Coll. Hill Props., LLC v. City of Worcester

• Decision Date: 30 September 2015
• Docket Number: CIVIL ACTION NO. 15-40009-TSH
• Citation: 135 F.Supp.3d 10
• Parties: College Hill Properties, LLC, Caro Street Properties, LLC, Clay Street Properties, LCC, Paul F. Giorgio, individually and Diana H. Giorgio, individually, Plaintiffs, v. The City of Worcester, by and through the Department of Building and Zoning; Department of Health and Housing Inspections; Department of Inspectional Services; Board of Public Health; Worcester Police Department ; City Manager, Michael V. O'Brien in his Official and individual capacities; City Councilor Barbara Haller in her Official and individual capacities; Commissioner of Building and Zoning John R. Kelly, in his Official and individual capacities; Director of Housing and Health Inspections Amanda M. Wilson, in her Official and individual capacities; Code Enforcement Officer and Housing and Health Inspector John Nordberg, in his Official and individual capacities; Code Enforcement Officer and Housing and Health Inspector John Carlson, in his Official and individual Capacities; Police Chief Gary Gemme, in his Official and individual capacities; Police Lieutenant James Shugrue, in his Official and individual capacities, Defendants.
• Court: U.S. District Court — District of Massachusetts

135 F.Supp.3d 10

College Hill Properties, LLC, Caro Street Properties, LLC, Clay Street Properties, LCC, Paul F. Giorgio, individually and Diana H. Giorgio, individually, Plaintiffs,

v.The City of Worcester, by and through the Department of Building and Zoning; Department of Health and Housing Inspections; Department of Inspectional Services; Board of Public Health; Worcester Police Department ; City Manager, Michael V. O'Brien in his Official and individual capacities; City Councilor Barbara Haller in her Official and individual capacities; Commissioner of Building and Zoning John R. Kelly, in his Official and individual capacities; Director of Housing and Health Inspections Amanda M. Wilson, in her Official and individual capacities; Code Enforcement Officer and Housing and Health Inspector John Nordberg, in his Official and individual capacities; Code Enforcement Officer and Housing and Health Inspector John Carlson, in his Official and individual Capacities; Police Chief Gary Gemme, in his Official and individual capacities; Police Lieutenant James Shugrue, in his Official and individual capacities, Defendants.

CIVIL ACTION NO. 15-40009-TSH

United States District Court, D. Massachusetts.

Signed September 30, 2015

Eric N. Stafford, J.A. Denner & Associates, Jeffrey A. Denner, Denner Pellegrino LLP Boston, MA, for Plaintiffs.

Ann S. Refolo, Kevin M. Gould, Wendy L. Quinn, City of Worcester Law Department, Worcester, MA, for Defendants.

MEMORANDUM AND ORDER

TIMOTHY S. HILLMAN, DISTRICT JUDGE

Background

College Hill Properties, LLC. ("College Hill Properties"), Caro Street Properties, LLC. ("Caro Street Properties"), Clay Street Properties, LLC. ("Clay Street Properties"), Paul F. Giorgio ("P. Giorgio"), and Diana H. Giorgio (collectively, "Plaintiffs") have filed suit asserting federal and state civil rights claims against: the City of Worcester ("City") by and through its Departments of Building and Zoning, Health and Housing Inspections, and Inspectional Services, the Board of Public Health, and the Worcester Police Department ("WPD"); Michael V. O'Brien (City Manager); Barbara Haller (City Counselor); John R. Kelly (Commissioner of Building and Zoning); Amanda Wilson (Director of Housing and Health Inspections); John Nordberg (Code Enforcement Officer and housing and Health Inspector); John Carlson (Code Enforcement Officer and housing and Health Inspector); Gary Gemme (Chief, WPD); and James Shugrue (Lieutenant, WPD)(collectively, "Defendants")¹ . Specifically, Plaintiffs assert claims under 42 U.S.C. § 1983 for denial of their equal protection rights in violation of the Fifth and/or Fourteenth Amendments (Counts I and III), denial of their substantive due process rights in violation of the Fourteenth Amendment (Count II), and a parallel claim for violation of the Massachusetts Civil Rights Act ("MCRA"), Mass.Gen.L. ch. 12, §§ 11H, 11I (Count IV). This Memorandum and Order addresses Defendants' Motion To Dismiss Plaintiffs' Complaint (Docket No. 8). For the reasons set forth below, that motion is granted.

Standard of Review

To overcome a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 667, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility of a claim is evaluated in a two-step process. Manning v. Boston Med. Ctr. Corp. , 725 F.3d 34, 43 (1st Cir.2013). First, the court must separate the complaint's factual allegations, which must be accepted as true, from its conclusory legal allegations, which are not entitled to the presumption of truth. A.G. ex rel. Maddox v. Elsevier, Inc. , 732 F.3d 77, 80 (1st Cir.2013) ; Manning , 725 F.3d at 43. Second, the court must accept the remaining factual allegations as true and decide if, drawing all reasonable inferences in the plaintiff's favor, they are sufficient to show an entitlement to relief. Manning , 725 F.3d at 43 The court draws on judicial experience and common sense in evaluating a complaint, but may not disregard factual allegations even if it seems that actual proof of any particular fact is improbable. Iqbal , 556 U.S. at 667, 129 S.Ct. 1937 ; Twombly , 550 U.S. at 556, 127 S.Ct. 1955. A motion to dismiss must focus not on whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Mitchell v. Mass. Dep't of Corr. , 190 F.Supp.2d 204, 208 (D.Mass.2002) (quoting Scheu e r v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ). To prevail on a statute of limitations defense at the motion to dismiss stage, the facts establishing said defense must: "(1) be definitively ascertainable from the complaint and other allowable sources of information, and (2) must suffice to establish the affirmative defense with certitude." Gray v. Evercore Restructuring L.L.C. , 544 F.3d 320, 324 (1st Cir.2008) ; National Ass'n of Government Employees v. Mulligan , 854 F.Supp.2d 126, 131 (D.Mass.2012).

Facts

Beginning in 2002, Caro Street Properties, Clay Street Properties, and College Hill Properties bought residential dwelling units in the City that were leased to students attending the College of the Holy Cross. On or about September 3, 2009, P. Giorgio was served with a cease and desist order by the City's Department of Inspectional Services. That order alleged that a specific unit was in violation of a City zoning ordinance prohibiting renting to more than three unrelated adult occupants (the "Ordinance"), and the lodging house statutory system, Mass.Gen.L. ch. 140, §§ 22 –32 ("Lodging House Act")² . Thereafter, on November 18, 2009, Plaintiffs were served with additional citations from the City for operating unlicensed lodging houses and ordered to cease and desist.

At approximately the same time, Paul and Michele Meaney were served with a cease and desist administrative notice alleging a similar violation of the Ordinance. On November 17, 2009, the City rescinded that order. On January 13, 2010, the City filed civil actions in the Worcester Division of the Housing Court Department ("Housing Court") against the Giorgios and College Hill Properties for violations of the Lodging House Act. The Housing Court permanently enjoined Plaintiffs "from allowing more than three unrelated adults to reside in each dwelling unit." City of Worcester v. College Hill Properties, LLC , 2010 WL 4256583 (Mass. Housing Ct. May 12, 2010). When the Plaintiffs failed to comply, the court issued civil contempt orders. The orders were appealed to the Massachusetts Appeals Court, which affirmed the Housing Court. Upon further appellate review, the Supreme Judicial Court ("SJC") ruled that the Lodging House Act has no application in the specific circumstances under which the Plaintiffs were renting the units. City of Worcester Department of Inspectional Services v. College Hill Properties, LLC. , 465 Mass. 134, 987 N.E.2d 1236 (2013).

Discussion

Defendants assert that Plaintiffs' Complaint must be dismissed because their claims are time-barred by the applicable statute of limitations. In the alternative, they argue that the claims must be dismissed for failure to state a cause of action. The individual Defendants also assert that that the claims against them must be dismissed on qualified immunity grounds.

Whether Plaintiffs' Section 1983 Claims Are Barred

Section 1983 does not contain a built-in statute of limitations. Nieves v. McSweeney , 241 F.3d 46, 51 (1st Cir.2001). For section 1983 claims, a federal court applies the forum state's limitation period governing personal injury actions. Id. Massachusetts has a three-year statute of limitations for personal injury actions. Mass.Gen.L. ch. 260, § 2A. "Although section 1983 borrows its limitations period from state law, the accrual date for a section 1983 claim is measured by federal law. Under federal law, such a cause of action accrues ‘when the plaintiff knows, or has reason to know of the injury on which the action is based.’ " Alamo – Hornedo v. Puig , 745 F.3d 578, 581 (1st Cir.2014) (internal citations and citation to quoted case omitted). "[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." Morán Vega v. Cruz Burgos , 537 F.3d 14,20 (1st Cir.2008). Furthermore, for statute of limitation purposes, each section 1983 claim is analyzed independently. See Nieves , 241 F.3d at 52–53 ; See also Salcedo v. Town of Dudley , 629 F.Supp.2d 86, 98 (D.Mass.2009).

Regulatory Taking in Violation of the Fifth and Fourteenth Amendments

In Count I, Plaintiffs allege that Defendants' actions in enforcing the Lodging House Act constituted a regulatory taking without just compensation, in violation of the Fifth and Fourteenth Amendments to the Constitution. In section 1983 cases alleging unlawful taking of property, "the statute of limitations begins to run on the date of the wrongful appropriation." Vistamar, Inc. v. Fagundo – Fagundo , 430 F.3d 66, 70 (1st Cir.2005) (quoting Altair Corp. v. Pesquera de Busquets , 769 F.2d 30, 32 (1st Cir.1985), abrogated on other grounds by Carreras – Rosa v. Alves – Cruz , 127 F.3d 172, 174 (1st Cir.1997) ). In regulatory takings cases, the accrual date is that date on which a final administrative order is issued and the property at issue is deprived. Gonzalez – Alvarez v. Rivero – Cubano , 426 F.3d 422, 426–27 (1st Cir.2005). The Supreme Court has found that "such claims are ripe when the plaintiff has received a final decision regarding the application of the challenged regulations to the property at issue from the government entity charged with implementing the regulations, and the plaintiff has sought compensation through the procedure provided by the state." Id. at 426 (quoting Suitum v. Tahoe Reg'l Planning Agency , 520...