Fisichelli v. Town of Methuen

• Decision Date: 23 February 1987
• Docket Number: Civ. A. No. 85-3694-WF.
• Citation: 653 F. Supp. 1494
• Court: U.S. District Court — District of Massachusetts
• Parties: Alfred D. FISICHELLI, Trustee of Amfis Realty Trust and Salvatore I. Ambra, Trustee of Amfis Realty Trust v. The City known as the TOWN OF METHUEN (hereinafter, Town of Methuen) c/o Solicitor, Maurice J. Lariviere, Esq., and Methuen Industrial Finance Authority, c/o Manager/Director, Town of Methuen, and Alfred Gatta, officially and individually, former Director, Methuen Industrial Finance Authority, and Melvin C. Weagle, Jr., individually and officially, Councillor, Town of Methuen, and William F. Gallagher, officially and individually, Councillor, Town of Methuen, and Carol Delano, officially and individually, Councillor, Town of Methuen, and Edward J. Higgins, Jr., officially and individually, Councillor, Town of Methuen, and Evelyn Lacroix, officially and individually, Councillor, Town of Methuen.

653 F. Supp. 1494

Alfred D. FISICHELLI, Trustee of Amfis Realty Trust and Salvatore I. Ambra, Trustee of Amfis Realty Trust v. The City known as the TOWN OF METHUEN (hereinafter, Town of Methuen) c/o Solicitor, Maurice J. Lariviere, Esq., and Methuen Industrial Finance Authority, c/o Manager/Director, Town of Methuen, and Alfred Gatta, officially and individually, former Director, Methuen Industrial Finance Authority, and Melvin C. Weagle, Jr., individually and officially, Councillor, Town of Methuen, and William F. Gallagher, officially and individually, Councillor, Town of Methuen, and Carol Delano, officially and individually, Councillor, Town of Methuen, and Edward J. Higgins, Jr., officially and individually, Councillor, Town of Methuen, and Evelyn Lacroix, officially and individually, Councillor, Town of Methuen.

Civ. A. No. 85-3694-WF.

United States District Court, D. Massachusetts.

February 23, 1987.

COPYRIGHT MATERIAL OMITTED

Wilbur A. Hyatt, Hyatt & Hyatt, Lawrence, Mass., for plaintiffs.

Maurice J. Lariviere, Jr., Methuen, Mass., Richard E. Brody, Morrison, Mahoney & Miller, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

WOLF, District Judge.

The plaintiffs Alfred D. Fisichelli and Salvatore I. Ambra, Trustees of Am-Fis Realty Trust, claim that the Town of Methuen, the Methuen Industrial Finance Authority, the Town Councillors, Melvin C. Weagle, William Gallagher, Carol Delano, Edward Higgins, and Evelyn Lacroix, officially and individually, and the former director of the Methuen Industrial Finance Authority, Alfred Gatta, officially and individually, violated 42 U.S.C. § 1983 and the federal and state antitrust laws, 15 U.S.C. §§ 1, 2; Mass.Gen.Laws c. 93, §§ 4, 5, when they denied plaintiffs' application for an industrial revenue bond. A hearing was held concerning defendants' motions to dismiss and request for attorneys fees. The matters were taken under advisement.

For the reasons explained below, the defendants' motion to dismiss the § 1983 claims is granted. The defendants' motion to dismiss the antitrust claims is denied. Nevertheless, because plaintiffs' recovery of money damages against local governments and local government officials is limited under federal antitrust law, the court has decided to stay temporarily these claims so that the plaintiffs may determine and inform the court whether they intend to proceed with their remaining claims in this case or proceed instead in state court.

I. Factual Allegations

The relevant allegations of plaintiffs' complaint are as follows. Plaintiffs assert that there was a conspiracy among Town Councillors to deny the plaintiffs an industrial revenue bond. The plaintiffs sought the bond to assist in the financing of a shopping mall. One of the tenants then committed to the mall was a CVS Pharmacy ("CVS"). The plaintiffs had originally sought to lease space in the prospective mall to one of the defendants, Melvin C. Weagle, Jr., a pharmacist who was also a Town Councillor. The plaintiffs and Weagle could not agree on a lease, however, and the plaintiffs signed an agreement with CVS instead. In August 1983, the Director of the Methuen Industrial Finance Authority made his initial recommendation to the Town Council to approve the plaintiffs' industrial revenue bond application. The plaintiffs claim that they met all the criteria for the industrial revenue bond, and that the Methuen Town Council had never denied industrial revenue bonding to any previous applicant who had met all the requirements. Their application was denied.

The plaintiffs allege that Town Councillor Weagle privately contacted the other Councillors and urged them to vote against approving the plaintiffs' request for an industrial revenue bond. He also allegedly persuaded other druggists to appear and oppose the plaintiffs' request. According to plaintiffs, this concerted action was undertaken to protect the personal and pecuniary interests of the individual defendants. Weagle did not participate in the discussions concerning this matter at the Town Council meeting or vote on the matter.

The plaintiffs contend that the defendants' alleged action deprived them of property without the procedural due process of law guaranteed by the Fourteenth Amendment of the United States Constitution. The plaintiffs also contend that the defendants violated the federal and state antitrust laws.

II. The Civil Rights Claim

When deciding a motion to dismiss, the court must accept the allegations of the complaint as true. Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (per curiam). The court must also examine the alleged facts in the light most favorable to the plaintiff, and the complaint may only be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir.1976).¹

42 U.S.C. § 1983 provides a remedy for "deprivation of any rights, privileges, or immunities secured by the Constitution and laws ..." of the United States by a public official. To state a due process claim on which relief may be granted under § 1983, the plaintiff must allege deprivation of a protected property interest, because there can be no due process violation without such an interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

"To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. at 2709. It is by no means clear that there is a property interest in an industrial revenue bond. In Riverview Investments v. Ottawa Community Imp., 769 F.2d 324 (6th Cir.1985), modified, 774 F.2d 162, the Sixth Circuit granted the defendant's motion for summary judgment, finding that there was no property right in industrial revenue bonds. In Riverview, the court focused on the discretionary nature of the statute authorizing industrial revenue bonds, which provided that "an issuer may issue bonds for the purpose of providing moneys to acquire one or more projects ..." Id. at 327. The court added that "an entitlement does not arise just because the Corporation has approved the bond applications of other applicants. The approval of other applications does not in itself create a legitimate expectation or entitlement on the part of the plaintiff." Id.

The relevant Massachusetts statute authorizing a municipality to issue industrial revenue bonds is M.G.L. c. 40D, § 7. A municipality, however, is not required to issue industrial revenue bonds. See Opinion of the Justices to the House of Rep., 373 Mass. 873, 874, 366 N.E.2d 1230 (1977) ("A municipality acting by and through its Financing Authority may secure financial support for industrial development projects through the issuance of bonds.") (Emphasis added). Discretionary language in a statute can be fatal to the existence of a property right. See Chongris v. Board of Appeals, 811 F.2d 36, at 43 (1st Cir. Feb. 12, 1987) (focusing on the discretionary language of statute which said license "may be granted," court found no property interest in victualler's license.)

Although Riverview does state that the "approval of other applications does not in itself create a legitimate expectation of entitlement," Riverview, 769 F.2d at 327, the plaintiffs in the instant case claim that the Town of Methuen granted industrial revenue bonding to all other applicants who met the requirements. This, they contend, creates a "legitimate claim of entitlement" rather "than a subjective ... expectation that they will receive a benefit." Riverview, 769 F.2d at 327.

Resolution of this issue, however, is not necessary, because even if it is assumed the plaintiffs have a property right in an industrial revenue bond, they have not stated a § 1983 claim for which relief can be granted. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and its progeny indicate that, even assuming a deprivation of property, plaintiffs have not alleged other facts essential to establishing a violation of procedural due process.

In Parratt, a prison employee negligently lost a prisoner's packages when the normal procedure for receipt of mail was not followed. The Supreme Court found this type of random, unauthorized act did not constitute a § 1983 violation where state law provided an adequate remedy. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme Court extended the reasoning of Parratt to intentional deprivation of property, stating:

An unauthorized intentional deprivation of property by a public official does not constitute a violation of the procedural requirements of the Due Process clause of the Fourteenth Amendment if a meaningful post deprivation remedy for the loss is available.

Id. at 533, 104 S.Ct. 3203. (Emphasis added).

Like Hudson, the instant case involves alleged random, unauthorized actions. It is not claimed that Weagle's purported covert maneuverings are part of the established public procedure. In fact, they may, if proven, violate state law.² Thus, in order to prevail on a claim of a deprivation of procedural due process, "the claimant must either avail himself of the remedies guaranteed by state law or prove that the available remedies are inadequate." Id. at 539, 104 S.Ct. at 3206 (O'Connor, J., concurring). See also Moody v. Town of Weymouth, 805 F.2d 30 no. 86-1572, slip op. at 8-9 (1st Cir. Nov. 13, 1986); Lamoureux v. Haight, 648 F.Supp. 1169 (D.Mass.1986).

Although the court requested briefing on state laws governing conflict of interest affecting public officials, the plaintiffs did not respond to this request. The Commonwealth does, however, have such statutes. M.G.L....