Herwins v. The City of Revere

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2140

                         M. JOE HERWINS,

                      Plaintiff, Appellant,

                                v.

                   THE CITY OF REVERE, ET AL.,

                      Defendants, Appellees.


No. 97-2141

                         M. JOE HERWINS,

                    Plaintiff, Cross-Appellee,

                                v.

                        JAMES J. MAROTTA,

                   Defendant, Cross-Appellant.

                       ____________________



          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, U.S. District Judge]


Before

                     Torruella, Chief Judge,

               Boudin and Stahl, Circuit Judges.


Ira H. Zaleznik with whom Lawson & Weitzen, LLP was on brief

for appellant James J. Marotta.

     Stephen Schultz with whom McGowan, Engel, Tucker, Garrett &

Schultz was on brief for plaintiff.


December 17, 1998


BOUDIN, Circuit Judge.  M. Joe Herwins, the plaintiff in

the district court and cross-appellant here, owned a building at

53A Walnut Avenue in Revere, Massachusetts, in which rooms or

apartments were rented to tenants.  On February 24, 1993, the

defendant-appellant James J. Marotta, a board of health inspector

for defendant-appellant the City of Revere, arrived to inspect the

building, prompted by a complaint as to the smell of gas or a lack

of heat (there is some dispute as to which).  It is undisputed that

one of the tenants was utilizing a gas stove to provide heat.

  Marotta reported to his superior--City Health Agent

Michael Pepe--that there was no heat in the building, and later in

the day Marotta returned to do a further inspection with other city

officials.  Following the inspection, Marotta reported to his

superior, and a letter was drafted to Herwins specifying a large

number of alleged violations and concluding that the building was

"unfit for human habitation and must be vacated forthwith."  SeeMass. Regs. Code tit. 105,   410.750, 410.831(D) (1941).

     Marotta immediately served the letter upon Herwins and

the tenants, who then vacated the building.  Seven months later, in

September 1993, Herwins hired an expert to make a private

inspection of the building.  The expert concluded that many of the

alleged violations did not exist and that the violations, even

taken together, did not endanger any of the tenants.  The city

responded to the expert's report by stating that the main reason

for the shutdown was the lack of heat.  At a subsequent meeting

with city officials in October 1993, the city plumbing inspector

told Herwins that in order to reopen Herwins would have to provide

a separate bathroom for each unit.  The meeting ended in

disagreement between the parties.

     Herwins subsequently took an appeal to a state board to

review the plumbing inspector's determination.  The appeal

apparently depended on whether the structure was a building

existing prior to the enactment of the plumbing code and whether

Herwins had nonetheless agreed to comply with the code.  The appeal

was rejected in May 1994.  Herwins did not seek further review of

this decision in court and did not seek to reopen the building. 

Instead, in November 1995, he filed the present two-count complaint

in district court against Marotta and the City of Revere asserting

violation of his constitutional rights under 42 U.S.C.  1983.

     In each count, Herwins charged that Marotta and the City

of Revere had violated his right to procedural due process under

the Fourteenth Amendment.  In the first count, Herwins charged that

the violation was the closure of his building without prior notice

or hearing.  The second count charged that the City of Revere had

violated procedural due process by failing to advise him, in the

letter directing closure of the building, that he had a right to

undertake an administrative appeal from that determination.

     Herwins requested a jury trial on the first count of the

complaint.  On the second count, both sides agreed that the issue

should be tried by the district judge because there were no

contested issues of fact; the City of Revere conceded that the

letter had not included notice of right to appeal even though such

notice was required under state regulations.  Mass. Regs. Code tit.

105,  410.832(B)(2).  Defendants' request for summary judgment on

both counts was denied.

     In May 1997, count I was tried to a jury.  There was

conflicting testimony about the events on the day of the closure,

including a dispute as to whether the heat in the building was off

when Marotta initially inspected the building and reported to the

Health Agent that there was no heat.  Pertinently, Herwins

testified that Marotta had said to Herwins, at the time that

Marotta left the premises in the morning, that he was going to shut

down the building if it was the last thing that Marotta did.

     This last remark created a link to testimony by Herwins

concerning his prior relationship with Marotta and the City of

Revere.  Over defendants' objection, the jury was told that Marotta

had inspected the building in May 1990 and filed civil citations

charging Herwins with operating a rooming house without a licence

and for structural problems relating to the stairs and porch of 53A

Walnut Avenue; that the city had later filed criminal charges

against Herwins, prompted in part by Marotta; and that in February

1992, the city had discontinued the criminal proceedings.

     Ultimately, the jury returned a verdict on count I

against both Marotta and the City of Revere.  In answer to specific

questions, the jury found that in closing down the building Marotta

had falsely or recklessly reported that there was an immediate

danger to the tenants.  The district court set aside the verdict

against the City of Revere but refused to set aside the verdict

against Marotta.  The jury's determination as to damages--$55,000

in compensatory damages, $5,000 for punitive damages--was allowed

to stand as to Marotta.

     Thereafter, the district court decided count II under

Fed. R. Civ. P. 52.  The court ruled as a matter of law that

Herwins had no claim under count II against either Marotta or the

City of Revere because failing to give him notice of his appeal

rights was not a denial of due process but only a violation of

state law.  On motion by Herwins, the district court also awarded

attorney's fees in the amount of just over $95,000 plus costs of

almost $9,000.

     Following post-trial motions, Marotta filed an appeal to

contest the verdict and award of damages and attorney's fees

against him.  Herwins cross-appealed, challenging the grant of

judgment as a matter of law to the City of Revere on count I, the

trial judge's decision in favor of both defendants on count II, and

the denial of his motion for a new trial on the issue of damages. 

Herwins also sought review of the award of attorney's fees,

claiming that the amount ordered was inadequate.

     On this appeal, the dispositive issues are ones of law

and are considered de novo.  See Liberty Mut. Ins. Co. v.

Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).  We

will assume arguendo that the jury properly found on count I that

Marotta's prompting of the closure letter was without basis and

that he knew this to be so or acted recklessly.  But we conclude

that under controlling precedent this does not give rise to a

constitutional claim for denial of procedural due process because

state law offered adequate remedies.  We address this issue first,

turning thereafter to count II and to the award of attorney's fees.

     The first count of Herwins's complaint alleged that the

closure of his building through emergency procedures violated his

right to procedural due process under the Fourteenth Amendment. 

Massachusetts law permits an inspection to trigger an immediate

shutdown of a building where an emergency exists threatening health

or safety, subject to later opportunity for review at the building

owner's behest.  Mass. Regs. Code tit. 105,  410.831(D), 410.850. 

Marotta argues that due process required that he be provided a

"pre-deprivation" hearing and, alternatively, that post-deprivation

remedies were not adequate.

     Due process normally requires notice and opportunity for

"some kind of hearing," Memphis Light, Gas and Water Div. v. Craft,

436 U.S. 1, 19 (1978), prior to a final deprivation of liberty or

property.  See id.; Parratt v. Taylor, 451 U.S. 527, 540 (1981). 

This generalization is a very loose one.  There are deprivations so

limited that no prior "process" is due, e.g., a Terry stop, seeTerry v. Ohio, 392 U.S. 1 (1968); and conversely, there are

requirements of due process in some instances where the "property"

interest is pretty thin by conventional standards.  See, e.g.,

Goldberg v. Kelly, 397 U.S. 254 (1970).

     Whether the opportunity needs to be furnished before the

seizure or whether a post-seizure opportunity is sufficient depends

on the circumstances.  Where feasible, the opportunity (for obvious

reasons) is expected to be pre-deprivation, see Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985), but this is not

always feasible.  Two situations in which a post-deprivation

opportunity is sufficient were set forth in Parratt v. Taylor, 451

U.S. 527, 539 (1981) (footnote omitted), as follows:

     [E]ither the necessity of quick action by the

     State or the impracticality of providing any

     meaningful predeprivation process, when

     coupled with the availability of some

     meaningful means by which to assess the

     propriety of the State's action at some time

     after the initial taking . . . satisf[ies] the

     requirements of procedural due process.



     No one can seriously doubt that emergency conditions may

exist (e.g., a severe fire hazard) that would warrant a peremptory

shutdown of a residential building.  Herwins does not dispute that

"quick action" may be required for such emergencies, nor does he

specifically challenge the general standards set forth in

Massachusetts law for determining when emergency closures should be

ordered.  Of course, the jury found that there was no emergency in

this case, but that shows only that Marotta's substantive decision

was wrong; he was not required to hold a hearing before declaring

an emergency.

     One might ask why this should matter:  after all, as a

result of Marotta's substantive decision, Herwins suffered a

wrongful shutdown of his building.  But the city provided all of

the procedural protection it could in requiring a prior hearing for

closures based on non-emergency violations.   Where an official

errs in declaring an emergency, the only feasible procedure is a

post-deprivation remedy, which the city also provided.  See Hudsonv. Palmer, 468 U.S. 517, 531-533 (1984).

     Of course, the law might have developed so as to hold the

official liable under the Fourteenth Amendment for his own mistake

even if the state had done all it could.  Absent Marotta's mistake,

Herwins would have had a prior hearing before closure.  But the

Supreme Court has ruled that in such cases there is no denial of

procedural due process, even by the official, so long as the state

provides an adequate means of redress.  The Supreme Court has held

this both where the official's action is negligent, Parratt, 451

U.S. at 543-44, and where it is deliberate, Hudson, 468 U.S. 536-

37.

     But for this limitation, federal suits might be brought

for countless local mistakes by officials in administering the

endless array of state laws and local ordinances.  Often these

errors have a procedural dimension--e.g., a tax lien imposed after

a misaddressed notice of taxes due--and inflict temporary harm or

inconvenience.  Assuming that the state remedies are themselves

adequate, it has seemed sufficient to leave such random and

individual errors to be corrected by state courts and agencies.

     Herwins's claim is not aided by his repeated reliance

upon Zinermon v. Burch, 494 U.S. 113 (1990).  There, Florida law

permitted an individual to be admitted as a voluntary patient in a

mental hospital, and to waive his right to release on request,

without any determination that the person was competent to make

such a  waiver.  The Supreme Court held that when Zinermon was

wrongly detained, through the use of this flawed procedure, the

state might be subject to liability for a denial of procedural due

process.

     In distinguishing Parratt, the Supreme Court said that

the Florida procedure of admissions and waiver was not restricted

to emergencies.  And, since the procedure was itself authorized by

state law, Zinermon's admission was not a "random and unauthorized"

act of an individual employee or an "unpredictable" departure from

state law.  Zinermon, 494 U.S. at 136.  Confinement of patients not

competent to consent was easily foreseeable and pre-deprivation

screening could feasibly be provided in non-emergency cases.  Id.

     By contrast, Massachusetts does provide for an

opportunity to object before a building is shut down except in

emergencies.  While state law led Marotta to invoke summary

closure, his "authorized" use of the summary power would not

violate the Constitution, and improper use is exactly the kind of

"random and unauthorized" conduct that the local government had no

duty (and indeed no practical way) to forestall through a pre-

deprivation hearing--a procedure itself inconsistent with true

emergency conditions.  Cf. Hudson, 468 U.S. at 533.

     Herwins's alternative argument is that the city did not

provide an adequate post-deprivation remedy.  It is undisputed that

Herwins could have challenged the shutdown by appealing the order

to the City of Revere Board of Health and, if dissatisfied with its

decision, could have appealed the ruling to the state courts. 

Mass. Regs. Code tit. 105,  410.850, 410.860.  This is a

conventional regime for redressing administrative error, making it

unnecessary for us to consider whether there exists  an alternative

judicial remedy of common law certiorari (which Marotta asserts

exists and Herwins disputes).

     Herwins objects that the appeal to the Board of Health

had to be filed within seven days and that the failure to give him

notice of this option--as required by state law, Mass. Regs. Code

tit. 105,  410.832(B)(2)--rendered the post-deprivation remedy

inadequate.  He also says that during the seven days following the

emergency closure he was otherwise occupied with dealing with the

consequences of the closure (assisting tenants, draining the

plumbing system).

     The state's failure to provide a landlord with express

notice that he can seek review may violate state law but does not

render the review remedy constitutionally inadequate.  In most

civil matters, citizens are expected to ask about the method to

protest or appeal an initial administrative action (or to hire a

lawyer).  An experienced landlord like Herwins would hardly suppose

that no opportunity existed to challenge the emergency shutdown

order, even if he was not himself a lawyer (in fact he was).

     As for the seven-day time limit, it appears that all that

was required was the filing of a written petition.  See Mass. Regs.

Code tit. 105,  410.850.  Quite possibly, there are circumstances-

-perhaps present here, although we doubt it--where it is simply

infeasible for an appeal to be noticed within seven days.  If the

state then refused to permit a belated appeal thereafter, this

might raise a question whether state remedies were adequate, cf.Roy v. City of Augusta, 712 F.2d 1517, 1523-24 (1st Cir. 1983), but

Herwins made no such effort to appeal even belatedly.

     When one steps back, Herwins plainly could have taken an

immediate appeal on the emergency shutdown and shown that the heat

had been turned back on and that the other violations were not

threatening to health.  This would have meant a brief inconvenience

to Herwins and the tenants but it would likely have led to a prompt

cancellation of the emergency closure.  The idea that Herwins could

ignore this state provided procedural remedy, and then create a

federal case and collect $55,000 damages for a denial of procedural

due process, just makes no sense.

     Indeed, Massachusetts law created not only the means for

a swift undoing of Marotta's alleged mischief, but probably a

damage remedy as well.  In this state, public employees have no

immunity from claims based on intentional (not negligent) torts. 

See Mass. Gen. Laws ch. 258,  10(c) (1998); Breault v. Chairman of

the Bd. of Fire Comm'rs., 513 N.E.2d 1277, 1282-1284 (Mass. 1987). 

Here, there is some reason to think that on his version of the

facts Herwins has, or at least had, a state damage remedy against

Marotta.

     Accordingly, we conclude that a verdict should have been

directed on count I.  Count II merely reasserts that the lack of

notice to Herwins in the letter of his right to seek further

administrative review is an independent constitutional violation;

and what we have already said confirms that the district judge

properly dismissed that claim.  Since both counts fail, the

remaining arguments of parties as to damages, trial errors and

attorney's fees for Herwins become moot.

     The judgment of the district court on count I is reversed

and the award of attorney's fees and costs is vacated and the

judgment on count II is affirmed.

     It is so ordered.