United States District Court, D. Rhode Island
MARK E. AMESBURY, Plaintiff,
CITY OF PAWTUCKET; WILLIAM D. VIEIRA, SR.; DONALD R. GREBIEN; DONNA M. PINTO; MICHAEL POLACECK; and MELISSA C, Defendants.
J. McConnell, Jr. United States District Judge
Amesbury operates Polytechnic, Inc. in Pawtucket, Rhode
Island. He files this lawsuit against the City of Pawtucket
and certain of its officials and employees (collectively
"the City"). He alleges a seventeen-claim complaint
based on 42 U.S.C. § 1983 for deprivation of his Fifth
Amendment rights (through the Fourteenth Amendment) to
property and due process. He complains about the City
"wrongfully ordering [him] to install a Radio Master Box
for the existing fire alarm system" at his place of
business. ECF No. 1 at 8. He makes various other factual
allegations against the City and its Zoning and Enforcement
Department (the "Zoning and Enforcement
Department") about interactions between the City and his
business. See generally, ECF No. 1 at 8-53. The
factual allegations against the City that Mr. Amesbury
included in his complaint started in 1991.
detailed further below, the City moves to dismiss each claim
in the complaint based on the statute of limitations,
absolute immunity, and/or a failure to state a claim upon
which relief can be granted. ECF No. 6.
Amesbury asserts several Fifth Amendment due process and
takings claims, under 42 U.S.C. § 1983. The United
States Supreme Court "directs federal courts
adjudicating civil rights claims under 42 U.S.C. § 1983
to borrow the statute of limitations applicable to personal
injury actions under the law of the forum state."
Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352
(1st Cir. 1992) (internal quotation marks omitted); see also
Wilson v. Garcia, 471 U.S. 261, 276-80 (1985)
(§ 1983 claims subject to state statute of limitations
for personal injury actions). Under Rhode Island law, the
applicable statute of limitations for claims alleging a
constitutional violation under 42 U.S.C. § 1983 is Rhode
Island's three-year personal injury statute of
limitations. Richer v. Parmelee, 189 F.Supp.3d 334,
343 (D.R.I. 2016); R.I. Gen. Laws § 9-1-14(b); see also
Walden, III, Inc. v. Rhode Island, 576 F.2d 945,
946-47 (1st Cir. 1978) (affirming that Rhode Island's
three-year statute of limitations for personal injury actions
applies to civil rights actions brought under 42 U.S.C.
Mr. Amesbury filed his complaint on June 20, 2019, any claim
for conduct that happened before June 20, 2016 is barred by
the statute of limitations (absent an applicable exception to
first ten claims describe conduct before June 20, 2016.
Claims 1 through 4 describe conduct on April 26, 2016. ECF
No. 1 at 8-11. Claims 5 through 8 involve a zoning violation
that the Zoning and Enforcement Department assessed against
Mr. Amesbury in 1993. ECF No. 1 at 11-14. And Claims 9 and 10
allege actions between 1991 and 2007 with the Zoning and
Enforcement Department. ECF No. 1 at 15-18.
Amesbury, in response to the City's Motion to Dismiss
(ECF No. 6), invokes equitable tolling (i.e., the discovery
rule), as well as the continuing violation doctrine by
asserting that the alleged conduct of the City represents a
"systematic pattern of harassment" that "spans
almost 30 years." ECF No. 7 at 1.
are no plausible facts alleged that support equitable tolling
or the continuing violation doctrine.
Doctrine / Equitable Tolling
asserted under 42 U.S.C. § 1983 normally accrues at the
time of the injury. Jardin De Las Catalhws Ltd.
P'ship v. Joynei; 76G F.3d 127, 133 (1st Cir. 2014);
see also Wallace v. Kato, 549 U.S. 384, 388 (2007) .
But if the facts necessary to bring a claim are unknown, the
discovery rule may delay accrual until such facts "are
or should be apparent to a reasonably prudent person
similarly situated." Jardin, 766 F.3d at 133
(quoting Nieves-Marquez v. Puerto Rico, 353 F.3d
108, 119- 20 (1st Cir.2003). Accordingly, for the discovery
rule to toll the statute of limitations, the facts supporting
the cause of action must have been "inherently
unknowable" at the time of the injury. Latson v.
Plaza Home Mortg. Inc., 708 F.3d 324, 327 (1st Cir.
2013) (holding that the discovery rule stops the limitations
clock "only when the injuries are inherently unknowable
at the moment of their occurrence."). The discovery rule
applies "either when the [alleged] injury has lain
dormant without manifestation or when the facts about
causation [are] in the control of the putative defendant,
unavailable to the plaintiff or at least very difficult to
obtain." Jardin, 766 F.3d at 133 (quoting
United States v. Kubrick, 444 U.S. Ill. 122 (1979))
(internal quotation marks omitted).
alleged conduct of the City that leads to Mr. Amesbury's
cause of action in Claims 1 through 10 is not conduct
"inherently unknowable" at the time of injury. Mr.
Amesbury alleges (i) that he discovered that the Radio Master
Box was not required by the fire code until late 2017, (ii)
that he learned that he did not need to pave the parking lot
at his property until May 2019, and (iii) that he did not
notice the "triggering warnings" that alerted him
to the alleged wrongful violations that resulted in his
tenant vacating the property until 2019. ECF No. 7 at 13.
Although Mr. Amesbury alleges that his discovery and notice
of the alleged improper conduct occurred within the
limitation period, he does not allege that he took any
reasonable steps to investigate or challenge such alleged
conduct at the time of its occurrence (when the effect of
such alleged conduct should have reasonably been apparent).
Thus, because Mr. Amesbury did not exercise reasonable
diligence, he cannot take advantage of the discovery rule to
toll the statute of limitations for Claims 1 through 10.
See Jardin, 766 F.3d at 133.