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Dickey v. City of Boston

United States District Court, D. Massachusetts

December 19, 2016

JAMES DICKEY, Plaintiff,
CITY OF BOSTON, et al., Defendants.

          ORDER ON MOTIONS TO DISMISS (DOCS. 29, 54, 57, 60)

          Leo T. Sorokin, United States District Judge.

         For the reasons that follow, the Court ALLOWS the Motions to Dismiss filed by Defendants: (1) James J. Cotter (Doc. 29); (2) City of Boston, Edward Coburn, Mayor Martin Walsh, and William Christopher (hereinafter, “City Defendants”; Doc. 54); (3) Judges Marylou Muirhead and Jeffrey Winik of Boston Housing Court (hereinafter, “Judicial Defendants”; Doc. 57); and (4) Fred Starikov, Josh Fetterman, and Andrew Simpson (Doc. 60).


         On April 1, 2016, Plaintiff, who is pro se, initiated this action, and on June 20, 2016, he filed the instant First Amended Verified Complaint (“Complaint”).[1] See Docs. 1, 23. Essentially, Plaintiff challenges the constitutionality of Mass. Gen. Laws ch. 111, § 127I “Section 127I”), which sets forth the circumstances in which a court is either permitted or required to appoint a receiver for a property. Doc. 23 at 1.

         Plaintiff alleges the following:[2] He is the owner of two buildings in Boston, one located at 495 East Fourth Street and the other located at 497 East Fourth Street (collectively, “the Properties”). Id. at 5. On May 27, 2008, the City of Boston (“City”) issued an order to vacate the Properties.[3] Id. at 10.

         On May 9, 2012, the City submitted a petition for receivership of the Properties to the Boston Housing Court. Id. A notice of the petition was delivered to Plaintiff's sister, “who never informed him of signing for a package on his behalf.” Id. On the same date that the City submitted the petition, Edward Coburn, an attorney for the City, emailed Plaintiff to ask for access to the Properties to inspect them, but did not mention the petition. Id. Notice of the petition for receivership was never posted at the Properties, which were vacant when the City submitted it. Id. Section 127I does not require posting notice of a receivership petition on the property that is the subject of the receivership petition. Id.

         At some point - the Complaint does not specify when - the Boston Housing Court granted the petition for receivership ex parte. Id.

         On May 29, 2012, James Cotter seized the Properties and has since denied Plaintiff access to them. Id. at 11.

         On June 20, 2012, Plaintiff asked the Boston Housing Court to dismiss or stay the receivership petition due to insufficient service. Id. at 10. Judge Muirhead of the Boston Housing Court denied this request. Id.

         In or around June 2014, Cotter “hired Steven and Katie Amaral to strip 497 East Fourth Street of copper piping, appliances, bath tubs, and doors, ” causing damage that Plaintiff estimates to be in excess of one-hundred thousand dollars. Id. at 11.

         In or around May 2015, Cotter hired Andrew Simpson and Josh Fetterman, who are “employed and/or associated with Fred Starikov, ” to strip the roof off 497 East Fourth Street “for the purpose of leaving the building open and exposed to the elements, ” causing damage that Plaintiff estimates to be in excess of two-hundred thousand dollars. Id.

         Plaintiff alleges that at three properties in the City which he does not own, the City filed petitions for receivership of those properties but did not post notice of the petitions on them Section 127I does not require notice to be posted on the property. Id. at 8-9.

         Plaintiff alleges various Defendants - Coburn, Judge Muirhead, Cotter, Judge Winik, Mayor Walsh, William Christopher, [4] and two financial companies that have been terminated as defendants, see Doc. 22 - “conspired to extort real property from the Plaintiff and other property owners in the City of Boston.” Doc. 23 at 12. According to Plaintiff, the conspiracy has nine constituent parts, which are as follows: (1) first, the City finds a building uninhabitable and issues an order to vacate; (2) then, Coburn (with the consent of Mayor Walsh and William Christopher) submits a Section 127I petition to Boston Housing Court asking the court to appoint a receiver of the building; (3) then, “[t]o ensure that the owners of the building [are] unaware of the pending petition for receivership, the City . . . declare[s] that [it] was unable to locate the owner of the now-vacant building and . . . then submit[s] a motion to the Court requesting that notice be provided by publication”; (4) Judge Muirhead or Judge Winik “subsequently approve[s] the petition for receivership ex-parte”; (5) the property owner then becomes aware that the building is in receivership and “submits a motion to the Boston Housing Court requesting that the receivership be dismiss[ed] due to lack of notice”; (6) that motion is then denied by Judge Muirhead or Judge Winik; (7) the Receiver (here, Cotter) then submits to the Boston Housing Court a motion for authorization to sell the building in which he estimates the amount of money needed to repair the building and states that there are no funds to do so; (8) Judge Muirhead or Judge Winik then issues an order that the estimated amount of money be deposited with the court in fourteen days; and (9) after that amount of time passes without a deposit, the Court grants the Receiver authorization to sell the property and he does so, for his personal benefit, notwithstanding that Section 127I “require[s]” him to repair the building. Id. at 12-13. Plaintiff alleges that his properties, as well as various other properties in the City that he does not own, have been the target of this conspiracy. See id. at 12-21.

         The Complaint contains seven counts. In Count One Plaintiff claims, under 42 U.S.C. § 1983, that the City Defendants, Judicial Defendants, and Cotter have all violated his rights under the Fourteenth Amendment's Due Process Clause by enforcing Section 127I, which Plaintiff alleges is unconstitutional because it fails to require posting notice of a petition for receivership on the property that is subject to the petition. Id. at 21-23; see also id. at 2. In Count Two, which names the same Defendants as Count One, Plaintiff asks the Court to declare that Section 127I “does not allow a court to implement a general receivership for a subject property, and further does not allow a court appointed receiver to sell the subject property.” Id. at 24-25. In Count Three, Plaintiff requests an injunction to prevent the City Defendants, Judicial Defendants, and Cotter from enforcing Section 127I because it is unconstitutional. Id. at 25-27. In Counts Four and Five, Plaintiff claims Cotter, the Amarals, Starikov, Simpson, and Fetterman caused damage, through gross negligence and/or deliberate destruction, to the Properties in excess of three-hundred thousand dollars. Id. at 27-28. In Counts Six and Seven, Plaintiff claims Cotter, the Judicial Defendants, and three ...

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