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Devaney v. Kilmartin

United States District Court, D. Rhode Island

October 10, 2014

JOHN DEVANEY, Plaintiff,
PETER F. KILMARTIN, Attorney General of the State of RI, et al., Defendants

Order Filed: February 12, 2015

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John Devaney, Plaintiff, Pro se, Narragansett, RI.

For Richard I. Kerbel, Interim Town Manager Town of Narragansett, Town of Narragansett, Defendants: Marc DeSisto, DeSisto Law, Providence, RI.

For Most Reverend Thomas J. Tobin, President St. Thomas More Church Narragansett Pier, Roman Catholic Bishop of Providence, Defendant: Eugene G. Bernardo, II, Howard A. Merten, LEAD ATTORNEYS, Partridge, Snow & Hahn LLP, Providence, RI.

For Linda O'Neill, Parish Administrator St. Peters by-the-sea Episcopal Church, Defendant: Amanda R. Prosek, LEAD ATTORNEY, Morrison Mahoney, LLP, Providence, RI.

For St. Thomas More Catholic Church, Defendant: Eugene G. Bernardo, II, Partridge, Snow & Hahn LLP, Providence, RI.

For St. Peters by-the-sea Episcopal Church, Defendant: Amanda R. Prosek, LEAD ATTORNEY, Morrison Mahoney, LLP, Providence, RI; William H. Wynne, Morrison Mahoney, LLP, Boston, MA.

Roman Catholic Bishop of Providence, Defendant, Pro se.

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Ronald R. Lagueux, Senior United States District Judge.

The Report and Recommendation issued by Magistrate Patricia A. Sullivan on October 10, 2014, in the above-captioned matter is accepted and adopted pursuant to Title 28 United States Code § 636(b)(1). The Motions to Dismiss brought by all Defendants are granted, and Plaintiff's Second Amended Complaint is hereby dismissed in its entirety, with prejudice. Defendants shall have thirty days from the date of this Order to present the Court with any motions to recover counsel fees and expenses incurred in this matter. No judgment shall enter until all claims are resolved.

It is so ordered.


PATRICIA A. SULLIVAN, United States Magistrate Judge.

Keeping time, time, time,
In a sort of Runic rhyme,
To the tintinnabulation that so musically wells
From the bells, bells, bells, bells
Bells, bells, bells.
The Bells, Edgar Allen Poe (1848)

Pro se Plaintiff John Devaney believes that the excessive clapping, gonging, tolling pealing, ringing and chiming of the bells of two neighboring churches -- St. Thomas More Catholic Church (" St. Thomas Church" ) and St. Peter's by-the-Sea Episcopal Church (" St. Peter's Church" ) (collectively " the Churches" ) -- have profoundly disturbed his right to quiet enjoyment of his home, effectively forcing on him a call to worship that he does not want to hear. In his third essay to battle these bells, he has recast his complaint, now challenging their tintinnabulation based both on the First, Fifth and Fourteenth Amendments of the United States Constitution and on the Rhode Island common law of nuisance. He has named and joined as defendants[1] the Churches, the Roman

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Catholic Bishop of Providence based on his alleged supervisory authority over St. Thomas Church, and the Town of Narragansett based on its Noise Ordinance, which is at the vertex of this case. All four Defendants have challenged the viability of this Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Mr. Devaney has failed to state a federal claim arising under the Constitution, but rather has only state law claims against St. Thomas Church and St. Peter's Church, which should be resolved in the state court. Their motions have been referred to me for report and recommendation.

Because Mr. Devaney is pro se, this Court must review his pleading with liberality but not with complete disregard for the procedural and substantive protections that the law affords to these Defendants. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Kenda Corp. v. Pot O'Gold Money Leagues, 329 F.3d 216, 225 n.7 (1st Cir. 2003). Viewed through this lens, I find that the constitutional claims in the Second Amended Complaint remain deeply flawed and recommend that this Court dismiss them. I also recommend that the state law nuisance claims against the Town and all claims against the Roman Catholic Bishop of Providence be dismissed for failure to state a claim. Finally, I recommend that this Court exercise its discretion to decline to exercise jurisdiction over the remaining state law claims and that they be dismissed without prejudice.

The reasons for these recommendations follow.


a. Mr. Devaney's Claims

In July 1995, Mr. Devaney, his wife and four children moved into an older home in the bucolic seaside Town of Narragansett, Rhode Island, located three blocks from the shores of Narragansett Bay; because of the cooling effect of the Bay breezes, the home has never been air-conditioned. ECF No. 5 at 2, 5. When the Devaney family moved into their Narragansett home, across the street stood St. Thomas Church and to the rear was St. Peter's Church; both Churches had bell towers housing at least one bell. ECF No. 33 ¶ 11; ECF No. 5 at 1. However, at that time, the bell in St. Thomas's belfry was inoperable and silent while St. Peter's bell was unamplified, producing a " quaint" euphonious sound that Mr. Devaney described at the hearing as " a beautiful sound . . . inviting." ECF No. 5 at 2-3.

In approximately 2000 or 2001, St. Thomas repaired and upgraded its bell, adding electronic amplification, a motor, a timer and a clapper. ECF No. 5 at 2. At an unspecified point, St. Peter's also added electronic amplification. ECF No. 5 at 3.

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Since then, the bells of St. Thomas chime four times on Saturday and Sunday, three times on Monday through Friday, in addition to marking weddings, funerals and other special occasions; at 6 p.m. daily, the bells of St. Thomas ring out a call to pray " the Christian prayer and devotion, the 'Angelus.'" ECF No. 5 at 2. Meanwhile, the bells of St. Peter's mark the hours during daylight. ECF No. 5 at 2-3. Mr. Devaney has measured the intensity level of the chiming, gonging, clapping, pealing and pounding of these bells and alleges that it has approached 100 decibels.[3] ECF No. 5 at 2.

The impact of this accumulation of sound on Mr. Devaney has been catastrophic: despite no air-conditioning, he is forced to keep the storm windows closed and to wear earplugs, his marriage has collapsed and he has been alienated from his children. Fearful of the impact of the amplified sound, he refrains from inviting his infant grandchildren to his home. ECF No. 5 at 2. Further, as someone who professes no religion, Mr. Devaney alleges that he is deeply troubled by being forced to hear a call to worship in which he is not interested; he perceives that the amplified bells are forcing him to listen to proselytizing from which he cannot escape even in the privacy of his home.[4] To paraphrase the poet, far from " a piece of the continent, [a] part of the main," these bells have paradoxically isolated Mr. Devaney from family and friends, making him " an island, [e]ntire of itself." [5]

b. Narragansett's Noise Ordinance

Since at least 1986, the Town of Narragansett has had a Noise Ordinance. Narragansett, R.I., Code of Ordinances ch. 22, art. III (1986) (" Noise Ordinance" ). The Town's power to adopt such an ordinance derives from R.I. Const. art. XIII, ยง 2, which authorizes Rhode Island's cities and towns to adopt home rule charters. Pursuant to Section 2-1-7 of the Narragansett Town Charter, the Narragansett Town Council may enact and amend ordinances for the preservation of the public peace, health, safety, and welfare of the inhabitants of the Town and for the protection of persons and property not inconsistent with the Rhode Island Constitution and laws enacted by the General Assembly in conformity with the powers reserved to the General Assembly. Pursuant to Section 2-1-9 of the Charter, a proposed ordinance is introduced at a public Council meeting but may not be passed until after it has been ...

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