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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 12-12061-RGS PHILIP MACDONALD v. TOWN OF EASTHAM, NORMAN SYLVIA, KATE MUNGOVAN, and TERRY DINAN

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS May 24, 2013 STEARNS, D.J. In this action, Philip Macdonald seeks damages to redress alleged violations of the Fourth Amendment and various state laws arising from a warrantless search of his home and his subsequent prosecution in state court based on the fruits of that search. Defendants Town of Eastham, Eastham police officers Norman Sylvia and Kate Mungovan, and Barnstable County Sheriff's Department employee Terry Dinan move to dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, defendants' motion will be allowed. BACKGROUND The well-pleaded facts alleged in the Complaint are as follows. See S.E.C. v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010) (en banc). At approximately 1:00 p.m.

on November 7, 2009, Macdonald left his house with his dog and drove to a nearby beach to dig clams, stopping for a coffee along the way. As he often did when away for a short period of time, Macdonald left the side entrance of the house open to permit his cat to roam freely. Forty-five minutes later, a dispatcher at the Town of Eastham Police Department received a call from Georgia Hawko, a neighborhood watch captain who lived in a house adjoining Macdonald's property. Hawko stated: This is Georgia Hawko. I am a neighborhood watch and I see a house that nobody's home but the door is wide open, both the screen and the front door, and I don't know if I should be concerned, if they just ran out and left it open or what's going on. Compl.

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