Frei v. Town of Holland , 212 F. App'x 4 ( 2007 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1523
PETER K. FREI,
Plaintiff, Appellant,
v.
TOWN OF HOLLAND, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Lynch and Howard,
Circuit Judges.
Peter K. Frei on brief pro se.
Nancy Frankel Pelletier, Dorothy Varon and Robinson Donovan,
P.C., on brief for appellees.
January 5, 2007
Per Curiam. Pro se appellant Peter Frei appeals from
the district court's grant of defendants' Fed. R. Civ. P. 12(c)
motion for judgment on the pleadings. After careful consideration
of the record and appellate claims, we affirm, substantially for
the reasons given in the comprehensive and well-written Memorandum
and Order by District Judge Ponsor, which is dated February 17,
2006. We make only the following additional comments.
1. Even if we deem the April 3, 2001 event Frei
highlights to have been within the limitations period, that would
not affect the result here. By itself, the April 3rd event did not
state a federal claim and so could not "anchor" the remaining
untimely claims against the board of health. Centro Medico del
Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 7 (1st Cir. 2005)
(where serial continuing violations are alleged, "the act that
falls within the limitations period must itself constitute an
actionable violation").
2. In his appellate brief, Frei fails to address a
critical element of his "class of one" equal protection claim
against the town planning board. See Barrington Cove Ltd.
Partnership v. Rhode Island Housing & Mortg. Finance Corp., 246
F.3d 1, 8 (1st Cir. 2001) (confirming that the complaint must
adequately allege all of the relevant respects in which the
plaintiff and more favorably treated applicants were "similarly
situated"). Thus, he has waived or forfeited his right to
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appellate consideration. Casillas-Díaz v. Palau, 463 F.3d 77, 83
(1st Cir. 2006) ("Few principles are more a part of the warp and
woof of appellate practice than the principle that 'issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.'") (citation omitted).
3. The pertinent state law, M.G.L. c. 41, §§ 81L and
81P, did not entitle Frei to the planning board's endorsement of
his plans to divide one parcel of land. The mandatory language
Frei focuses on is qualified by other statutory language, as the
district judge recognized. Hence, the dismissal of the procedural
due process claim was proper for that reason alone.
4. The substantive due process claim based on
allegations of perjury, falsification of documents, and retaliatory
action, fails under this circuit's case law. See, e.g., Cruz-Erazo
v. Rivera-Montañez, 212 F.3d 617, 623-24 (1st Cir. 2000) (rejecting
substantive due process claim based on police provision of false
affidavits and testimony to support a trumped-up burglary charge);
Pagán v. Calderón, 448 F.3d 16, 33-34 (1st Cir. 2006) (rejecting
retaliation claim because "[s]ubstantive due process is an
inappropriate avenue of relief when the governmental conduct at
issue is covered by a specific constitutional provision" like the
First Amendment).
5. Frei has not established that the district judge's
decision on his takings claim is inconsistent with Supreme Court
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law, as he maintains. He fails to cite any case or other authority
that would support his claim that the one-year limitations period
for his state remedy renders that remedy inadequate. At this
point, it is speculative whether the state law cap on municipal
liability would render the state remedy inadequate.
6. As for the retaliation claim against the town
planning board, the complaint itself indicates that the board
declined to endorse Frei's plans before learning that Frei intended
to file a mandamus action. Moreover, Frei's prior applications to
state courts or agencies were all too remote in time to give rise
to an inference of retaliation by the board. See Centro Medico,
406 F.3d at 11 n.5 (even a two-year lapse of time between the
plaintiff's and defendant's actions "undercuts rather than
supports" the existence of a causal connection).
7. Contrary to Frei's contention on appeal, the district
judge did rule on his motion to amend his complaint a second time,
denying it as untimely. Moreover, the claim Frei now seeks to add
-- that one defendant misrepresented the facts and law to the state
court judge presiding over Frei's mandamus action -- is not a
federal claim. See Cruz-Erazo, supra, 212 F.3d at 623-24.
Affirmed.
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