
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-2311                            DONALD A. RUBINOVITZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                                GRACE ROGATO, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Edward F. Lawson with whom Denise  M. Leydon and Weston,  Patrick,            ________________           _________________     _________________        Willard & Redding were on brief for appellants.        _________________            Thomas  A. Reed  with  whom  J. Owen  Todd, Todd  & Weld,  John P.            _______________              _____________  ____________   _______        Fitzgerald and Cogavin & Waystack, were on brief for appellees.        __________     __________________                                 ____________________                                    August 1, 1995                                 ____________________                      STAHL,  Circuit  Judge.   Plaintiffs Donald  A. and                      STAHL,  Circuit  Judge.                              ______________            Linda L. Rubinovitz ("the Rubinovitzes") brought  this action            under 42 U.S.C.    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.                                          I.                                          __                                      BACKGROUND                                      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                                            ____________________            1.  The defendants are city purchasing director Grace Rogato,            health inspector  Robert M.  Barrett, gas inspector  Henry P.            Baron,  Board  of Appeals  chairman John  J. Burke,  Jr., and            Board  of Appeals  members Dennis  Tobin and  John Volo.   In            February  1993, Rogato died and her estate was substituted as            a party in the action.                                           -2-                                          2            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                                         -3-                                          3            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                                         -4-                                          4            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  votes to  grant  the  Rubinovitzes'            petition.     Thus,  on  reconsideration,  the  Rubinovitzes'            petition failed by a 3-2 vote.                      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."                      Meanwhile,  the  Rubinovitzes   had  appealed   the            Board's variance order  to the Massachusetts  Superior Court.                                         -5-                                          5            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.   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.      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   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                                         -6-                                          6            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.                                         II.                                         ___                                      DISCUSSION                                      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,            _______________                                 _____ ______            115 S. Ct. 2247  (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                                                                      ___                                         -7-                                          7            LeClair  v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980), cert.            _______     ________                                    _____            denied, 450 U.S. 959  (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 (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.            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."                       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                                         -8-                                          8            selectively treated.  Plaintiffs claiming an equal protection            violation must first "identify and relate  specific instances            where persons  situated similarly `in  all relevant  aspects'            were treated differently,  instances which have  the capacity            to  demonstrate that [plaintiffs] were `singled . . . out for            unlawful  oppression.'"     Dartmouth  Review   v.  Dartmouth                                        _________________       _________            College, 889 F.2d 13, 19 (1st Cir. 1989) (citations omitted).            _______            The Rubinovitzes neither  identify others who were  similarly            situated,  nor do  they identify  any instances  of disparate            treatment.     In   opposition   to  summary   judgment,  Mr.            Rubinovitz's affidavit states: "there are at least [thirteen]            properties in  the neighborhood  in which  I live  which have            structures to the rear of the main dwelling which are used as            dwelling  units .  . .  . All  of the  properties are  within            approximately two  blocks of my  property."  Appended  to the            affidavit were pictures of  the property and thirteen similar            structures.     From   this  submission,   the   Rubinovitzes            apparently  ask us  to infer  that the Board  readily granted            their neighbors variance requests.  However, the Rubinovitzes            fail to present any evidence that any of their neighbors were            either  required to seek a  variance or actually  made such a            request of the Board.  Thus, there is no basis  in the record            by  which  we  can   determine  that  the  Rubinovitzes  were            "`singled  . . . out for  unlawful oppression,'" id. (quoting                                                             ___            (Burt  v. City of New York, 156  F.2d 791, 791 (2d Cir. 1946)             ____     ________________                                         -9-                                          9            (L. Hand, J.)), or that they "suffered what others in general            have escaped," Burt, 156 F.2d at 791.                           ____                      The  Rubinovitzes'  complaint  of  selective  code-            enforcement  actions  stands  on  far  firmer  ground.    For            example,  the Rubinovitzes  point  to the  affidavit of  city            plumbing inspector Capano, in which he states that (1) he had            encountered other  instances where there was  plumbing but no            permits and (2) he did  not order the plumbing  disconnected,            as  he had with the Rubinovitzes.  As to code-enforcement, we            think the  record contains sufficient  evidence of  selective            treatment  to forestall  summary judgment.   Accordingly, the            balance  of our  analysis  focuses on  the defendants'  code-            enforcement efforts against the Rubinovitzes.                        The second prong of the Yerardi's analysis requires                                              _________            us   to   determine  whether   defendants  singled   out  the            Rubinovitzes for  an improper  purpose.  The  Rubinovitzes do            not  allege  that  the  disparate treatment  flowed  from  an            invidious classification involving race or religion.  Rather,            the Rubinovitzes argue that  defendants sought to punish them            for  the  exercise  of  fundamental   constitutional  rights.            First, although not entirely clear from their arguments below            and  to this  court, the Rubinovitzes  appear to  allege that            defendants  punished  them  for  exercising  their "right  to            evict"  Lussier.   The  Rubinovitzes  rely  on language  from            Correa-Martinez v. Arrillaga-Belendez,  903 F.2d 49,  53 (1st            _______________    __________________                                         -10-                                          10            Cir. 1990) (quoting Board  of Regents v. Roth, 408  U.S. 564,                                _________________    ____            577  (1972)), holding  that, in  a deprivation-of-due-process            analysis,  protected   property  interests  "`stem   from  an            independent source such as state law.'"  Even assuming that a            right  to  evict  a  tenant would  be  a  protected  property            interest under Roth for  purposes of a due process  claim, it                           ____            does not follow that  there is a fundamental right  to evict,            the  exercise of which  is protected by  the Equal Protection            Clause.    In  fact,  the Constitution  establishes  no  such            fundamental right.                      The Rubinovitzes mount another argument grounded in            fundamental constitutional rights.  Specifically, they allege            that defendants' code-enforcement actions  were an attempt to            punish  the Rubinovitzes for the May 4 letter.  This argument            also falls short, but for a different reason.  Free speech is            a  fundamental right  but, to  survive summary  judgment, the            Rubinovitzes must offer some proof that defendants' allegedly            retaliatory actions were  motivated by the  protected speech.            See,  e.g., Cloutier v. Town  of Epping, 714  F.2d 1184, 1192            ___   ____  ________    _______________            (1st Cir. 1983); Packish  v. McMurtrie, 697 F.2d 23,  26 (1st                             _______     _________            Cir.  1983).  The Rubinovitzes  point to ten  facts that they            contend constitute  evidence of  retaliatory motive.   We are            unconvinced.   The  Rubinovitzes adduce  no  direct  evidence            establishing retaliatory motive.  Instead, they rely entirely            on circumstantial  evidence:   that  is, enforcement  actions                                         -11-                                          11            followed the  May 4 letter.   Indeed, the facts  to which the            Rubinovitzes point  do nothing  more than lay  out the  basic            rubric of the case:  e.g., the Board approved the variance on                                 ____            May  2; Rogato  contacted  the Board  regarding the  variance            after  May  2;  the May  4  letter  was  sent to  Carpinella;            Carpinella  discussed  the  May  4 letter  with  Rogato;  the            Rubinovitzes  received  notice  that the  variance  had  been            approved; on May 16,  the Board reversed its decision  on the            variance  and  various  code  enforcement  actions  had  been            commenced against the property beginning in January 1989.                      This  recitation  is  insufficient  to  support  an            inference of improper motive.  As the Rubinovitzes themselves            point out, the city's code-enforcement activity had been well            underway for four months prior to the May 4 letter.  In fact,            the Rubinovitzes wrote the May 4 letter immediately following            Barrett's  meeting with Mr.  Rubinovitz during  which Barrett            both presented an order to  repair and related Rogato's  pre-            May  4 pressure to bring code-enforcement actions.  The May 4            letter  itself complained  about the  "harassment"  from city            officials.    Although  the  Rubinovitzes  contend  that  the            "principal  wrongful  actions" took  place  after  the May  4            letter, they offer  no basis upon  which to distinguish  pre-            and post-May 4  harassment.  Of course,  on summary judgment,            we must  draw  all  reasonable  inferences in  favor  of  the            nonmoving  party.    However,  those  inferences  "must  flow                                         -12-                                          12            rationally from  the underlying  facts; that is,  a suggested            inference  must  ascend  to   what  common  sense  and  human            experience indicates is an acceptable level of  probability."            National  Amusements, 43  F.3d at 743.   The  record suggests            ____________________            that  although the  city  had focused  its  attention on  the            property  prior  to  the  Lussier  eviction,  the  heightened            attention began after  the eviction notice but before the May            4  letter.    We  think   the  inference  suggested  by   the            Rubinovitzes rests on a "`tenuous insinuation,'" id. (quoting                                                             ___            Mesnick v. General  Elec. Co.,  950 F.2d 816,  820 (1st  Cir.            _______    __________________            1991), cert.  denied, 504  U.S. 985 (1992)),  rather than  an                   _____  ______            acceptable level  of probability.   Accordingly, we  conclude            that  the record  fails  to  support  an inference  that  the            officials' post-May 4 conduct was  in retaliation for the May            4 letter.                        Finally,   as  noted  above,   in  the  absence  of            invidious discrimination or the abuse of a fundamental right,            a  party may  establish  an equal  protection violation  with            evidence  of  bad  faith   or  malicious  intent  to  injure.            Yerardi's, 878  F.2d  at 21;  see  also Yerardi's  Moody  St.            _________                     _________ _____________________            Restaurant & Lounge, Inc. v. Board of Selectmen, 932 F.2d 89,            _________________________    __________________            94 (1st  Cir. 1991) (hereinafter, "Yerardi's II").   We start                                               ____________            with   two  related  observations.     First,   bad-faith  or            malicious-intent-to-injure cases are  infrequent.   Yerardi's                                                                _________            II,  932  F.2d at  94 (citing  PFZ  Properties, Inc.  v. Rene            __                             _____________________     ____                                         -13-                                          13            Alberto Rodriguez, 928 F.2d 28, 33 (1st Cir. 1991) (noting in            _________________            the zoning context that "[e]very appeal . . . from an adverse            ruling . . .  necessarily involves some claim that  the board            exceeded,  abused or  distorted its  legal authority  in some            manner") (quotations and citations omitted), cert. dismissed,                                                         _____ _________            503  U.S.  257  (1992)).    Second,  "`the  malice/bad  faith            standard  should be  scrupulously met.'"   Yerardi's  II, 932                                                       _____________            F.2d at 94 (quoting LeClair, 627 F.2d at 611).                                _______                      Indeed, despite the  general language of Yerardi's,                                                               _________            at least one  member of  this panel  believes that  something            substantially  more than  a single  act of  malice underlying            some routine administrative action is necessary to make out a            constitutional  claim.   Cf. Esmail v.  Macrane, 53  F.3d 176                                     ___ ______     _______            (7th Cir.  1995) (campaign of severe  harassment orchestrated            by mayor).  But we need  not resolve such issues in this case            beyond  cautioning that routine  claims that  some individual            action was malicious are  likely to have rough sailing.   For            here  we think  there  is enough  indication  of a  malicious            orchestrated campaign causing  substantial harm--though  only            barely enough  evidence--that the case cannot  be resolved on            summary judgment.                      Although Rogato had  no official  authority in  the            matter, there  is certainly evidence that  she was personally            hostile  to   the  Rubinovitzes  based   on  her   resentment            concerning   Lussier's  eviction,  that  she  had  sought  to                                         -14-                                          14            intervene  with  the  Rubinovitzes  personally  on  Lussier's            behalf,   that  she  had   repeatedly  pressured  the  health            department to  bring enforcement  actions, that she  had kept            track  of  the Board  proceedings, and  that  in May  she had            conferred with  Carpinella, the  public health director,  not            long  before the cut-off orders.   Rogato was  an official of            the  city  and, in  a  relatively small  unit  of government,            almost certainly had access and  influence beyond that of  an            ordinary outsider.                      Putting  aside  the  Board's reconsideration  vote,            these  actions by Rogato  were followed by  Baron's advice to            Carpinella   that  gas   service  to   the   Rubinovitzes  be            discontinued   (June   2),   Carpinella's   notice   to   the            Rubinovitzes advising  them of numerous violations  (June 7),            Capano's order to disconnect water and sewer hook-ups  to the            apartment  (July  12), and  Baron's  order to  Boston  Gas to            disconnect gas service (July 14).  Baron thereafter sought to            interfere  with  the Rubinovitzes'  hiring  of a  contractor,            using language about them ("bad people," "bitch") redolent of            malice.    In  the case  of  both  cut-offs,  there was  some                                         ____            evidence  that other  residents  similarly  situated did  not            suffer the same penalty.                      Under  these circumstances, we  think that although            the  case  might be  a difficult  one  for the  plaintiffs, a            reasonable jury might well be able to conclude that there was                                         -15-                                          15            an orchestrated conspiracy  involving a number of  officials,            selective enforcement,  malice,  and substantial  harm.    Of            course, the full presentation of evidence on both sides might            alter this judgment  and show that  the plaintiffs fell  just            short and would be subject to a directed verdict.  But at the            summary  judgment  stage, with  the  obligation  to draw  all            reasonable inferences in favor  of the party opposing summary            judgment, we  think  that this  case could  not be  dismissed            against all defendants.                      We think  that Barrett, also named  as a defendant,            was  properly granted summary judgment; his own investigation            of   code   violations   began  well   before   the  eviction            controversy, and  --while his report of  Rogato's pressure is            highly pertinent evidence--there is  no evidence that Barrett            was himself involved in either of the cut-off directives.  As            for  Carpinella  and Capano,  there  is no  need  to consider            whether  the evidence might  be sufficient as  to them, since            they  were not named as defendants and it is almost certainly            too  late  in  the day  to  consider  any  expansion of  this            lawsuit.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the  foregoing  reasons, the  judgment  of  the            district  court is vacated as to  defendants Rogato and Baron                               _______            and  the case remanded as  to them for proceedings consistent                          ________                                         -16-                                          16            with  this opinion.  As to all other defendants, the decision            of the district court is affirmed.                                     ________                                         -17-                                          17
