Rubinovitz v. Rogato

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.

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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

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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

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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.

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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

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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

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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

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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)

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(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

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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

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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

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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

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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

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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

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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

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with this opinion. As to all other defendants, the decision

of the district court is affirmed.

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