Opinion
18-P-1479
03-04-2020
Scotty THYNG v. Joseph DUCA & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brought suit under 42 U.S.C. § 1983, claiming that members of the Quincy conservation commission (commission) and other local officials violated his equal protection and substantive due process rights by impeding his efforts to develop a vacant lot. A Superior Court jury returned a special verdict finding the following defendants liable for the equal protection violation: commission members Maureen C. Glynn, Martha C. King, and Kathleen M. Shaw; the commission's administrator, Heather I. Sargent; and Quincy's director of inspectional services, Joseph Duca. The jury found only Sargent liable for the substantive due process violation. On appeal the defendants argue that (1) the complaint should have been dismissed under Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), for untimely service, (2) the evidence does not support the jury's findings on the statute of limitations, (3) the trial judge erred by admitting in evidence a document from a prior Superior Court case, and (4) the evidence does not support the jury's verdict. We agree with the defendants that the evidence does not support that part of the verdict finding a substantive due process violation by Sargent, but reject the defendants' remaining arguments. As explained further below, this requires us to vacate a portion of the applicable judgment and remand for further proceedings.
The jury found in favor of four other defendants on the plaintiff's § 1983 claims and in favor of all defendants on his claim under the Massachusetts Civil Rights Act.
Background. The jury could have found the following facts. The plaintiff owns a vacant lot that extends from Manet Avenue down to Quincy Bay. A seawall crosses the lot approximately one hundred feet from the street.
In 2000, after the plaintiff reached an agreement to sell the lot, the prospective buyers filed a request for determination of applicability (RDA) with the commission, asking it to determine whether the lot was subject to wetlands regulations. The buyers filed the RDA at Sargent's suggestion. After a hearing the commission ruled that the buyers would need to file a notice of intent (NOI) and go through the wetlands permitting process if they wished to build on the lot. The buyers then cancelled their agreement with the plaintiff and demanded that he return their deposit.
Over the course of the next decade, the plaintiff undertook efforts to develop the lot. In February 2003 the plaintiff filed an RDA with the commission, but the commission took no action on it. Several months later the plaintiff filed an NOI with the commission and the Massachusetts Department of Environmental Protection (DEP), seeking approval to build a single family house on the lot. Sargent, however, told the plaintiff's attorney, Paul Hines, that the NOI would not be scheduled for a hearing until the plaintiff filed a foundation plan.
Although the plaintiff filed foundation plans in or around December 2003, the commission did not hold a hearing until June 2004. At the close of that hearing, the commission voted to deny the plaintiff's application -- under both the Massachusetts Wetlands Protection Act (act) and Quincy's local wetlands ordinance -- for lack of information. The commission later issued an order of conditions stating that the NOI was denied for lack of information, but failed to specify precisely what information was missing, as required by DEP regulations. The order of conditions further stated that the "[t]he beach exists in front of and behind the seawall -- [c]oastal bank," that "this is a [b]arrier [b]each," and that without more information the commission could not determine the effect the proposed project would have on the "littoral drift." From 2003 to 2005, however, the commission voted to approve several projects on adjacent properties without raising similar concerns.
The plaintiff appealed the commission's decision under the act to the DEP, which in February 2005 issued a superseding order of conditions allowing the plaintiff's project to go forward. Meanwhile, the plaintiff appealed the commission's decision under the local wetlands ordinance to the Superior Court. After the parties reported that case as settled, the court entered judgment in March 2006 remanding the case to the commission "for further findings without prejudice to a further certiorari review by a motion to vacate or modify the judgment in this case."
Immediately thereafter, Hines took a copy of the remand judgment to the commission and asked Sargent to schedule another hearing. Sargent replied that she would not accept the filing and "that she couldn't deal with it, because [the plaintiff] was suing her." Sargent suggested that Hines instead contact Assistant City Solicitor Robert J. Quinn. Although Hines placed multiple calls to Quinn, the commission never scheduled another hearing. As a result the plaintiff returned to Superior Court and moved to vacate the remand judgment and for entry of judgment in his favor. In January 2008 a Superior Court judge issued the following order on the plaintiff's motion:
"After hearing, ALLOWED. The ... [c]ommission offers no reason, other than animosity toward [p]laintiff, for not scheduling the matter for hearing. Furthermore, the original decision denying the application was late and therefore of no effect. The superceding [o]rder of the DEP governs."
The plaintiff then began the process of seeking a building permit from Duca. From July 2009 to March 2010, the plaintiff had multiple communications with Duca and sent multiple documents to him. Although the plaintiff sent the documents by certified mail, Duca claimed he did not receive them, requiring the plaintiff to send them again. At some point Duca referred the plaintiff to Robert Conlon, a plan examiner in Duca's department. Conlon impeded the plaintiff's efforts to obtain a permit by imposing unnecessary requirements, such as insisting that the plaintiff submit a utilities plan even though he was planning only "minimum construction" and was not installing utilities. Conlon also gave the plaintiff a checklist of items that he said needed commission approval, despite the plaintiff's explanation that he already had approval. As the plaintiff testified, "[e]very time [he] crossed off all these items from the list ..., [Conlon] created new conditions for [him] to do." Ultimately, the plaintiff received his building permit on March 11, 2010. According to Duca, "[o]n a simple project" the normal period to get a permit is ten days to two weeks if the necessary documents are filed.
Discussion. 1. Timeliness of service. We begin with the defendants' threshold argument that the complaint should have been dismissed because the plaintiff failed to serve it within ninety days as required by Mass. R. Civ. P. 4 (j). The plaintiff filed the original complaint on August 6, 2010. On October 22, 2010 (within ninety days), the plaintiff filed a motion to extend the time for service, which was allowed, and the service deadline was extended to February 6, 2011. Instead of effecting service by that date, however, the plaintiff filed an amended complaint on February 7, 2011.
We take judicial notice that February 6, 2011, was a Sunday.
On April 1, 2011, the Superior Court sua sponte dismissed the complaint without prejudice for failure of service. On April 4, 2011, the plaintiff moved to vacate the judgment of dismissal and to extend the service deadline by sixty-five days; as grounds, he stated that he believed that the filing of the amended complaint extended the time for service. After a judge allowed the motion by margin notation, the plaintiff completed service by the new deadline on all five defendants who are parties to this appeal. Several weeks later, the defendants filed a motion to dismiss the complaint under rule 4 (j), which a second judge denied by margin notation.
Although the motion was entered on the Superior Court docket on April 5, 2011, the record reflects that the motion was filed and allowed on April 4, 2011. We take judicial notice that April 4, 2011, was the first business day following entry of the judgment of dismissal.
The defendants argue that the first judge should have denied the plaintiff's motion to vacate the judgment of dismissal and to extend the time for service, and that the second judge should have allowed the defendants' motion to dismiss the complaint, because the plaintiff failed to show "good cause" for his noncompliance with rule 4 (j). Although the defendants rely heavily on Commissioner of Revenue v. Carrigan, 45 Mass. App. Ct. 309 (1998), in support of their argument, we do not agree that Carrigan controls here. As the court in Carrigan stressed, the plaintiff there not only failed to effect service within ninety days, he did not request an extension of time until after the defendant had already moved to dismiss the complaint under rule 4 (j). Id. at 314-315. The plaintiff then sought to extend the service deadline "nunc pro tunc." Id. at 314 n.5. In those circumstances the court held that the plaintiff had to satisfy rule 4 (j)'s "stringent" good cause test (citation omitted). Id. at 311.
Here, in contrast, immediately after the judgment of dismissal entered, the plaintiff moved to vacate the judgment and for an extension of time for service. The first judge had discretion to grant the extension under Mass. R. Civ. P. 6 (b) (2), 365 Mass. 747 (1974), which provides that "[w]hen by these rules ... an act is required or allowed to be done at or within a specified time," a trial court may "in its discretion ... upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." Notably, in Carrigan, the court acknowledged that, while rule 4 (j) is strictly construed, "its execution is not unduly harsh due to the liberal extension of time allowances permitted under [r]ule 6(b)." 45 Mass. App. Ct. at 312, quoting Burks v. Griffith, 100 F.R.D. 491, 492 (N.D.N.Y. 1984).
The plaintiff's motion was thus governed not by rule 4 (j)'s "good cause" standard, but by the "excusable neglect" standard of rule 6 (b) (2). The defendants have not articulated what factors govern a finding of excusable neglect in the rule 6 (b) (2) context and, for that reason alone, have failed to provide a basis to disturb the first judge's allowance of the plaintiff's motion. Furthermore, it is implicit that the first judge determined in her discretion that the plaintiff's neglect was excusable because he reasonably believed that the filing of the amended complaint extended the time for service. Even if we might "have reached a different result," the defendants have not shown that this constituted " ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). Cf. Goldstein v. Barron, 382 Mass. 181, 186-187 (1980) (plaintiff's neglect excusable where it resulted from mistake of law not governed by "definite precedent").
The defendants contend that rule 6 (b) is inapplicable because, when the plaintiff sought the extension, judgment of dismissal had already entered and "[r]ule 6(b) ... explicitly excludes [Mass. R. Civ. P.] 60(b) [, 365 Mass. 828 (1974)] relief." The defendants are presumably referring to subsection (3) of rule 6 (b), which prohibits extensions of time for "taking any action under" rule 60 (b) "except to the extent and under the conditions stated" in that rule. This prohibition does not apply here because the plaintiff sought to extend the time for service, not the time for seeking rule 60 (b) relief. We note also that the plaintiff filed his motion to vacate within ten days of the judgment, making it timely under Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974).
The second judge was also within his discretion to deny the defendants' motion to dismiss the complaint under rule 4 (j). By the time the defendants filed the motion, the plaintiff had already served the defendants within the extended time period allowed by the first judge. The second judge thus permissibly determined that service was timely.
2. Statute of limitations. The defendants next contend that there is no evidence to support the jury's finding that the defendants committed a constitutional violation that continued after August 7, 2007. The defendants provide only conclusory assertions in support of this argument, however, with no citations to the record. The argument has therefore been waived. See Mass. R. A. P. 16 (a), as appearing in 481 Mass. 1628 (2019); Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996). Moreover, even absent waiver, the defendants have failed to show that the complaint was time barred. In addition to finding a continuing violation, the jury found that, under the discovery rule, the plaintiff first knew or reasonably should have known of his injuries by January 3, 2008. The defendants do not challenge this latter finding, which alone establishes that the complaint was timely.
The parties agree that a three-year limitations period applies to the plaintiff's § 1983 claims. Thus, accepting the jury's finding of January 3, 2008, as the discovery date, the complaint, filed on August 6, 2010, was timely.
3. Admission of previous Superior Court order. During trial the plaintiff sought to admit in evidence the January 2008 order issued by the judge in the previous Superior Court case. As noted, the order includes the following statement: "The ... [c]ommission offers no reason, other than animosity toward [p]laintiff, for not scheduling the matter for hearing." The trial judge initially declined to admit the order, expressing concern that "any kind of statement by a judge about animosity towards the plaintiff might impair the defendants' right to a jury trial." The trial judge indicated, however, that he would entertain another motion to admit the order "if there is a dispute about what happened at that hearing."
When Quinn was later questioned about what he told the judge at the hearing in the prior case, he testified that he could not recall. The plaintiff then renewed his request to admit the January 2008 order. After confirming with the parties that there was no tape or transcript of the prior hearing, the trial judge admitted the order with a limiting instruction, which provided in part:
"You folks decide what the facts are. The fact that a judge may have said something doesn't tell you how to decide the case.... This is not the judge's decision about the facts. This is just a statement of what happened in court. It's just as though it were a transcript or something like that .... So that's the only purpose for which I'm allowing this in."
In arguing that the trial judge erred, the defendants characterize the issue as one of offensive collateral estoppel. But as shown by the limiting instruction, the judge admitted the order as "a statement of what happened in court," while emphasizing that it was the jury's role to decide the facts. It is clear that the judge did not apply collateral estoppel effect to the order. The defendants have thus failed to show an abuse of discretion. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013) (evidentiary decisions reviewed for abuse of discretion).
4. Sufficiency. Finally, we consider the sufficiency of the evidence supporting the jury's findings of an equal protection violation by all five defendants and a substantive due process violation by Sargent. The defendants raised this challenge through a motion for directed verdict and a motion for judgment notwithstanding the verdict (judgment n.o.v.) or for a new trial. "The denial of a motion for directed verdict or a motion for judgment [n.o.v.] both present questions of law reviewed under the same standard used by the trial judge." O'Brien v. Pearson, 449 Mass. 377, 383 (2007). "Our duty in this regard is to evaluate whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant].’ " Id., quoting Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992). A decision to deny a new trial, on the other hand, "rests in the sound discretion of the judge." O'Brien, supra at 384. The standard to be used by the judge was whether the verdict revealed that "the jury ‘failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.’ " Id., quoting Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989).
a. Equal protection. To prevail on a claim of a "class of one" equal protection violation, a plaintiff must show that "(i) he was treated differently than other similarly situated [people] and (ii) the differential treatment resulted from a gross abuse of power, invidious discrimination, or some other fundamental procedural unfairness." Mancuso v. Massachusetts Interscholastic Athletic Ass'n, 453 Mass. 116, 129 (2009), quoting Pagan v. Calderon, 448 F.3d 16, 34 (1st Cir. 2006), cert. denied, 532 U.S. 995 (2001). Where, as here, "applicable state law vests the decisionmaker with discretionary authority to award or withhold a ... benefit, a plaintiff who grounds an equal protection claim on the denial of that benefit faces a steep uphill climb." Mancuso, supra at 128-129, quoting Pagan, supra. "[E]ven an arbitrary denial of a [discretionary benefit] in violation of state law -- even in bad faith -- does not rise above the constitutional threshold for equal protection ... claims." Mancuso, supra at 129, quoting Baker v. Coxe, 230 F.3d 470, 474 (1st Cir. 2000). At a minimum the plaintiff must demonstrate an "egregious abuse of power." Mancuso, supra, quoting Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 44 & n.5 (1st Cir. 1992).
Here, the judge instructed that the plaintiff needed to prove three things to establish an equal protection violation: "One, that the defendant intentionally treated [the plaintiff] differently than other similarly situated persons; two, there was no rational basis for the difference in treatment; and three, that the difference in treatment [the plaintiff] received was due to the defendant's malicious or bad-faith intent to injure him." The judge then instructed that, to prove "malicious or bad-faith intent to injure," the plaintiff "must show that each defendant acted in a way that was utterly unjustified based upon ill will or desire to cause harm and was extreme. You just show [sic ] that defendants' actions subjected [the plaintiff] to a gross abuse of power or fundamentally unfair procedure." The judge did not further define "gross abuse of power or fundamentally unfair procedure."
The defendants argue that the jury should have found that there was a rational basis for "the actions of the defendants at each step along [the] ... permitting process." In particular, the defendants claim that the commission's actions were motivated by concerns that the property was within a coastal bank and that the plaintiff's development could exacerbate coastal flooding. But the plaintiff offered evidence that the commission made different determinations with respect to similarly situated properties. The plaintiff also offered evidence that the normal period to get a building permit for similar projects is around two weeks, but Duca delayed granting the plaintiff's permit for several months. As the defendants do not articulate any rational basis for the differential treatment, we conclude that the evidence is adequate to support this aspect of the verdict.
The defendants do not contest that these properties were similarly situated.
The defendants next argue that there was no evidence of a malicious or bad-faith intent to injure, relying in support on Federal cases dismissing § 1983 claims at the pleadings stage. These cases clearly establish that a plaintiff cannot state a claim of an equal protection violation merely by alleging that a planning board treated him differently from those similarly situated. See, e.g., PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 32-33 (1st Cir. 1991), cited with approval in Mancuso, 453 Mass. at 130. This is so even if the board "depart[ed] from administrative procedures established under state law" or "deni[ed] ... a permit based on reasons illegitimate under state law." PFZ Props., 928 F.2d at 32. "[A]llegations reflective of more fundamental discrimination" are required. Id. at 33. See Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 628-629 (1989).
The problem for the defendants is that they did not object to the jury instructions, which therefore became law of the case. See Hill v. Metropolitan Dist. Comm'n, 439 Mass. 266, 275 (2003). The instructions, reasonably construed, state that the plaintiff could meet his burden of proof by showing that the defendants acted with "malicious or bad-faith intent" in that they "subjected [the plaintiff] to a gross abuse of power or fundamentally unfair procedure." Cf. Mancuso, 453 Mass. at 129 (even "bad faith" denial of discretionary benefit does not establish "class of one" equal protection violation). While we think the issue is a close one, we conclude that the plaintiff met this burden. Specifically, we conclude that the jury could have found a "fundamentally unfair procedure" -- which again is not further defined in the instructions -- based on evidence that the defendants imposed conditions on the plaintiff that they did not impose on similarly situated applicants, denied the plaintiff's application for lack of information without specifying what was missing, did not approve the project even after the DEP issued a superseding order of conditions, and failed to comply with the Superior Court's remand judgment. The jury could also have relied on deposition testimony from a former commission member that the commission was "reaching for negative reasons" to deny the plaintiff's application. This evidence, taken together, provides the minimally necessary factual support for the jury's finding of malice or bad faith, as defined in the instructions, warranting denial of the defendants' motions.
The defendants argue that their motions should have been allowed because the jury rejected the plaintiff's theory of the case -- that the defendants were acting at the behest of the plaintiff's neighbor, former Quincy mayor Frank McCauley -- as shown by the verdict in McCauley's favor. But the jury did not need to find McCauley liable to conclude that the defendants subjected the plaintiff to a fundamentally unfair procedure. Moreover, there are any number of reasons that could have led the jury to find McCauley not liable; for example, the judge instructed that McCauley, as a private citizen, could not "be penalized for exercising his constitutional rights."
b. Substantive due process. While "[t]he standards for finding a violation of substantive due process are not precise," it is "clear that what is required is misconduct that is ‘stunning, evidencing more than humdrum legal error.’ " Freeman v. Planning Bd. of West Boylston, 419 Mass. 548, 560 (1995). In local planning matters, relief under § 1983 is reserved for "truly horrendous situations." Id., quoting Nestor Colon Medina & Sucesores, Inc., 964 F.2d at 45. Put differently, the defendant's conduct must be "so egregious that ‘it "shocks the conscience" or is otherwise offensive to the "concept of ordered liberty." ’ " Temple v. Marlborough Div. of the Dist. Court Dep't, 395 Mass. 117, 130 (1985), quoting Frost v. City & County of Honolulu, 584 F. Supp. 356, 363 (D. Haw. 1984). See Rochin v. California, 342 U.S. 165, 169-172 (1952). "Even ‘a ... bad faith refusal to follow state law in ... local administrative matters ... does not amount to a deprivation of due process where the state courts are available to correct error.’ " Freeman, supra, quoting PFZ Props., Inc., 928 F.2d at 32.
Under these standards, which were correctly set out in the jury instructions, the evidence is insufficient to show that Sargent violated the plaintiff's substantive due process rights. Freeman controls the issue in all material respects. There, the court reversed a jury verdict finding a local planning board liable for a substantive due process violation based on its delay in approving the plaintiff's proposed subdivision plan. Freeman, 419 Mass. at 549. Similar to the circumstances here, the evidence was sufficient for the jury to find that the board attempted to impose conditions on its approval of the plan that "it knew were invalid, beyond the scope of its power, and contrary to repeated orders issued by a judge in the Superior Court." Id. at 557. The jury also could have found "that the board was unnecessarily dilatory in its consideration of the plaintiff's ... plan." Id. Nonetheless, the court "ha[d] no hesitation in concluding that this case does not present one of the ‘truly horrendous’ situations in which relief is available by means of a claim under § 1983." Id. at 561. The court cited two reasons: (1) it was not "clear that the board deliberately flouted the [Superior Court] judge's authority"; and (2) "[m]ost importantly ... the plaintiff prevailed in the state courts, and as a result, now has [his planning board approval]" (quotation and citation omitted). Id. at 562.
We likewise have no trouble concluding that this is not one of those "truly horrendous situations" entitling the plaintiff to relief under the due process clause. Although the plaintiff claims that Sargent deliberately flouted the remand judgment, the evidence shows only that she believed she could not handle the matter because the plaintiff "was suing her" and referred him to the city's legal department. This does not plausibly constitute the type of conscience-shocking behavior necessary to prove a substantive due process violation. Cf. Freeman, 419 Mass. at 561-562 (board's failure to comply with judge's order did not violate due process where, among other factors, board acted in accordance with advice from town counsel). Moreover, the plaintiff ultimately obtained a judgment in his favor from the Superior Court, allowing him to move forward with the project. In other words, as the defendants note, "the state courts [were] available to correct [the] error" (citation omitted). Id. at 560. The plaintiff does not contend otherwise, nor does he offer any meaningful distinction of Freeman. As to the substantive due process claim, Sargent's motion for directed verdict or for judgment n.o.v. should therefore have been allowed.
This leaves the question of disposition. Although the jury returned a special verdict on liability for each § 1983 claim, they did not separately calculate damages on the claims. Instead, the jury awarded damages in a lump sum of $420,000. Given the theory of damages put forward by the plaintiff, we cannot on this record "ascertain the amount of damages the jury assessed for" each claim. Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 393 (2005). "In such a situation, with the damages on [separate] claims ( [one] of which [is] invalid, one of which is sound) awarded in an undifferentiated lump sum, there must be a new trial on damages." Id.
The plaintiff's theory was that he should receive the difference in property value between July 2004 (when the commission denied the permit) and August 2010 (when the complaint was filed), along with loss in investment income and emotional distress damages. As in Ayash, 443 Mass. at 393 n.23, the lump sum awarded by the jury "comprised damages flowing from the entire scenario [outlined at trial], and lacking any itemization from the jury, it is impossible to identify how much of that total is attributable to" each claim.
Conclusion. On count I of the complaint, against the defendants in their individual capacities, so much of the judgment on jury verdict as determined that defendant Heather I. Sargent violated the plaintiff's substantive due process rights is reversed, as is the award of compensatory and punitive damages, and attorney's fees on that claim. As to the equal protection claim, so much of the judgment as determined that the defendants violated the plaintiff's equal protection rights is affirmed, as is the award of punitive damages against the remaining four defendants. So much of the judgment as awards punitive damages against Sargent and compensatory damages and attorney's fees on the equal protection claim against all defendants is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
Given our ruling, the plaintiff's request for appellate attorney's fees and double costs is denied.
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So ordered.
Reversed in part; affirmed in part; vacated in part and remanded