USCA1 Opinion

United States Court of Appeals

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

No. 94-2311

DONALD A. RUBINOVITZ, ET AL.,

Plaintiffs, Appellants,

v.

GRACE ROGATO, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

___________________

____________________

Before

Boudin, Circuit Judge,

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

____________________

Edward F. Lawson with whom Denise M. Leydon and Weston, Patri

________________
_________________
______________
Willard & Redding were on brief for appellants.
_________________
Thomas A. Reed
_______________

with

whom

J. Owen Todd, Todd & Weld,

_____________ ____________

Fitzgerald and Cogavin & Waystack, were on brief for appellees.

__________
__________________

John
____

____________________

August 1, 1995
____________________

STAHL,
STAHL,

Circuit Judge.
Circuit Judge.
______________

Plaintiffs Donald

Linda L. Rubinovitz ("the Rubinovitzes") brought

under 42 U.S.C.

the

City

of

Lynn,

Massachusetts

a violation

apparent revocation

variance

this action

1983 and 1985 against various officials of

"defendants"),1 claiming

by the

A. and

application and

of their civil

of a previously

by

the

code-enforcement actions against

numerous

The district

court

judgment.

After

defendants'

careful

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

defendants,

summary

for

granted zoning-

commencement of

them.

rights

granted

the

motion

(collectively,

summary

judgment

granted.

I.
I.
__

should

not

have

been

BACKGROUND
BACKGROUND
__________

The

property

facts

owned by

leading to

the

apartment

received

appeal

Rubinovitzes that

building containing an apartment

property").

this

center around

includes an

out-

over a one-car garage ("the

On January 1, 1989, the Rubinovitzes leased the

to Laurie

A.

Lussier.

a check for $500

On

the same

from defendant Grace

day,

they

Rogato -- a

____________________

1.

The defendants are city purchasing director Grace Rogato,

health inspector
Baron,
Board

Board

of Appeals

of Appeals

February

Robert M.

Barrett, gas inspector

chairman John

members Dennis

J. Burke,

Tobin and

Henry P.
Jr., and

John Volo.

In

1993, Rogato died and her estate was substituted as

a party in the action.

-22

friend of

Lussier -- to

cover the first month's

rent and a

$100 installment toward a $300 security deposit.

Two

Robert M.

of

days

later,

on

January

Barrett, a code inspector for

Public Health,

notified the

3,

1989, defendant

the Lynn Department

Rubinovitzes that

the city

required a certificate of occupancy before the dwelling could

be legally

inhabited.

Three days

later,

upon

visual

inspection of the apartment, Barrett advised the Rubinovitzes

that

city

health regulations

required

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

building permit for the second means of egress.

Several

Rubinovitzes

months

discovered

later,

that

apartment,

in

violation of

violation,

on

April

Lussier that

1989.

On

10,

her tenancy

April 20,

in

April

Lussier

the

1989,

had

lease.

the

1989,

cat

Acting

on

the

that

Rubinovitzes notified

would terminate effective

1989, Rogato went

in

the

to Mr.

May 31,

Rubinovitz's

business,

an

office

Rubinovitz intended

supply

store,

to give Lussier

further asked whether the

and

asked

whether

a "hard time."

Rogato

security deposit would be returned

to her.

On May

2, 1989, the

the zoning variance came

Rubinovitzes' application for

before a hearing of the

-33

Lynn Board

of

Appeals ("the

Board").

approved the variance.

with

By

vote of

4-1, the

Board

Two or three days later, Rogato spoke

Nancy Amenta, the clerk

for the Board,

and asked what

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

At

some

point,

apartment,

defendant

property.

On May

Rubinovitz,

after

Barrett

apparently

4, 1989, Barrett

presented

him with

repairs within seven days.

an

hour"

regarding the

at a

order

occupied

the

reinspected

the

meeting with

Mr.

to make

various

Barrett also told Rubinovitz that

Rogato had been calling the health

the

Lussier

property

department "every hour on

and

department to bring enforcement actions.

was pressuring

the

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

that

[we] have

immediately, as
have

been subjected

to cease

[we] are well

aware and

been informed that

cronyism
authority

of harassment

this stems from

and blatant misuse of power and

brought

on by

the Purchasing

Director, Grace Rogato.

Carpinella

Subsequent to

received two

the

Board

however, the

discussed

the May

letter

2 variance hearing,

post cards from

had approved

the

with

the Rubinovitzes

the Board notifying

their request.

Rubinovitzes received

Rogato.

them that

On May

11, 1989,

a letter from

the Board

-44

notifying

them

that

the

variance request had been

May

16, 1989.

chairman

At

May

2 hearing

(at

which

their

approved) had been continued until

the continued

John J. Burke, Jr.,

vote, and Burke and defendant

hearing, defendant

moved to reconsider

Board

the May 2

Board member Dennis Tobin then

reversed

their

petition.

earlier

Thus,

on

votes to

grant

the

Rubinovitzes'

reconsideration,

the

Rubinovitzes'

petition failed by a 3-2 vote.

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

gas

inspector, wrote

advising

that gas

to

public health

service

discontinued because

to the

director Carpinella

Rubinovitz apartment

of alleged safety problems.

later, Carpinella wrote to

be

Five days

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

connections to

permits.

Company

On

to

to

disconnect

the apartment because

July 14,

1989, Baron

disconnect the

gas

the

water

they lacked

ordered the

service

to the

and

sewer

requisite

Boston Gas

Rubinovitz

apartment because of the lack of a permit.

contractor hired

them,

by the

characterizing

Later, Baron told

Rubinovitzes to

the Rubinovitzes

stay away

as "bad

from

people" and

calling Mrs. Rubinovitz "a bitch."

Meanwhile,

Board's variance order

the

Rubinovitzes

had

to the Massachusetts

-55

appealed

the

Superior Court.

On January 10, 1991,

the Superior Court vacated

reconsideration vote, thereby

reinstating the

the Board's

Rubinovitzes'

variance.

The

U.S.C.

Rubinovitzes filed the present action under 42

1983 against

defendants alleging violation of their

equal

protection rights,

their

property

violation

of

their rights

rights.

42

defendants moved

U.S.C.

to dismiss.

The

styled

the bench

under

Rubinovitzes

1985.

also

Following

allege

discovery,

and, following a hearing,

that the Rubinovitzes'

different

speech, and

The district court treated the

motion as one for summary judgment

ruled from

to free

theories,

claims, though

amounted

to

one

constitutional claim:

under

the law

that they were denied equal protection

by being

singled out

exercising their property

for exercising their

May

letter).

landlord's right

grounded

in

rights (in

rights to free

The

district

to evict

state

a tenant

property

law

free speech,

the district

Rubinovitzes "failed to

the

May 4

letter and

campaign against

Rogato's

and

speech (in sending

the

is

and

In

appeared

determined

"a matter

does

not

uniquely

1983."

court determined

that the

causal connection

between

alleged conspiratorial

fact, the district

to

that

implicate

protections of

Miss Rogato's

them."

motivation

show any

officials for

evicting Lussier)

court

constitutional rights triggering the

As to

by Lynn

be

malice

court said,

toward

the

-66

Rubinovitzes

Lussier rather

because of

their eviction

than retaliation for their

free speech rights.

proceedings against

exercise of their

Accordingly, the district court granted

summary judgment as to all counts.

II.
II.
___

This appeal followed.

DISCUSSION
DISCUSSION
__________

A. Standard of Review
______________________

We

judgment

review

de novo,
__ ____

district

considering the

favorable to the nonmoving

54 F.3d

9, 12 (1st

inferences in

court's grant

party.

Cir. 1995).

that party's

or draw improbable inferences."

light most

See, e.g., Udo

___ ____ ___

v. Tomes,
_____

We resolve

all reasonable

"we need

indulge in rank

not credit

speculation,

National Amusements, Inc. v.

_________________________

Town of Dedham, 43 F.3d

_______________

731, 736 (1st

115 S. Ct. 2247

Summary judgment should

(1995).

summary

facts in the

favor, but

purely conclusory allegations,

of

Cir.), cert. denied,

_____ ______

be granted

when "the pleadings, depositions, answers to interrogatories,

and

show

and

admissions on

file, together

with affidavits,

that there is no genuine issue

that the moving

matter of law."

party is

if any,

as to any material fact

entitled to

a judgment

as a

Fed. R. Civ. P. 56(c).

B. Equal Protection
____________________

We first

decision.

set out the analytical

The Rubinovitzes charge

selective enforcement

of

lawful

-77

framework for our

defendants with improper

local

regulations.

See
___

LeClair
_______

v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980), cert.

________
_____

denied, 450 U.S. 959

______

argue

that

the

(1981).

Board's

Specifically, the Rubinovitzes

about-face

on

their

variance

application as well as the litany of code-enforcement actions

were

retaliatory

treatment.

and

singled

them

out

for

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
treated;

situated,
and

(2)

that

was
such

selectively
selective

disparate

treatment

was

based

considerations

such

intent to inhibit

on

impermissible

as race,

religion,

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,

_________

LeClair,
_______

627 F.2d at 609-610).

arises because:

second, the

of

their

The

Rubinovitzes argue that liability

first, defendants treated them selectively;

selective treatment was based

property

defendants'

21 (1st Cir. 1989) (citing

actions

and

free

constituted

speech

upon the exercise

rights;

"malicious

or

and

third,

bad

faith

intent to injure."

To facilitate the analysis

the

events described above

of this case, we divide

into two broad

categories:

the

zoning-variance approval revocation and

actions.

Turning

first to

the

the code-enforcement

zoning-variance

issue, we conclude

that the Rubinovitzes have not

sufficient

for

basis

us

to

conclude

that

approval

offered a

they

were

-88

selectively treated.

Plaintiffs claiming an equal protection

violation must first "identify and relate

specific instances

where persons

situated similarly `in

were treated differently,

to

all relevant

instances which have

aspects'

the capacity

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

situated,

nor do

treatment.

In

identify others who were

they identify

opposition

any instances

to

summary

similarly

of disparate

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 .

approximately two

. .

. All

blocks of my

of the

properties are

property."

Appended

within

to the

affidavit were pictures of

structures.

apparently

From

ask us

the property and thirteen similar

this

submission,

to infer

the

that the Board

their neighbors variance requests.

Rubinovitzes

readily granted

However, the Rubinovitzes

fail to present any evidence that any of their neighbors were

either

required to seek a

request of the Board.

by

which

"`singled

(Burt
____

we

can

variance or actually

Thus, there is no basis

determine

. . . out for

that

the

made such a

in the record

Rubinovitzes

were

unlawful oppression,'" id. (quoting

___

v. City of New York, 156

________________

-99

F.2d 791, 791 (2d Cir. 1946)

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

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

____

The

enforcement

example,

Rubinovitzes'

actions

stands

the Rubinovitzes

complaint

on

point

far

of

firmer

to the

selective

code-

ground.

For

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

as

not order the plumbing

he had with the Rubinovitzes.

As to code-enforcement, we

think the

record contains sufficient

treatment

to forestall

balance

of our

evidence of

summary judgment.

analysis

disconnected,

focuses on

selective

Accordingly, the

the defendants'

code-

enforcement efforts against the Rubinovitzes.

The second prong of the Yerardi's analysis requires

_________

us

to

determine

Rubinovitzes for

not

allege

that

whether

an improper

the

defendants

purpose.

singled

The

disparate treatment

for

the

exercise

of

the

Rubinovitzes do

flowed

invidious classification involving race or religion.

the Rubinovitzes argue that

out

from

an

Rather,

defendants sought to punish them

fundamental

constitutional

rights.

First, although not entirely clear from their arguments below

and

to this

defendants

evict"

court, the Rubinovitzes

punished

Lussier.

The

them

for

exercising

Rubinovitzes

Correa-Martinez v. Arrillaga-Belendez,
_______________
__________________

-1010

appear to

rely

allege that

their "right

on language

903 F.2d 49,

to

from

53 (1st

Cir. 1990) (quoting Board of Regents v. Roth, 408

_________________
____

577

(1972)), holding

analysis,

protected

that, in

a deprivation-of-due-process

property

interests

independent source such as state law.'"

right

to

evict

tenant would

interest under Roth for

____

does not follow that

the

exercise of which

Clause.

In

fact,

U.S. 564,

be

"`stem

from

an

Even assuming that a

protected

property

purposes of a due process

claim, it

there is a fundamental right

to evict,

is protected by

the Constitution

the Equal Protection

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.

also falls short, but for a different reason.

fundamental right

but, to

This argument

Free speech is

survive summary

judgment, the

Rubinovitzes must offer some proof that defendants' allegedly

retaliatory actions were

See,
___

e.g., Cloutier v. Town of Epping, 714

____ ________
_______________

(1st Cir. 1983); Packish

_______

Cir.

motivated by the

1983).

point to ten

contend constitute

evidence of

unconvinced.

Rubinovitzes adduce

evidence:

no

26 (1st

facts that they

retaliatory motive.

establishing retaliatory motive.

on circumstantial

F.2d 1184, 1192

v. McMurtrie, 697 F.2d 23,

_________

The Rubinovitzes

The

protected speech.

direct

We are

evidence

Instead, they rely entirely

that

is, enforcement

actions

-1111

followed the

May 4 letter.

Rubinovitzes point

rubric of the case:

May

after

2; Rogato

May

2;

Indeed, the facts

do nothing

more than lay

to which the

out the

basic

e.g., the Board approved the variance on

____

contacted

the May

the Board

letter

regarding the

was

sent to

variance

Carpinella;

Carpinella

discussed

Rubinovitzes

received

approved; on May 16,

variance

and

various

the

May

notice

4 letter

that the

with

Rogato;

variance

had

the Board reversed its decision

code

enforcement

actions

the

been

on the

had

been

commenced against the property beginning in January 1989.

This

recitation

is

inference of improper motive.

insufficient

to

support

an

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.

both presented an order to

May

Rubinovitz during

which Barrett

repair and related Rogato's

4 pressure to bring code-enforcement actions.

letter

itself complained

about the

"harassment"

pre-

The May 4

from city

officials.

"principal

Although

wrongful

letter, they offer

and post-May 4

we must

nonmoving

draw

the

actions" took

no basis upon

harassment.

all

party.

Rubinovitzes

that

after

the May

which to distinguish

Of course,

reasonable

However,

place

contend

-1212

pre-

on summary judgment,

inferences in

those

the

favor

inferences

of

"must

the

flow

rationally from

the underlying

inference

ascend

must

to

facts; that is,

what

common

sense

experience indicates is an acceptable level of

National Amusements, 43
____________________

F.3d at 743.

that

had focused

although the

property

prior

city

to

the

attention began after

letter.

We

Lussier

a suggested

The

its

and

human

probability."

record suggests

attention on

eviction,

the

the

heightened

the eviction notice but before the May

think

the

inference

suggested

by

the

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

___

Mesnick v. General Elec. Co.,

_______
__________________

1991), cert.
_____

denied, 504
______

950 F.2d 816,

U.S. 985 (1992)),

820 (1st

rather than

Cir.

an

acceptable level

of probability.

that

fails

the record

to

Accordingly, we

support

officials' post-May 4 conduct was

an inference

conclude

that

the

in retaliation for the May

4 letter.

Finally,

as

noted

above,

in

the

absence

of

invidious discrimination or the abuse of a fundamental right,

party may

evidence

establish

of

bad

Yerardi's, 878
_________

faith

F.2d

an equal

or

at 21;

protection violation

malicious

intent

to

with

injure.

see also Yerardi's Moody St.

_________ _____________________

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

_________________________
__________________

94 (1st

with

Cir. 1991) (hereinafter, "Yerardi's II").

____________

two

related

observations.

malicious-intent-to-injure cases are

First,

We start

bad-faith

infrequent.

or

Yerardi's
_________

II,
__

932

F.2d at

94 (citing

PFZ Properties, Inc.

_____________________

v. Rene
____

-1313

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.

standard

257

(1992)).

should be

Second,

"`the

scrupulously met.'"

malice/bad

faith

Yerardi's II, 932

_____________

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

_______

Indeed, despite the

at least one

member of

substantially

more than

general language of Yerardi's,

_________

this panel

a single

believes that

act of

something

malice underlying

some routine administrative action is necessary to make out a

constitutional

(7th Cir.

by mayor).

claim.

Cf. Esmail v.
___ ______

1995) (campaign of severe

But we need

Macrane, 53
_______

F.3d 176

harassment orchestrated

not resolve such issues in this case

beyond

cautioning that routine

action was malicious are

here

we think

there

some individual

likely to have rough sailing.

is enough

orchestrated campaign causing

barely enough

claims that

indication

of a

malicious

substantial harm--though

evidence--that the case cannot

For

only

be resolved on

summary judgment.

Although Rogato had

matter, there

hostile

to

concerning

no official

is certainly evidence that

the

Rubinovitzes

Lussier's

eviction,

-1414

based

that

authority in

the

she was personally

on

she

her

had

resentment

sought

to

intervene

behalf,

with

that

department to

track

of

the

Rubinovitzes

she

had

Carpinella, the

and, in

pressured

Lussier's

the

that

in May

health

had kept

she had

public health director,

Rogato was

relatively small

almost certainly had access and

on

actions, that she

proceedings, and

before the cut-off orders.

city

personally

repeatedly

bring enforcement

the Board

conferred with

long

the

unit

not

an official of

of government,

influence beyond that of

an

ordinary outsider.

Putting

these

aside

the

actions by Rogato

Carpinella

that

discontinued

gas

Board's reconsideration

were followed by

service

(June

2),

Rubinovitzes advising

to

Baron's advice to

the

Carpinella's

vote,

Rubinovitzes

notice

them of numerous violations

to

be

the

(June 7),

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

to the

apartment

Gas to

(July

12), and

Baron's

disconnect gas service (July 14).

interfere

with

order to

Boston

Baron thereafter sought to

the Rubinovitzes'

hiring

of a

contractor,

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

malice.

evidence

In

the case

that other

of

both
____

residents

suffer the same penalty.

cut-offs,

similarly

there was

some

situated did

not

Under

the

case

these circumstances, we

might be

a difficult

one

think that although

for the

plaintiffs, a

reasonable jury might well be able to conclude that there was

-1515

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

short and would be subject to a directed verdict.

summary

judgment

stage, with

the

obligation

just

But at the

to draw

all

reasonable inferences in favor

of the party opposing summary

judgment, we

case could

think

that this

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

controversy, and

began

well

before

--while his report of

highly pertinent evidence--there is

the

eviction

Rogato's pressure is

no evidence that Barrett

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

As

for

Carpinella

whether

they

too

and Capano,

the evidence might

there

is no

need

be sufficient as

to consider

to them, since

were not named as defendants and it is almost certainly

late

in

the day

to

consider

any

expansion of

this

lawsuit.

III.
III.
____

CONCLUSION
CONCLUSION
__________

For the

district

and

foregoing

reasons, the

court is vacated as to
_______

the case remanded as

________

judgment

of

the

defendants Rogato and Baron

to them for proceedings consistent

-1616

with

this opinion.

As to all other defendants, the decision

of the district court is affirmed.

________

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