Gattineri v. Town of Lynnfield
| Decision Date | 23 January 2023 |
| Docket Number | 21-1729 |
| Citation | 58 F.4th 512 |
| Parties | Anthony GATTINERI; Boston Clear Water Company, LLC, Plaintiffs, Appellants, v. TOWN OF LYNNFIELD, MASSACHUSETTS ; Philip B. Crawford ; James M. Boudreau; Robert J. Dolan; Robert Curtin; David J. Breen; Paul Martindale; Elizabeth Adelson; Kristin Mcrae; Joseph O'Callaghan ; Winnie Barrasso; Patrick Mcdonald; Jennifer Welter; Emilie Cademartori, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Julie K. Connolly, with whom Julie Connolly Law PLLC, Kelley A. Jordan-Price, Tara A. Singh, and Hinckley Allen & Snyder LLP were on brief, for appellants.
Adam Simms, with whom John J. Davis, Justin L. Amos, and Pierce Davis & Perritano LLP were on brief, for appellees.
Before Gelpí, Howard, and Thompson, Circuit Judges.
Appellants Anthony Gattineri (Gattineri) and Boston Clearwater Company LLC (BCW, and with Gattineri, Appellants) appeal from the dismissal of their sweeping complaint brought against the Town of Lynnfield, Massachusetts and a slew of the town's agencies and employees (Lynnfield, to keep it simple) after animosity between the parties over Appellants' spring water business boiled over. Because we write primarily for the parties -- all of whom are familiar with the facts in the operative complaint and how the case got here -- we offer only a brief summary of the relevant background before cutting to the chase: We affirm the dismissal below.
Since 2014, Appellants have owned and operated the Pocahontas Spring (the Spring) in Lynnfield, Massachusetts, where they sought to revive a once-thriving spring water business and maintain the Spring as a source of healing water for Native Americans. Appellants' ambitions on both fronts clashed with Lynnfield's authority to regulate any work done to alter the Spring's property, as it sits on protected wetlands subject to certain state and local regulations. See, e.g., Mass. Gen. Laws ch. 131, § 40 (2014) (Wetlands Protection Act); 310 Mass. Code Regs. §§ 10.02(2), 10.04, 10.05(4) (Wetlands Regulations). The gist of Appellants' complaint is that Lynnfield wanted to drive BCW and Gattineri out of town: Lynnfield wanted BCW gone so they could use the Spring to supplement the town's own water supply, garner additional tax revenue, and aid a nearby real estate development; and regarding Gattineri, Lynnfield despised his association with Native Americans and suspected that his Italian heritage meant he had mob ties. So, Appellants charge, Lynnfield hatched a vast conspiracy between the town's agencies (the Lynnfield Conservation Commission, Board of Selectmen, Building Department and Police Department), employees, and several neighbors (some named, others not) where the neighbors would lodge false complaints about allegedly unlawful activities at the Spring and Lynnfield would respond, using their regulatory authority, under the guise of legitimate enforcement, to intimidate Appellants and interfere with their business and Gattineri's constitutional rights.1
Certain that Lynnfield's actions were unlawful, Appellants claimed violations of their First and Fourteenth Amendment rights, see 42 U.S.C. § 1983, and that Lynnfield conspired to violate those rights, see 42 U.S.C. § 1985, and failed to prevent violations of those rights, see 42 U.S.C. § 1986, among other claims not relevant here (ten in all). The district court granted Lynnfield's motion to dismiss, and Appellants brought their case to us.2
On appeal, we consider whether Appellants' arguments compel us to revive their First Amendment claims.3 In short, they do not.
To state a First Amendment retaliation claim, Appellants' complaint "must allege that ‘(1) [Gattineri] engaged in constitutionally protected conduct, (2) [he was] subjected to an adverse action by [Lynnfield], and (3) the protected conduct was a substantial or motivating factor in the adverse action.’ " Falmouth Sch. Dep't v. Doe on behalf of Doe, 44 F.4th 23, 47 (1st Cir. 2022) (quoting D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012) ). The third prong of this test asks whether Appellants have alleged that Lynnfield had "retaliatory animus." Id. (quoting Maloy v. Ballori-Lage, 744 F.3d 250, 253 (1st Cir. 2014) ). And to succeed, Appellants must show that Lynnfield's "retaliatory animus" was the "but-for" cause of Gattineri's injuries, "meaning that the adverse action against [him] would not have been taken absent the retaliatory motive." Nieves v. Bartlett, ––– U.S. ––––, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (citing Hartman v. Moore, 547 U.S. 250, 259-60, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) ).
Unfortunately, both sides' briefs provide little guidance on these claims. Lynnfield failed to pick up on the basic fact that Appellants argued First Amendment retaliation claims, so we don't have the benefit of their opposing arguments at all. And Appellants' argument, as briefed for us, boils down to a bare-naked statement that their complaint "sets forth specific factual allegations of multiple adverse acts" against Gattineri "based on his exercise of First Amendment rights," and that "the protected conduct was a substantial or motivating factor" behind those actions. They then simply cite some twenty allegations in their complaint with a "see, e.g." -- containing, we gather, the "multiple adverse acts" supposedly taken against Gattineri because he exercised his First Amendment rights. That's it.
Appellants' failure to adequately brief the two claims that could revive their lawsuit proves fatal. Appellants have not fleshed out or explained any of the allegations they cite to at all, so we would be left to our own devices trying to guess the basics from the complaint's turgid paragraphs, some spanning close to a page. For example, we have no idea from the briefing what the adverse act in each complaint paragraph even is, since some contain several events packed into one. After telling us about each adverse act, Appellants should have then explained its connection to Gattineri's exercise of his rights. But they didn't. Compounding the utter lack of factual explanation, Appellants also fail to cite or analyze any on-point authority to convince us that their allegations state a claim as a legal matter -- we have decades of First Amendment retaliation case law to pull from. When, like here, briefing comes up this short, we find the issues waived. See Rodriguez v. Mun. of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) ().
Separate and apart from the First Amendment retaliation claim we just discussed, Appellants say they've stated a retaliation claim based upon, what they call, their "fundamental right to earn a living." But this flavor of a retaliation claim is doomed from the start because they have not shown that the "right to earn a living" is constitutionally protected conduct (element one of a retaliation claim).
The district court tossed this claim, citing our decision in Medeiros v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005), where we explained that "[t]he right to ‘make a living’ is not a ‘fundamental right,’ for either equal protection or substantive due process purposes." Attempting to skirt around Medeiros, Appellants say they have not alleged an equal protection or substantive due process violation; rather, that their "right to earn a living" is constitutionally protected by the Constitution's Privileges and Immunities Clause.
Appellants' arguments about the Privileges and Immunities Clause come up short. Appellants attempt to argue that our precedents have recognized that the Privileges and Immunities Clause protects a fundamental right to earn a living. See Piper v. Supreme Ct. of New Hampshire, 723 F.2d 110, 118 (1st Cir. 1983), aff'd 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985). We first note that there are two versions of the Clause, the first in Article IV § 2 (Privileges and Immunities Clause) and the second in the Fourteenth Amendment (Privileges or Immunities Clause), with distinct applications. See Baldwin v. Fish & Game Comm'n of Montana, 436 U.S. 371, 382, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) () (citations omitted); Saenz v. Roe, 526 U.S. 489, 503, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (). Appellants appear to have pled and argued the latter, but they rely upon Piper, which addressed Article IV § 2 and, if anything, would protect the right to pursue work in a state where that individual is a nonresident. See Piper, 470 U.S. at 280-81, 281 n.10, 105 S.Ct. 1272. Here, even if Appellants claimed the Article IV § 2 version, all parties are Massachusetts residents, so they get nowhere. As to the Fourteenth Amendment version of the Clause, Appellants have pointed to no authority, nor have we found any, holding that it provides for a fundamental right to earn a living. Cf. Head v. New Mexico Bd. of Examiners in Optometry, 374 U.S. 424, 432 n.12, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963) () (citing Madden v. Kentucky, 309 U.S. 83, 92—93, 60 S.Ct. 406, 84 L.Ed. 590 (1940) ).4
We make quick work of the rest of Appellants' claims. Without any viable § 1983 claims to anchor Appellants' § 1985(3) conspiracy to violate their civil rights claim, we, like the district court, see no need to delve into it. See United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, ...
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