Snyder v. Collura, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [12-1422]

Case: 12-1422

Document: 00116705940

Page: 1

Date Filed: 06/25/2014

Entry ID: 5833911

United States Court of Appeals
For the First Circuit
No. 12-1422
ROBERT S. SNYDER,
Plaintiff, Appellee,
v.
RALPH E. GAUDET; PATRICK POWELL,
Defendants, Appellants,
BERNADETTE D. SEWELL; CITY OF WALTHAM; SERAFINA COLLURA;
JEANNETTE A. MCCARTHY,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.

Bernadette Dunn Sewell, Assistant City Solicitor, City
of Waltham Law Department, for appellants.
Zaheer A. Samee, with whom Leonard A. Frisoli and
Frisoli Associates, P.C., were on the brief, for appellee.

June 25, 2014

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KAYATTA,

Circuit

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Date Filed: 06/25/2014

Judge.

Robert

Snyder

Entry ID: 5833911

operated

a

business in a building he owned, and shared with two tenants, in a
mostly residential area of Waltham, Massachusetts.

After Snyder

fired an employee who was a member of the Waltham city council, the
former employee complained to the city building department that
Snyder

was

using

his

property

unlawfully.

Code

enforcement

officers then scrutinized Snyder's use of his property and fined
him under a local land use ordinance.

Snyder eventually brought

this suit under 42 U.S.C. § 1983 against the city of Waltham and
five individuals, claiming a violation of his right to equal
protection of the laws under the Fourteenth Amendment to the United
States Constitution. After unsuccessfully seeking summary judgment
based on immunity defenses, two of the individual defendants filed
this appeal.

Finding that they are entitled to judgment as a

matter of law, we reverse.
I. Background
In reviewing an interlocutory appeal from a denial of
qualified immunity, we accept as given the facts that the district
court ruled could be found by a reasonable jury viewing the
evidence in the light most favorable to the plaintiff. See Johnson
v. Jones, 515 U.S. 304, 313-19 (1995).

We do not entertain

challenges to the inferences drawn by the district court in doing
so or to its determinations regarding the evidentiary support for
the plaintiff's claims. See id.; Cady v. Walsh, ___ F.3d ___, ___,

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2014 WL 2518865, at *10 (1st Cir. June 4, 2014).

Entry ID: 5833911

We can consider

an interlocutory appeal of this kind, then, to the extent the
appellants ground their arguments in the record as viewed most
favorably

to

the

plaintiff,

leaving

undisturbed

inferences implied by the district court's decision.
515 U.S. at 319.

all

factual

See Johnson,

Here, while Gaudet and Powell sometimes stray

from that path in their brief, the facts that ultimately prove
dispositive are those that both sides agree we can assume to be
true for purposes of this appeal.

We describe those facts below,

adding some additional context.
Snyder's difficulties with the city began when he fired
an employee, Serafina Collura, who served as a member of the
Waltham city council.

Collura soon complained to the city's

building department that Snyder's use of his building violated a
land use ordinance because, according to Collura, Snyder rented a
portion of the second floor as a residence.

Collura continued to

pressure city officials to investigate Snyder over the following
months.
Appellants Ralph Gaudet and Patrick Powell were Waltham's
superintendent of public buildings and senior building inspector,
respectively. Gaudet and Powell eventually did investigate Snyder.
The district court found it reasonable to infer, and we accept for
purposes of this appeal, that Gaudet and Powell knew of Collura's
motivations and acted "in aid of [her] efforts."

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Powell inspected

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Snyder's property twice in February 2007, approximately seven
months after Collura first complained. Although Powell initially
indicated in a conversation with a city attorney that he had found
no violations during his inspections, he later issued a citation to
Snyder in June 2007.

We assume that Powell's about-face can be

attributed to pressure from Collura.
In the citation, Powell found that Snyder had violated a
zoning variance issued to the original owner of the building in
1967 by using it for purposes other than professional offices. The
original owner, an optometrist, had sought to use the property for
three medical offices and received a variance allowing its use as
"professional offices."

The original owner sold the property to

another optometrist, who sold to Snyder in 1997.

The parties

dispute whether the variance allowed use of the second floor as a
residence, but we need not consider the issue, because we accept
solely for purposes of our consideration of this interlocutory
appeal that Snyder never engaged in such residential use.
Snyder maintains that he complied with the variance
because the building was used entirely for professional offices.
But he has admitted the truth of several facts described in
Powell's citation.

First, Powell found, and Snyder has conceded,

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that one room in the building was used to perform massages.1
Second, he has conceded that a second room was used as the office
of a roofing contractor, who he says also used it for work as a
paralegal.

Finally, Powell found that Snyder used his own office

as a "warehouse" for "receiving and shipping."

Although Snyder

disputes the characterization of his own office as a "warehouse,"
he admits that he used it to store the small metal components his
company manufactures for eventual shipment to customers.
Powell's citation instructed Snyder to either cease and
desist from violations of the variance, or show evidence that he
was applying to the city's zoning board of appeals to modify the
variance.

If he did neither, he would face fines escalating to

$300 per day.

Snyder eventually pursued a modification, but the

zoning board of appeals did not grant one.

Meanwhile, the city

issued several fines to Snyder, starting with a $50 fine in
November 2007 (about four months after the citation issued),
followed by further fines in May 2008, at which time Snyder was
told that he would continue to be fined $300 for each additional
day that passed until he corrected the violation.
Snyder contested the fines in the Waltham district court,
which denied their enforcement in December 2008. Approximately two

1

According to the tenant who performed massages, she was not
a licensed masseuse, and although she also worked as a nurse,
nothing she did on Snyder's property related to nursing. Snyder
does not dispute this testimony.
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and a half years later, the court entered a docket entry, at the
behest of an attorney for Waltham, to "clarify" that it had found
sufficient evidence of a violation but had dismissed the fine
because Snyder had later come into substantial compliance.
II. Standard of Review
As noted above, we have jurisdiction only to consider
Gaudet and Powell's legal argument that, on the facts described
above, they were entitled to immunity.
review is de novo.

On that legal issue, our

Suboh v. District Attorney's, 298 F.3d 81, 90

(1st Cir. 2002).
III. Analysis
To assess qualified immunity, we ask whether a government
official "violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct."
Plumhoff

v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal

quotation marks omitted).

For a right to be clearly established,

"existing precedent must have placed . . . beyond debate" that the
"particular conduct" at issue violated the plaintiff's rights.
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083-84 (2011).
In

the

district

court,

Snyder

alleged

that

Gaudet,

Powell, and the other defendants violated his rights to equal
protection

and

substantive

due

process

under

the

Fourteenth

Amendment, and his right to be free from unreasonable seizure under
the Fourth Amendment, and that they conspired to do so.

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The

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defendants moved for summary judgment, claiming among other points
that Gaudet and Powell were entitled to qualified immunity.

The

district

all

court

defendants.
protection

denied

that

motion

as

to

all

claims

and

On this appeal, Snyder relies only on his equal
claim

to

defeat

Gaudet

and

Powell's

assertion

of

qualified immunity, thereby waiving any argument that the other
claims survive the immunity defense.
326 F.3d 290, 299 (1st Cir. 2003).

See Tower v. Leslie-Brown,

Snyder also asserts before us

a violation of the Excessive Fines Clause of the Eighth Amendment,
but he never presented that claim to the district court, so we will
not consider it.

See Rodríguez-García v. Miranda-Marín, 610 F.3d

756, 774-75 (1st Cir. 2010).

We therefore train our review on his

only preserved federal claim against these defendants: his equal
protection claim.2
Because Snyder contends that the government singled him
out for differential treatment for reasons unique to him, rather
than because of his membership in any group, his equal protection
claim is of the "class of one" variety.

See id.

In such an equal

protection claim, Snyder must show that he "has been intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment."
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

2

Vill. of

In claims such as

Snyder's complaint also raised several state law claims,
which are not at issue on this appeal.
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Snyder's,

the

plaintiff

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Date Filed: 06/25/2014

ordinarily

must

also

show

Entry ID: 5833911

that

the

defendant's differential treatment of the plaintiff was motivated
by "bad faith or malicious intent to injure," Rubinovitz v. Rogato,
60 F.3d 906, 911 (1st Cir. 1995), but we need not reach that
requirement because we find that Snyder cannot prevail in showing
differential treatment.
In a class of one equal protection claim, proof of a
similarly
essential.
2007).

situated,

but

differently

treated,

comparator

is

See Cordi-Allen v. Conlon, 494 F.3d 245, 250 (1st Cir.

In particular, "plaintiffs must show an extremely high

degree of similarity between themselves and the persons to whom
they compare themselves."
omitted).

Id. at 251 (internal quotation marks

They must show that they "engaged in the same activity

. . . without such distinguishing or mitigating circumstances as
would

render

the

comparison

inutile."

Id.

Moreover,

this

requirement "must be enforced with particular rigor in the land-use
context

because

always,

treat

zoning

one

decisions

landowner

'will

differently

often,
from

perhaps

almost

another.'"

(quoting Olech, 528 U.S. at 565 (Breyer, J., concurring)).

Id.

Snyder

has not argued that the rigorous similarity requirement should be
relaxed due to any special circumstance of his case.
Snyder does not point to any owner of another building,
operating under a similar variance, who was allowed to use that
other building as Snyder used his own. Instead, Snyder says he was

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treated

Document: 00116705940

differently

than

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the

prior

Date Filed: 06/25/2014

owner

of

this

Entry ID: 5833911

particular

property, who received a letter from Gaudet in 1994 stating that
his use of the property was acceptable under the variance.

In

particular, according to the letter, the prior owner could use the
"first floor office for Optometry" and the second floor for
"residential use for the Optometrist and his/her family."

Snyder

points to this letter as proof that he was treated differently than
the prior owner.
But Snyder also admits that he and his tenants used the
property in very different ways than the prior owner: not for
providing personal services by medical professionals but rather
for, among other things, coordinating contract work for roofing and
paralegal

services,

manufacturing

small

and
metal

facilitating
components.

Snyder's

These

relevant to the city's actions in this case.

business

differences

are

The variance was

first requested and obtained by an optometrist who sought to use
the building for medical offices.

The next owner continued to use

the building as an optometry office, and Gaudet's 1994 letter
confirmed that this use was acceptable. In other words, both prior
owners used the building exactly as the city had originally
authorized it to be used.

Snyder's use, in contrast, departed

significantly from that original purpose.

These undisputed facts

separate this case from those in which we have allowed an equal
protection claim to proceed, such as where multiple landowners

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installed

plumbing

circumstances,
plumbing.

but

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Date Filed: 06/25/2014

with

no

permit,

only

one

was

in

materially

required

to

Entry ID: 5833911

identical

disconnect

the

Rubinovitz, 60 F.3d at 910-12.
Snyder

nevertheless

maintains

that

the

differences

between his use and that of the prior owner were immaterial because
both

used

skeptical

the
that

building
a

for

roofing

"professional
contractor

and

offices."
the

We

owner

of

are
a

manufacturing company, for example, qualify as professionals under
the variance, as Snyder urges us to conclude.

But even if we were

to so conclude, our task is not to decide in the first instance how
the variance should be applied.

Rather, we need only to determine

if there was a rational basis for distinguishing between Snyder and
the prior owner.

See Cordi-Allen, 494 F.3d at 250-51.

In other

words, the similarly situated standard requires more than a showing
that

the

government

erred

in

applying

interpretation in a novel situation.3

authority

open

to

See id. at 251 (explaining

that "[t]he 'similarly situated' requirement furnishes the limiting
principle" that prevents "virtually every zoning decision" from
leading to an equal protection case).

3

Because the undisputed facts make clear that there was a
rational basis for distinguishing between Snyder and the prior
owner, we need not consider the effect of the statement issued by
the Waltham district court, two and a half years after the end of
the enforcement proceedings, that he had failed to comply with the
variance.
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Snyder's

claim

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is

also

Date Filed: 06/25/2014

weakened

by

the

Entry ID: 5833911

passage

of

thirteen years between Gaudet's letter to the prior owner in 1994
and the city's citation of Snyder in 2007.

We have noted that "the

most reliable comparisons are likely to be from roughly the same
time

frame,"

particularly

in

the

land-use

context,

where

"differential treatment following a time lag . . . may indicate a
change in policy rather than an intent to discriminate."
253.

Id. at

Here, indeed, the city may have changed its policy regarding

the enforcement of variances.

Gaudet and Powell point to a city

ordinance passed in 2005 that arguably affected the degree of
discretion afforded to city officers in applying variances. Snyder
offers no rebuttal to the defendants' claim that the ordinance
distinguishes his situation from that of the prior owner.
Given the undisputed facts, no law clearly established at
the time Gaudet and Powell acted would allow Snyder to prevail on
his equal protection claim by showing he was treated differently
than the prior owner.

And he fares no better in his attempt to

compare how the city treated him after he fired Collura to how it
treated him before he did so. Snyder cites no case suggesting, let
alone clearly establishing, that a plaintiff in an equal protection
case can use himself as a comparator. On the contrary, the Supreme
Court and this court have always described equal protection claims
as based on differential treatment between one person, or a group
of people, and "others similarly situated."

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E.g., Olech, 528 U.S.

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at 564 (emphasis added). We are doubtful Snyder can use himself as
his own comparator, as accepting that approach would have broad
implications, converting any claim of retaliation (for any reason)
into an equal protection case, and effectively eliminating the
differential

treatment

element

of

equal

protection

claims.

Nonetheless, we need not resolve that question because, as a
factual matter, Snyder does not allege that Gaudet, Powell, or
anyone in the city's building department knew before he fired
Collura how he was using the property, so there would appear to be
no differential treatment even if he were allowed to be his own
comparator.
IV. Conclusion
We acknowledge that many citizens looking at the facts of
this case would perceive an abuse of government power.

Indeed, we

have assumed, solely for the purposes of this appeal, that Collura
acted

in

bad

faith,

and

that

Gaudet

contributed to her retaliatory effort.
countless

decisions

every

day,

and

Powell

knowingly

But local governments make

many

of

which

inevitably

disadvantage someone who can credibly claim that a local official
acted out of personal hostility.

This is especially so in our

smaller cities and towns, where many people know their public
officials.

State and local law often provides recourse for

challenging

the

imposition

of

fines

or

the

burdens

of

administrative rulings by local officials that violate state or

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local law.

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So, too, the political process may provide a venue for

correcting or deterring abuses.

And federal courts obviously play

an important role in adjudicating claims that such abuses violate
federal law.

Where, as here, however, municipal officials did not

violate any clearly established federal law, federal law provides
no basis for making local government officials pay damages.
We therefore reverse the district court's denial of
Gaudet and Powell's motion for summary judgment on Snyder's federal
claims.
So ordered.

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