NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-639
STEPHEN J. SHEA
vs.
CITY OF LYNN & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Stephen J. Shea, appeals from a judgment
entered in favor of the defendants -- the city of Lynn; the
inspectional services department of Lynn; and the building
inspector of Lynn, Roger Ennis -- on their motion for summary
judgment. We affirm.
Background. In December 2013, Ennis responded to a call
from the city's fire chief regarding dangerous conditions at 27
West Baltimore Street (property), a residential property owned
by Shea. Ennis observed numerous building code violations
creating safety risks to tenants. Ennis obtained Shea's phone
1Inspectional services department of Lynn and the building inspector of Lynn. number from a tenant and called Shea. Shea declined to come to
the property to address the conditions.
Shea was slow to remedy the violations; for example, he
delayed for almost two years in getting necessary permits.
Meanwhile, Ennis issued violation notices about every week after
inspecting the property or checking that Shea had failed to
obtain the permits required to do the work to remedy the
violations. 2 The last violation notice issued on November 17,
2015. These notices were posted at the property and mailed to
Shea's address of record. Ennis also spoke with Shea numerous
times about the violations. On two occasions in January and
March 2014, Shea asked Ennis what he needed to do to stop the
violation notices. Shea claims that, in response, Ennis said
that Shea "should do the right thing and [they] could make this
go away." Shea interpreted this statement to mean that Ennis
was seeking a bribe.
Pursuant to G. L. c. 40U, § 12, fines and penalties from
Shea's violation notices were added to his property tax
obligation. On December 20, 2016, the city filed a notice of
tax lien taking against the property for the unpaid obligation,
as permitted by statute. See G. L. c. 40U, § 12, citing G. L.
2 The Massachusetts building code authorizes daily tickets, issued as violation notices, for each continuing code violation. See G. L. c. 143, § 94. See also G. L. c. 143, § 3 (inspectional services department enforces building code).
2 c. 40, § 42B. On August 20, 2018, the city filed a complaint to
foreclose on the property in the Land Court. Instead of
objecting to the foreclosure by appearing at the Land Court,
Shea paid the city to release the tax lien.
On July 15, 2019, Shea filed a complaint in the Superior
Court asserting claims against the defendants for violations of
42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, G. L.
c. 12, § 11I (MCRA). Shea's claims were based on the violation
notices issued against the property in 2014 and 2015, the tax
lien taking commenced by the city in 2016, and the subsequent
foreclosure action in 2018. On March 27, 2020, a judge allowed
the defendants' motion to dismiss, concluding that Shea's claims
were time-barred. Shea appealed, and a panel of this court
vacated the judgment of dismissal and remanded the matter for
further proceedings. 3 See Shea v. Lynn, 99 Mass. App. Ct. 1117
(2021). Following the conclusion of discovery, a judge allowed
the defendants' motion for summary judgment, and entered
judgment accordingly. This appeal followed.
Discussion. "We review a grant of summary judgment de
novo." Blake v. Hometown Am. Communities, Inc., 486 Mass. 268,
3 The panel held that dismissal was not appropriate because the dates of the violation notices were unclear from the complaint, and claims based on the tax lien taking were within the statute of limitations. See Shea v. Lynn, 99 Mass. App. Ct. 1117 (2021).
3 272 (2020), quoting DeWolfe v. Hingham Centre, Ltd., 464 Mass.
795, 799 (2013). "The moving parties, here the defendants, have
the burden of establishing that there is no genuine issue as to
any material fact and that they are entitled to judgment as a
matter of law." DeWolfe, supra. See Mass. R. Civ. P. 56 (c),
as amended, 436 Mass. 1404 (2002). "Once the defendants [meet]
their burden in moving for summary judgment, the burden shift[s]
to the plaintiff to show with admissible evidence the existence
of a dispute as to material facts" (quotation and citation
omitted). Baldwin v. Mortimer, 403 Mass. 142, 144 (1988).
1. Time-barred claims. Shea asserts that his claims based
on the violation notices and alleged bribery by Ennis are
timely. We disagree. Three-year statutes of limitations apply
both to the § 1983 claims, see Pagliuca v. Boston, 35 Mass. App.
Ct. 820, 822 (1994), and to the MCRA claims. See G. L. c. 260,
§ 5B. See also Pagliuca, supra. The statute of limitations
accrues for each violation notice, the last of which issued on
November 17, 2015. See id.; Day v. Kerkorian, 72 Mass. App. Ct.
1, 6 (2008). Similarly, the statute of limitations for the
alleged bribery began to accrue in January and March 2014. The
limitations period thus expired for the violation notices on
November 17, 2018, and for the alleged bribery in January and
4 March 2017 -- well before Shea filed the complaint in July 2019.
Claims based on these events are untimely. 4
2. Selective enforcement under § 1983. Shea contends that
the city can be held liable under § 1983 for selective
enforcement of the tax lien taking because the city's actions
were part of a municipal policy. See Monell v. Department of
Social Servs of the city of N.Y., 436 U.S. 658, 694 (1978). On
this record, Shea cannot show selective enforcement, regardless
of whether the tax lien was taken pursuant to municipal policy.
See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991) (defendants entitled to summary judgment where plaintiff
"has no reasonable expectation of proving an essential element"
of his case). Liability for selective enforcement "depend[s] on
proof that (1) the person, compared with others similarly
situated, was selectively treated; and (2) . . . such selective
treatment was based on impermissible considerations." Cote-
Whitacre v. Department of Pub. Health, 446 Mass. 350, 376
(2006), quoting Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st
Cir. 1995) (Spina, J., concurring). Here, Shea has not offered
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-639
STEPHEN J. SHEA
vs.
CITY OF LYNN & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Stephen J. Shea, appeals from a judgment
entered in favor of the defendants -- the city of Lynn; the
inspectional services department of Lynn; and the building
inspector of Lynn, Roger Ennis -- on their motion for summary
judgment. We affirm.
Background. In December 2013, Ennis responded to a call
from the city's fire chief regarding dangerous conditions at 27
West Baltimore Street (property), a residential property owned
by Shea. Ennis observed numerous building code violations
creating safety risks to tenants. Ennis obtained Shea's phone
1Inspectional services department of Lynn and the building inspector of Lynn. number from a tenant and called Shea. Shea declined to come to
the property to address the conditions.
Shea was slow to remedy the violations; for example, he
delayed for almost two years in getting necessary permits.
Meanwhile, Ennis issued violation notices about every week after
inspecting the property or checking that Shea had failed to
obtain the permits required to do the work to remedy the
violations. 2 The last violation notice issued on November 17,
2015. These notices were posted at the property and mailed to
Shea's address of record. Ennis also spoke with Shea numerous
times about the violations. On two occasions in January and
March 2014, Shea asked Ennis what he needed to do to stop the
violation notices. Shea claims that, in response, Ennis said
that Shea "should do the right thing and [they] could make this
go away." Shea interpreted this statement to mean that Ennis
was seeking a bribe.
Pursuant to G. L. c. 40U, § 12, fines and penalties from
Shea's violation notices were added to his property tax
obligation. On December 20, 2016, the city filed a notice of
tax lien taking against the property for the unpaid obligation,
as permitted by statute. See G. L. c. 40U, § 12, citing G. L.
2 The Massachusetts building code authorizes daily tickets, issued as violation notices, for each continuing code violation. See G. L. c. 143, § 94. See also G. L. c. 143, § 3 (inspectional services department enforces building code).
2 c. 40, § 42B. On August 20, 2018, the city filed a complaint to
foreclose on the property in the Land Court. Instead of
objecting to the foreclosure by appearing at the Land Court,
Shea paid the city to release the tax lien.
On July 15, 2019, Shea filed a complaint in the Superior
Court asserting claims against the defendants for violations of
42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, G. L.
c. 12, § 11I (MCRA). Shea's claims were based on the violation
notices issued against the property in 2014 and 2015, the tax
lien taking commenced by the city in 2016, and the subsequent
foreclosure action in 2018. On March 27, 2020, a judge allowed
the defendants' motion to dismiss, concluding that Shea's claims
were time-barred. Shea appealed, and a panel of this court
vacated the judgment of dismissal and remanded the matter for
further proceedings. 3 See Shea v. Lynn, 99 Mass. App. Ct. 1117
(2021). Following the conclusion of discovery, a judge allowed
the defendants' motion for summary judgment, and entered
judgment accordingly. This appeal followed.
Discussion. "We review a grant of summary judgment de
novo." Blake v. Hometown Am. Communities, Inc., 486 Mass. 268,
3 The panel held that dismissal was not appropriate because the dates of the violation notices were unclear from the complaint, and claims based on the tax lien taking were within the statute of limitations. See Shea v. Lynn, 99 Mass. App. Ct. 1117 (2021).
3 272 (2020), quoting DeWolfe v. Hingham Centre, Ltd., 464 Mass.
795, 799 (2013). "The moving parties, here the defendants, have
the burden of establishing that there is no genuine issue as to
any material fact and that they are entitled to judgment as a
matter of law." DeWolfe, supra. See Mass. R. Civ. P. 56 (c),
as amended, 436 Mass. 1404 (2002). "Once the defendants [meet]
their burden in moving for summary judgment, the burden shift[s]
to the plaintiff to show with admissible evidence the existence
of a dispute as to material facts" (quotation and citation
omitted). Baldwin v. Mortimer, 403 Mass. 142, 144 (1988).
1. Time-barred claims. Shea asserts that his claims based
on the violation notices and alleged bribery by Ennis are
timely. We disagree. Three-year statutes of limitations apply
both to the § 1983 claims, see Pagliuca v. Boston, 35 Mass. App.
Ct. 820, 822 (1994), and to the MCRA claims. See G. L. c. 260,
§ 5B. See also Pagliuca, supra. The statute of limitations
accrues for each violation notice, the last of which issued on
November 17, 2015. See id.; Day v. Kerkorian, 72 Mass. App. Ct.
1, 6 (2008). Similarly, the statute of limitations for the
alleged bribery began to accrue in January and March 2014. The
limitations period thus expired for the violation notices on
November 17, 2018, and for the alleged bribery in January and
4 March 2017 -- well before Shea filed the complaint in July 2019.
Claims based on these events are untimely. 4
2. Selective enforcement under § 1983. Shea contends that
the city can be held liable under § 1983 for selective
enforcement of the tax lien taking because the city's actions
were part of a municipal policy. See Monell v. Department of
Social Servs of the city of N.Y., 436 U.S. 658, 694 (1978). On
this record, Shea cannot show selective enforcement, regardless
of whether the tax lien was taken pursuant to municipal policy.
See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991) (defendants entitled to summary judgment where plaintiff
"has no reasonable expectation of proving an essential element"
of his case). Liability for selective enforcement "depend[s] on
proof that (1) the person, compared with others similarly
situated, was selectively treated; and (2) . . . such selective
treatment was based on impermissible considerations." Cote-
Whitacre v. Department of Pub. Health, 446 Mass. 350, 376
(2006), quoting Rubinovitz v. Rogato, 60 F.3d 906, 909-910 (1st
Cir. 1995) (Spina, J., concurring). Here, Shea has not offered
4 Shea also argues that his claims are not time-barred because they were part of a continuing violation of his rights by the defendants that included the tax lien taking. A panel of this court has already determined that the continuing violation doctrine does not apply to the violation notices, as the notices, if wrongful, "were a series of discrete, individual wrongs, each giving rise to its own claim." Shea v. Lynn, 99 Mass. App. Ct. 1117. We decline to revisit that determination.
5 any proof of how the city treated others, nor has he shown
impermissible considerations in imposing the tax lien. He
merely alleged in an affidavit that the "[c]ity of Lynn has done
nothing to pursue delinquent taxpayers with much larger
outstanding balances that are delinquent for a much longer time
than [he] was alleged to have been." More is required. See
Baldwin, 403 Mass. at 144 ("Specific facts, and not mere
allegations, are required"). 5
3. Municipal liability under the MCRA for the tax lien
taking. Shea next contends that his claims against the
defendants for the tax lien taking can proceed under the MCRA.
According to settled law, municipalities and their departments,
such as the city and its inspectional services department, are
not "persons" liable under the MCRA. See Howcroft v. Peabody,
51 Mass. App. Ct. 573, 591-593 (2001), citing Batchelder v.
Allied Stores Corp., 393 Mass. 819, 821 (1985). In addition,
public officials must be sued in their individual capacities to
be liable under the MCRA. See Howcroft, supra at 593. To the
5 Because Shea is unable to show the selective enforcement that he claims constituted a municipal policy, we need not reach the issue of whether the city acted pursuant to municipal policy or statutory law.
6 extent that Shea asks us to overrule our precedent, we decline
to do so.
Judgment affirmed.
By the Court (Blake, C.J., Ditkoff & Brennan, JJ. 6),
Clerk
Entered: July 2, 2025.
6 The panelists are listed in order of seniority.