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, 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
granted.
I.
I.
__
BACKGROUND
BACKGROUND
__________
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.
-2-
2
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
-3-
3
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
-4-
4
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.
-5-
5
On January 10, 1991, the Superior Court vacated the Board's
reconsideration vote, thereby reinstating the Rubinovitzes'
variance.
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
-6-
6
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.
___
DISCUSSION
DISCUSSION
__________
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
___
-7-
7
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
-8-
8
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
-11-
11
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
-12-
12
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
__ _____________________ ____
-13-
13
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
-14-
14
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
-15-
15
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
lawsuit.
III.
III.
____
CONCLUSION
CONCLUSION
__________
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
________
-16-
16
with this opinion. As to all other defendants, the decision
of the district court is affirmed.
________
-17-
17