Rubinovitz v. Rogato ( 1995 )

  • USCA1 Opinion


    United States Court of Appeals United States Court of Appeals
    For the First Circuit For the First Circuit

    No. 94-2311


    Plaintiffs, Appellants,



    Defendants, Appellees.




    [Hon. Richard G. Stearns, U.S. District Judge] ___________________



    Boudin, Circuit Judge, _____________
    Bownes, Senior Circuit Judge, ____________________
    and Stahl, Circuit Judge. _____________


    Edward F. Lawson with whom Denise M. Leydon and Weston, Patrick, ________________ _________________ _________________
    Willard & Redding were on brief for appellants. _________________
    Thomas A. Reed with whom J. Owen Todd, Todd & Weld, John P. _______________ _____________ ____________ _______
    Fitzgerald and Cogavin & Waystack, were on brief for appellees. __________ __________________


    August 1, 1995

    STAHL, Circuit Judge. Plaintiffs Donald A. and STAHL, Circuit Judge. ______________

    Linda L. Rubinovitz ("the Rubinovitzes") brought this action

    under 42 U.S.C. 1983 and 1985 against various officials of

    the City of Lynn, Massachusetts (collectively,

    "defendants"),1 claiming a violation of their civil rights

    by the apparent revocation of a previously granted zoning-

    variance application and by the commencement of numerous

    code-enforcement actions against them. The district court

    granted defendants' motion for summary judgment. After

    careful review of the record, we conclude that, as to two of

    the defendants, summary judgment should not have been


    I. I. __


    The facts leading to this appeal center around

    property owned by the Rubinovitzes that includes an out-

    building containing an apartment over a one-car garage ("the

    property"). On January 1, 1989, the Rubinovitzes leased the

    apartment to Laurie A. Lussier. On the same day, they

    received a check for $500 from defendant Grace Rogato -- a


    1. The defendants are city purchasing director Grace Rogato,
    health inspector Robert M. Barrett, gas inspector Henry P.
    Baron, Board of Appeals chairman John J. Burke, Jr., and
    Board of Appeals members Dennis Tobin and John Volo. In
    February 1993, Rogato died and her estate was substituted as
    a party in the action.

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    friend of Lussier -- to cover the first month's rent and a

    $100 installment toward a $300 security deposit.

    Two days later, on January 3, 1989, defendant

    Robert M. Barrett, a code inspector for the Lynn Department

    of Public Health, notified the Rubinovitzes that the city

    required a certificate of occupancy before the dwelling could

    be legally inhabited. Three days later, upon a visual

    inspection of the apartment, Barrett advised the Rubinovitzes

    that city health regulations required a second means of

    egress before the city would issue the occupancy permit. The

    city building department then advised the Rubinovitzes that a

    zoning variance was required before they could obtain a

    building permit for the second means of egress.

    Several months later, in April 1989, the

    Rubinovitzes discovered that Lussier had a cat in the

    apartment, in violation of the lease. Acting on that

    violation, on April 10, 1989, the Rubinovitzes notified

    Lussier that her tenancy would terminate effective May 31,

    1989. On April 20, 1989, Rogato went to Mr. Rubinovitz's

    business, an office supply store, and asked whether

    Rubinovitz intended to give Lussier a "hard time." Rogato

    further asked whether the security deposit would be returned

    to her.

    On May 2, 1989, the Rubinovitzes' application for

    the zoning variance came before a hearing of the Lynn Board

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    of Appeals ("the Board"). By a vote of 4-1, the Board

    approved the variance. Two or three days later, Rogato spoke

    with Nancy Amenta, the clerk for the Board, and asked what

    had transpired as to the property at the May 2 hearing.

    At some point, after Lussier occupied the

    apartment, defendant Barrett apparently reinspected the

    property. On May 4, 1989, Barrett at a meeting with Mr.

    Rubinovitz, presented him with an order to make various

    repairs within seven days. Barrett also told Rubinovitz that

    Rogato had been calling the health department "every hour on

    the hour" regarding the property and was pressuring the

    department to bring enforcement actions.

    Later that day, the Rubinovitzes wrote a letter to

    the director of public health, Gerald M. Carpinella (the "May

    4 letter"), in which they requested a hearing on the order to

    repair. The letter also stated:

    [We] request that the type of harassment
    that [we] have been subjected to cease
    immediately, as [we] are well aware and
    have been informed that this stems from
    cronyism and blatant misuse of power and
    authority brought on by the Purchasing
    Director, Grace Rogato.

    Carpinella discussed the letter with Rogato.

    Subsequent to the May 2 variance hearing, the Rubinovitzes

    received two post cards from the Board notifying them that

    the Board had approved their request. On May 11, 1989,

    however, the Rubinovitzes received a letter from the Board

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    notifying them that the May 2 hearing (at which their

    variance request had been approved) had been continued until

    May 16, 1989. At the continued hearing, defendant Board

    chairman John J. Burke, Jr., moved to reconsider the May 2

    vote, and Burke and defendant Board member Dennis Tobin then

    reversed their earlier votes to grant the Rubinovitzes'

    petition. Thus, on reconsideration, the Rubinovitzes'

    petition failed by a 3-2 vote.

    On June 2, 1989, defendant Henry P. Baron, the city

    gas inspector, wrote to public health director Carpinella

    advising that gas service to the Rubinovitz apartment be

    discontinued because of alleged safety problems. Five days

    later, Carpinella wrote to the Rubinovitzes advising them of

    numerous violations of state plumbing and gas codes. On July

    12, 1989, the city plumbing inspector, Gerald Capano, ordered

    the Rubinovitzes to disconnect the water and sewer

    connections to the apartment because they lacked requisite

    permits. On July 14, 1989, Baron ordered the Boston Gas

    Company to disconnect the gas service to the Rubinovitz

    apartment because of the lack of a permit. Later, Baron told

    a contractor hired by the Rubinovitzes to stay away from

    them, characterizing the Rubinovitzes as "bad people" and

    calling Mrs. Rubinovitz "a bitch."

    Meanwhile, the Rubinovitzes had appealed the

    Board's variance order to the Massachusetts Superior Court.

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    On January 10, 1991, the Superior Court vacated the Board's

    reconsideration vote, thereby reinstating the Rubinovitzes'


    The Rubinovitzes filed the present action under 42

    U.S.C. 1983 against defendants alleging violation of their

    equal protection rights, their rights to free speech, and

    their property rights. The Rubinovitzes also allege

    violation of 42 U.S.C. 1985. Following discovery,

    defendants moved to dismiss. The district court treated the

    motion as one for summary judgment and, following a hearing,

    ruled from the bench that the Rubinovitzes' claims, though

    styled under different theories, amounted to one

    constitutional claim: that they were denied equal protection

    under the law by being singled out by Lynn officials for

    exercising their property rights (in evicting Lussier) and

    for exercising their rights to free speech (in sending the

    May 4 letter). The district court determined that a

    landlord's right to evict a tenant is "a matter uniquely

    grounded in state property law and does not implicate

    constitutional rights triggering the protections of 1983."

    As to free speech, the district court determined that the

    Rubinovitzes "failed to show any causal connection between

    the May 4 letter and Miss Rogato's alleged conspiratorial

    campaign against them." In fact, the district court said,

    Rogato's motivation appeared to be malice toward the

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    Rubinovitzes because of their eviction proceedings against

    Lussier rather than retaliation for their exercise of their

    free speech rights. Accordingly, the district court granted

    summary judgment as to all counts. This appeal followed.

    II. II. ___


    A. Standard of Review ______________________

    We review a district court's grant of summary

    judgment de novo, considering the facts in the light most __ ____

    favorable to the nonmoving party. See, e.g., Udo v. Tomes, ___ ____ ___ _____

    54 F.3d 9, 12 (1st Cir. 1995). We resolve all reasonable

    inferences in that party's favor, but "we need not credit

    purely conclusory allegations, indulge in rank speculation,

    or draw improbable inferences." National Amusements, Inc. v. _________________________

    Town of Dedham, 43 F.3d 731, 736 (1st Cir.), cert. denied, _______________ _____ ______

    115 S. Ct. 2247 (1995). Summary judgment should be granted

    when "the pleadings, depositions, answers to interrogatories,

    and admissions on file, together with affidavits, if any,

    show that there is no genuine issue as to any material fact

    and that the moving party is entitled to a judgment as a

    matter of law." Fed. R. Civ. P. 56(c).

    B. Equal Protection ____________________

    We first set out the analytical framework for our

    decision. The Rubinovitzes charge defendants with improper

    selective enforcement of lawful local regulations. See ___

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    LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980), cert. _______ ________ _____

    denied, 450 U.S. 959 (1981). Specifically, the Rubinovitzes ______

    argue that the Board's about-face on their variance

    application as well as the litany of code-enforcement actions

    were retaliatory and singled them out for disparate

    treatment. As we have stated before:

    Liability in the instant type of equal
    protection case should depend on proof
    that (1) the person, compared with others
    similarly situated, was selectively
    treated; and (2) that such selective
    treatment was 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.

    Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board of ________________________________________________ ________

    Selectmen, 878 F.2d 16, 21 (1st Cir. 1989) (citing LeClair, _________ _______

    627 F.2d at 609-610). The Rubinovitzes argue that liability

    arises because: first, defendants treated them selectively;

    second, the selective treatment was based upon the exercise

    of their property and free speech rights; and third,

    defendants' actions constituted "malicious or bad faith

    intent to injure."

    To facilitate the analysis of this case, we divide

    the events described above into two broad categories: the

    zoning-variance approval revocation and the code-enforcement

    actions. Turning first to the zoning-variance approval

    issue, we conclude that the Rubinovitzes have not offered a

    sufficient basis for us to conclude that they were

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    selectively treated. Plaintiffs claiming an equal protection

    violation must first "identify and relate specific instances

    where persons situated similarly `in all relevant aspects'

    were treated differently, instances which have the capacity

    to demonstrate that [plaintiffs] were `singled . . . out for

    unlawful oppression.'" Dartmouth Review v. Dartmouth _________________ _________

    College, 889 F.2d 13, 19 (1st Cir. 1989) (citations omitted). _______

    The Rubinovitzes neither identify others who were similarly

    situated, nor do they identify any instances of disparate

    treatment. In opposition to summary judgment, Mr.

    Rubinovitz's affidavit states: "there are at least [thirteen]

    properties in the neighborhood in which I live which have

    structures to the rear of the main dwelling which are used as

    dwelling units . . . . All of the properties are within

    approximately two blocks of my property." Appended to the

    affidavit were pictures of the property and thirteen similar

    structures. From this submission, the Rubinovitzes

    apparently ask us to infer that the Board readily granted

    their neighbors variance requests. However, the Rubinovitzes

    fail to present any evidence that any of their neighbors were

    either required to seek a variance or actually made such a

    request of the Board. Thus, there is no basis in the record

    by which we can determine that the Rubinovitzes were

    "`singled . . . out for unlawful oppression,'" id. (quoting ___

    (Burt v. City of New York, 156 F.2d 791, 791 (2d Cir. 1946) ____ ________________

    -9- 9

    (L. Hand, J.)), or that they "suffered what others in general

    have escaped," Burt, 156 F.2d at 791. ____

    The Rubinovitzes' complaint of selective code-

    enforcement actions stands on far firmer ground. For

    example, the Rubinovitzes point to the affidavit of city

    plumbing inspector Capano, in which he states that (1) he had

    encountered other instances where there was plumbing but no

    permits and (2) he did not order the plumbing disconnected,

    as he had with the Rubinovitzes. As to code-enforcement, we

    think the record contains sufficient evidence of selective

    treatment to forestall summary judgment. Accordingly, the

    balance of our analysis focuses on the defendants' code-

    enforcement efforts against the Rubinovitzes.

    The second prong of the Yerardi's analysis requires _________

    us to determine whether defendants singled out the

    Rubinovitzes for an improper purpose. The Rubinovitzes do

    not allege that the disparate treatment flowed from an

    invidious classification involving race or religion. Rather,

    the Rubinovitzes argue that defendants sought to punish them

    for the exercise of fundamental constitutional rights.

    First, although not entirely clear from their arguments below

    and to this court, the Rubinovitzes appear to allege that

    defendants punished them for exercising their "right to

    evict" Lussier. The Rubinovitzes rely on language from

    Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 53 (1st _______________ __________________

    -10- 10

    Cir. 1990) (quoting Board of Regents v. Roth, 408 U.S. 564, _________________ ____

    577 (1972)), holding that, in a deprivation-of-due-process

    analysis, protected property interests "`stem from an

    independent source such as state law.'" Even assuming that a

    right to evict a tenant would be a protected property

    interest under Roth for purposes of a due process claim, it ____

    does not follow that there is a fundamental right to evict,

    the exercise of which is protected by the Equal Protection

    Clause. In fact, the Constitution establishes no such

    fundamental right.

    The Rubinovitzes mount another argument grounded in

    fundamental constitutional rights. Specifically, they allege

    that defendants' code-enforcement actions were an attempt to

    punish the Rubinovitzes for the May 4 letter. This argument

    also falls short, but for a different reason. Free speech is

    a fundamental right but, to survive summary judgment, the

    Rubinovitzes must offer some proof that defendants' allegedly

    retaliatory actions were motivated by the protected speech.

    See, e.g., Cloutier v. Town of Epping, 714 F.2d 1184, 1192 ___ ____ ________ _______________

    (1st Cir. 1983); Packish v. McMurtrie, 697 F.2d 23, 26 (1st _______ _________

    Cir. 1983). The Rubinovitzes point to ten facts that they

    contend constitute evidence of retaliatory motive. We are

    unconvinced. The Rubinovitzes adduce no direct evidence

    establishing retaliatory motive. Instead, they rely entirely

    on circumstantial evidence: that is, enforcement actions

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    followed the May 4 letter. Indeed, the facts to which the

    Rubinovitzes point do nothing more than lay out the basic

    rubric of the case: e.g., the Board approved the variance on ____

    May 2; Rogato contacted the Board regarding the variance

    after May 2; the May 4 letter was sent to Carpinella;

    Carpinella discussed the May 4 letter with Rogato; the

    Rubinovitzes received notice that the variance had been

    approved; on May 16, the Board reversed its decision on the

    variance and various code enforcement actions had been

    commenced against the property beginning in January 1989.

    This recitation is insufficient to support an

    inference of improper motive. As the Rubinovitzes themselves

    point out, the city's code-enforcement activity had been well

    underway for four months prior to the May 4 letter. In fact,

    the Rubinovitzes wrote the May 4 letter immediately following

    Barrett's meeting with Mr. Rubinovitz during which Barrett

    both presented an order to repair and related Rogato's pre-

    May 4 pressure to bring code-enforcement actions. The May 4

    letter itself complained about the "harassment" from city

    officials. Although the Rubinovitzes contend that the

    "principal wrongful actions" took place after the May 4

    letter, they offer no basis upon which to distinguish pre-

    and post-May 4 harassment. Of course, on summary judgment,

    we must draw all reasonable inferences in favor of the

    nonmoving party. However, those inferences "must flow

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    rationally from the underlying facts; that is, a suggested

    inference must ascend to what common sense and human

    experience indicates is an acceptable level of probability."

    National Amusements, 43 F.3d at 743. The record suggests ____________________

    that although the city had focused its attention on the

    property prior to the Lussier eviction, the heightened

    attention began after the eviction notice but before the May

    4 letter. We think the inference suggested by the

    Rubinovitzes rests on a "`tenuous insinuation,'" id. (quoting ___

    Mesnick v. General Elec. Co., 950 F.2d 816, 820 (1st Cir. _______ __________________

    1991), cert. denied, 504 U.S. 985 (1992)), rather than an _____ ______

    acceptable level of probability. Accordingly, we conclude

    that the record fails to support an inference that the

    officials' post-May 4 conduct was in retaliation for the May

    4 letter.

    Finally, as noted above, in the absence of

    invidious discrimination or the abuse of a fundamental right,

    a party may establish an equal protection violation with

    evidence of bad faith or malicious intent to injure.

    Yerardi's, 878 F.2d at 21; see also Yerardi's Moody St. _________ _________ _____________________

    Restaurant & Lounge, Inc. v. Board of Selectmen, 932 F.2d 89, _________________________ __________________

    94 (1st Cir. 1991) (hereinafter, "Yerardi's II"). We start ____________

    with two related observations. First, bad-faith or

    malicious-intent-to-injure cases are infrequent. Yerardi's _________

    II, 932 F.2d at 94 (citing PFZ Properties, Inc. v. Rene __ _____________________ ____

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    Alberto Rodriguez, 928 F.2d 28, 33 (1st Cir. 1991) (noting in _________________

    the zoning context that "[e]very appeal . . . from an adverse

    ruling . . . necessarily involves some claim that the board

    exceeded, abused or distorted its legal authority in some

    manner") (quotations and citations omitted), cert. dismissed, _____ _________

    503 U.S. 257 (1992)). Second, "`the malice/bad faith

    standard should be scrupulously met.'" Yerardi's II, 932 _____________

    F.2d at 94 (quoting LeClair, 627 F.2d at 611). _______

    Indeed, despite the general language of Yerardi's, _________

    at least one member of this panel believes that something

    substantially more than a single act of malice underlying

    some routine administrative action is necessary to make out a

    constitutional claim. Cf. Esmail v. Macrane, 53 F.3d 176 ___ ______ _______

    (7th Cir. 1995) (campaign of severe harassment orchestrated

    by mayor). But we need not resolve such issues in this case

    beyond cautioning that routine claims that some individual

    action was malicious are likely to have rough sailing. For

    here we think there is enough indication of a malicious

    orchestrated campaign causing substantial harm--though only

    barely enough evidence--that the case cannot be resolved on

    summary judgment.

    Although Rogato had no official authority in the

    matter, there is certainly evidence that she was personally

    hostile to the Rubinovitzes based on her resentment

    concerning Lussier's eviction, that she had sought to

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    intervene with the Rubinovitzes personally on Lussier's

    behalf, that she had repeatedly pressured the health

    department to bring enforcement actions, that she had kept

    track of the Board proceedings, and that in May she had

    conferred with Carpinella, the public health director, not

    long before the cut-off orders. Rogato was an official of

    the city and, in a relatively small unit of government,

    almost certainly had access and influence beyond that of an

    ordinary outsider.

    Putting aside the Board's reconsideration vote,

    these actions by Rogato were followed by Baron's advice to

    Carpinella that gas service to the Rubinovitzes be

    discontinued (June 2), Carpinella's notice to the

    Rubinovitzes advising them of numerous violations (June 7),

    Capano's order to disconnect water and sewer hook-ups to the

    apartment (July 12), and Baron's order to Boston Gas to

    disconnect gas service (July 14). Baron thereafter sought to

    interfere with the Rubinovitzes' hiring of a contractor,

    using language about them ("bad people," "bitch") redolent of

    malice. In the case of both cut-offs, there was some ____

    evidence that other residents similarly situated did not

    suffer the same penalty.

    Under these circumstances, we think that although

    the case might be a difficult one for the plaintiffs, a

    reasonable jury might well be able to conclude that there was

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    an orchestrated conspiracy involving a number of officials,

    selective enforcement, malice, and substantial harm. Of

    course, the full presentation of evidence on both sides might

    alter this judgment and show that the plaintiffs fell just

    short and would be subject to a directed verdict. But at the

    summary judgment stage, with the obligation to draw all

    reasonable inferences in favor of the party opposing summary

    judgment, we think that this case could not be dismissed

    against all defendants.

    We think that Barrett, also named as a defendant,

    was properly granted summary judgment; his own investigation

    of code violations began well before the eviction

    controversy, and --while his report of Rogato's pressure is

    highly pertinent evidence--there is no evidence that Barrett

    was himself involved in either of the cut-off directives. As

    for Carpinella and Capano, there is no need to consider

    whether the evidence might be sufficient as to them, since

    they were not named as defendants and it is almost certainly

    too late in the day to consider any expansion of this


    III. III. ____


    For the foregoing reasons, the judgment of the

    district court is vacated as to defendants Rogato and Baron _______

    and the case remanded as to them for proceedings consistent ________

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    with this opinion. As to all other defendants, the decision

    of the district court is affirmed. ________

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