[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1860
JOHN CONNELL and EILEEN CONNELL,
Plaintiffs, Appellants,
v.
THE BOARD OF SELECTMEN OF THE TOWN OF HARWICH, in their
official capacity as members of the Town of Harwich Board of
Selectmen, WAYNE MELVILLE, Town of Harwich Town Administrator,
in his individual capacity and in his official capacity as the
Town of Harwich Town Administrator, PAULA J. CHAMPAGNE, Health
Director for the Town of Harwich Board of Health, in her
individual capacity and in her official capacity as Health
Director, GEORGE ARSENAULT, former Building
Commissioner/Building Inspector, in his individual capacity
and in his official capacity as the former Building
Commissioner/Building Inspector of the Town of Harwich, and
ROBIN WILCOX,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker,* U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Anthony R. Bott for plaintiffs-appellants.
Michael F. Stone for defendant-appellee Wilcox.
Michael J. Sheehan, with whom Joyce Frank and Kopelman
and Paige, P.C., were on brief, for defendants-appellees Harwich
Board of Selectmen, Wayne Melville, Paula J. Champagne, and
*Of the Southern District of New York, sitting by
designation.
George Arsenault.
JUNE 2, 2000
BOWNES, Senior Circuit Judge. The plaintiff-
appellants, John and Eileen Connell, filed a fourteen-count
amended complaint alleging violations of 42 U.S.C. § 1983 (1994
& Supp. II 1996), the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12 §§ 11H and 11I (1998), and claims for negligent
infliction of emotional distress. They named as defendants: the
Board of Selectmen of the Town of Harwich, in their official
capacities; Wayne Melville, Town of Harwich Town Administrator,
in his individual and official capacities; Paula J. Champagne,
both individually and in her official capacity as Health
Director for the Town of Harwich Board of Health; and George
Arsenault, former Building Commissioner/Building Inspector, in
his individual and official capacities (collectively “Town
Defendants”). The plaintiffs also alleged that the Town
Defendants conspired with Defendant-Appellee Robin Wilcox to
deprive the plaintiffs of their rights.
All defendants moved to dismiss the action as time-
barred. The district court (Lasker, J.) granted the motions,
and this appeal followed. For the reasons set forth below, we
affirm.
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I.
We recount the facts as ably recited by the district
court, noting that for purposes of these motions to dismiss, the
facts alleged in the amended complaint are deemed to be true.
The Connells are the owners and operators of “The Cape Cod
Claddagh Inn” in Harwich, Massachusetts. In July 1993, the
Connells began receiving billing statements from Stanley R.
Sweetster, Inc. (“Sweetster”) for surveying and engineering work
allegedly done on their property. The Connells, however, never
contracted for the work and immediately contacted Sweetster and
informed it of that fact. Sweetster acknowledged that no work
had been contracted for or performed, and that the bills should
be ignored. Nevertheless, Sweetster continued to send bills to
the plaintiffs.
In November 1993, defendant Wilcox telephoned the
Connells, claiming that the Sweetster bill was genuine and that
he was owed for the purported work. The Connells repeatedly
informed Wilcox that they never hired him and owed him nothing.
In late November or early December 1993, Wilcox presented
himself at the Connell home seeking payment for the work billed
by Sweetster. Wilcox also presented the Connells with a
proposal for a septic system for their property. The Connells
again informed Wilcox that they had never hired him or
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Sweetster, that they had no contract with either party, and that
consequently they owed nothing to him or Sweetster. Wilcox
became enraged and stated: “I will make things very difficult
for you in the Town of Harwich through my very good friend,
Paula Champagne, the Town of Harwich Health Officer.”
The Connells allege that the defendants thereafter
engaged in a series of wrongful acts, in an effort to disrupt
and damage the Connells' business, including denying them
licenses and permits which were necessary for them to operate
their lodging house and restaurant. The plaintiffs allege that
these acts occurred between April 1, 1994 and June 19, 1995. On
July 12, 1995, the plaintiffs filed suit in Barnstable County
Superior Court seeking an order that the Town of Harwich Board
of Health issue a food service permit which would enable them to
operate their business until they installed the new septic
system required by the Board of Health. At the hearing on July
14, 1995, the court denied the Connells' application for
injunctive relief. The plaintiffs contend that “[w]hether
malevolently or not, the records produced on behalf of the Town
of Harwich and its Health Department . . . were in plain error
and misrepresented the truth” and that the court relied on that
information to deny injunctive relief.
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Three years later, on July 14, 1998, the plaintiffs
filed the present action in the United States District Court for
the District of Massachusetts. The defendants moved to dismiss
the action as time-barred. The district court granted the
motions, holding that the plaintiffs' action was not filed
within the applicable three-year statute of limitations and that
“they may not reach back to the pre-limitations period[.]” This
appeal followed.
II.
The plaintiffs argue on appeal that the district court
“plainly erred” in dismissing their amended complaint.
Specifically, the plaintiffs argue that the alleged actions of
the defendants constituted a “systemic” continuing violation
that was not realized until July 14, 1995 and that a further act
of conspiracy occurred on that date. They contend that they
filed their complaint within the three-year statute of
limitations by filing on July 14, 1998. We disagree.
When reviewing a district court's allowance of a motion
to dismiss, we apply de novo review. See New England Cleaning
Servs. v. American Arbitration Ass'n, 199 F.3d 542, 544 (1st
Cir. 1999). For actions brought under 42 U.S.C. § 1983, the
statute of limitations is derived from the forum state's law.
See Owens v. Okure, 488 U.S. 235, 249-50 (1989). The
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appropriate referent here is the general statute of limitations
for personal injury claims. See id. In Massachusetts, that
period is three years. See Mass. Gen. Laws ch. 260 § 2A (1998).
The same statute of limitations applies to claims of civil
conspiracy. See id.
A cause of action under 42 U.S.C. § 1983 accrues when
a plaintiff knew, or should have known, of the wrongful act or
acts alleged in the complaint. See Morris v. Government Dev.
Bank of Puerto Rico, 27 F.3d 746, 748-49 (1st Cir. 1994);
Shahzade v. Gregory, 930 F. Supp. 673 (D. Mass. 1996). The
limitation period may be extended, however, if a plaintiff can
demonstrate a “continuing violation.” Provencher v. CVS
Pharmacy, Div. of Melville, Corp., 145 F.3d 5, 14 (1st Cir.
1998). As we have stated: “The continuing violation doctrine
creates an equitable exception to the [limitations period] when
the unlawful behavior is deemed ongoing.” Id. There are two
types of continuing violations: systemic and serial. See Id.
The district court held that “the Connells have not
alleged, nor is there any evidence of, a systemic violation” and
focused its analysis on the serial violation. The plaintiffs
now argue that the defendants' alleged scheme against them “was
not actualized until July 14, 1995 and can be deemed a
'systemic' violation.” A systemic violation “refers to general
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practices and policies” and “has its roots in a discriminatory
policy or practice; so long as the policy or practice itself
continues into the limitations period, a challenger may be
deemed to have filed a timely complaint.” Provencher, 145 F.3d
at 14 (internal quotation marks omitted); Sabree v. United Bhd.
of Carpenters and Joiners Local No. 33, 921 F.2d 396 400-402 &
n.7 (1st Cir. 1990). We agree with the district court that
there is no sufficient allegation of a systemic violation in the
plaintiffs' complaint. At best, the plaintiffs allege that they
were personally discriminated against by the defendants between
April 1, 1994 and June 19, 1995. They fail, however, to link
any such alleged discrimination to a policy and practice
attributable to the defendants.
The plaintiffs also contend that the defendants'
actions constitute a “serial violation.” “A serial violation
occurs where a chain of similar discriminatory acts emanating
from the same discriminatory animus exists and where there has
been some violation within the statute of limitations period
that anchors the earlier claims.” Provencher, 145 F.3d at 14.
“The series must contain a specific beachhead violation
occurring within the limitations period.” Pilgrim v. Trustees
of Tufts College, 118 F.3d 864, 869 (1st Cir. 1997).
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The plaintiffs claim that the July 14, 1995 decision
of the Barnstable Superior Court was the final overt act
triggering the statute of limitations. They claim that
representations made, “whether malevolently or otherwise,” by
two persons who are not named as defendants here, former Town
Counsel, James Falla, and Bruce Campbell of the Harwich Board
of Health, “impelled the Barnstable County Court to rule against
the Plaintiffs, the Connells, further adversely affecting their
business and livelihood by delaying the proper
continuation/growth of the same by means of a tortious,
negligent and unjustified course of conduct which shocks the
conscience.” They then cite Hoffman v. C.H. Halden, 268 F.2d
280 (9th Cir. 1959), overruled on other grounds Cohen v. Norris,
300 F.2d 24, 29-30 (9th Cir. 1962), as support for the
proposition that this July 14, 1995 hearing was an overt act of
the defendants. Hoffman is readily distinguishable on the facts
revealed by the plaintiffs' complaint. We hold that the July
14, 1995 hearing was not an overt act of the defendants and
cannot be used as an “anchor” to bind the earlier claims. As we
have stated previously, “residual effects of past discriminatory
conduct . . . are not themselves acts of discrimination and
therefore will not satisfy the anchor violation requirement.”
Provencher, 145 F.3d at 14; see also Pilgrim, 118 F.3d at 869
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(“Mere subsequent effects of earlier discriminatory action will
not extend the limitations period.”). The plaintiffs'
contention that they suffered from a continuing serial violation
by the defendants lacks merit.
In all events, a continuing violation -- whether
systemic or serial -- will fail “[e]ven where a plaintiff
alleges a violation within the appropriate statute of
limitations period, . . . if the plaintiff was or should have
been aware that he was being unlawfully discriminated against
while the earlier acts, now untimely, were taking place.”
Provencher, 145 F.3d at 14; Sabree, 921 F.2d at 402. In Sabree,
we rejected the plaintiff's continuing violation claim because
the plaintiff “admitted that he believed, at every turn, that he
was being discriminated against.” Sabree, 921 F.2d at 402.
It is clear from our review of the amended complaint
that the plaintiffs knew of the alleged unlawful discriminatory
acts of the defendants while they were taking place. As the
district court noted, the amended complaint makes manifest that
the plaintiffs believed all along that Wilcox's actions and
statements constituted extortion. The plaintiffs not only
reported those actions to the state police and the Massachusetts
Attorney General's Office, but also expressly stated that in
April 1995, “they were quite certain that much of what had
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occurred to them by and through various town departments,
agencies, decisions, etc. was motivated to a large degree by
nothing other than malice.” Amended Complaint at ¶ 62.
Indeed, the very fact that the plaintiffs filed their suit in
Barnstable Superior Court on July 12, 1995 seeking injunctive
relief proves that they knew of the alleged wrongful acts of the
defendants prior to the running of the statute of limitations.
As the district court correctly held: “The plaintiffs
were on notice of the unlawful nature of the defendants' alleged
conduct before July 14, 1995 and failed to file this action
within the applicable three-year statute of limitations.
[Accordingly,] they may not reach back to the pre-limitations
period . . . .” Affirmed. Costs to appellees.
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