Plaintiffs Donald A. and Linda L. Rubino-vitz (“the Rubinovitzes”) brought this action under 42 U.S.C. §§ 1983 and 1985 against various officials of the City of Lynn, Massachusetts (collectively, “defendants”), 1 elaim- *908 ing a violation of their civil rights by the apparent revocation of a previously granted zoning-variance application and by the commencement of numerous code-enforcement actions against them. The district court granted defendants’ motion for summary judgment. After careful review of the record, we conclude that, as to two of the defendants, summary judgment should not have been granted.
I.
BACKGROUND
The facts leading to this appeal center around property owned by the Rubinovitzes that includes an out-building containing an apartment over a one-car garage (“the property”). On January 1,1989, the Rubinovitzes leased the apartment to Laurie A. Lussier. On the same day, they received a check for $500 from defendant Grace Rogato — a friend of Lussier — to cover the first month’s rent and a $100 installment toward a $300 security deposit.
Two days later, on January 3, 1989, defendant Robert M. Barrett, a code inspector for the Lynn Department of Public Health, notified the Rubinovitzes that the city required a certificate of occupancy before the dwelling could be legally inhabited. Three days later, upon a visual inspection of the apartment, Barrett advised the Rubinovitzes that city health regulations required a second means of egress before the city would issue the occupancy permit. The city building department then advised the Rubinovitzes that a zoning variance was required before they could obtain a building permit for the second means of egress.
Several months later, in April 1989, the Rubinovitzes discovered that Lussier had a cat in the apartment, in violation of the lease. Acting on that violation, on April 10, 1989, the Rubinovitzes notified Lussier that her tenancy would terminate effective May 31, 1989. On April 20,1989, Rogato went to Mr. Rubinovitz’s business, an office supply store, and asked whether Rubinovitz intended to give Lussier a “hard time.” Rogato further asked whether the security deposit would be returned to her.
On May 2, 1989, the Rubinovitzes’ application for the zoning variance came before a hearing of the Lynn Board of Appeals (“the Board”). By a vote of 4-1, the Board approved the variance. Two or three days later, Rogato spoke with Nancy Amenta, the clerk for the Board, and asked what had transpired as to the property at the May 2 hearing.
At some point, after Lussier occupied the apartment, defendant Barrett apparently reinspeeted the property. On May 4, 1989, Barrett at a meeting with Mr. Rubinovitz, presented him with an order to make various repairs within seven days. Barrett also told Rubinovitz that Rogato had been calling the health department “every hour on the hour” regarding the property and was pressuring the department to bring enforcement actions.
Later that day, the Rubinovitzes wrote a letter to the director of public health, Gerald M. Carpinella (the “May 4 letter”), in which they requested a hearing on the order to repair. The letter also stated:
[We] request that the type of harassment that [we] have been subjected to cease immediately, as [we] are well aware and have been informed that this stems from cronyism and blatant misuse of power and authority brought on by the Purchasing-Director, Grace Rogato.
Carpinella discussed the letter with Roga-to. Subsequent to the May 2 variance hearing, the Rubinovitzes received two post cards from the Board notifying them that the Board had approved their request. On May 11, 1989, however, the Rubinovitzes received a letter from the Board notifying them that the May 2 hearing (at which their variance request had been approved) had been continued until May 16, 1989. At the continued hearing, defendant Board chairman John J. Burke, Jr., moved to reconsider the May 2 vote, and Burke and defendant Board member Dennis Tobin then reversed their earlier *909 votes to grant the Rubinovitzes’ petition. Thus, on reconsideration, the Rubinovitzes’ petition failed by a 3-2 vote.
On June 2, 1989, defendant Henry P. Baron, the city gas inspector, wrote to public health director Carpinella advising that gas service to the Rubinovitz apartment be discontinued because of alleged safety problems. Five days later, Carpinella wrote to the Ru-binovitzes advising them of numerous violations of state plumbing and gas codes. On July 12, 1989, the city plumbing inspector, Gerald Capano, ordered the Rubinovitzes to disconnect the water and sewer connections to the apartment because they lacked requisite permits. On July 14, 1989, Baron ordered the Boston Gas Company to disconnect the gas service to the Rubinovitz apartment because of the lack of a permit. Later, Baron told a contractor hired by the Rubino-vitzes to stay away from them, characterizing the Rubinovitzes as “bad people” and calling Mrs. Rubinovitz “a bitch.”
Meanwhile, the Rubinovitzes had appealed the Board’s variance order to the Massachusetts Superior Court. On January 10, 1991, the Superior Court vacated the Board’s reconsideration vote, thereby reinstating the Rubinovitzes’ variance.
The Rubinovitzes filed the present action under 42 U.S.C. § 1983 against defendants alleging violation of their equal protection rights, their rights to free speech, and their property rights. The Rubinovitzes also allege violation of 42 U.S.C. § 1985. Following discovery, defendants moved to dismiss. The district court treated the motion as one for summary judgment and, following a hearing, ruled from the bench that the Rubinovitzes’ claims, though styled under different theories, amounted to one constitutional claim: that they were denied equal protection under the law by being singled out by Lynn officials for exercising their property rights (in evicting Lussier) and for exercising their rights to free speech (in sending the May 4 letter). The district court determined that a landlord’s right to evict a tenant is “a matter uniquely grounded in state property law and does not implicate constitutional rights triggering the protections of § 1983.” As to free speech, the district court determined that the Rubinovitzes “failed to show any causal connection between the May 4 letter and Miss Rogato’s alleged conspiratorial campaign against them.” In fact, the district court said, Rogato’s motivation appeared to be malice toward the Rubinovitzes because of their eviction proceedings against Lussier rather than retaliation for their exercise of their free speech rights. Accordingly, the district court granted summary judgment as to all counts. This appeal followed.
II.
DISCUSSION
A. Standard, of Review
We review a district corut’s grant of summary judgment
de novo,
considering the facts in the light most favorable to the non-moving party.
See, e.g., Udo v. Tomes,
B. Equal Protection
We first set out the analytical framework for our decision. The Rubinovitzes charge defendants with improper selective enforcement of lawful local regulations.
See LeClair v. Saunders,
Liability in the instant type of equal protection case should depend on proof that *910 (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.
Yerardi’s Moody St. Restaurant & Lounge, Inc. v. Board of Selectmen,
To facilitate the analysis of this case, we divide the events described above into two broad categories: the zoning-variance approval revocation and the code-enforcement actions. Turning first to the zoning-variance approval issue, we conclude that the Rubinovitzes have not offered a sufficient basis for us to conclude that they were selectively treated. Plaintiffs claiming an equal protection violation must first “identify and relate specific instances where persons situated similarly ‘in all relevant aspects’ were treated differently, instances which have the capacity to demonstrate that [plaintiffs] were ‘singled ... out for unlawful oppression.’ ”
Dartmouth Review v. Dartmouth College,
The Rubinovitzes’ complaint of selective code-enforcement actions stands on far firmer ground. For example, the Rubinovitzes point to the affidavit of city plumbing inspector Capano, in which he states that (1) he had encountered other instances where there was plumbing but no permits and (2) he did not order the plumbing disconnected, as he had with the Rubinovitzes. As to code-enforcement, we think the record contains sufficient evidence of selective treatment to forestall summary judgment. Accordingly, the balance of our analysis focuses on the defendants’ code-enforcement efforts against the Rubinovitzes.
The second prong of the
Yerardi’s
analysis requires us to determine whether defendants singled out the Rubinovitzes for an improper purpose. The Rubinovitzes do not allege that the disparate treatment flowed from an invidious classification involving race or religion. Rather, the Rubinovitzes argue that defendants sought to punish them for the exercise of fundamental constitutional rights. First, although not entirely clear from their arguments below and to this court, the Rubinovitzes appear to allege that defendants punished them for exercising their “right to evict” Lussier. The Rubinovitzes rely on language from
Correa-Martinez v. Arrillaga-Belendez,
The Rubinovitzes mount another argument grounded in fundamental constitutional rights. Specifically, they allege that defendants’ code-enforcement actions were an attempt to punish the Rubinovitzes for the May 4 letter. This argument also falls short, but for a different reason. Free speech is a fundamental right but, to survive summary judgment, the Rubinovitzes must offer some proof that defendants’ allegedly retaliatory actions were motivated by the protected speech.
See, e.g., Cloutier v. Town of Epping,
This recitation is insufficient to support an inference of improper motive. As the Rubi-novitzes themselves point out, the city’s code-enforcement activity had been well underway for four months prior to the May 4 letter. In fact, the Rubinovitzes wrote the May 4 letter immediately following Barrett’s meeting with Mr. Rubinovitz during which Barrett both presented an order to repair and related Rogato’s pre-May 4 pressure to bring code-enforcement actions. The May 4 letter itself complained about the “harassment” from city officials. Although the Rubinovitzes contend that the “principal wrongful actions” took place after the May 4 letter, they offer no basis upon which to distinguish pre- and post-May 4 harassment. Of course, on summary judgment, we must draw all reasonable inferences in favor of the nonmoving party. However, those inferences “must flow rationally from the underlying facts; that is, a suggested inference must ascend to what common sense and human experience indicates is an acceptable level of probability.”
National Amusements,
Finally, as noted above, in the absence of invidious discrimination or the abuse of a fundamental right, a party may establish an equal protection violation with evidence of bad faith or malicious intent to injure.
Yerardi’s,
*912
Indeed, despite the general language of
Yerardi’s,
at least one member of this panel believes that something substantially more than a single act of malice underlying some routine administrative action is necessary to make out a constitutional claim.
Cf. Esmail v. Macrane,
Although Rogato had no official authority in the matter, there is certainly evidence that she was personally hostile to the Rubino-vitzes based on her resentment concerning Lussier’s eviction, that she had sought to intervene with the Rubinovitzes personally on Lussier’s behalf, that she had repeatedly pressured the health department to bring enforcement actions, that she had kept track of the Board proceedings, and that in May she had conferred with Carpinella, the public health director, not long before the cut-off orders. Rogato was an official of the city and, in a relatively small unit of government, almost certainly had access and influence beyond that of an ordinary outsider.
Putting aside the Board’s reconsideration vote, these actions by Rogato were followed by Baron’s advice to Carpinella that gas service to the Rubinovitzes be discontinued (June 2), Carpinella’s notice to the Rubino-vitzes advising them of numerous violations (June 7), Capano’s order to disconnect water and sewer hook-ups to the apartment (July 12), and Baron’s order to Boston Gas to disconnect gas service (July 14). Baron thereafter sought to interfere with the Rubi-novitzes’ hiring of a contractor, using language about them (“bad people,” “bitch”) redolent of malice. In the case of both cutoffs, there was some evidence that other residents similarly situated did not suffer the same penalty.
Under these circumstances, we think that although the case might be a difficult one for the plaintiffs, a reasonable jury might well be able to conclude that there was an orchestrated conspiracy involving a number of officials, selective enforcement, malice, and substantial harm. Of course, the full presentation of evidence on both sides might alter this judgment and show that the plaintiffs fell just short and would be subject to a directed verdict. But at the summary judgment stage, with the obligation to draw all reasonable inferences in favor of the party opposing summary judgment, we think that this case could not be dismissed against all defendants.
We think that Barrett, also named as a defendant, was properly granted summary judgment; his own investigation of code violations began well before the eviction controversy, and — while his report of Rogato’s pressure is highly pertinent evidence — there is no evidence that Barrett was himself involved in either of the cut-off directives. As for Carpinella and Capano, there is no need to consider whether the evidence might be sufficient as to them, since they were not named as defendants and it is almost certainly too late in the day to consider any expansion of this lawsuit.
III.
CONCLUSION
For the foregoing reasons, the judgment of the district court is vacated as to defendants Rogato and Baron and the case remanded as to them for proceedings consistent with this opinion. As to all other defendants, the decision of the district court is affirmed.
Notes
. The defendants are city purchasing director Grace Rogato, health inspector Robert M. Bar *908 rett, gas inspector Henry P. Baron, Board of Appeals chairman John J. Burke, Jr., and Board of Appeals members Dennis Tobin and John Volo. In February 1993, Rogato died and her estate was substituted as a party in the action.