Legend's Creek LLC et al v. State of Rhode Island et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
LEGEND’S CREEK LLC; JON
RESTIVO; and ADEN MOTT,
Plaintiffs,
v.
THE STATE OF RHODE ISLAND;
and the RHODE ISLAND
DEPARTMENT OF HEALTH,
Defendants.
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No. 22-cv-309-JJM-PAS
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Plaintiffs Jon Restivo and Aden Mott operated Legend’s Creek LLC, a business
located in Foster, Rhode Island (collectively “Legend’s Creek”). 	Legend’s Creek
sought a public water supply well permit from the Rhode Island Department of
Health (“RIDOH”) to install a commercial kitchen where it intended to process food
products on site. RIDOH investigated and denied its application, finding no definitive
evidence that a junkyard located on an adjoining property would not contaminate the
groundwater for the public supply well.
After appealing RIDOH’s decision to the Rhode Island Superior Court and
being denied, Legend’s Creek filed this suit under 42 U.S.C. § 1983, alleging six
counts against Defendants the State of Rhode Island and RIDOH (collectively “the
State”) for takings and other due process violations. The State moved to dismiss the
entire Complaint, and the Court dismissed all but Counts I and II, the two takings
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claims. ECF Nos. 18, 19 (Amended). In its decision on the State’s Motion to Dismiss,
the Court held that the State was not entitled to Eleventh Amendment immunity for
Legend’s Creek’s two takings claims1 (Counts I and II) but dismissed the remaining
claims.2 ECF No. 19. Legend’s Creek now moves for summary judgment on Count I
of their Amended Complaint. 	ECF No. 30. 	The State first moves the Court to
reconsider its decision that it is not entitled to sovereign immunity for the takings
claims based on a manifest error of law and new caselaw. The State then cross-moves
for summary judgment on Counts I and II. ECF No. 27. Before getting to the cross
motions for summary judgment, the Court will address the State’s motion on
sovereign immunity.
I. 	MOTION TO RECONSIDER
The First Circuit has made clear that motions to reconsider “are not to be used
as a vehicle for a party to undo its own procedural failures [or] allow a party to
advance arguments that could and should have been presented to the district court
prior to judgment.”
United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) (cleaned
up). Instead, they “are appropriate only in a limited number of circumstances: if the
moving party presents newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the original decision was
based on a manifest error of law or was clearly unjust.”
Id. Because the Court is now
1 The remaining two counts in the Amended Complaint are Count I, a per se
physical 	taking 	in 	violation 	of 	the 	Fifth 	Amendment 	of 	the 	United 	States
Constitution, and Count II, a regulatory taking.
2 The Court dismissed the Fourteenth Amendment claims because it found that
Plaintiffs failed to allege a protected property interest. ECF No. 19 at 12.
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persuaded, considering recent decisions from its sister courts and from the First
Circuit, that it misapplied the law, it will now reconsider whether the State is
immune under the Eleventh Amendment3 for the takings claims alleged here.
A. 	ABROGATION
“Eleventh 	Amendment 	sovereign 	immunity 	bars 	claims 	seeking 	money
damages against a state, a state agency, or a state official sued in his official capacity
in federal court.”
Soscia Holdings, LLC v. Rhode Island, 677 F. Supp. 3d 55, 66 (D.R.I.
2023),
aff’d No. 24-1397, 2026 WL 410697 (1st Cir. Feb. 13, 2026) (citing
Frew ex rel.
Frew v. Hawkins, 540 U.S. 431, 437 (2004)). 	“[T]here are limited recognized
circumstances in which a state may be subject to suit, including when the state
consents, when congress abrogates immunity, and when the
From the part Young
doctrine applies.”
Id.
Lost in the previous order is the importance of recognizing that Legend’s Creek
brought its claim under 42 U.S.C. § 1983. 	Section 1983 provides a federal cause of
action against “[e]very person” who deprives another person “of any rights, privileges,
or immunities secured by the Constitution and laws.” 	42 U.S.C. § 1983. 	“[S]tates
(including their departments and agencies), and state officials sued for money
damages in their official capacities are not ‘persons’ within the meaning of § 1983.”
3 Plaintiffs argued in their objection to the State’s original motion for summary
judgment on immunity grounds, and reassert here, that the Eleventh Amendment
does not bar suit against the State because the State waived sovereign immunity
under the Governmental Tort Liability Act, R.I. Gen. Laws § 9-31-1.
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Soscia Holdings, 677 F. Supp. 3d at 66 (citing
Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989)).
The United States Supreme Court’s decision in
Will v. Michigan Department
of State Police lays out the dynamic between a § 1983 claim and the Eleventh
Amendment:
Section 1983 provides a federal forum to remedy many deprivations of
civil liberties, but it does not provide a federal forum for litigants who
seek a remedy against a State for alleged deprivations of civil liberties.
The Eleventh Amendment bars such suits unless the State has waived
its immunity, * * * 	or unless Congress has exercised its undoubted
power 	under 	§ 5 	of 	the 	Fourteenth 	Amendment 	to 	override 	that
immunity.
491 U.S. at 66 (citations omitted). Significantly here, the Supreme Court held “[t]hat
Congress, in passing § 1983, had no intention to disturb the States’ Eleventh
Amendment immunity and so to alter the federal–state balance in that respect was
made clear in our decision in
Quern.”
	Id. (citing
Quern v. Jordan, 440 U.S. 332,
(1979)). “[Section] 1983 does not explicitly and by clear language indicate on its face
an intent to sweep away the immunity of the States; nor does it have a history which
focuses directly on the question of state liability and which shows that Congress
considered and firmly decided to abrogate the Eleventh Amendment immunity of the
States.”
Quern, 440 U.S. at 345.
The Court relied on the law the First Circuit set forth in
Sinapi v. Rhode Island
Board of Bar Examiners for the foundational principle that “Congress … has the
power to abrogate Eleventh Amendment immunity when properly exercising its
power under Section 5 of the Fourteenth Amendment. No immunity protects states
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from a claim for monetary damages based on ‘actual violations’ of the Fourteenth
Amendment.” 910 F.3d 544, 553 (1st Cir. 2018) (citing
United States v. Georgia, 546
U.S. 151, 158 (2006) (emphasis in original)). That section states that “[t]he Congress
shall have power to enforce, by appropriate legislation, 4 the provisions of this article.”
U.S. Const. amend XIV, § 5.
The First Circuit noted, however, that its statement in
Sinapi that there was
no 	sovereign 	immunity 	for 	actual 	violations 	of 	the 	Fourteenth 	Amendment
“concerned a cause of action, Title II of the Americans with Disabilities Act, for which
Congress unequivocally expressed an intent to abrogate Eleventh Amendment
immunity.”
	Jafri v. New Hampshire Supreme Ct. Comm. on Character & Fitness,
No. 22-1802, 2023 WL 7294994, at *1 (1st Cir. Oct. 23, 2023) (quoting
Sinapi, 910
F.3d 	at 552-53). 	The 	ADA 	was 	the 	vehicle 	in 	that 	case 	by 	which 	Congress
unequivocally abrogated Eleventh Amendment immunity. Legend’s Creek brings its
claim under 42 U.S.C. § 1983 and “Congress did not unequivocally express an intent
to abrogate Eleventh Amendment immunity in § 1983.”
	Jafri, 2023 WL 7294994, at
*1 (citing
Quern, 440 U.S. at 345 (Ҥ 1983 does not explicitly and by clear language
indicate on its face an intent to sweep away the immunity of the States; nor does it
have a history which focuses directly on the question of state liability and which
shows 	that 	Congress 	considered 	and 	firmly 	decided 	to 	abrogate 	the 	Eleventh
Amendment immunity of the States.”). The United States Supreme Court has been
4 Other than 42 U.S.C. § 1983, Legend’s Creek does not cite to any other federal
statute in its Amended Complaint.
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consistent in noting that “[t]he language of § 1983 … falls far short of satisfying the
ordinary rule of statutory construction that if Congress intends to alter the ‘usual
constitutional balance between the States and the Federal Government,’ it must
make its intention to do so ‘unmistakably clear in the language of the statute.’
Will,
491 U.S. at 65 (quoting
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
Therefore, the State’s Eleventh Amendment immunity in this case is intact.
The Court now must reconsider whether there is a Takings Clause exception
to the Eleventh Amendment. 	“The Supreme Court has not addressed whether
Eleventh 	Amendment 	immunity 	applies 	to 	takings 	claims 	against 	states 	or
territories.”
Clemente Properties, Inc. v. Pierluisi-Urrutia, 693 F. Supp. 3d 215, 247
(D.P.R. 2023),
aff’d in part, rev’d in part, 165 F.4th 1 (1st Cir. 2026). The First Circuit
has also “not dwelled on this thorny subject, [but] the consensus among most federal
courts of appeals is to allow state governments to mount sovereign immunity defenses
as to takings claims.”
	Id. This uncertainty at the appellate level contributed to the
challenge when the Court initially decided this issue and remains to this day, but the
Court will examine some recent cases to discern an outcome faithful to the rule of
law.
Our sister District of Puerto Rico in
Clemente Properties,5 which followed an
earlier holding in
	Puma Energy Caribe LLC v. Puerto Rico, determined after
5 Because the First Circuit had a pending appeal in
Clemente Properties, Inc.
v. 	Pierluisi-Urrutia, 	where 	there 	was 	a 	challenge 	to 	whether 	the 	Eleventh
Amendment applied to a takings claim, the Court awaited that decision for guidance.
Alas, the First Circuit declined to decide this unsettled constitutional issue in favor
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reviewing cases across the country that “plaintiffs could not pursue their Fifth
Amendment claim under Section 1983 since it did not apply when suing the
Commonwealth or its officers in their official capacities for monetary relief and the
Eleventh Amendment equally barred their request for monetary relief.”
	Clemente
Properties, Inc., 693 F. Supp. 3d at 248 (citing
Puma Energy Caribe LLC v. Puerto
Rico, Civ. No. 20-1591 (DRD), 2021 WL 4314234, at *1 n.3 (D.P.R. Sept. 22, 2021)).
On appeal, the First Circuit affirmed dismissal of the takings claim against the
Commonwealth Defendants, finding that trademark takings are not governed by the
same principles as physical takings and did not reach sovereign immunity with
respect to this claim.
	Clemente Properties, Inc. v. Pierluisi-Urrutia, No. 23-1922,
2026 WL 125574, at *36 (1st Cir. Jan. 16, 2026) (“Because we concluded that the
district court correctly determined that the takings claim failed on the merits, we
need not address appellants’ argument that there is a Takings Clause exception to
sovereign immunity either.”).
In
Soscia Holdings, LLC v. Rhode Island, 677 F. Supp. 3d 55, 68 (D.R.I. 2023),
the Court considered the plaintiff’s argument that other courts have found that the
United States Supreme Court created a Takings Clause exception to sovereign
immunity in
Knick v. Township of Scott, Pennsylvania, 588 U.S. 180 (2019). 	The
court considered that interpretation but disagreed and held that
Knick did not
address a state’s sovereign immunity at all because that case was against a
of affirming the district court’s ruling that the plaintiffs’ takings claims failed on the
merits.
Clemente Properties, Inc. v. Pierluisi-Urrutia, 165 F.4th 1 (1st Cir. 2026).
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municipality not a state.
See Soscia Holdings, 677 F. Supp. 3d at 68 (where the court
analyzed the caselaw and determined that “every case where the plaintiff has argued
* * * that takings claims are not subject to sovereign immunity pursuant to
Knick,
courts have ruled against the plaintiff”). Based on this analysis, the court in
Soscia
Holdings allowed a state to invoke Eleventh Amendment sovereign immunity in a
takings claim for money damages against the State in federal court.
Soscia Holdings,
677 F. Supp. 3d at 66-67 (acknowledging the well-settled principle of sovereign
immunity and finding it applicable because no exception applied).6
Based on the reasoning of these more recent cases, the Court finds that a Fifth
Amendment Takings claim brought under § 1983 is not an exception to the rule that
the States have Eleventh Amendment sovereign immunity from suits brought in
federal courts.
	See,
e.g.,
Citadel Corp. v. P.R. Highway Auth., 695 F.2d 31, 33 n.4
(1st Cir. 1982) (noting in an inverse condemnation case that “[e]ven if the constitution
is read to require compensation …, the Eleventh Amendment should prevent a
federal court from awarding it.”).7
6 In
Soscia Holdings, the appellant did not appeal the district court’s decision
to dismiss the takings claim against the state actors under the Eleventh Amendment
and
Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989).
The court also found that a takings claim is not an exception to immunity in
federal court because they had a remedy in state court for their claims, noting that
Rhode Island courts are “open” to takings claims.
	Soscia Holdings, LLC v. Rhode
Island, 677 F. Supp. 3d 55, 67 (D.R.I. 2023). 	There is no assertion here–and no
support in Rhode Island Supreme Court precedent–that Rhode Island courts would
not hear Legend’s Creek’s takings claims.
See Alegria v. Keeney, 687 A.2d 1249 (R.I.
1999) (hearing and decision on the merits of a takings claim based on denial of
building application under the Rhode Island Freshwater Wetlands Act);
Marek v.
Rhode Island, 702 F.3d 650, 654 (1st Cir. 2012) (“Rhode Island courts recognize a
cause of action for inverse condemnation, allowing for recovery when a governmental
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B. 	WAIVER/CONSENT TO SUIT
Legend’s Creek also argued that the State consented to a Takings claim suit
by waiving immunity under the Rhode Island Tort Claims Act, R.I. Gen. Laws § 9-
31-1(a). 	“When evaluating whether a statute includes such a waiver, [a] court will
find waiver only where stated by the most express language or by such overwhelming
implications 	from 	the 	text 	as 	[will] 	leave 	no 	room 	for 	any 	other 	reasonable
construction.”
	Parente v. Lefebvre, 122 F.4th 457, 462 (1st Cir. 2024) (internal
quotations and citations omitted). Waiver can also be found “if a state’s highest court
has expressly held that the state statute at issue includes such a waiver.”
Parente v.
Lefebvre, 122 F.4th 457, 462 (1st Cir. 2024) (citing
Della Grotta v. Rhode Island, 781
F.2d 343, 347 (1st Cir. 1986) (cautioning “that waiver may not be inferred from a less
than explicit statute … to protect a state from a federal court’s ill-founded, possibly
mistaken, view of what its state legislature really intended”)).
“[T]he State Tort Claims Act waived Eleventh Amendment immunity for “all
actions of tort.”
	Id. (quoting R.I. Gen. Laws § 9-31-1(a) (emphasis in original)). 	In
Laird v. Chrysler Corporation, the Rhode Island Supreme Court held that this statute
abrogated the State’s (and its subdivisions and agencies) sovereign immunity for tort
claims brought in both state and federal court. 	460 A.2d 425, 428 (R.I. 1983). 	The
court reasoned that the “legislature, by enacting this provision, intended ‘to place the
state in the same position as any other private litigant and thus amenable to suit in
entity exercising land use restrictions or regulations effectively takes property
without formally exercising its eminent domain power.”).
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either state or federal court.’”
Parente, 122 F.4th at 461–62 (quoting
Laird, 460 A.2d
at 430). 	First, no court has established that a Fifth Amendment Takings claim is a
tort. 	Legend’s Creek argued that a takings claim can act like a tort, but that is not
enough to disturb the balance of federal and state authority. Because it is not a tort,
the State cannot be said to have waived its Eleventh Amendment immunity here.
Second, a state actor sued under the Fifth Amendment for an unconstitutional
taking cannot even by the act of the legislature be placed in the same position as a
private litigant, as
Laird references to show waiver, who cannot be sued for an
unconstitutional taking.
	Laird’s reasoning is that “in order to have an actionable
claim against the state, just as with a private defendant, a plaintiff must show that
there was a breach of a duty owed to him or her in an individual capacity and not
merely a breach of some obligation owed to the general public.”
	Parente, 122 F.4th
at 463 	(quoting
Laird, 460 A.2d at 429-30);
see also Ryan v. State Dep’t of Transp.,
420 A.2d 841, 843 (R.I. 1980)). 	Property claims under the Takings Clause brought
against a state actor are centered in obligations the State has to the public and the
Court concludes are not actionable as a tort.8 	Thus, the Court finds that a Fifth
8 Two other recent federal district court cases –
Parente v. Wall, 708 F. Supp.
3d 192 (D.R.I. 2023) and
Bergeron v. City of Woonsocket, No. 1:23-CV-093-MSM-
LDA, 2025 WL 579617 (D.R.I. Feb. 21, 2025) – have grappled with what is a tort
under 	R.I. 	Gen. 	Laws 	§ 9-31-1(a) 	for 	sovereign 	immunity 	purposes.
	Parente
considered whether a claim under the Rhode Island Civil Rights Act was a tort and
concluded that it was. On appeal, the First Circuit in
Parente analyzed the caselaw
and, after concluding that “[t]he Rhode Island Supreme Court has not addressed
whether RICRA claims are covered by the general waiver of sovereign immunity
under the State Tort Claims Act” ultimately certified a question to the Rhode Island
Supreme Court.
Parente v. Lefebvre, 122 F.4th 457, 464 (1st Cir. 2024). Without the
benefit of an answer from the Rhode Island Supreme Court, the court in
Bergeron
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Amendment Takings Clause claim against the State is not a tort under state law such
that the State’s waiver of sovereign immunity under R.I. Gen. Laws § 9-31-1(a) is not
applicable here.
II. 	CONCLUSION
Based on the State’s Eleventh Amendment immunity defense, the Court
GRANTS the State’s Motion for Summary Judgment. 	ECF No. 27. 	The Court
DISMISSES Plaintiffs’ Counts I and II. 	Legend’s Creek’s Motion for Partial
Summary Judgment is DENIED. ECF No. 30. Judgment shall enter for the State.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
John J. McConnell, Jr.
Chief United States District Judge
February 23, 2026
considered whether a claim under the Rhode Island Privacy Act is a tort and
concluded that it is because the RIPA codified a common law violation of privacy as a
tort and the Rhode Island Supreme Court called that claim a “tort of intrusion.”
Bergeron, 2025 WL 579617, at *8.
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