South Commons Condominium Ass'n v. Charlie Arment Trucking, Inc. , 775 F.3d 82 ( 2014 )

United States Court of Appeals
For the First Circuit
Nos. 13-2244
13-2248
SOUTH COMMONS CONDOMINIUM ASSOCIATION; DONALD E. HOUGHTON;
JUDITH A. HOUGHTON; PETER A. ZORZI; SOUTH MAIN REALTY, LLC;
SH REALTY, LLC; JOSEPH M. LAVINSKI; JUDITH D. LAVINSKI;
DALE ELLIOT BASS; LUCY M. PETERSON; MICHELLE J. KACZENSKI;
STUDIO ONE, INC.; BALBONI ASSOCIATES, INC.; MBL HOUSING AND
DEVELOPMENT, INC.; GREGORY P. ZORZI; EDWARD A. PESSOLANO;
JAVIER MULERO, d/b/a Divalicious Salon; THOMAS M. BOVENZI,
Trustee of Main-Hubbard Realty; MADELINE R. ZORZI,
Plaintiffs, Appellants/
Cross-Appellees,
v.
CHARLIE ARMENT TRUCKING, INC.,
Defendant, Appellee/
Cross-Appellant,
CITY OF SPRINGFIELD, MA; DOMENIC J. SARNO, JR., Mayor of
Springfield; STEVEN DESILETS, Springfield Building Commissioner;
DAVID COTTER, Deputy Director of Code Enforcement, Springfield
Housing Division,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Barron, Circuit Judges.
John J. McCarthy, with whom Jesse W. Belcher-Timme and
Doherty, Wallace, Pillsbury and Murphy P.C. were on brief, for
appellants/cross-appellees.
Kara Thorvaldsen, with whom George C. Rockas and Wilson,
Elser, Moskowitz, Edelman and Dicker LLP were on brief, for
appellee/cross-appellant.
Edward Pikula, with whom Lisa DeSousa, Anthony Wilson, and
the City of Springfield Law Department were on brief, for
appellees.
December 23, 2014
BARRON, Circuit Judge. On June 1, 2011, a devastating
tornado struck the City of Springfield, Massachusetts. The twister
ripped through the downtown area and caused a great deal of damage.
Among the buildings affected were the South Commons Condominiums.
This appeal concerns the lawsuit the owners of those buildings
brought against the City, its officials, and one of its
contractors.1
The owners chose to name those defendants because the
destruction of the buildings did not result -- at least not
directly -- from the unprecedentedly high winds that stunned the
City that day. The destruction instead resulted from the
demolition the City ordered -- and the contractor carried out --
just one day after the tornado hit.
In seeking damages for the loss, the owners say the
tornado did not cause enough harm to their buildings to justify the
City's drastic response. And the owners further say the City acted
precipitously -- and, ultimately unconstitutionally -- in razing
the buildings without letting them show how the buildings could
1
In addition to the owners, the plaintiffs in the lawsuit
include some of the buildings' residential and commercial tenants,
as well as the South Commons Condominium Association. For ease of
exposition, we will refer to the group collectively as "the owners"
throughout.
The City officials named as defendants were Domenic J. Sarno
(the Mayor of Springfield), Steven Desilets (Springfield's Building
Commissioner), and David Cotter (Springfield's Housing Division's
Deputy Director of Code Enforcement). But again for simplicity's
sake, we will refer only to the City.
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have been saved. The City defends the demolition as a proper
response to an unprecedented natural disaster. But the City also
argues the process it used to make that emergency judgment followed
Massachusetts law and satisfied the demands of the federal
Constitution -- at least given the allowance the City says the
federal Constitution makes for swift (and thus sometimes mistaken)
governmental efforts to deal with the immediate dangers damaged
properties sometimes pose.
In deciding this appeal, we, like the District Court,
consider only the federal constitutional due process issues. We
leave the owners' various state law claims to the more appropriate
forum: the state courts. And in resolving the federal
constitutional issues, we, like the District Court, do not decide
whether the City's decision to demolish the buildings was the right
one to make. We decide only that, on the record before us, the
District Court correctly concluded the demolition did not deprive
the owners of their property in violation of the federal
Constitution's guarantee of due process of law. Critical to that
judgment, moreover, is our conclusion that Massachusetts offers an
adequate remedy for whatever wrongful loss the owners may have
suffered in consequence of the City's actions. For these reasons,
we affirm the District Court's judgment dismissing the owners'
federal suit under 42 U.S.C. § 1983 with prejudice and their
pendent state law claims without prejudice.
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I.
The tornado cut through the center of the City and caused
significant damage throughout the downtown. Both the Massachusetts
governor and the Springfield mayor declared a state of emergency.
City officials quickly determined the South Commons Condominiums --
a complex consisting of buildings located at 959-991 Main Street,
14 Hubbard Avenue, and 133 Union Street -- were among the
properties that suffered significant damage. Charlie Arment
Trucking, Inc., a private company hired by the City, demolished
most of those buildings the next evening, June 2, 2011. Only one
of the condominium units, Unit 10, was left standing.
Those basic facts are not in dispute. We recite the rest
as the plaintiffs describe them in their complaint, as we do when
we review a district court's decision to grant a motion to dismiss.
See SEC v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010) (en banc).
The National Guard and the state police restricted access
to parts of the City. They evacuated the residents of the South
Commons Condominiums. The City ordered residents to leave the
buildings. The residents were not allowed to return to the
buildings even though they could have been made safe enough to
allow for retrieval of their contents. The City provided no notice
to the residents of the South Commons Condominiums that the City
believed the buildings presented an immediate danger to public
safety that would require their demolition. Thus, the residents
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were given no opportunity to attempt to stop the demolition. Nor
were engineering studies or analyses undertaken to confirm the need
to address the danger the buildings posed or to assess whether the
buildings might be spared.
Nevertheless, Charlie Arment Trucking, Inc., the private
demolition company hired by and acting at the direction of the
City, took down the South Commons Condominiums in a matter of
hours.2 Only days later did City officials issue orders, addressed
to individual unit-owners, tenants, and to the South Commons
Condominium Trust, relating to the demolition.3
Afer the passage of nearly a year, the owners of the
South Commons Condominiums filed suit in federal district court for
damages against the City, several City officials, and Charlie
Arment Trucking, Inc. The suit claimed violations of the owners'
procedural and substantive due process rights under 42 U.S.C.
§ 1983, as well as various violations of Massachusetts state law.
The District Court dismissed the federal claims with prejudice
under Federal Rule of Civil Procedure 12(b)(6) and dismissed the
2
The City later sought to impose a lien on the South Commons
Condominiums for the amount of the demolition costs.
3
The orders began issuing on June 8, 2011, and the City sent
them to the recipients' alternate addresses in some instances, and
also, in some cases, to their addresses at the South Commons
Condominiums. In some cases, moreover, the orders were to vacate
the buildings -- something that was not possible given they had
been demolished already.
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state claims without prejudice as an exercise of its discretion to
deal with pendent claims. This appeal by the owners followed.4
II.
We start with the owners' constitutional concerns about
the processes the City used -- or rather, did not use before the
demolition. And, to do so, we evaluate the demolition with
reference to the state law that authorized it. See Zinermon v.
Burch, 494 U.S. 113, 126 (1990) ("[T]o determine whether a
constitutional violation has occurred, it is necessary to ask what
process the State provided, and whether it was constitutionally
adequate. This inquiry would examine the procedural safeguards
built into the statutory or administrative procedure of effecting
the deprivation, and any remedies for erroneous deprivations
provided by statute or tort law.").
4
The owners argue the District Court improperly relied on
materials outside of the pleadings in ruling on the motion to
dismiss. However,
[a] motion to dismiss is not automatically transformed
into a motion for summary judgment simply because matters
outside the pleadings are filed with, and not expressly
rejected by, the district court. If the district court
chooses to ignore the supplementary materials and
determines the motion under the Rule 12(b)(6) standard,
no conversion occurs.
Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15,
18 (1st Cir. 1992). Reviewing the district court's order, we are
satisfied that supplemental materials, though mentioned "to fill in
the background," were properly excluded in the actual determination
of the motion under a Rule 12(b)(6) standard.
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We undertake that evaluation de novo, which is the same
standard we use to evaluate the owners' substantive due process
claim. We use this standard as we are reviewing the District
Court's decision to dismiss these claims pursuant to Federal Rule
of Civil Procedure 12(b)(6). See Vistamar, Inc. v.
Fagundo-Fagundo, 430 F.3d 66, 69 (1st Cir. 2005).
A.
The parties agree the City did not provide the usual
guarantees of constitutional procedural due process -- notice and
an opportunity to be heard -- before depriving the owners of their
property. But, in some circumstances, the constitutional right to
procedural due process does not actually require the use of those
advance safeguards, at least when the state provides an adequate
remedy afterwards -- or, as the cases often say, post-deprivation.
See, e.g., Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir.
1994) ("Such a procedure satisfies the 'fundamental requirement of
due process' -- an opportunity to be heard 'at a meaningful time
and in a meaningful manner.'" (quoting Parratt v. Taylor, 451 U.S.
527, 540 (1981), overruled in part on other grounds by, Daniels v.
Williams, 474 U.S. 327 (1986))).
And so, we must answer two questions. First, we must
decide whether this case involves the kind of special circumstance
that would permit a demolition to proceed without the use of those
advance procedural protections. And, second, if this case does
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involve such a special circumstance, we must decide whether state
law supplies the owners with an adequate after-the-fact remedy for
any wrong the City may have committed.
1.
"The Court has often acknowledged . . . that summary
administrative action may be justified in emergency situations,"
Hodel v. Va. Surface Mining & Reclamation Ass'n, Inc., 452 U.S.
264, 299-300 (1981), and the reason is not hard to grasp. By their
nature, emergency situations require an immediate response. And,
in consequence of "the necessity of quick action by the State,"
Parratt, 451 U.S. at 539, constitutional due process does not
require the usual up-front procedural protections in dealing with
emergencies. The need for speed, in other words, permits the
government to take action that may cause a loss to property without
first notifying the owner of the property or waiting to hear what
that owner has to say, even though the government might have saved
itself from making a costly mistake by taking the time to give
notice and to wait for a response. See San Gerónimo Caribe
Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 488 (1st Cir. 2012)
(en banc) (requiring "additional predeprivation safeguards would
defeat the very purpose of the emergency statute" when "the very
point of [these] emergency procedures is to permit public officials
to act promptly where there is an emergency"); Elsmere Park Club,
L.P. v. Town of Elsmere, 542 F.3d 412, 419-20 (3d Cir. 2008)
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(officials' "far from perfect" response to a health hazard was
permissible when "faced with a situation in which a failure to act
quickly could have serious health consequences"); Herwins v. City
of Revere, 163 F.3d 15, 18 (1st Cir. 1998) ("No one can seriously
doubt that emergency conditions may exist (e.g., a severe fire
hazard) that would warrant a peremptory shutdown of a residential
building.").
As to what circumstance qualifies as an emergency that
might justify such speedy action, the Supreme Court has observed
that a "deprivation of property to protect the public health and
safety is '[o]ne of the oldest examples' of permissible summary
action." Hodel, 452 U.S. at 300 (alteration in original) (quoting
Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950)).
Hodel itself upheld an emergency procedure that allowed the
Secretary of the Interior to issue summary cessation orders when a
mining operation posed an "imminent danger to the health and safety
of the public." Id. at 301. And we have held similarly in
circumstances that are analogous, though not identical. In San
Gerónimo, for example, we approved of an emergency procedure for
freezing construction without first providing notice or an
opportunity to challenge the delay. There, Puerto Rico had put in
place the summary procedure to protect against the danger to the
public that would result if the government did not act quickly.
687 F.3d at 481-82. And in Herwins, we approved of an emergency
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summary procedure for ordering a building's occupants to vacate due
to dangers the building was thought to pose to its inhabitants.
163 F.3d at 18-19.
This case fits comfortably within this line of authority.
The City asserts the right to carry out the demolition under the
grant of summary power contained in chapter 143, section 7 of the
Massachusetts General Laws.5 And while, to the uninitiated, this
statutory scheme is not entirely clear, it plainly does permit the
City to carry out a summary demolition of a damaged building when
the "public safety . . . requires" such "immediate[]" action to
address a "danger[] to life or limb." Mass. Gen. Laws ch. 143,
§§ 6, 7.6
5
The City also relies on two regulations, section 116.3 and
section 5121.3, both of which correspond to section 7. See 780
Mass. Code Regs. §§ 116.3, 5121.3. The former is from the general
building code, and the latter is from the specialized building code
applicable to single and two-family dwellings. (We cite the
regulations -- from the eighth edition of the general building code
and the seventh edition of the code for single- and two-family
dwellings, respectively -- that were operative at the time of the
demolition.)
6
The statutory scheme authorizes the local inspector to
inspect buildings upon a report of their dangerousness: "The local
inspector, immediately upon being informed by report or otherwise
that a building or other structure or anything attached thereto or
connected therewith in that city or town is dangerous to life or
limb . . . , shall inspect the same." Mass. Gen. Laws ch. 143,
§ 6. Section 6 of the scheme then goes on to provide that in the
ordinary case, the inspector "shall forthwith in writing notify the
owner, lessee or mortgagee in possession to remove it or make it
safe if it appears to him to be dangerous . . . ." See also 780
Mass. Code Regs. §§ 116.2, 5121.2. Section 7 then provides that,
ordinarily, "[a]ny person so notified shall be allowed until twelve
o'clock noon of the day following the service of the notice in
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That triggering standard, moreover, is at least as
limiting as the ones at issue in San Gerónimo and Herwins. See San
Gerónimo, 687 F.3d at 481 (concluding the standard authorized
summary action only in a "situation in which there is imminent
danger to the public health, safety and welfare or which requires
immediate action by the agency" (quoting P.R. Laws Ann. tit. 3,
§ 2167(a))); Herwins, 163 F.3d at 18-19 (concluding emergency law
authorized "an immediate shutdown of a building where an emergency
exists threatening health or safety," and thus ensured "an
opportunity to object before a building is shut down except in
emergencies"). We are thus not dealing with an emergency statute
only in form.
True, this case involves a demolition, which was not at
issue in either Herwins or San Gerónimo. But while a demolition
may cause a loss more total (if not always more costly) than a
delayed start to construction or a temporary order to vacate, the
drastic nature of that response does not make the justification for
departing from the ordinary means of ensuring due process any less
which to begin to remove such structure or make it safe, or to make
it secure." In an exceptional case, however, the City may act
summarily: "[B]ut if the public safety so requires and if the
aldermen or selectmen so order, the inspector of buildings may
immediately enter upon the premises . . . and cause such unsafe
structure to be made safe or taken down without delay . . . ."
Mass. Gen. Laws ch. 143, § 7. See, e.g., Daggett v. Bd. of
Assessors of Town of Saugus, 914 N.E.2d 362, 362 n.5 (Mass. App.
Ct. 2009) (unpublished) (finding that section 7 allowed "the local
inspector to act expeditiously in appropriate circumstances").
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persuasive. If a building is so badly damaged it must be
demolished immediately to protect life and limb, then it surely
poses a serious danger to the public safety that must be addressed
with dispatch. See Catanzaro v. Weiden, 188 F.3d 56, 62-63 (2d
Cir. 1999) (finding summary demolition of property permissible to
eliminate an "immediate danger" to public safety).
For these reasons, the state law before us is nothing
like the state law the Supreme Court found constitutionally
deficient in Zinermon v. Burch, 494 U.S. 113 (1990). Cf. Harris,
20 F.3d at 1404 (holding that the "only available course of action"
in an emergency, not presented in Zinermon, is to take summary
action). In Zinermon, Florida state law set forth procedures for
both voluntary admission and involuntary commitment to state mental
hospitals. The processes for the former were spare while those for
the latter included the traditional rights to notice and a hearing.
The state law then delegated to hospital employees the authority to
determine when to invoke the more protective involuntary commitment
safeguards. The state law therefore conferred upon those hospital
employees the discretion not to invoke those safeguards, with the
result that patients who presented themselves for admission but who
were unable to give informed consent could in effect be
involuntarily committed without formal process. Zinermon, 494 U.S.
at 122-23.
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Zinermon concluded it was practical to impose more
procedural safeguards at the point of admission than the state had
put in place. And the Court also concluded it was predictable that
an admission of someone unable to provide informed consent would
ensue without the use of greater safeguards at the time of
admission, given the difficulty those seeking voluntary admission
might have in making an informed judgment. Id. at 138-39 ("Such a
deprivation is foreseeable, due to the nature of mental illness,
and will occur, if at all, at a predictable point in the admission
process."). As a result, the Court held the hospital employees
could be sued for violating procedural due process. The theory was
that the hospital employees could be liable for "abus[ing] . . .
broadly delegated, uncircumscribed power" in choosing not to use
the involuntary commitment process, with the notice and hearing
rights that would have attended that more formalized method of
commitment. Id. at 136.
But section 7 does not confer "broadly delegated,
uncircumscribed power" to proceed in summary fashion. See San
Gerónimo, 687 F.3d at 486 (quoting Zinermon, 494 U.S. at 135–36).
The statute instead marks off "an exception to be used only in
emergency situations." Id. at 485. The City may carry out a
summary demolition only upon a determination a damaged property is
so dangerous to life and limb that immediate demolition is required
to protect "the public safety." Mass. Gen. Laws ch. 143, §§ 6, 7.
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Section 7 thus renders impractical the provision of advance notice
and an opportunity to be heard. Such up-front processes would
impede the City from doing what needs to be done to protect the
public from the immediate danger the summary demolition procedure
is designed to address.
Nor, we note, is the application of this triggering
standard left solely to the local inspector who -- under the
statute -- first learns of the danger a building presents. Rather,
under section 7 and its attendant regulations, a summary demolition
may occur only if an actor directly accountable to the voters
concludes the standard for summary action has been met.7 For that
reason, too, the law considered in Zinermon is far removed from the
one we consider here.
Of course, under Massachusetts law, an official may
conclude in a particular case that there is an immediate need to
7
By the express terms of the statute, it appears that -- in
the case of a city -- the "aldermen" must provide the
authorization. Mass. Gen. Laws ch. 143, § 7. But the regulations
issued pursuant to section 7 provide that the building commissioner
can act immediately -- again, in the case of a city -- if ordered
by the mayor. Both regulations provide that: "[I]f the public
safety so requires and if the mayor or selectmen so order, the
building official may immediately enter upon the premises with the
necessary workmen and assistants and cause such unsafe structure to
be made safe or demolished without delay . . . ." 780 Mass. Code
Regs. §§ 116.3, 5121.3 (emphasis added). Neither party raises any
issue about whether this shift from the alderman to the mayor in
the regulations is one that section 7 permits, and so we assume for
the purposes of this case that the regulations are valid
notwithstanding the way they depart from the plain text of the
underlying statute.
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address a danger -- and thus proceed in the summary fashion section
7 allows -- when, in hindsight, there was no need to rush. But an
emergency standard must be written to be of practical use. An
official applying that standard must make an on-the-spot judgment
about how best to protect the public from the immediate danger a
badly damaged building poses. Such a practicably workable standard
is sure to be imprecise enough to require the official to make
judgment calls about the urgency of the need to act. That some
such calls may be mistaken does not show that the process for
making them was constitutionally improper.
For that reason, it does not matter if the owners are
right that the City violated section 7 because the "public safety"
did not in fact require the "immediate" demolition that occurred.
The Supreme Court has made clear that government officials do not
commit a federal procedural due process violation simply by
erroneously applying a state law that, if followed, would survive
a procedural due process challenge. That is because "[t]he state
can no more anticipate and control in advance the random and
unauthorized intentional conduct of its employees than it can
anticipate similar negligent conduct." Hudson v. Palmer, 468 U.S.
517, 533 (1984); see also Herwins, 163 F.3d at 19 (discussing
relevant considerations). So long as a state has not set up a
scheme so open-ended it invites unwarranted uses of summary
process, see Zinermon, 494 U.S. at 138, and so long as a state
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provides an adequate after-the-fact remedy for any wrongful summary
action, see Parratt, 451 U.S. at 543-44, allegations of the kind of
"random and unauthorized" mistakes in application that those who
work in government sometimes make are not enough to state a
procedural due process claim, Hudson, 468 U.S. at 533. And thus,
the alleged state law error -- if error it was -- cannot save the
owners' procedural due process claim, at least so long as an
adequate, post-hoc remedy is available.
2.
We thus now turn to a consideration of whether
Massachusetts makes available an adequate after-the-fact remedy for
any wrongs the City may have committed in carrying out the summary
demolition. In both San Gerónimo and Herwins, we found the state
did provide such a remedy. San Gerónimo, 687 F.3d at 490; Herwins,
163 F.3d at 19-20. And we find the same to be the case here.
The City identifies chapter 139, section 2 of the
Massachusetts General Laws as the state law that supplies the post-
hoc remedy the federal Constitution requires. That statute allows
a property owner to challenge an order for demolition and to seek
to annul, alter, or affirm the order.8 Section 2 also authorizes
8
Section 2 provides that:
A person aggrieved by such order may appeal to the
superior court for the county where such building or
other structure is situated, if, within three days after
the service of such attested copy upon him, he commences
a civil action in such court. Trial by jury shall be had
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a property owner to seek damages for an already-demolished
building, at least in circumstances in which the suit under section
2 began prior to the demolition. City of Worcester v. Eisenbeiser,
387 N.E.2d 1154, 1156-57 (Mass. App. Ct. 1979). And although the
orders in this case were sent only after the buildings had been
torn down, the City argues that a demolition order that post-dates
a demolition is equally subject to challenge and annulment under
section 2.
The text of section 2 does not say otherwise, and we are
not aware of anything else in Massachusetts law that would suggest
the remedy provided by section 2 is not available for a suit
brought post-demolition. Nor the do the owners point to anything
in making conclusory assertions to the contrary. Their complaint
merely asserts in sweeping fashion that no adequate state law
remedies exist. They do parenthetically reference the text of
section 2 in their opening brief, and the text of chapter 143,
section 10 of the Massachusetts General Laws, which cross-
references section 2, in their reply.9 But they cite no case --
as in other civil causes. The jury may affirm, annul or
alter such order . . . . [I]f it is annulled, he shall
recover from the town his damages, if any, and costs
. . . .
Mass. Gen. Laws ch. 139, § 2.
9
Section 10 provides that:
An owner, lessee or mortgagee in possession aggrieved by
such order may have the remedy prescribed by section two
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federal or state -- interpreting either provision, let alone any
case supporting their preferred reading of them. Nor do they
address the cases cited by the City suggesting just the opposite
reading is the better one, see, e.g., City of Worcester, 387 N.E.2d
at 1156-57 (annulling order after demolition), or cope with the
possibility that the text of section 10 is against them. In fact,
because section 10 makes clear the remedy of section 2 cannot delay
swift action, section 10 appears to indicate the remedy of section
2 can be deployed post-demolition, as at that point the risk of
such delay is none. See, e.g., Aubuchon v. Com. of Mass. by &
through State Bldg. Code Appeals Bd., 933 F. Supp. 90, 93 (D. Mass.
1996) (finding that the Massachusetts remedial framework in
sections 2 and 10 was an adequate post-demolition remedy, and
suggesting its availability in that plaintiffs had "filed a
separate (and ongoing) civil action in the Superior Court pursuant
to the remedial statute").
The owners do also suggest there may be a cap on the
damages available under section 2 -- and, presumably, that this cap
makes the remedy a constitutionally inadequate substitute for
advance notice and an opportunity to be heard. But no such cap
of chapter one hundred and thirty-nine; provided, that no
provision of said section two shall be construed so as to
hinder, delay or prevent the local inspector acting and
proceeding under section nine . . . .
Mass. Gen. Laws ch. 143, § 10.
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actually appears on the face of the statute. Nor does the City
contend otherwise, having conceded the absence of any such cap at
oral argument. The owners argue such a cap exists only by
referencing the text of a different remedy, the state's Tort Claims
Act, which has a liability cap of $100,000. See Mass. Gen. Laws
ch. 258, § 2. They provide no explanation for why that cap would
be broadly applicable to other remedial statutory provisions, nor
can we find any authority so suggesting.10
We thus believe section 2 does constitute an adequate
remedy. The owners, having chosen a federal forum to seek relief
that depends at least in part on the meaning of state law, should
not "expect the federal court to steer state law into unprecedented
configurations," Santiago v. Sherwin Williams Co., 3 F.3d 546, 549
(1st Cir. 1993) (internal quotation marks omitted), but that is
what would be required for us to find section 2 inadequate. And
so, lacking any authority that would require us to hold
Massachusetts intends to preclude this uncapped post-demolition
10
In their initial filings in the District Court, the owners
claimed damages of $23 million. The owners claim the liability cap
in the state's Tort Claims Act makes the statute incapable of fully
compensating for their losses and thus inadequate to count as a
constitutional substitute for the pre-deprivation process they were
denied. See Mass. Gen. Laws ch. 258, § 2. But in light of the
uncapped remedy in section 2 of chapter 139, see Mass. Gen. Laws
ch. 139, § 2, we need not consider whether the state's Tort Claims
Act, given its cap, would provide an adequate post-deprivation
remedy. But see Hudson v. Palmer, 468 U.S. 517, 535 (1984) ("that
Palmer might not be able to recover under these remedies the full
amount which he might receive in a § 1983 action is not, as we have
said, determinative of the adequacy of the state remedies").
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remedy, we decline to accept the owners' bare assertion that we
should reach that conclusion.
That said, we are aware the section 2 remedy may be
foreclosed to these particular plaintiffs because of their failure
to challenge the demolition in state court in a timely manner. And
we are aware as well that the limitations period applicable to
actions brought under section 2 is, at least on its face, very
short. See Mass. Gen. Laws ch. 139, § 2 ("A person aggrieved by
such order may appeal . . . within three days after the service of
such attested copy upon him . . . ."). But this case is much like
Herwins, where we said of a seven-day time-limit to bring a
challenge to the summary vacate order there at issue, "[q]uite
possibly, there are circumstances -- perhaps present here, although
we doubt it -- where it is simply infeasible for an appeal to be
noticed within seven days. If the state then refused to permit a
belated appeal thereafter, this might raise a question whether
state remedies were adequate, but Herwins made no such effort to
appeal even belatedly." 163 F.3d at 20 (internal citation
omitted).
So, too here. The owners did not object in district
court to the characterization by the City's attorney that
"[t]here's been no effort to exercise any rights under 139 [section
2] or 258 [the state Tort Claims Act] or any other remedies that
might be out there," and in fact the owners did not file even this
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action until nearly a year after the last order relating to the
demolition issued. Nor, finally, do the owners actually challenge
in this appeal the constitutionality of the short time limit
section 2 provides for filing for relief. And so, if it is now too
late for the owners to bring a challenge under section 2, that is
a function in this case of when the owners sought to avail
themselves of the remedy, rather than its necessary constitutional
inadequacy.
For these reasons, we cannot conclude Massachusetts fails
to provide an adequate post-deprivation remedy to the owners. And
that means we cannot conclude the City denied the owners procedural
due process.
B.
The owners' substantive due process claim also must be
dismissed. A substantive due process claim must allege executive
action that objectively "shocks the conscience." See Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998). "[T]he requisite
arbitrariness and caprice must be stunning, evidencing more than
humdrum legal error." Amsden v. Moran, 904 F.2d 748, 754 n.5 (1st
Cir. 1990). Under this high standard, even a state actor's bad
faith is not necessarily enough to satisfy the "shock the
conscience" test. See id. at 757 ("[e]ven bad-faith violations of
state law are not necessarily tantamount to unconstitutional
deprivations of due process"). And here, we do not have an
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allegation of even that kind regarding the City's decision to order
the demolition.
To the contrary, the owners concede the City undertook
the demolition in response to what it claimed was an immediate
danger to the public safety. And the owners further concede the
tornado did cause "significant damage" to the South Commons
Condominiums. The owners' complaint thus appears to allege only
that in ordering the demolition the City misjudged the gravity of
the damage the tornado caused and thus that the City's action was
"incorrect or ill-advised." Catanzaro, 188 F.3d at 64. The
allegations in the owners' complaint do not show that the City
acted in any way that could be deemed conscience-shocking, see
Lewis, 523 U.S. at 846, see also DePoutot v. Raffaelly, 424 F.3d
112, 119 (1st Cir. 2005) ("Executive branch action that sinks to
the depths of shocking the contemporary conscience is much more
likely to find its roots in 'conduct intended to injure in some way
unjustifiable by any government interest.'" (quoting Lewis, 523
U.S. at 849)), and thus the owners' substantive due process
challenge must fail.
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C.
That leaves only the state law claims.11 But having
dismissed the federal claims at such an early stage, the District
Court properly exercised its discretion in dismissing the state law
claims without prejudice. 28 U.S.C. § 1367(c); see also Martinez
v. Colon, 54 F.3d 980, 990-91 (1st Cir. 1995). We therefore
decline the cross-appellant Charlie Arment Trucking, Inc.'s
invitation to revisit the state claims.
III.
We recognize it is no small thing to have a tornado
unexpectedly damage one's buildings and then have them razed
because the city ordered them destroyed. But we deal here only
with the question whether the federal Constitution's guarantee of
due process barred the City from making that decision. And
precedents from the Supreme Court and this Circuit, as well as from
other circuits, reflect the reality that a city responding to a
natural disaster must make difficult choices with dispatch in order
to protect the public. Thus when a city decides buildings are
sufficiently damaged that they must immediately be demolished to
11
In addition to the procedural and substantive due process
claims, the complaint asserts claims for violation of the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I,
against all defendants (count three); negligence against Charlie
Arment Trucking, Inc. (count four); trespass against Charlie Arment
Trucking, Inc. (count five); conversion against Charlie Arment
Trucking, Inc. (count six); and seven of the plaintiffs assert a
chapter 93A claim against Charlie Arment Trucking, Inc. (count
seven).
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protect life and limb, and when the city does so pursuant to a
state law that anticipates such an emergency and authorizes the use
of summary procedure to respond to it, the remedy for any wrong,
absent conscience shocking behavior, must come from the remedies
the state itself supplies rather than from a federal suit premised
on the federal Constitution's Due Process Clause. The District
Court's judgment is, accordingly, AFFIRMED.
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