Opinion
CIVIL ACTION NO. 02-11112-RWZ
August 29, 2002
MEMORANDUM OF DECISION
Plaintiff, the owner of a condominium in Boston, sued two other condominium owners in the building ("Goodills" and "Barbatos"), counsel for the condominium association ("Delehanty"), a building inspector for the City of Boston ("Scalley"), and the City of Boston Inspectional Services, the agency charged with enforcing the building code. This matter arises out of an apparently intractable dispute concerning plaintiff's enlargement of a deck off his unit and the Goodills' desire to build a smaller deck behind their unit and above that of plaintiff's. The matter is currently before me on Goodills' and Delehanty's motion for judgment on the pleadings.
Plaintiff claims federal jurisdiction under 28 U.S.C. § 1343 and seeks damages and equitable relief under 42 U.S.C. § 1983 and 1985. However, Counts 1, 2, 5, 6, and 7 charge the Goodills, Barbatos and Delehanty in various combinations with violations of state statutory and common law. Count 3 is brought specifically under 42 U.S.C. § 1983 against the Goodills, Delehanty and the City defendants and alleges that they "used the Rules and Regulations of the City of Boston Building Code for the purpose of pursuing the private rights of defendant Goodill." Count 4 against the Goodills, Delehanty, and the City defendants, although entitled "Civil Conspiracy" without any statutory reference, alleges only that the City defendants "were in a unique position of coercion to use [the City's] regulatory authority for the purpose of pursuing the private rights of Defendant Goodill and force Plaintiff Murray to take action which would render his exclusive appurtenant property rights meaningless." I assume plaintiff is attempting to invoke § 1985 and shall so treat Count 4.
Section 1983 requires proof not only of a violation by defendant of plaintiff's constitutional rights, but also that defendant acted "under color of law." Since the claims against the Goodills and Delehanty are based on their conduct as owners of a condominium and counsel for the condominium association, respectively, they cannot be said to have acted under "color of law" even if they did use the rules of the City for their private purposes. Count 3, therefore, does not set forth a viable claim under section 1983.
Section 1985 grants an individual right of action if "two or more persons . . . conspire. . . for the purpose . . . of depriving . . . any person . . . of the equal protection of the laws. . . ." It is well established that to state a claim under this statute, a plaintiff must allege some "racial or perhaps otherwise class-based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798 (1971). Not only does the complaint fail to set forth facts to show a conspiracy, it utterly fails to allege any class or race discrimination. Count 4 therefore fails.
As noted, the remaining counts against the moving defendants and Barbatos are based entirely on state law. If plaintiff chooses to pursue them, they are best tried in the state court. As a matter of discretion they are dismissed. Accordingly, defendants' motion for judgment on the pleadings is allowed and all claims against Goodills, Barbatos and Delehanty will be dismissed. There remain only the claims against the City defendants, although Count 4 suffers the same infirmities against them as it does against Goodills and Delehanty.