Joseph Torro v. Mark Goldberg, Marilyn Gordon, and the Town of Bradford

2019 DNH 052

• Court: District Court, D. New Hampshire
• Decided: March 22, 2019
• Docket: 18-cv-213-AJ
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph Torro

v. Case No. 18-cv-213-AJ Opinion No. 2019 DNH 052 Mark Goldberg, Marilyn Gordon, and the Town of Bradford

O R D E R

Joseph Torro brought suit alleging federal claims under 42

U.S.C. § 1983 and state law claims against Mark Goldberg,

Marilyn Gordon, and the Town of Bradford. The claims arise from

decisions not to grant Torro a certificate of occupancy for the

Bradford Village Inn and not to grant him a tax abatement for

the property. The defendants each move for judgment on the

pleadings, asserting that the claims are barred by the statute

of limitations and that Torro fails to allege actionable claims.

In response, Torro objects to dismissal of only his equal

protection claim and his state law claim against Gordon for

violation of RSA 91-A and against Gordon and Goldberg for

intentional infliction of emotional distress. 1

1 In his complaint, Torro also alleged a violation by all defendants of his right to substantive due process, Count II; violation by all defendants of RSA 91-A, Count III; intentional infliction of emotional distress against all defendants, Count IV; and official oppression in violation of RSA 643:1 by Gordon and Goldberg, Count V. Because Torro did not oppose judgment on the pleadings on Count II, Count III as to Goldberg and Bradford, Count IV as to the Town of Bradford, and Count V, those claims are dismissed. Standard of Review

A motion for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c) is addressed under the standard for a

motion to dismiss under Rule 12(b)(6). Shay v. Walters, 702

F.3d 76, 82 (1st Cir. 2012). The court takes the plaintiff’s

factual allegations as true and draws reasonable inferences in

the plaintiff’s favor. Kando v. R.I. State Bd. Of Elections,

880 F.3d 53, 58 (1st Cir. 2018). Legal conclusions are not

credited. Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d

134, 140 (1st Cir. 2016). Taken in that light, the complaint

must provide facts to support a claim that “is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Background

Torro alleges in the complaint that Marilyn Gordon owned

and operated the Candlelite Inn as a “Bed and Breakfast” in

Bradford, New Hampshire. Torro alleges that Gordon was

romantically involved with Mark Goldberg, the Chief of the

Bradford Fire Department, and that Goldberg lived at the Inn

with Gordon.

Gordon began to list the property for sale beginning in

2010, with listing prices of $500,000 and $600,000. In August

of 2014, Torro made an offer on the property of $175,000, which

2 was rejected, and then an offer of $195,000, which was also

rejected. The Inn was then listed for sale at auction.

Torro asked two of the Bradford selectmen if they knew any

reason why the Inn could not be operated as a Bed and Breakfast.

They denied knowing of any issues and said that he could

continue to run the Inn as a Bed and Breakfast. Torro was the

highest bidder at the auction, held in August of 2014, and paid

$258,000 for the Inn.

After Torro took possession of the Inn, Gordon told him he

could not continue to use the name “Candlelite Inn” without

paying for the trade name. Torro declined to buy the name and

renamed the Inn, “Bradford Village Inn.” Torro invested in

improvements in the building, including new electrical wiring,

smoke and carbon monoxide detectors, and new chimney liners and

caps. The chimneys were tested for safety.

The Bradford Code Enforcement Officer, Walter Royal,

visited the building while the improvements were underway.

While Torro was talking with Royal outside the Inn, Goldberg

drove up and appeared to be angry as he approached Torro and

Royal. Goldberg said that Torro could not open the Inn because

of “all the deficiencies.” Torro asked why the deficiencies did

not prevent Gordon from running the Inn, and Goldberg left.

On October 6, 2014, Torro attended a board of selectmen

meeting to explain the improvements he was making to the Inn.

3 Goldberg also attended the meeting and said that because he knew

Gordon he would not be able to do the fire safety inspection.

Because Goldberg recused himself from the inspection, it was

done by the state fire marshal, who did not issue a certificate

of occupancy.

In December of 2014, the Bradford Business Association

planned to hold a luncheon at the Inn to welcome Torro to the

Bradford Business Community. Gordon objected to holding the

meeting at the Inn, and it was held elsewhere.

On March 10, 2015, Goldberg sent an email to the state fire

marshal’s office to report a listing for the Inn on a rental

website. 2 Goldberg asked if renting the Inn was legal. Gordon

sent Goldberg an email about the rental listing the day before.

The fire marshal had the matter investigated, and the

investigator determined that because Torro was renting the

entire building, not individual rooms within the building, that

rental activity did not come under the Fire Code’s restriction

on a lodging or rooming house and was not prohibited by the fire

codes.

Torro and his wife petitioned Bradford for a tax abatement,

which was being considered by the town in April or May of 2015.

Torro alleges that the selectmen were prepared to grant him a

2 Although Torro states that the email was sent on March 10, it is dated March 12.

4 fifty percent tax abatement on the Inn property. Torro further

alleges that Gordon, who is the treasurer of the Town of

Bradford, objected to the tax abatement and expressed her

objections during a nonpublic meeting of the selectmen. The tax

abatement was not granted.

Discussion

Torro’s remaining claims are that the defendants violated

his equal protection rights by treating him differently than

Gordon was treated in running the Inn. He also alleges that

Goldberg’s and Gordon’s conduct amounted to intentional

infliction of emotional distress and that Gordon violated RSA

91-A. The defendants move for judgment on the pleadings on the

grounds that the claims are time barred and that Torro fails to

allege actionable claims.

A. Equal Protection

In Count I, Torro alleges that Goldberg, as town fire

chief, and Gordon, as town treasurer, conspired to deny him

equal protection of the law by having Goldberg recuse himself

from the fire safety inspection of the Inn. Because of

Goldberg’s recusal, Torro theorizes, he was subjected to a

stricter level of inspection by the state fire marshal’s office,

which resulted in the Inn not being given a certificate of

5 occupancy. He argues that because the inspection of the

property by the fire marshal was more stringent than Goldberg’s

inspection would have been, he was treated differently than

Gordon was while she owned the property.

1. Statute of limitations

When a claim under § 1983 arose in New Hampshire, the

statute of limitations is three years. Gorelik v. Costin, 605

F.3d 118, 121 (1st Cir. 2010); RSA 508:4. “‘Section 1983 claims

generally accrue when the plaintiff knows, or has reason to know

of the injury on which the action is based, and a plaintiff is

deemed to know or have reason to know at the time of the act

itself and not at the point that the harmful consequences are

felt.’” Id. at 122 (quoting Moran Vega v. Cruz Burgos, 537 F.3d

14, 20 (1st Cir. 2008)). The complaint was filed on March 12,

2018, so the three-year period extends back to March 12, 2015.

Based on the allegations in the complaint, Torro knew that

Goldberg had recused himself from conducting the fire inspection

on October 6, 2014. He also knew that the state fire marshal

would conduct the inspection. Although Torro fails to allege

when the inspection was done or when the state marshal issued

the decision denying a certificate of occupancy, that occurred

before March of 2015 when Goldberg reported the rental

6 activities to the state fire marshal. As a result, Torro did

not bring his claim within three years of its accrual.

Torro argues, however, that the time is extended by the

continuing violation doctrine. “Under the ‘continuing

violation’ doctrine, a plaintiff may obtain recovery for

discriminatory acts that otherwise would be time-barred so long

as a related act fell within the limitations period.” Tobin v.

Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009). To be

related, the more recent act must be part of the same

discriminatory course of conduct, such as a hostile work

environment, not a discrete act of discrimination. Id.

In this case, Torro argues that Goldberg’s emails to the

fire marshal’s office about listing the Inn on rental websites

in March of 2015 constitute a continuing violation. He is

mistaken. Torro has not shown how the emails are a continuation

of Goldberg’s decision to recuse himself from the fire

inspection or the fire marshal’s fire safety inspection of the

Inn. Those matters were complete when they occurred. To the

extent the emails could be construed as a violation of equal

protection, which is not apparent, they would constitute

discrete acts separate from the fire safety inspection of the

7 Inn. 3 Therefore, the continuing violation doctrine does not

apply to extend the limitation period in this case.

2. Merits of the Claim

In addition, even if the claim were not time barred, Torro

has not stated a violation of his right to equal protection of

the laws. As he acknowledges, Torro contends that his claim is

an equal protection violation based on a class of one. To

succeed on that claim, Torro must allege facts to show “‘that

[he] has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.” Gianfrancesco v. Town of Wrentham,

712 F.3d 634, 640 (1st Cir. 2013) (quoting Vill. Of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000)). Importantly, “a class-of-

one plaintiff bears the burden of showing that his comparators

are similarly situated in all respects relevant to the

challenged government action.” Id. at 640.

Torro contends that he was treated differently than Gordon

was treated, while owning the same property. His allegations,

however, do not show that unequal treatment occurred. He does

not contest that the Inn was subject to a fire safety inspection

3 Further, no action was taken against Torro as a result of the emails. The investigation determined that he could rent the Inn in its entirety.

8 before he could get a certificate of occupancy and open for

business. He also does not contest that he was attempting to

open the Inn for business, under new ownership, after making

significant changes, and after the Inn had not been in operation

for over a year.

He does not allege what standard applied to the Inn while

Gordon was the owner, and what different standard was applied to

him. 4 In addition, he does not allege that a single entity

applied two different standards. Instead, he alleges that

Goldberg discriminated against him by recusing himself from

doing the inspection. Under the circumstances, the recusal was

eminently rational and reasonable. General and conclusory

statements that another business was treated differently are not

enough to carry a class-of-one plaintiff’s burden to show a

similarly situated comparator. Gianfrancesco, 712 F.3d at 640.

Therefore, Torro fails to state an equal protection

violation.

B. State Law Claims

Subject matter jurisdiction in this case is based on the

existence of a federal question. 28 U.S.C. § 1331. When the

4 The defendants do provide information about the fire safety codes and what additional requirements applied to Torro because he was opening a new business.

9 federal claims that provided the basis for subject matter

jurisdiction have been dismissed early in a lawsuit and only

state law claims remain, “the federal court should decline the

exercise of jurisdiction by dismissing the case without

prejudice.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988); see also 28 U.S.C. § 1367(c).

The federal claims in this case are being dismissed early

in the case, leaving only state law claims. Therefore, the

court declines to exercise supplemental jurisdiction over

Torro’s remaining state law claims, which are a claim against

Gordon in Count III and against all defendants in Count IV.

Conclusion

For the foregoing reasons, the defendants’ motions for

judgment on the pleadings (documents nos. 19, 22, and 23) are

granted to the extent that Counts I, II, and V are dismissed

with prejudice. That part of Count III alleged against Mark

Goldberg and the Town of Bradford is dismissed with prejudice,

and Count IV as to the Town of Bradford is dismissed with

prejudice.

The court declines to exercise subject matter jurisdiction

over Count III against Marilyn Gordon and Count IV against

Gordon and Goldberg. Those claims are dismissed without

10 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED

______________________________ Andrea K. Johnstone, United States Magistrate Judge

March 22, 2019

cc: All counsel of record