Ryan et al v. Yost et al
ORDER granting 13 Motion for Summary Judgment. So Ordered by Senior Judge Mary M. Lisi on 4/3/2017. (Feeley, Susan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JOHN RYAN and
C.A. No. 15-229-ML
DEBORAH YOST, Individually and
in her capacity as Finance Clerk of the TOWN OF
COVENTRY, ROBERT THIBEAULT, in his capacity
as Finance Director/Treasurer of the TOWN OF
COVENTRY, and THE TOWN OF COVENTRY RHODE
MEMORANDUM AND ORDER
“Plaintiffs”), residents of the Town of Coventry (the “Town”), have
brought federal constitutional and state law claims against Town
Director/Treasurer Robert Thibeault (“Thibeault”), and the Town
(together with Yost and Thibeault, the “Defendants”).
The Defendants have moved for summary judgment. For the
Prior to the filing of this complaint, the Ryans and Yost had
The facts are taken primarily from the Defendants’ Statement
of Undisputed Facts (“SUF”), as supplemented by additional facts
asserted by the Plaintiffs. (ECF Nos. 13-2, 17).
been friends for many years. In 2005, the Ryans moved to Wisteria
Drive in Coventry and became Yost’s neighbors. SUF ¶1, Complaint
department; Yost works as a clerk in the Town Tax Assessor’s
office; and John R. worked for the Town as a civilian dispatcher
and/or reserve officer between 1987 and 2003. SUF ¶1.
In September 2007, the Ryans requested a waiver from Town
Animal Control Supervisor Carolyn Lacombe (“Lacombe”) to keep a
fourth dog2 at their residential property. SUF ¶2. According to the
Ryan’s application letter dated September 21, 2007, the Ryans had
three licensed dogs at the time and wished to add a fourth. They
surrounding neighbors regarding their pets. Defs.’ Ex. A (ECF No.
13-3, p.2). After the request was granted on the condition that
Animal Control not receive any complaints about the dogs, the Ryans
began breeding their four dogs and selling the litters from their
home. SUF ¶¶3, 4.
At the time, the Ryans’ dogs produced two litters per year of
eight to ten puppies per litter.3 Prospective buyers would come by
Pursuant to the Town’s Code of Ordinances at the time, it was
unlawful to keep more than three licensed dogs at the same
residence, except as permitted by the ACO. Defs.’ Ex. A (ECF No.
It is undisputed that, although the price per puppy at that
time was $500, the Ryans’ puppies currently sell for $2,200 each.
Put another way, the Ryans’ self-described “hobby,” Complaint ¶19
the residence to view the puppies and then pick them up at a later
date. SUF ¶5.
After the relationship between the parties had soured, Yost
complained to Animal Control about the activity generated by the
breeding and selling of puppies. SUF ¶6. By letter dated July 8,
2009, Lacombe informed the Ryans that the Animal Control Division
(“ACD”) had received a complaint on July 7, 2009, alleging that the
number of dogs at their residence was creating a nuisance. SUF ¶6,
7. The letter further states that ACD “must revoke the previously
granted exception to have four dogs at your residence.” Defs.’Ex.
B (ECF No. 13-3, p. 4). Although the parties offer differing
explanations, it is undisputed that the waiver remained in place.
At some point, Yost asked Lacombe’s supervisor Major Schmitter
about the dogs and the activity generated by breeding and selling
puppies. SUF ¶9. Major Schmitter met with Lacombe and Therese R.
and told her about Yost’s complaint. According to Therese R., Major
Schmitter told her just to get rid of the dogs. After she rejected
that suggestion, he did not discuss the subject again. SUF ¶10.
Next, Yost checked the Town zoning laws and discovered that
keeping more than four dogs in a residential area required a kennel
license. Because the Ryans did not have a kennel license, Yost
of breeding their dogs is yielding receipts of $35,000 to $44,000
filed a complaint with Zoning Enforcement Officer Jacob Peabody
(“Peabody”). SUF ¶11. On September 8, 2010, Peabody issued a Notice
of Violation to the Ryans for (1) operating a commercial business
in a residential zone without receiving a zoning approval; (2)
having commercial signage on their property; and (3) running a
kennel in an R-20 zone. Defs.’ Ex. C (ECF No. 13-3, pp. 6, 7). The
ordered to bring their property into compliance within
seven days or risk a $500 fine per day, per violation. Id.
undisputed that the Ryans did not appeal the Notice, nor did they
obtain a kennel license. Instead, they decided to move while the
Plaintiffs, Peabody advised them that he would not prosecute the
violation if they moved. Plaintiffs’ Statement of Disputed Facts
By letter dated November 24, 2010, the Town Department of
Planning and Development sent a Discharge of Notice of Violation
(which had been recorded in the Town’s Land Evidence Records) to
Plaintiffs’ counsel, noting that upon Plaintiffs’ re-location to
Western Coventry, “the current issue will be rendered moot.” Defs.’
Ex. D (ECF No. 13-3, pp. 9, 10).
After the Plaintiffs moved to their new residence, Town Tax
Assessor Patricia Picard (“Picard”) noticed an apparent discrepancy
in the evaluation of Plaintiffs’ property. SUF ¶¶15, 16. On May 11,
2013, after driving by the Plaintiffs’ residence, Picard sent a
Notice of Increase in Assessment to Plaintiffs, informing them that
their property had been reassessed to “include a half story of
living area over a the [sic] portion of your home.” SUF ¶ 16,
Defs.’ Ex. E (ECF 13-3, p. 12). The Plaintiffs promptly contacted
established that the living space of their residence was less than
what was stated in the initial assessment. ¶¶17, 18. Based on this
reduced the assessment. ¶18.
After consulting their attorney, the Plaintiffs applied for a
kennel license and a special use permit to breed and sell puppies
from their new home. ¶19. On June 1, 2011, the Town Zoning Board of
Review (“ZBR”) granted the Plaintiffs’ request for a special use
permit to operate a dog kennel out of their residence. SUF ¶20. The
ZBR decision notes that the primary use of the Plaintiffs’ property
Defs.’ Ex. F (ECF No. 13-3, pp. 14-17).
plaintiffs an Annual Return for Furniture Fixtures and Effects
(“FFE Filing”). SUF ¶21, Defs.’ Ex. G (ECF No. 13-3, pp. 19, 20).
In her correspondence attached to the FFE filing, Picard explained
that the request for FFE filing was the result of Plaintiffs’
receipt of the special use permit. SUF ¶21. It is undisputed that
other individuals in Town who held kennel licenses were also issued
notices for the FFE filing. SUF ¶22.
The tax bills issued in July 2013 reflected that the tax rate
of the Plaintiffs’ property was changed to commercial rate in
accordance with Rhode Island law. SUF ¶23. By letter dated October
23, 2013, the Plaintiffs appealed the 2013 assessment on their
property, noting that other kennels in Western Coventry holding
kennel licenses were all taxed at a residential, not a commercial
rate. SUF ¶25; Defs.’ Ex. I (ECF No. 13-3, pp. 24, 25).
In response, Picard informed the Plaintiffs by letter dated
November 25, 2013 that their appeal was denied and that their
property was taxed at the commercial rate because “residential
properties containing partial commercial or business uses” pursuant
to a special use permit are taxed at the commercial rate pursuant
to Rhode Island General Laws. Defs.’ Ex. H (ECF No. 22). Picard
noted that properties the Plaintiffs had listed in their appeal as
having kennel licenses “have them because they do it for a hobby,”
and that, unlike the Plaintiffs, those properties did not obtain a
special use permit. Id.
The Plaintiffs did not further appeal
Picard’s denial of their tax appeal. SUF ¶26. The Plaintiffs do not
homeowners who had obtained a special use permit for any type of
commercial enterprise on their residential property also had their
tax rate changed to commercial. SUF ¶24.
Although the Plaintiffs maintain that Yost discussed the
reassessment of Plaintiffs’ property with Picard, they agree that
the decision to change their tax rate, issue the FFE notices, and
modify Plaintiffs’ assessment were “solely the decision and action
of [Picard].” SUF ¶27.
II. Procedural History
“Complaint”)(ECF No. 1) against the Defendants in this Court,
alleging (Count I) Deprivation of Equal Protection pursuant to 42
U.S.C § 1983; (Count (II) Intentional Infliction of Emotional
Distress; (Count III) Negligent Infliction of Emotional Distress;
(Count IV) Deprivation of Equal Protection pursuant to Article I,
respondeat superior. Plaintiffs also seek a declaratory judgment
(Count VII). Defendants filed an answer in response on June 25,
2015 (ECF No. 5)4.
Following a lengthy discovery period, the Defendants filed a
motion for summary judgment on October 11, 2016 (ECF No. 13). The
Plaintiffs responded with an objection on November 2, 2016 (ECF No.
15), to which the Defendants filed a further reply on November 8,
2016 (ECF No. 16).
Defendants’ motion, in the course of which the parties were given
an opportunity to argue their respective positions and to respond
As acknowledged by Plaintiffs’ counsel at the November 9, 2016
hearing, Count VI for injunctive relief was dismissed, with
prejudice, by agreement of the parties.
to questions from the Court.
Per request from the Court, the
Defendants filed a supplemental Statement of Undisputed Facts (ECF
No. 19) on November 16, 2016. Plaintiffs filed a supplemental
Statement of Undisputed Facts (ECF No. 20) on December 7, 2016, to
which the Defendants filed a response in opposition (ECF No. 21) on
December 13, 2016.
III. Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed. R. Civ. P.
56(a). “A dispute is genuine if the evidence about the fact is such
that a reasonable jury could resolve the point in the favor of the
Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir.
2008) (internal quotation marks and citations omitted). “A fact is
material if it has the potential of determining the outcome of the
Id. (quoting Maymi v. Puerto Rico Ports Auth., 515
F.3d 20, 25 (1st Cir. 2008).
Merchants Ins. Co. of New Hampshire, Inc. v. U.S. Fidelity and
Guar. Co., 143 F.3d 5, 7 (1st Cir. 1998). “Once such a showing is
made, ‘the burden shifts to the nonmoving party, who must, with
respect to each issue on which [it] would bear the burden of proof
at trial, demonstrate that a trier of fact could reasonably resolve
that issue in [its] favor.’” Flovac, Inc. v. Airvac, Inc., 817
F.3d849, 853 (1st Cir. 2016) (quoting Borges ex rel. S.M.B.W. v.
Serrano–Isern, 605 F.3d 1, 5 (1st Cir.2010)).
The Court, in considering a motion for summary judgment,
“read[s] the record in the light most favorable to the non-moving
party, drawing all reasonable inferences in its favor.”
Ins. Co. of New Hampshire, Inc. v. U.S. Fidelity and Guar. Co., 143
F.3d at 7 (citing Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6
(1st Cir. 1997)).
A. The Complaint
Plaintiffs’ claims are based on the assertions that (1) Yost
“utilized her position in Coventry town government to harass
[them],” Complaint ¶9; and that (2) “[a]ll Defendants, acting under
color of law, deprived the Plaintiffs of Equal Protection of the
Laws by [a] modifying their assessed valuation outside of the
ordinary town cycle for reassessments, by [b] singling out their
residential property for taxation at a commercial rate, and by [c]
assessing taxes on their FFE.” Complaint ¶26. The Plaintiffs also
allege that Yost made “repeated malicious and unfounded allegations
of zoning and/or other violations” against them, which resulted in
Plaintiffs’ mental anguish and suffering. Id. ¶¶31, 32. As to the
Town, the Plaintiffs assert that, as Yost’s employer, the Town is
responsible for Yost’s alleged use of her position to harass and
vex the Plaintiffs. Id. ¶39.
B. The Defendants’ Motion for Summary Judgment
The Defendants assert that, as had been explained to the
Plaintiffs in their tax appeal, the change to a commercial tax rate
was based not on the kennel license, but on the special use permit.
Although the Plaintiffs claim to be similarly situated to other
kennel licensees, they ignore the fact that, unlike those other
licensees, only the Plaintiffs obtained a special use permit to
“breed and sell dogs.” Defs.’ Mem. at 10. As explained by Picard,
and uncontested by the Plaintiffs, Picard routinely reviewed Zoning
Board decisions to determine whether special use permits resulted
in commercial activity on any part of a residential property. Id.
at 11. If that were the case, Picard changed the tax rate from
residential to commercial. Id. Accordingly, at the same time the
properties had their tax rate changed to commercial for the same
With respect to the FFE form sent to Plaintiffs, it is
undisputed that all kennel licensees in the Town were sent an FFE
form as well. Id. at 13. Moreover, it was explained to the
Plaintiffs that the FFE filing was a further result of the issuance
of a special use permit. Id.
Regarding the modification in assessment of the Plaintiffs’
property outside the three-year schedule, the Town notes that,
after the Plaintiffs challenged the modification, the Tax Assessor
promptly lowered the assessment after it was established that the
property description on file with the Tax Assessor’s office was
wrong. Id. at 13. The Defendants contend that Picard acted on
discovering a discrepancy in the Plaintiffs’ property information
in a routine manner, by conducting a drive-by and issuing a
modification. Id. at 14. The Defendants note that the unequal
treatment alleged by the Defendants relates to decisions made and
activities conducted by Tax Assessor Picard, not Yost herself, who
had no authority or decisional power in the matter. Id. at 15-16.
Regarding Plaintiffs’ claims of intentional infliction of
emotional distress, the Defendants point out that the Plaintiffs
have not alleged any physical ills as a result of their treatment
and they further argue that the complained of conduct does not meet
the “extreme and outrageous” standard necessary to establish such
a claim. Id. at 18-20. Likewise, the Defendants argue that the
undisputed facts in this case are insufficient to support a claim
of negligent infliction of emotional distress. Id. at 21.
C. The Equal Protection Claim
The Equal Protection Clause provides that similarly situated
persons must receive substantially similar treatment from their
government. Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004)
(citing Barrington Cove Ltd. P'ship v. R.I. Hous. and Mortgage Fin.
Corp., 246 F.3d 1, 7 (1st Cir.2001)). In order to support an equal
protection claim, a plaintiff must prove that “‘compared with
others similarly situated, [plaintiff] was selectively treated ...
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.’”•Tapalian v.
Tusino, 377 F.3d at 5 (citation omitted); Freeman v. Town of
Hudson, 714 F.3d 29, 38 (1st Cir. 2013).
Plaintiffs in this case do not claim membership in a protected
class; rather, they assert that they have been impermissibly
singled out for unfavorable treatment by the Town. To prove such a
“class of one” claim, the Plaintiffs must establish that (1) they
similarly situated and (2) there is no rational basis for the
difference in treatment. Cordi-Allen v. Conlon, 494 F.3d 245, 250
(1st Cir. 2007).
Moreover, the Plaintiffs—who carry the burden of production
and persuasion to support their assertion “‘must first identify and
relate specific instances where persons situated similarly in all
(quoting•Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir.2006))
(emphasis in original). Although the determination of whether
correlation,” it does require “sufficient proof on the relevant
aspects of the comparison to warrant a reasonable inference of
Cordi-Allen v. Conlon, 494 F.3d at 252
(citing Tapalian v. Tusino, 377 F.3d at 6).
A review of the undisputed facts in this matter reveals that
breeding dogs who held both a kennel license and a special use
residential rate) did not have a special use permit, whereas those
business they were conducting from their homes) were taxed, like
the Ryans, at a commercial rate. The determination to effect a
change from a residential tax rate to a commercial rate was made by
Tax Assessor Picard after she routinely checked for the issuance
and possession of special use permits. Accordingly, the decision to
apply a commercial tax rate to the Plaintiffs’ property was based
on a rational basis and it resulted in equal treatment with other
residents who also held a special use permit. With respect to the
assessment error involving the Plaintiffs’ new residence, it is
acquisition of the house and that, as soon as the Plaintiffs
brought the matter to Picard’s attention, the record was corrected
and the assessment was lowered. As such, the undisputed facts
cannot give rise to an equal protection claim.
At the November 9, 2016 hearing on this matter, the Court
requested that the parties submit additional information to clarify
the extent of Yost’s job responsibilities and/or any decisionmaking authority her job did or did not entail. In response, the
Town provided the official job description of a Coventry Finance
Clerk as well as a summary of Yost and Picard’s description of
Yost’s responsibilities which included:
taking care of the transfer of the property in the town,
administering the tax exemptions, preparing all the
mapping changes, updating all the title information in
the town, receiving any kind of application, form, or
address change submitted by the public, answering any
questions posed or responding to inquiries and preparing,
on a monthly basis, a concise sales report for the public
comprised of sale dates, assessments, names of the owner,
sales price, and property description of recently sold
Defs.’ Supp. SUF at 2 (ECF No. 19).
The Plaintiffs, on their part, offered the contention that, in
addition to her job description, Yost “was more involved in town
actions involving the Plaintiffs.” They do not contend, however,
acknowledge that Picard “informed Yost that she was going to
reclassify the Ryans’ home as commercial.” Pltfs.’ Supp. Resp. at
1-2 (ECF No. 20).
representation at the November 9, 2016 hearing that the Ryans had
applied for a special use permit on the advice of their counsel,
the Plaintiffs now assert, for the first time in this litigation,
that “the requirement of a special use permit was imposed upon them
by Zoning Office [sic] Jacob Peabody.” Id. at 2. Neither the
As Defendants pointed out in their objection to Plaintiffs’
supplemental SUF (ECF No. 21-1), Plaintiffs’ submission far
exceeded the description of Yost’s scope of employment as requested
by the Court.
Defendants’ motion contains such an assertion.6 Instead, both
filings state that the Town Zoning Board noted in its decision to
issue the requested kennel license to the Plaintiffs that it was
common in West Coventry for property owners to obtain kennel
licenses without the necessity of a zoning change.
(ECF No. 1); see Pltfs.’ Mem. at 5 (ECF No. 15-1).
Notwithstanding these additional allegations, the fact remains
that the Ryans, after they had engaged counsel, applied for a
special use permit for the express purpose of breeding and selling
dogs and that the resulting change in tax assessment had a rational
basis. Moreover, the commercial assessment was equally applied to
all residents holding such a permit. As to the FFE form received by
individuals with kennel licenses as well as those holding special
use permits. In other words, Plaintiffs were treated exactly the
same as those other residents who fell into either or both of those
For the purposes of the motion for summary judgment, the
Plaintiffs’ support for this late-made assertion is limited to
affidavits from John Ryan (contending that Peabody insisted on a
use permit and helped him fill out the application form)(ECF No.
20-1 at 1) and from the Ryans’ attorney (noting that he did not
specifically counsel the Ryans to apply for a special use
permit)(ECF No. 20-1 at 6). Not only does Plaintiffs’ assertion
lack support in the record, it is inconsistent with Plaintiffs’
earlier representation that “[t]his time, however, plaintiffs
sought the advice of an attorney and applied for a kennel license
and special use permit to breed and sell puppies from their new
home.” Defs.’ Mem. at 5 (ECF No. 13).
categories and the issuance of an FFE form was rationally based on
the presence of commercial activities.
D. Other Claims
conduct, their claims fall short of establishing that her behavior
was so “extreme and outrageous” to give rise to a claim of
intentional infliction of emotional distress. See e.g. Swerdlick v.
Koch, 721 A.2d 849, 862 (R.I. 1998)(setting forth the elements of
intentional infliction of emotional distress as follows:
(1) the conduct must be intentional or in reckless
disregard of the probability of causing emotional
distress, (2) the conduct must be extreme and outrageous,
(3) there must be a causal connection between the
wrongful conduct and the emotional distress, and (4) the
emotional distress in question must be severe.)
Initially, Plaintiffs were granted an exemption from the
termination if the Town received any complaints about the dogs.
complained about the number of dogs at their residence and the
activity generated by the selling of puppies, the waiver still
remained in place. A further complaint by Yost resulted in a Notice
requiring the Plaintiffs, inter alia, to obtain a kennel license.
Rather than obtain such a license or to appeal the Notice, the
Plaintiffs elected to move.
There is no support for a contention that Yost’s conduct
extended to actual decision making regarding the treatment which
the Ryans have deemed a constitutional violation. And, although
Yost’s complaints about Plaintiffs’ dog breeding activities were
persistent, the resulting circumstances are a far cry from the
facts in Rubinovitz7, on which the Plaintiffs relied in their
pleadings and at oral argument. It is noted that the Plaintiffs do
not assert that either of them suffered “medically established
physical symptomatology” as a result of Yost’s conduct. See e.g.
Vallinoto v. DiSandro, 688 A.2d 830, 838-40 (R.I. 1997)(noting that
“[i]n Rhode Island, a plaintiff must prove physical symptomatology
resulting from the alleged improper conduct”).
With regard to Plaintiffs’ claim of the negligent infliction
of emotional distress, it is unclear how Plaintiffs’ allegations
about Yost’s conduct fit into such a frame work. Plaintiffs suggest
that Yost was under a duty not to engage in “coordinat[ing]
enforcement or taxing actions for improper purposes motivated by
malice.” Pltfs.’ Mem. At 18 (ECF No. 15-1). It is undisputed,
however, that the actions of which the Plaintiffs complain were
initiated and executed by Picard and that any complaints made
against them by Yost were made in her personal, not official
capacity. As such, the facts in this case fail to support a
1995)(concluding that there was “enough indication of a malicious
orchestrated campaign causing substantial harm” to withstand a
motion for summary judgment.)
negligence-based claim or a claim under respondeat superior.
In sum, the undisputed facts in this case do not establish
that the Plaintiffs have suffered unequal treatment nor do they
sufficiently support a claim for the intentional or negligent
withstand the Defendants’ motion for summary judgment.
For the reasons stated herein, the Defendants’ motion for
judgment in favor of the Defendants.
/s/ Mary M. Lisi
Senior United States District Judge
April 3, 2017
Clerk is directed
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