by violating his

right to be free from restraint and because the motivation for

lowering the speed limit signs was done for the purpose of

generating revenue. Id. at 524-525.

This case differs from Rose because the complaint does not

allege or reasonably infer that defendants posted low speed

limit signs for the purpose of generating municipal revenue.

This “purpose” test used by the Rose court was essential to its

decision that the defendants’ conduct violated the Fourteenth

Amendment. The Rose I court cites the Magna Carta “as the birth

place of due process,” and notes that the document was

“composed, in part, to combat enforcement of arbitrary revenue-

enhancing royal rules not substantially different in nature from

the arbitrary traffic rule enforced by defendants herein.” Id.

at 525. During the summary judgment proceedings in Rose II, the

court likewise focused heavily on the “purpose” analysis. Rose

II, 875 F. Supp. at 454. The court reiterated that “the posting

and enforcement of speed limits known by the defendants to be

invalid, done with the purpose of stopping motorists to increase

Village revenues, is . . . conduct that unavoidably, and

allegedly by design, violates explicit constitutional

guarantees.” Id. at 453-54. The court looked at the

circumstantial evidence of the situation, including “the fact

that the Village was in financial trouble, that the Mayor and

other officials were seeking new sources of revenue, and that

the change of speed limit signs was accomplished in a somewhat

clandestine fashion, and not pursuant to state law.” Id. at

454.

Here, the complaint suggests at most that defendants, like

those in Rose, changed the speed limit signs in a somewhat

clandestine fashion. Rather than post the speed limit signs

solely to generate revenue, the complaint infers that the

purpose of the low speed limit signs was in the interest of

safety. (Docket Entry # 11). Plaintiff challenges this by

citing traffic studies that indicated the speeds were “‘not

excessive.’” (Docket Entry # 15, p. 18). Even if the complaint

reasonably inferred that the purpose of lowering speed limits

was not done in the interest of safety, it does not set out

facts that allow a reasonable inference that it was done to

generate revenue.

As the court concluded in both Zotos I and Zotos II, “‘the

defendants’ alleged conduct in posting and enforcing illegal

speed limit signs “did not rise to the level of conscience-

shocking behavior” because the “mere violation of state law by

officials seeking to increase public safety is insufficient to

meet the extremely high burden necessary to show conscience-

shocking behavior.”’” Zotos II, Civil Action No. 13-13065-DJC

(quoting Zotos I, Civil Action No. 12-11126-JGD) (Docket Entry #

8-6, p. 3). Zotos II reasoned that “[e]ven if Defendants did

not comply perfectly with the statutory requirements for posting

speed limits, ‘liability for negligently inflicted harm is

categorically beneath the threshold of [substantive] due

process.’” (Docket Entry # 8-6, p. 3). The same reasoning and

result applies to the substantive due process claims in the case

at bar. Lastly, the dismissal on the merits of the substantive

due process claims also includes the failure to train,

supervise, and discipline claims. See Rivera v. Rhode Island,

402 F.3d 27, 38-39 (1st Cir. 2005) (because plaintiff “failed to

state a constitutional claim at all, her claims against the

other defendants for supervisory liability and for failure to

train fail”); Estrada v. Rhode Island, No. CV 07-10ML, 2008 WL

11385631, at *5 (D.R.I. Dec. 30, 2008) (“because this Court has

determined that no constitutional violation occurred, the

Plaintiffs’ claim of failure ‘to properly select, train,

instruct, supervise and discipline officers’ necessarily

fails”).

2. Procedural Due Process

Turning to the procedural due process claim in Count VIII,

to survive a motion to dismiss, a plaintiff must set forth facts

in his complaint showing that: (1) the defendants acted “‘under

color of state law’”; and (2) deprived him of “‘a property

interest defined by state law’”; (3) “‘without adequate

process.’” Brockton Power LLC v. City of Brockton, 948

F.Supp.2d 48, 67 (D. Mass. 2013) (quoting Licari v. Ferruzzi, 22

F.3d 344, 347 (1st Cir. 1994)). As explained by, the Supreme

Court in Zinermon v. Burch:

The constitutional violation actionable under § 1983 is not

complete when the deprivation occurs; it is not complete

unless and until the State fails to provide due process.

Therefore, to determine whether a constitutional violation

has occurred, it is necessary to ask what process the State

provided, and whether it was constitutionally adequate.

Zinermon v. Burch, 494 U.S. 113, 126 (1990).

Section three of chapter 90 (“section 3”), which governs

the procedure by which an individual can challenge a traffic

citation, is generally recognized as comporting with the

requirements of procedural due process. See Commonwealth v.

Weiss, 2004 WL 2110593 (Mass. App. Ct. Sep. 21, 2004); cf.

Crawford v. Blue, 271 F. Supp. 3d 316, 328 (D. Mass. 2017)

(finding mandatory filing fee requirement violated Due Process

Clause).14 “The Constitution does not require every procedural

protection that might help; it simply requires that a private

person basically have a basically fair opportunity to convince

the decision maker, by presenting proofs and arguments and

evidence and replies to the arguments of others.” Newman v.

Burgin, 930 F.2d 955, 961 (1st Cir. 1991). “The basic purport

of the constitutional requirement is that, before a significant

deprivation of liberty or property takes place at the state’s

hands, the affected individual must be forewarned and afforded

an opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” Amsden, 904 F.2d at 753 (quoting Armstrong

v. Manzo, 380 U.S. 545, 552 (1965)).

14 The Crawford court determined that the section three

mandatory filing fees, without the possibility of recovering the

money if successful on the CMVI appeal, violated an individual’s

procedural due process right. See Crawford v. Blue, 271 F.

Supp. 3d at 331. Section three filing fees are not an issue in

the case at bar.

Here, plaintiff had notice of the hearings and ample

opportunity to argue before the clerk-magistrate that there was

an issue regarding the enforceability and legality of the speed

limit signs. (Docket Entry # 11). This satisfies the

procedural requirements of the Due Process Clause as giving

plaintiff a meaningful manner in which to argue the merits of

his case. See Gonzáles-Droz v. Gonzáles-Colón, 660 F.3d 1, 15

(1st Cir. 2011). That plaintiff was not traveling in a thickly

settled area at a rate of speed exceeding 30 miles-per-hour for

a distance of one-eighth of a mile, or that his rate did not

exceed that of the 85th percentile as determined in the traffic

study were both issues that could have been raised at the CMVI

hearing or on appeal before the district court. In fact, the

MAC expressly found in its appellate decision in Belezos that

plaintiff failed “to pursue the remedy expressly provided for by

the Legislature.” (Docket Entry # 8-8, p. 4).

C. State Law Claims

Defendants also move to dismiss the state law claims in

counts I through III on the merits. (Docket Entry # 13) (Docket

Entry # 14, p. 10). This court will hold the motion (Docket

Entry # 13) as it pertains to dismissing these three state law

claims in abeyance for a brief time period pending a

determination of the motion for class certification (Docket

Entry # 16).

CONCLUSION

In accordance with the foregoing discussion, the motion to

dismiss (Docket Entry # 13) is ALLOWED as to the individual

claims in counts IV through VIII and held in abeyance as to

counts I through III for a brief time period pending a

determination of the motion for class certification. Defendants

are afforded up to and including April 12, 2019 to file an

opposition to the motion for class certification (Docket Entry #

16). This court will conduct a hearing on the motion (Docket

Entry # 16) on April 16, 2019 at 12:00 p.m.

/s/ Marianne B. Bowler

Marianne B. Bowler

United States Magistrate Judge