Kachmar v. Varone , 55 F. App'x 3 ( 2002 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1321
SAFI KACHMAR, d/b/a Security & Communications Center,
a/k/a Kachmar,
Plaintiff, Appellant,
v.
FRED VARONE, Buildings Inspector, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judges.
Safi Kachmar on brief pro se.
Jocelyn M. Sedney and Brody, Hardoon, Perkins & Kesten, LLP on
brief for appellees Fred Varone, Buildings Inspector, Kevin Nigro,
Buildings Inspector, and Town of Saugus.
December 20, 2002
Per Curiam. Safi Kachmar brought this action
pursuant to 42 U.S.C. § 1983 against Kanaiyalal Patel ("Ken
Patel"), Mujala Patel, the Town of Saugus, and two Saugus
officials, claiming due process and equal protection violations
based on allegations that defendants had "ordered [him] to
close down his business . . . and [fined him] $1,000 per day."
We concur with the district court's conclusion that the
allegations in the amended complaint fail to state a claim upon
which relief can be granted.
Although Kachmar brought this action in his own name
d/b/a Security & Communications Center ("S & C"), he concedes
in his appellate brief that S & C was incorporated long before
he commenced the action and that Ken Patel was the sole
director, officer and shareholder of the corporation.
Kachmar's amended complaint does not allege that he was
authorized to sue on the corporation's behalf and no such
authority is evident in any of the documents incorporated into
the complaint. Kachmar therefore lacks standing to sue on
behalf of the corporation. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992).
Moreover, to the extent Kachmar's claims are based on
the town defendants' interpretation of the liquor license for
the commercial site Kachmar sought for S & C, Kachmar fails to
allege any property interest in the license sufficient to
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invoke the district court's jurisdiction; to establish standing
sufficient to maintain a federal claim, a plaintiff must
demonstrate (1) an "injury-in-fact" (2) that is fairly
traceable" to the proceeding below, and (3) is "likely" to be
"redressed by a favorable decision." Id. Moreover, Kachmar's
own allegations and the documents annexed to his complaint
clearly show that Ken Patel was the holder of the license.
Again, Kachmar fails to allege an invasion of a legally
protected interest and is therefore without standing to pursue
this litigation. Id.In any event, Kachmar's claims are insufficient to
state a § 1983 claim. In the absence of a "fundamental
procedural irregularity [or] racial animus," a conventional
zoning dispute does not implicate constitutional concerns.
Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833
(1st Cir. 1982); Chongris v. Board of Appeals, 811 F.2d 36, 41-
42 (1st Cir. 1987). Kachmar has not alleged any such
procedural defect or animus.
We further note that Kachmar has failed to state a
claim against Ken and Mujala Patel for the additional reason
that neither of them is a state actor. Malachowski v. City of
Keene, 787 F.2d 704, 710 (1st Cir. 1986) (per curiam) ("It is
black-letter law that a showing of interference with a
constitutionally-protected right by someone acting under color
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of state law is a prerequisite to a § 1983 action."). Finally,
Kachmar's claims against the Town of Saugus were also properly
dismissed because the complaint did not allege that any policy
or custom of the town was responsible for inflicting any of the
claimed injuries. See Burrell v. Hampshire County, 307 F.3d 1,
10 (1st Cir. 2002); Kelley v. LaForce, 288 F.3d 1, 9 (1st Cir.
2002).
Accordingly, the judgment of the district court is
summarily affirmed. See Loc. R. 27(c).
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