Opinion
CIVIL ACTION NO. 06-11185-GAO.
September 11, 2007
OPINION AND ORDER
The plaintiff, Alphonse R. Ferent, Jr., a resident of Braintree, Massachusetts, has filed a pro se complaint naming as defendants the Commonwealth of Massachusetts and various state and county officials as well as the Town of Braintree and two municipal officials. All defendants have moved to dismiss the complaint for a variety of reasons.
This action is one of many filed by Mr. Ferent which, briefly and generally put, arise out of his objections to the failure of the Braintree officials to abate noise emanating from public school athletic fields near Mr. Ferent's home. From the complaint, it is difficult to discern what causes of action Mr. Ferent means to allege and what basis exists for this Court's exercise of subject matter jurisdiction. Mindful that pro se pleadings are to be indulgently and liberally construed, from the prayers for relief at the conclusion of the complaint it might be thought that there are the following possible claims intended to be asserted: (1) that a pending criminal prosecution against him in the Quincy District Court be enjoined (prayer 1 of the complaint); (2) that the Court enter an order enforcing municipal, state and federal noise pollution regulations (prayers 3 and 4D of the complaint); and (3) that the plaintiff be awarded damages for "negligence, abuse of power, basis constitutional and civil rights violations" by the defendants (prayers 2 and 4A-C of the complaint). None of these posited claims would be viable.
To the extent the complaint seeks to enjoin state criminal proceedings against the plaintiff, the claim is dismissed in accordance with the abstention doctrine first announced inYounger v. Harris, 401 U.S. 37 (1971).
As to the second possibility, the Court lacks jurisdiction and authority to enforce state and local noise pollution regulations. While it is at least conceivable that the Court could enforce federal noise pollution regulations, the plaintiff has pointed neither to any applicable regulations nor to any authority for their enforcement by means of a suit by an aggrieved citizen. Cf. 42 U.S.C. § 4911 (authorizing citizen suits in the limited circumstances outlined in § 4909(a)(1)-(5), none of which is applicable to the present controversy).
The apparent claim for damages suggests a possible cause of action under 42 U.S.C. § 1983 to remedy a deprivation by persons acting under color of state law of rights secured to the plaintiff by the Constitution and laws of the United States. "Section 1983 `is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.' The first step in any such claim is to identify the specific constitutional right allegedly infringed."Albright v. Oliver, 510 U.S. 266, 271 (1994) (citations omitted).
From the complaint, it appears there are two possible "deprivations" the plaintiff might have in mind, but neither is sufficient to support a claim. First, in a couple of places in the complaint, the plaintiff seems to suggest a right to be protected against noise pollution. See Comp., ¶¶ 3 H and I, 30 f. No such generalized right has been recognized as a basis for a § 1983 action. Second, the complaint suggests that the plaintiff means to claim a deprivation of his right to due process, substantive or procedural, by a malicious prosecution brought about by the actions of the defendants. The Supreme Court rejected such a cause of action based on a theory of substantive due process inAlbright, supra. See Nieves v. McSweeney, 241 F.3d 46, 53-54 (1sr Cir. 2001). Further, "the availability of an adequate remedy for malicious prosecution under [state] law . . . is fatal to [plaintiff's] procedural due process claim." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 43 (1st Cir. 1994).
It may be added that various doctrines of immunity also protect the defendants from any potential § 1983 claim: the Commonwealth is protected by the immunity from suit in federal court conferred by the Eleventh Amendment to the Constitution of the United States, see Edelman v. Jordan, 415 U.S. 651, 663 (1974); the state judicial defendants are protected by the doctrine of judicial immunity for actions taken within the scope of judicial authority, see Burns v. Reed, 500 U.S. 478, 498-502 (1991); the state prosecutor defendants are similarly immune from suit for actions taken "in initiating a prosecution and presenting the State's case," see Imbler v. Pachtman, 424 U.S. 409, 431 (1976); and finally, to the extent a malicious prosecution theory based on the Fourth Amendment to the U.S. Constitution, as distinct from the Due Process Clause of the Fourteenth Amendment, such a theory is of uncertain viability, preventing any such cause of action from being "clearly established" and consequently entitling the municipal defendants, as well as the state individual defendants, to qualified immunity from suit under § 1983, see Rodriguez-Mateo v. Fuentes-Agostini, 66 Fed.Appx. 212, 214 (1st Cir. 2003) (unpublished).
For the foregoing reasons, the complaint fails to state a claim upon which relief can be granted within the jurisdiction of the Court, Fed.R.Civ.P. 12(b)(1) and (6), and it is therefore DISMISSED. In light of the dismissal, all other pending motions in the case are MOOT.
It is SO ORDERED.