Opinion
September 5, 1985.
Present: Doyle, P.J., Forte Jodrey, JJ.
Civil Rights, International overvaluation of real property; Equal protection and due process. Practice, Civil, Motion to dismiss; Dist./Mun. Cts. R. Civ. P., Rules 9(b), 12(b) (6) and 15 (a).
Report of court's vacation of dismissal and remand for further proceedings. Motions heard in the Ipswich Division by Furnari, J.
Gene A. Rauhala for the plaintiff.
Arthur K. Ross for the defendant.
This is an action pursuant to 42 U.S.C. § 1983 in which the plaintiff claims that the defendant, while acting under color of law as a tax assessor for the Town of Rowley, did individually, knowingly and intentionally overvalue his real estate; and that such act deprived the plaintiff of his property and of his constitutional rights to Due Process and Equal Protection of the Law.
This action was commenced on June 26, 1984. The plaintiff's complaint alleges the following: On or about March 31, 1982, the Town of Rowley issued a Notice of Real Estate Tax for fiscal year 1982 on real estate owned by the plaintiff. The assessed value of such property as stated in the Town Notice was $105,300.00. Such valuation was made individually by the defendant as a member of the Town of Rowley Board of Assessors.
In consequence of such overvaluation, the plaintiff was compelled to pay $1,737.45 in real estate taxes and to file an application for abatement of such tax. On September 1, 1982, the Town of Rowley Board of Assessors issued a certificate of abatement which reduced the original tax by fifty-six (56%) percent to an adjusted tax of $767.25.
The complaint further alleges that the "Defendant knowingly and intentionally overvalued the real property of the Plaintiff" and that such act "deprives the Plaintiff of due process and equal protection of the law as secured by the United States Constitution, and violated Section 1983 of Title 42 of the United States Code." The concluding ad damnum of the complaint seeks $25,000.00 in actual damages and $10,000.00 in punitive damages.
The defendant filed a Dist./Mun. Cts. R. Civ. P., Rule 12 (b) (6) motion to dismiss on grounds that the plaintiffs complaint failed to set forth a claim upon which relief could be granted. In allowing the defendant's motion to dismiss, the trial court issued specific findings which state, in relevant part:
The defendant was the individual assessor who initially viewed the site and established the property assessment in the sum of $105.00 for 9 acres and building for a total tax of $1,737.45. . . .
The defendant as an individual Assessor acts in her official capacity with a qualified immunity. The Courts will protect such officer's good faith actions and will thus avoid chilling of the administration of the municipal tax system. . . .
A tax official should be held liable for damages under a civil rights statute only if he violated the plaintiff's clearly established constitutional rights intentionally or with a reckless disregard of those rights.
The allegations of the complaint reflect plaintiff's dissatisfaction with his tax assessment and a subjective characterization of the Assessor's actions without setting forth much in the way of supporting facts. . . .
The plaintiff thereafter sought an appeal to this Division on a charge of error in the trial court's allowance of the defendant's Rule 12 (b) (6) motion and its denial of certain other pre-trial motions submitted to the plaintiff. As the plaintiff waives in oral argument all appellate claims pertaining to his pre-trial motions, we restrict our inquiry to the propriety of the trial court's order of dismissal.
1. A complaint may not be dismissed pursuant to Dist./Mun. Cts. R. Civ. P., Rule 12(b)(6) for failure to state an actionable claim unless the allegations of such pleading render it clear to a legal certainty that no set of facts could be proven which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Nader v. Citron, 372 Mass. 96, (1977). In reviewing the disposition of a Rule 12 (b) (6) motion, the complaint must be read in the light most favorable to the plaintiff, and all facts alleged therein must be accepted as true. Whitinsville Plaza, Inc. v. Kotsas, 378 Mass. 85 (1979); Jones v. Brockton Public Markets, Inc., 369 Mass. 387 (1976); Sheffield Progressive, Inc. v. Kingston Tool Co., 10 Mass. App. Ct. 47 (1980).
While civil rights complaints are to be liberally construed, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Anderson v. Sixth Judicial Dist. Co., 521 F.2d 420 (8th Cir. 1975); Greene v. Johns Hopkins Univ., 469 F. Supp. 187, 193 (D. Md. 1979), more than mere conclusory allegations have been required in federal forum to defeat a Rule 12 (b) (6) challenge.
The rule is well established. . . that a civil rights complaint that relies on vague and conclusory allegations does not provide `fair notice' and will not survive a motion to dismiss. We require a modest degree of factual specificity in civil rights complaints because we are concerned that `a substantial number' of these cases are frivolous or should be litigated in the state courts; they all cause defendants — public officials, policemen and citizens alike — considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation. . . .
United States v. Philadelphia, 644 F.2d 187, 204 (3rd Cir., 1980). See also, as to requirement of pleading specificity, Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977); Pearlswig v. Randolph, 497 F. Supp. 569, 570 (D.Ma. 1980); Finkelstein v. City of New York, 543 F. Supp. 161, 163 (S.D.N.Y. 1982); Roach v. Kligman, 412 F. Supp. 521, 524 (1976); Wilkerson v. Mock, 402 F. Supp. 971, 973 (E.D.P.A. 1975); Scott v. Larson, 58 F.R.D. 131, 132 (E.D. Wisc. 1973); Shakespeare v. Wilson, 40 F.R.D. 500, 504 (S.D.Calif. 1966).
2. The plaintiff's complaint seeks redress pursuant to the provisions of 42 U.S.C. § 1983 for a deprivation of his constitutional rights. Said complaint clearly satisfies the initial, § 1983 "under color of law" pleading requirement, for the acts in issue were performed by the defendant in her official capacity as a member of the Board of Assessors for the Town of Rowley. There is also no question that § 1983 may serve as a vehicle for the redress of intentional acts by tax officials in derogation of constitutional guarantees. See, e.g., North American Cold Storage Co. v. County of Cook, 468 F. Supp. 424 (N.D. Ill. 1979); Borman v. Tomlin, 461 F. Supp. 193, 195 (S.D. Ill. 1978); Ludwin v. City of Cambridge, 592 F.2d 606 (1st Cir. 1979); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071 (1978). Contrary to the defendant's contention, the United States Supreme Court in its 1980 opinion in Fair Assessment in Real Estate v. McNary, 454 U.S. 100, 70 L.Ed.2d 271, 102 S.Ct. 177 (1981) did not preclude 42 U.S.C. § 1983 suits against state or local tax assessors, but simply held on principles of comity that such suits could not be instituted in federal courts. Fair Assessment, 454 U.S. at 116, 70 L.Ed.2d at 283. Such actions may instead by initiated in state courts, including those of this Commonwealth. See Rzeznick v. Chief of Police of Southampton, 374 Mass. 475 (1978).
3. In addition to action under color of law, a civil rights complaint must factually allege that the plaintiff has personally been deprived of a constitutionally protected right, privilege or immunity. See, e.g., Wygant v. Jackson Bd. of Educ., 546 F. Supp. 1195, 1203 (Mich. 1982); Studen v. Beebe, 588 F.2d 560, 566 (6th Cir. 1978); Morgan v. Beeto, 313 F. Supp. 1263, 1265 (E.D. MO. 1970). The sufficiency of the plaintiff's claims as to a denial of his due process and equal protection rights is marginal at best.
The plaintiff's complaint is legally insufficient to support a claim under the Equal Protection Clause of the Fourteenth Amendment. The plaintiff does not identify any classification, "suspect" or otherwise, in a Rowley tax by-law, ordinance or regulation which is constitutionally invalid and upon which the defendant's actions against him were premised. See, e.g., Personnel Adm. of Mass. v. Feeney, 442 U.S. 256, 60 L.Ed.2d 870, 883, 99 S.Ct. 2282 (1979). The complaint also fails to set forth any factual basis for a determination that unequal application of the Rowley tax assessment procedures resulted in intentional and purposeful discrimination against the plaintiff as an individual or member of a particular class of individuals. See Williams v. Patton, 410 F. Supp. 1, 2 (E.D. Pa. 1976). The simple, conclusory assertion that the defendant acted knowledgeably and intentionally herein is not the equivalent of the type of factual allegation of purposeful discrimination, in intent and impact, essential to the valid pleading of an equal protection claim. Compare, North American Cold Storage Co. v. County of Cook, at 425 (allegations of overvaluations, of regular conferring of benefits and favors on other taxpayers, of defendants' knowledge of their own continuing discrimination as evidenced by their receipt of taxpayer complaints, state studies of disparate assessments and Board of Appeal Notices). See also, e.g., as to pleading contents, Merugo v. Board of Higher Ed., N Y, 423 F. Supp. 704, 711-712 (1976) (facts required to show conduct was the product of motive or policy to discriminate on grounds of race, religion, nationality, sex or other class whose interests cognizable under § 1983); Nishiyama v. North American Rockwell Corp., 49 F.R.D. 288, 294 (C.D.Calif. 1970) (complaint required to show actual discrimination, e.g., proof of individual or group who received promotions or advancement in preference to plaintiff); Harris v. White, 479 F. Supp. 996, 1003-1004 (D. Ma. 1979) (factually specific assertions required of both disproportionate impact and discriminatory intent).
The sole factual support for the plaintiff's simple conclusion herein that the defendant acted intentionally in violation of the Equal Protection clause is that his property was in fact overvalued. A discriminatory purpose on the part of the defendant may not be inferred, however, from this fact alone. The discriminatory purpose prerequisite to the successful assertion of an equal protection claim
"[A] discriminatory purpose is not presumed. . . . It is not enough to establish a denial of equal protection that some are assessed at a higher valuation than others. The difference must be due to a purposeful discrimination which may be evidenced, for example, by a systematic undervaluation of the property of some taxpayers and a systematic over-valuation of the property of others. . . ." Snowden v. Hughes, 321 U.S. 1, 88 L.Ed. 497, 503 (1943).
implies more than intent as volition or intent as awareness of consequences. . . It implies that the decision-maker . . . selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of its adverse effects upon an identifiable group. . . . disparate impact and forseeable consequences, without more, do not establish a constitutional violation.
Harris v. White, at 1005. Where a state or local official's judgment and discretion are involved, allegations of merely wrongful conduct are not enough. Harrison v. Brooks, 446 F.2d 404, 407 (1st Cir. 1971). Specific, factual allegations of the nature and scope of a discriminatory purpose are necessary in equal protection cases to indicate that the claim is sufficiently substantial to be of federal cognizance or constitutional proportion. Trader v. Fiat Distrib., Inc., 476 F. Supp. 1194, 1197 (Del. 1979); Fant v. Fisher, 414 F. Supp. 807, 809 (W.D.Ok. 1976); Gazdanovic v. Civil Serv. Comm., Pittsburgh, Pa., 361 F. Supp. 504, 507, 509 (W.D.PA. 1973).
4. The plaintiff's complaint also fails to set forth facts sufficient to establish a procedural due process claim. The pleading in question indicates that the plaintiff applied for a real estate tax abatement, received a hearing before the Rowley Board of Assessors and recovered the excess taxes he had previously paid. The due process clause of the Fourteenth Amendment guarantees notice and a meaningful opportunity to be heard, Parrott v. Taylor, 451 U.S. 527, 540, 68 L.Ed 2d 420, 432, 101 S.Ct. 1908; Braxton v. Carlson, 483 F.2d 933, 940 (3rd Cir. 1973), which the plaintiff has had by his own admission. The fact that taxes must logically be paid prior to abatement proceedings, and thus that the plaintiff was initially deprived of property without a hearing, does not create a constitutional question. It is now well established that post-deprivation hearings with respect to property interests are sufficient to satisfy due process requirements. Parrott, 451 U.S. at 542-542, 68 L.Ed.2d at 432-434; King v. pace, 575 F. Supp. 1385, 1389-1390 (D. MA. 1983); Packish v. McMurtie, 539 F. Supp. 548, 551 (D. MA. 1982). See, as to factors determining sufficiency of post-deprivation hearing, Mathews v. Eldridge, 424 U.S. 319, 335, 47 L.Ed.2d 18, 33 96 S.Ct. 893. Moreover, neither the practical necessity for the plaintiff to initiate proceedings to recover his property, nor the inconvenience, expense or delay occasioned by this protection of his rights, signifies a denial of due process. Crocker v. Hakes, 616 F.2d 237, 240 (5th Cir., 1980); "Procedural due process does not guarantee against the imposition of mere inconveniences, hardships or encumbrances on persons who must deal with federal, state or local governments, nor does it serve as assurance that officials and functionaries can never err in performance of their responsibilities." Cloutier v. Town of Epping, 547 F. Supp. 1232, 1245 (D.N.H. 1982).
5. The gravamen of the plaintiff's argument herein is that the defendant intentionally employed her official power to injure the plaintiff, and so abused and manipulated otherwise valid assessment procedures as to have deprived the plaintiff of his Fourteenth Amendment rights. The plaintiff's claim may thus be more appropriately characterized as one for a violation of substantive due process. See, generally, Gill v. Gill, 412 F. Supp. 1153, 1157 (E.D. PA 1976); Jordan v. Keve, 387 F. Supp. 765, 770 (D. Del. 1974); Moran v. Bench, 353 F.2d 193, 194 (1st Cir. 1965). Such a claim is sufficiently set forth if it contains adequate, factual allegations demonstrating conduct by the defendant which "shocks the conscience;" is indicative of an evil intent of recklessness; or is otherwise "offensive to the concept of ordered liberty." See Temple v. Marlborough Div. of the Dist. Ct. Dept., 395 Mass. 117, 130 (1985); Stevens v. County of Dutchess, N.Y., 445 F. Supp. 89, 91 (S.D.N.Y. 1977); Schiller v. Strangis, 540 F. Supp. 605, 616 (D. MA. 1982). Absent background information relative to personal animosity, malice or controversy and the nature of the interaction between these parties, the plaintiff's simple conclusion that the defendant intentionally overvalued his property does not present an actionable claim for a denial of substantive due process guarantees.
See Yick Wo v. Hopkins. 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) and its progeny for consideration of gross abuse of power and invidious discrimination under the Equal Protection Clause.
6. It is clear that the plaintiffs complaint, couched almost exclusively in unsupported conclusory language, is insufficient on its face to state a claim against the defendant for a "purposefully discriminatory," "knowing or reckless," or "willful" deprivation of the plaintiff's constitutional rights. Kadar Corp. v. Milbury, 542 F.2d 230, 235-236 (1st Cir. 1977). To survive a Rule 12(b) (6) challenge, the plaintiff's complaint should have set forth factual grounds warranting at least an inference that the defendant acted "with an impermissible motivation or with such intentional or reckless disregard of the plaintiff's clearly established constitutional rights that [her] action cannot be reasonably characterized as being in good faith." Borman v. Tomlin, at 195; Fulton Market Cold Storage Co., at 1080.
7. The obvious deficiencies of the plaintiff's complaint do not in any way mitigate the seriousness of an intentional misuse of governmental power to the prejudice of an individual or group. We note also that Dist./Mun. Cts. R. Civ. P., Rule 9(b) generally permits a defendant's alleged malice, intent or other state of mind to be averred generally, rather than pleaded with specificity. See, e.g. Senay v. Meeha, 5 Mass. App. Ct. 854 (1977). The dispositive issue is whether the plaintiff could ultimately establish intentional wrongdoing by the defendant of constitutional proportions. A complaint in this Commonwealth is to be reviewed under applicable standards of notice pleading, and amendments to correct a deficiency in pleading should be "freely given when justice so requires." Dist./Mun. Cts. R. Civ. P., Rule 15 (a). See Levine v. E.F. Hutton 15 Mass. App. Ct. 976 (1983); Provincetown Chamber of Commerce, Inc. v. Grace, 14 Mass. App. Ct. 903 (1982). See also Gaffney v. Silk, 488 F.2d 1248, 1251 (1st Cir. 1973). Although the trial justice properly disregarded allegations and facts adduced at oral argument in evaluating the defendant's Rule 12 (b) (6) motion, it is clear from the court's findings that additional information relative to the parties' controversy does exist. The plaintiff should not be permanently deprived at the pleading stage of this action of an opportunity to be heard on these facts, especially in view of the defendant's opportunity to challenge the plaintiff's claim again by a Rule 56 motion for summary judgment or at trial. Bell v. Mazzo, 394 Mass. 176, 184 (1985). As these additional facts may adequately support an allegation of discriminatory intent, or reckless action, by the defendant in derogation of the plaintiff's constitutional rights, we cannot rule at this stage of the proceedings that the plaintiff can prove not set of facts entitling him to relief.
Accordingly, the trial court's Rule 12 (b) (6) dismissal of the plaintiff's complaint is vacated. The plaintiff is hereby afforded twenty days from the date of notice of this Opinion to amend his complaint. This case is remanded to the trial court for further proceedings.