MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2015 ME 135

Docket: Pen-14-440

Argued: June 18, 2015

Decided: October 22, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

GERALD MARSHALL

v.

TOWN OF DEXTER

SAUFLEY, C.J.

[¶1] Gerald Marshall appeals from a judgment entered in the Superior Court 

(Penobscot County, Anderson, J.) granting the Town of Dexter’s motion to dismiss

his civil rights action for failure to state a claim upon which relief can be granted 

pursuant to M.R. Civ. P. 12(b)(6). Marshall contends that his complaint 

sufficiently stated a claim for relief pursuant to 42 U.S.C.S. § 1983 (LEXIS 

through Pub. L. No. 114-51) and 42 U.S.C.S. § 1988 (LEXIS through Pub. L. No. 

114-51), and Maine civil rights laws, see 5 M.R.S. §§ 4681-4685 (2014).

1

 We 

affirm the judgment.

 1

 Although Marshall’s complaint did not cite to the Maine Civil Rights Act, 5 M.R.S. §§ 4681-4685 

(2014), we will consider his state civil rights count because our “notice pleading standard, see M.R. 

Civ. P. 8(a), requires only that the complaint give fair notice of the cause of action by providing a short 

and plain statement of the claim showing that the pleader is entitled to relief, and then make a demand for 

that relief.” Nadeau v. Frydrych, 2014 ME 154, ¶ 5, 108 A.3d 1254 (quotation marks omitted).
2

I. STANDARD OF REVIEW

[¶2] When the trial court acts on a motion to dismiss pursuant to M.R. 

Civ. P. 12(b)(6), facts are not adjudicated; instead the allegations in the complaint 

are evaluated to determine if there is “any cause of action that may reasonably be 

inferred from the complaint.” Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. 

When reviewing the trial court’s dismissal of a complaint pursuant to 

Rule 12(b)(6), we view the facts alleged in the complaint as if they were admitted. 

Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 2, 54 A.3d 710. We then “examine

the complaint in the light most favorable to the plaintiff to determine whether it 

sets forth elements of a cause of action or alleges facts that would entitle the 

plaintiff to relief pursuant to some legal theory.” Moody v. State Liquor & Lottery 

Comm’n, 2004 ME 20, ¶ 7, 843 A.2d 43 (quotation marks omitted). We will 

affirm a Rule 12(b)(6) dismissal “only when it appears beyond doubt that a 

plaintiff is entitled to no relief under any set of facts that he might prove in support 

of his claim.” Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. “The legal 

sufficiency of a complaint challenged pursuant to M.R. Civ. P. 12(b)(6) is a 

question of law” that we review de novo. Id. (quotation marks omitted).
3

II. BACKGROUND

A. Facts Alleged

[¶3] Based on that standard of review, the facts are drawn from the 

complaint and its attachments. In September 2011, Gerald Marshall purchased a 

former school property from the Town of Dexter for $205,000 in an arms-length 

transaction. Marshall purchased the property for future redevelopment. The 

property consisted of 45.27 acres, with significant shore frontage on Lake 

Wassookeag. Structures on the property included two old school buildings and 

five portable classroom structures. The school buildings had been vacant for about 

a year. 

[¶4] The Town initially supported Marshall’s redevelopment efforts. It

approved rezoning the property to allow for commercial use and, in October 2012, 

the Town’s Code Enforcement Officer (CEO) approved Marshall’s permit 

application to move the five portable classroom structures to new locations on the 

property. 

[¶5] About a month before the CEO approved Marshall’s permit 

application, and a year after Marshall had purchased the property, the Town issued 

a tax commitment for Marshall’s property, assessing the value of the property at 

$1,308,300. The property had not been previously assessed for tax purposes 

because of its tax-exempt status as a municipal school property. 
4

[¶6] Marshall filed an application for abatement with the Town’s municipal 

assessor, and an administrative hearing was held before the Town’s municipal 

board of assessment review. The board approved a reduction to $381,500 in the 

assessed valuation of the property. On March 14, 2013, Marshall appealed the 

reduced valuation to the Superior Court pursuant to 36 M.R.S. § 843(1) (2014) and 

M.R. Civ. P. 80B. That appeal was pending at the time he filed his complaint in 

this action, but the court (Cuddy, J.) has since affirmed the Town’s assessment. 

See Marshall v. Town of Dexter, PENSC-AP-2013-8 (Me. Super. Ct., Pen. Cty., 

July 15, 2013).2

[¶7] On March 21, 2013, one week after Marshall filed his Rule 80B appeal

of the tax abatement, the Town’s CEO posted a “Stop Work” order on a building 

located on Marshall’s property. Although the order cited a violation of the 

Uniform Plumbing Code, no plumbing work had been initiated on the premises 

when the order was posted. Dexter’s Land Use Ordinance authorizes the CEO to 

issue notices of violation, but it does not explicitly authorize the separate issuance 

of stop work orders. See Dexter, Me., Land Use Ordinance § 4(F)(1)(c).

3

 

 2

 The Rule 80B appeal of the reduced tax assessment is the only Rule 80B appeal relevant to this 

action. 

3 Portions of what purport to be Town Ordinances attached to the complaint indicate that the 

ordinance may have originally been adopted in 1991 and most recently amended in 2009. The 

attachments to the complaint also suggest that a property owner may appeal an action of the Code 

Enforcement Officer to the Board of Appeals.
5

[¶8] On April 25, 2013, the CEO issued another document, described as a 

“Notice of Violation/Order for Corrective Action,” that indicated the alleged 

violation as “Plumbing without [a] permit or licensed master plumber on site and 

changing the use of land or structure with[out] first obtaining a permit.”4 At the 

time that the notice was issued, no plumbing work had been initiated or was 

underway on the premises, and there had been no change in use since Marshall had 

purchased the property and obtained the CEO’s permit to move the five portable 

structures. 

[¶9] Marshall and his contractor sought clarification of the stop work order 

and the notice of violation from the CEO. The CEO responded that the stop work 

order and notice of violation prohibited all work of any kind on the property, 

including routine maintenance and repair work, relocating the five portable 

classroom buildings, and the removal of a single dangerous tree. Marshall asserts 

that the CEO was without the authority, pursuant to the Ordinance, to prohibit 

these activities. 

[¶10] Based on the actions and statements of the CEO, Marshall’s 

contractor declined to continue work on the property, which “potentially expos[ed] 

the existing buildings on the property to accelerated deterioration due to exposure 

 4

 The notice of violation also ordered specific corrective action, stated the penalties for 

noncompliance, and provided information about the right to appeal the enforcement action to the Dexter 

Board of Appeals. 
6

to the elements.” Marshall’s complaint alleges that the actions and statements by 

the CEO were “undertaken for an improper reason, in retaliation for [Marshall’s] 

decision to contest the Town’s [tax assessment].”

B. Court Proceedings

[¶11] Marshall did not seek review of the CEO’s actions or orders by the 

Dexter Board of Appeals, although the documentation provided with the record 

indicates that Board of Appeals review was available to challenge one or more of

the CEO’s actions. Instead, on May 3, 2013, Marshall sought an ex parte

temporary restraining order, M.R. Civ. P. 65(a), from the Superior Court to restrain 

the Town and the CEO from preventing certain work on Marshall’s property. The 

court (A. Murray, J.) denied the TRO request and set the matter for hearing with 

notice to consider a preliminary injunction. See M.R. Civ. P. 65(b).

[¶12] On May 10, 2013, the hearing for the preliminary injunction was held 

and the court (Cuddy, J.) took the motion under advisement. The court later denied 

Marshall’s motion for a preliminary injunction, citing the availability of an 

adequate remedy at law by appealing the CEO’s actions to the Dexter Board of 

Appeals. By the time the court had signed its decision on June 13, 2013, the time 

period for appealing the CEO’s actions to the Board had expired. See Dexter, Me., 
7

Land Use Ordinance § 5(B)(1) (stating that appeals to the Board “shall be taken 

within thirty (30) days of the date of the decision appealed from”).5 

[¶13] Also on May 10, 2013, Marshall filed the complaint that is the subject 

of this appeal. The complaint stated two counts against the Town and the CEO. 

Count I alleged that the Town’s actions “through its municipal code enforcement 

officer are arbitrary, capricious and without a legal basis.” Such actions, the 

complaint asserted, deprived Marshall of equal protection of law and the use and 

enjoyment of property, “contrary to the fifth and fourteenth amendments to the 

United States Constitution and title 42 U.S. Code section 1983.” Count II alleged

that the Town and CEO violated Marshall’s state constitutional rights pursuant to 

article I, sections 1 and 6-A of the Maine Constitution. The complaint sought

relief in the form of a permanent injunction against the Town and the CEO, an 

award of damages, and an award of attorney fees pursuant to 42 U.S.C.S. 

§ 1988(b).

[¶14] In his brief to us, Marshall includes additional facts and an “offer of 

proof” that do not appear to have been presented to the Superior Court, although 

Marshall must have been aware of those facts while the action was pending in the 

Superior Court. Marshall asserts in his brief that the CEO resigned from her 

 5

 Although it might have been possible to argue that the stop work order was a continuing restraint or 

action, allowing an appeal to the Board of Appeals at a later time, we need not address that issue, as it 

does not appear that Marshall ever attempted to appeal the CEO’s orders to the Board of Appeals. 
8

position on May 13, 2013, and that she has since been replaced. The new CEO, 

Marshall’s brief indicates, “promptly rescinded” the stop work order and notice of 

violation issued to Marshall and has “worked cooperatively” with Marshall to 

allow his redevelopment project to proceed. 

[¶15] On March 14, 2014, the Town moved to dismiss Marshall’s complaint 

pursuant to M.R. Civ. P. 12(b)(6). The Superior Court (Anderson, J.) granted the 

Town’s motion, citing Town of Shapleigh v. Shikles, 427 A.2d 460, 466 (Me. 

1981), in support of its conclusion that Marshall had failed to exhaust his 

administrative remedies. Marshall brought this timely appeal.

6

 See 14 M.R.S. 

§ 1851 (2014); M.R. App. P. 2.

III. LEGAL ANALYSIS

[¶16] To determine the outcome of Marshall’s appeal, we consider each of 

three grounds that might support the court’s dismissal of Marshall’s complaint

against the Town: (A) Marshall’s failure to allege facts demonstrating that the 

CEO’s actions were undertaken pursuant to official municipal policy, 

(B) Marshall’s failure to exhaust the available administrative remedies in the Town 

before filing a claim for damages, and (C) Marshall’s failure to allege facts 

sufficient to demonstrate a violation of his equal protection rights. The second 

 6

 Marshall’s complaint against the CEO was also dismissed. He has appealed only from the dismissal 

of his complaint against the Town.
9

count of Marshall’s complaint, which alleges a violation of the Maine Constitution 

due to interference with property and equal protection rights, is interpreted 

coextensively with his federal civil rights claim brought pursuant to section 1983. 

See K v. City of S. Portland, 407 F. Supp. 2d 290, 298 (D. Me. 2006). Our 

discussion is therefore driven by the section 1983 claim.

A. Failure to Plead Employee Action as Municipal Policy

[¶17] A review of Marshall’s complaint reveals no allegation tying the 

individual CEO’s actions to any official policy of the Town of Dexter. A person

who seeks to impose liability on a local government through a section 1983 claim

must prove that an employee’s “‘action pursuant to official municipal policy’” 

caused that person’s injury. Connick v. Thompson, 563 U.S. 51, 179 L. Ed. 2d 

417, 426 (2011) (quoting Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 

658, 691 (1978)); see also King v. Town of Monmouth, 1997 ME 151, ¶ 16, 697 

A.2d 837; Lyons v. City of Lewiston, 666 A.2d 95, 100 (Me. 1995).

[¶18] “Official municipal policy includes the decisions of a government’s 

lawmakers, the acts of its policymaking officials, and practices so persistent and 

widespread as to practically have the force of law.” Connick, 563 U.S. 51, 179 

L. Ed. 2d at 426. “The ‘official policy’ requirement was intended to distinguish 

acts of the municipality from acts of employees of the municipality, and thereby 

make clear that municipal liability is limited to action for which the municipality is 
10

actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)

(emphasis in original). A municipality may be liable pursuant to section 1983 for a 

single decision by a municipal official “whose edicts or acts may fairly be said to 

represent official policy.” Monell, 436 U.S. at 694; see Pembaur, 475 U.S. at 

480-81. 

[¶19] Here, Marshall’s complaint failed to allege in any way that the CEO 

was acting pursuant to an official municipal policy or custom, or that the CEO’s 

actions could fairly be said to represent an official policy or custom. The lack of 

any allegation of municipal endorsement of the CEO’s conduct may be related to 

the failure to exhaust administrative remedies. If Marshall had pursued the appeal 

to the Board of Appeals and raised the issue with the Town, the Town might have 

endorsed the CEO’s actions, which would have made it possible for Marshall to 

allege that the CEO was acting pursuant to—or consistent with—the Town’s 

policies or customs.

[¶20] As pleaded, however, the complaint fails to allege the necessary 

linkage between the CEO’s actions and the Town’s official policies or customs. 

Thus, the action was properly dismissed because the complaint failed to state a 

claim pursuant to section 1983. See, e.g., L.L. Nelson Enters. v. Cty. of St. Louis, 

673 F.3d 799, 803-04, 811-12 (8th Cir. 2012) (upholding the dismissal of a 

complaint alleging municipal liability for one municipal employee’s retaliatory 
11

actions because the complaint failed to allege that the municipality had any policy 

or custom for taking such action).

B. Failure to Pursue Administrative Relief

[¶21] The Superior Court dismissed Marshall’s complaint because he had 

failed to appeal the CEO’s actions to the Dexter Board of Appeals before filing the 

civil rights action in Superior Court. Marshall argues that the Superior Court erred 

in determining that he had failed to exhaust his administrative remedies because

(1) the Board of Appeals lacked jurisdiction over and could not grant the monetary 

or injunctive remedies sought in his civil rights claim, and (2) appealing to the 

Board would have been futile because its decision regarding enforcement of the 

ordinance or a notice of violation would have been advisory and therefore not 

subject to judicial review. On both of these points, Marshall’s brief 

misunderstands the law that guided the Superior Court’s decision.

[¶22] “The doctrine of exhaustion of administrative remedies requires a 

party who seeks an administrative remedy or who challenges an administrative 

action to pursue that remedy or challenge to a conclusion before the administrative 

agency prior to initiating action in the courts.” Town of Levant v. Seymour, 2004 

ME 115, ¶ 13, 855 A.2d 1159.7 “[T]he rule is primarily designed to allow 

 7 There may be a narrow exception to this rule if a plaintiff, failing to exhaust local administrative 

processes, can demonstrate that resort to local administrative processes would have been a useless 

exercise. See Houlton Band of Maliseet Indians v. Boyce, 1997 ME 4, ¶ 11, 688 A.2d 908 (“When a party 
12

administrative agencies to correct their own errors, clarify their policies, and 

reconcile conflicts before resorting to judicial relief.” Ne. Occupational Exch., Inc. 

v. Bureau of Rehab., 473 A.2d 406, 409 (Me. 1984) (quotation marks omitted).

[¶23] Here, Marshall’s section 1983 claim that the Town’s constitutional 

violations caused him financial injury seeks a limited administrative remedy—in 

the form of injunctive relief—regarding the Town’s actions. As noted, there was 

administrative process available to Marshall through the Town that could have 

been pursued before resorting to judicial relief.

[¶24] The Town’s Ordinance directs the CEO to, among other things, 

“[e]nforce the provisions of [the] Ordinance,” investigate complaints, issue 

violation notices, “[i]nform an aggrieved party of his/her rights to appeal any 

decision by the Code Enforcement Officer,” “provide the aggrieved party with a 

copy of the procedures for appealing any such decision,” and participate in appeals 

procedures. Dexter, Me., Land Use Ordinance § 4(A)(1).

[¶25] The Dexter Board of Appeals is vested with the broad authority “[t]o 

hear and decide appeals where it is alleged that there is an error in any order, 

requirement, decision, or determination made by, or failure to act by, the Code 

 seeks relief that is beyond the jurisdiction of the administrative agency . . . the party need not exhaust its 

administrative remedies before seeking judicial relief.” (quotation marks omitted)). No such 

demonstration is possible here. In fact, Marshall asserts that the CEO resigned less than two months after 

the initial “Stop Work” order and that the new CEO has lifted the impediments to developing the 

property.
13

Enforcement Officer in the enforcement or administration of [the] Ordinance.” Id. 

§ 5(A)(1) (emphasis added). On appeal, the Board “may affirm, affirm with 

conditions, or reverse the decision of the Code Enforcement Officer.” Id. 

§ 5(B)(5)(d).

[¶26] As evidenced by these provisions of the Ordinance, a process was 

readily available to Marshall to present his challenges to the Board of Appeals and 

thereafter to the courts if that became necessary. Cf. Gorham v. Androscoggin 

Cty., 2011 ME 63, ¶ 22, 21 A.3d 115 (“With respect to independent claims that are 

not subject to Rule 80B, we have held that when direct review is available pursuant 

to Rule 80B, it provides the exclusive process for judicial review unless it is 

inadequate.”); Moreau v. Town of Turner, 661 A.2d 677, 680 (Me. 1995) (holding 

that where state law—including the Rule 80B appeal process—“provides adequate 

redress to a plaintiff deprived of a constitutionally protected property interest, no 

section 1983 action will lie” (quotation marks omitted)). The use of that process 

could have resulted in a prompt decision on the notice of violation and could have 

limited or prevented any monetary damages while also eliminating the need for a 

judicially created injunction. Marshall chose to bypass that process and proceed

directly to court.

[¶27] Ultimately, a person or entity affected by the action of a Town 

employee cannot claim violations of the right to use of property without first 
14

pursuing the existing appeal process made available by the Town to remedy the 

alleged injury. Cf. Ne. Occupational Exch., Inc., 473 A.2d 406 (discussing the 

exhaustion doctrine in reviewing a judgment entered in an administrative appeal).

[¶28] For the same reasons, any due process claim that could be inferred 

from Marshall’s complaint was properly dismissed. Particularly with respect to 

due process, a party must pursue the process that is available before complaining 

of a procedural inadequacy. Moreau, 661 A.2d at 680.

[¶29] In sum, the Town must be given an opportunity to act in its regulatory 

role before it can be found to have acted in violation of the Constitution. Thus, the

use of available process was an essential prerequisite to Marshall’s claims. 

Further, although Marshall argues that the Board of Appeals could not enter an 

injunction, the Town could very well have withdrawn, altered, or eliminated the 

CEO’s orders, thereby providing the very relief that Marshall sought through his

complaint for injunctive relief.

C. Equal Protection Violation

[¶30] Finally, Marshall’s claim that the Town interfered with his right to

equal protection failed to allege a single fact to suggest that he was treated 

differently than others similarly situated based on any impermissible 

considerations. A person alleging a violation of equal protection rights must allege 

that, “compared with others similarly situated, [the person] was selectively treated 
15

. . . based on impermissible considerations such as race, religion, intent to inhibit or 

punish the exercise of constitutional rights, or malicious or bad faith intent to 

injure a person.” Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004) (second 

alteration in original) (emphasis omitted) (quotation marks omitted); see also Cent. 

Me. Power Co. v. Pub. Utils. Comm’n, 1999 ME 119, ¶ 24 & n.12, 734 A.2d 1120, 

cert. denied, 528 U.S. 1077 (2000) (holding that the equal protection guarantees of 

the Maine and United States Constitutions are coextensive). If a person alleges 

selective treatment as an individual and not a member of a specific class, that 

“class-of-one plaintiff bears the burden of showing that his comparators are 

similarly situated in all respects relevant to the challenged government action.” 

Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 640 (1st Cir. 2013); see Polk

v. Town of Lubec, 2000 ME 152, ¶¶ 15-16, 756 A.2d 510.

[¶31] Conclusive generalities asserting that the plaintiff was treated 

differently will not suffice. Gianfrancesco, 712 F.3d at 640; see Polk, 2000 ME 

152, ¶¶ 15-16, 756 A.2d 510 (holding that vague allegations about a CEO’s 

reasons for opposing a permit application were insufficient to support an equal 

protection claim). Rather, the complaint must allege facts that could demonstrate 

“that the challenged decision . . . had a discriminatory effect and that it was 

motivated by a discriminatory purpose.” Polk, 2000 ME 152, ¶ 14, 756 A.2d 510

(quotation marks omitted).
16

[¶32] Marshall’s complaint fails altogether to include allegations 

concerning how similarly situated property owners were treated by the Town, and 

his complaint does not report any “gross abuse of power,” Tapalian, 377 F.3d at 6 

(quotation marks omitted), that could demonstrate malicious or bad faith intent to 

injure him, id. at 5. Without alleging any facts that would, if proved, demonstrate 

that he was treated differently from others similarly situated based on an 

impermissible discriminatory purpose, the complaint does not survive the motion 

to dismiss.

IV. CONCLUSION

[¶33] Because Marshall (A) failed to allege that the CEO’s actions were 

taken pursuant to a municipal policy, (B) failed to pursue available administrative 

relief, and (C) failed to allege that he faced discriminatory treatment as compared 

with others who were similarly situated, we affirm the court’s dismissal of 

Marshall’s complaint for injunctive relief and damages.

The entry is:

Judgment affirmed.
17

On the briefs:

Erik M. Stumpfel, Esq., and Anthony V. Trask, Esq., Rudman Winchell, 

Bangor, for appellant Gerald Marshall

Frederick F. Costlow, Esq., and Heidi J. Hart, Esq., Richardson, Whitman, 

Large & Badger, Bangor, for appellee Town of Dexter

At oral argument:

Erik M. Stumpfel, Esq., for appellant Gerald Marshall

Frederick F. Costlow, Esq., for appellee Town of Dexter

Penobscot County Superior Court docket number CV-2013-81

FOR CLERK REFERENCE ONLY