United States District Court, D. Massachusetts
ORDER ON MOTIONS TO DISMISS (DOCS. 29, 54, 57,
Sorokin, United States District Judge.
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).
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”). 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
alleges the following: 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. Id. at 10.
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
point - the Complaint does not specify when - the Boston
Housing Court granted the petition for receivership ex parte.
29, 2012, James Cotter seized the Properties and has since
denied Plaintiff access to them. Id. at 11.
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.
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.
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
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.
alleges various Defendants - Coburn, Judge Muirhead, Cotter,
Judge Winik, Mayor Walsh, William Christopher,  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.
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 ...