United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND United States Magistrate Judge.
before me for a report and recommendation (28 U.S.C. §
636(b)(1)(B)) is Defendants' Motion to Dismiss. (ECF Doc.
No. 16). Plaintiff opposes the Motion. (ECF Doc. No. 20).
Defendants have filed a Reply Brief. (ECF Doc. No. 23). For
the following reasons, I recommend that Defendants'
Motion to Dismiss be GRANTED in part as to Count VIII and
Plaintiff was previously employed as the Executive Director
of the Salvatore Mancini Resource & Activity Center, Inc.
(“SMRAC”). SMRAC was a Rhode Island nonprofit
corporation that operated the Senior Center for the Town of
North Providence. Plaintiff sues her former employer SMRAC,
its purported successor-in-interest the Town of North
Providence and North Providence's Mayor Charles Lombardi,
both individually and in his official capacity.
Complaint originally contained nine counts alleging various
state and federal claims. In her Opposition, Plaintiff
voluntarily withdrew Count VIII (Procedural Due Process). There
are eight remaining claims. Counts VII (First Amendment
Retaliation) and IX (Equal Protection) are brought against
the Town and Mayor Lombardi pursuant to 42 U.S.C. §
1983. Counts I - VI assert state law claims against SMRAC,
the Town and/or Mayor Lombardi.
instant Motion to Dismiss, the Town and Mayor Lombardi argue,
pursuant to Rule 12(b)(6), that the federal constitutional
claims, Counts VII and XI, should be dismissed as they do not
present plausible claims for which relief can be granted
because there were no constitutional rights violations and no
recoverable damages. (ECF Doc. No. 16-1 at p. 3). They also
argue, pursuant to Rule 12(b)(1), that, after dismissal of
the federal claims, no federal question or other subject
matter jurisdictional foothold remains in this Court, and
thus the state law claims should be dismissed without
prejudice. (ECF Doc. No. 16-1 at p. 2).
Standard of Review
Rule 12(b)(6), the Court must construe the complaint in the
light most favorable to the plaintiff, see
Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27
(1st Cir. 1994); taking all well-pleaded
allegations as true and giving the plaintiff the benefit of
all reasonable inferences, see Arruda v. Sears, Roebuck
& Co., 310 F.3d 13, 18 (1st Cir. 2002);
Carreiro v. Rhodes Gill & Co., 68 F.3d 1443,
1446 (1st Cir. 1995). If under any theory the
allegations are sufficient to state a cause of action in
accordance with the law, the motion to dismiss must be
denied. Vartanian v. Monsanto Co., 14 F.3d 697, 700
(1st Cir. 1994).
plaintiff need not plead factual allegations in great detail,
the allegations must be sufficiently precise to raise a right
to relief beyond mere speculation. See Bell Atl. Corp.
v.Twombly, 550 U.S. 544 (2007) (abrogating the
“no set of facts” rule of Conley v.
Gibson, 355 U.S. 41, 44-45 (1957)). “The complaint
must allege ‘a plausible entitlement to relief' in
order to survive a motion to dismiss.” Thomas v.
Rhode Island, 542 F.3d 944, 948 (1st Cir.
2008) (quoting Twombly, 550 U.S. at 559). See
also Ashcroft v. Iqbal, 556 U.S. 662, 679 (“[w]hen
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief”). The
Court of Appeals has cautioned that the
“plausibility” requirement is not akin to a
“standard of likely success on the merits, ” but
instead, “the standard is plausibility assuming the
pleaded facts to be true and read in a plaintiff's
favor.” Sepulveda-Villarini v. Dep't of Educ.
of P.R., 628 F.3d 25, 30 (1st Cir. 2010).
Summary of Factual Allegations and Arguments
Complaint is detailed and outlines a course of events
unfolding between 2015 and 2017. Her factual allegations must
be accepted as true in considering Defendants' Motion to
Dismiss. In a nutshell, the Town discontinued its grant
funding to SMRAC to operate the Senior Center and decided to
fund and operate the Senior Center directly as a Town-run
operation. The Town and Mayor Lombardi describe this change
simply as a “political decision to stop appropriating
money to a not-for-profit corporation” to run the
Senior Center. (ECF Doc. No. 16-1 at p. 1). Plaintiff paints
a different picture and alleges a pattern of retaliation for
exercising her constitutional rights to speech, petition and
support a political opponent. Plaintiff claims that the
decisions to stop funding SMRAC, single out her unpaid wages
for nonpayment, and the refusal to hire her to work at the
“new” Town Senior Center were all impermissibly
motivated by her constitutionally-protected conduct. (ECF
Doc. No. 20-1 at p. 4).
Count IX (Equal Protection), Defendants contend that
Plaintiff fails to allege a viable “class of one”
equal protection claim in accordance with the teachings of
Engquist v. Oregon Dep't of Agric., 553 U.S. 591
(2008). Plaintiff counters that Engquist is
inapposite and that the Town and Mayor Lombardi's willful
and bad-faith determination to single out her wage claim for
nonpayment under these circumstances states a viable
“class of one” equal protection claim.
Count VII (First Amendment Retaliation), Plaintiff alleges
that she was retaliated against by the Town and Mayor
Lombardi for ...