Chiara v. Dizoglio , 6 F. App'x 20 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1445
MATTHEW A. CHIARA,
Plaintiff, Appellant,
v.
DENNIS DIZOGLIO, Mayor; MAURICE J. LARIVIERE, JR., City
Solicitor; EUGENE O’NEIL, Economic Director; METHUEN
INSPECTOR; METHUEN COMMISSION; COMMUNITY DIRECTOR OF
DEVELOPMENT; COMMUNITY BOARD OF DEVELOPMENT;
WILLIAM MANZI, City Councilor; PASQUELINA NAPOLITANO;
VICTOR HATEM, Attorney; BRIAN SHEEHY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Matthew A. Chiara on brief pro se.
Domenic S. Terranova on motion to appear as amicus curiae.
Patrick J. Costello and Merrick, Louison & Costello on brief
for appellees, Mayor Dennis Dizoglio; Maurice Lariviere, Jr.,
City Solicitor; Eugene O’Neil, Economic Development Director;
Joseph Giarusso, Methuen Conservation Inspector; Methuen
Conservation Commission; Community Development Board; and City
Councilor William Manzi.
Kenneth A. Cossingham on brief for appellee Brian Sheehy.
Darlene M. Daniele on brief for appellee Pasquelina
Napolitano.
March 19, 2001
Per Curiam. The district court understood the
complaint as alleging violations of the Fair Housing Act and
the Americans with Disability Act, defamation, libel and
slander. The court correctly dismissed the complaint for
failure to state a claim.
Plaintiff here characterizes his claims as
asserting instead violations of procedural and substantive
due process. Without attempting precisely to reiterate
plaintiff's argument, seemingly he sees a violation of his
constitutional rights in the timing or sequence of
proceedings and decisions on his proposals before the
Methuen Town Council and the Conservation Commission. He
asserts that a "pre-determination" of an environmental issue
by the Conservation Commission was essential to obtaining a
"fair hearing" on the proposed zoning change before the Town
Council.
Having read and re-read the complaint and
plaintiff's brief, we believe that we understand why the
district court did not mention the scattered references to
the Due Process Clause found in the complaint. At first
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blush, the complaint's due process allegations seem to be
mere surplusage.
Reviewing the complaint de novo in light of the
gloss which plaintiff assigns on appeal, we conclude that it
does not contain facts sufficient to make out a recognizable
claim under the Due Process Clause. As to procedural due
process, there are no facts suggesting that State law or
local ordinances facially deprive applicants of notice, a
hearing, and an opportunity to be heard on proposed zoning
changes and related environmental permits. Instead,
plaintiff seems to argue that an administrative law judge in
the Massachusetts Department of Environmental Protection
erred in interpreting the regulations as allowing the wrong
sequence of hearings and decisions. Even if we assume that
the administrative judge's interpretation was wrong,
however, this does not give rise to a deprivation of
plaintiff's constitutional right to procedural due process,
"so long as the state provides an adequate means of
redress." See Herwins v. City of Revere, 163 F.3d 15, 18
(1st Cir. 1998), cert. denied, 526 U.S. 1087 (1999). State
law provides a means to redress incorrect administrative
decisions through a motion for reconsideration and an appeal
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to the courts, and there are no facts suggesting that the
State process is inadequate.
As to "substantive" due process, we also fail to
see facts sufficient to make out an understandable claim.
We hasten to add, in light of some arguments in defendants'
briefs, that we also do not construe plaintiff's gloss on
appeal as asserting a "regulatory taking" nor an "inverse
condemnation" claim. Since there is no substantive
violation alleged, we need not reach defendants' suggestion
that we should make new law in this uncertain area.
Finally, we have stricken from the caption of this
appeal the names of purported plaintiffs-appellants "John
Smith" and "Mary Smith." Although an appearance on behalf
of the Smiths was entered by Attorney Terranova, the
attorney did not offer a brief. Instead, under cover of
plaintiff's pro se brief, Attorney Terranova has revealed
that the Smiths are "fictitious" persons who seek to "join"
the pro se brief as "amicus curiae" and representatives of
an indistinct class of real persons. There was no motion
for certification of a plaintiff class in the district
court, and it is unclear whether the fictitious identity of
the plaintiffs-Smiths was known to the court.
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Construing Attorney Terranova's statement inside
of plaintiff's brief as a motion on behalf of one or more
real or fictitious persons to appear as amicus curiae, the
motion is denied for a failure to comply with the provisions
of Fed. R. App. P. 29.
Affirmed.
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