Rubinovitz v. Rogato

• Decision Date: 06 April 1995
• Docket Number: No. 94-2311,94-2311
• Citation: 60 F.3d 906
• Parties: Donald A. RUBINOVITZ, et al., Plaintiffs, Appellants, v. Grace ROGATO, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 906

60 F.3d 906

Donald A. RUBINOVITZ, et al., Plaintiffs, Appellants, v. Grace ROGATO, et al., Defendants, Appellees.

No. 94-2311.

United States Court of Appeals First Circuit.

Heard April 6, 1995.

Decided Aug. 1, 1995.

Edward F. Lawson with whom Denise M. Leydon and Weston, Patrick, Willard & Redding, Boston, MA, were on brief, for appellants.

Thomas A. Reed with whom J. Owen Todd, Todd & Weld, John P. Fitzgerald and Cogavin & Waystack, Boston, MA, were on brief, for appellees.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Plaintiffs Donald A. and Linda L. Rubinovitz ("the Rubinovitzes") brought this action under 42 U.S.C. Secs. 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. 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 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 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 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 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."

votes to grant the Rubinovitzes' petition. Thus, on reconsideration, the Rubinovitzes' petition failed by a 3-2 vote.

Meanwhile, the Rubinovitzes had appealed the Board's variance order to the Massachusetts Superior Court. 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. Sec. 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. Sec. 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 Sec. 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 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. 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, --- U.S. ----, 115 S.Ct. 2247, 132 L.Ed.2d 255 (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 LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (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 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."

(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.

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 selectively treated. Plaintiffs claiming an equal protection violation must first "identify and relate specific...