McLaughlin v. Tiverton Town Council ( 2021 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 20-1473
WILLIAM C. McLAUGHLIN; DEBORAH McLAUGHLIN,
Plaintiffs, Appellants,
v.
TIVERTON TOWN COUNCIL; TOWN OF TIVERTON; DENISE DEMEDEIROS,
in her individual capacity and her official capacity as an agent
or employee of the Town of Tiverton; JAY LAMBERT, in his
individual capacity and his official capacity as an agent or
employee of the Town of Tiverton; PETER MELLO, in his individual
capacity and his official capacity as an agent or employee of
the Town of Tiverton; BRETT N. PELLETIER, in his individual
capacity and his official capacity as an agent or employee of
the Town of Tiverton; JOAN B. CHABOT, in her individual capacity
and her official capacity as an agent or employee of the Town of
Tiverton; DAVID PERRY, in his individual capacity and his
official capacity as an agent or employee of the Town of
Tiverton; JOSEPH SOUSA, in his individual capacity and his
official capacity as an agent or employee of the Town of
Tiverton; MATTHEW WOJCIK, in his individual capacity and his
official capacity as an agent or employee of the Town of
Tiverton; ANDREW M. TEITZ, in his individual capacity and his
official capacity as an agent or employee of the Town of
Tiverton; GINA A. DICENSO, in her individual capacity and her
official capacity as an agent or employee of the Town of
Tiverton; NEIL HALL, in his individual capacity and his official
capacity as an agent or employee of the Town of Tiverton; GARETH
EAMES, in his individual capacity and his official capacity as
an agent or employee of the Town of Tiverton; MANCINI
DEMOLITION, INC.,
Defendants, Appellees,
RELIABLE PEST CONTROL, INC.,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Daniel Calabro, Jr. and Law Office of Daniel Calabro, Jr. on
brief for appellants.
Mark DeSisto, Rebecca J. Partington, Kathleen A. Hilton,
Patrick K. Burns, and DeSisto Law LLC on brief for Town appellees.
John P. Larochelle and Larochelle Law on brief for appellee
Mancini Demolition, Inc.
February 8, 2021
Per Curiam. After careful review of the briefs and the
record, we affirm the judgment in favor of the defendants on the
claim seeking recovery under 42 U.S.C. § 1983 based on due process
rights under federal and state law (Count 1) essentially for the
reasons set forth in the opinion of the district court. We add
only that it is plain that both plaintiffs had repeated notice in
fact of the Town's intention to demolish the improperly sited
structure, and that a failure to follow proper state law procedures
does not itself necessarily violate the federal Constitution. See
Senra v. Town of Smithfield, 715 F.3d 34, 40 (1st Cir. 2013)
("[T]he federal Due Process Clause does not incorporate the
particular procedural structures enacted by state or local
governments." (quoting Chmielinski v. Massachusetts, 513 F.3d 309,
316 n.5 (1st Cir. 2008)); cf. Chiplin Enters., Inc. v. City of
Lebanon, 712 F.2d 1524, 1527 (1st Cir. 1983) ("[I]t is axiomatic
that not every violation of a state statute amounts to an
infringement of constitutional rights."). We also dismiss for
lack of appellate jurisdiction plaintiffs' challenge to the
district court order denying summary judgment in their favor.
Morse v. Cloutier, 869 F.3d 16, 31 (1st Cir. 2017) ("It is settled
beyond peradventure that we lack jurisdiction to hear appeals from
the routine denial of summary judgment motions on the merits.").
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We also affirm the judgment in favor of defendants on
the counts for negligent supervision, negligent training, and
estoppel on the grounds that plaintiffs have waived any challenge
to the dismissal of those claims by not developing such challenges
in their brief on appeal. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990).
Finally, we vacate the judgment of dismissal with
prejudice as to the remaining state law claims (conversion,
trespass, and abuse of process) and direct that said counts be
dismissed without prejudice pursuant to 28 U.S.C. § 1367 on remand.
See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988);
Borrás-Borrero v. Corporación del Fondo del Seguro del Estado, 958
F.3d 26, 37 (1st Cir. 2020).
Affirmed in part, vacated in part, and remanded. See
1st Cir. R. 27.0(c).
Costs are awarded in favor of Defendants.
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