[NOT FOR PUBLICATION-NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit No. 99-1860

JOHN CONNELL and EILEEN CONNELL,

Plaintiffs, Appellants,

v.

THE BOARD OF SELECTMEN OF THE TOWN OF HARWICH, in their official capacity as members of the Town of Harwich Board of Selectmen, WAYNE MELVILLE, Town of Harwich Town Administrator, in his individual capacity and in his official capacity as the Town of Harwich Town Administrator, PAULA J. CHAMPAGNE, Health Director for the Town of Harwich Board of Health, in her individual capacity and in her official capacity as Health Director, GEORGE ARSENAULT, former Building Commissioner/Building Inspector, in his individual capacity and in his official capacity as the former Building Commissioner/Building Inspector of the Town of Harwich, and ROBIN WILCOX,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Morris E. Lasker,* U.S. District Judge]

Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Boudin, Circuit Judge.

Anthony R. Bott for plaintiffs-appellants. Michael F. Stone for defendant-appellee Wilcox. Michael J. Sheehan, with whom Joyce Frank and Kopelman and Paige, P.C., were on brief, for defendants-appellees Harwich Board of Selectmen, Wayne Melville, Paula J. Champagne, and

*Of the Southern District of New York, sitting by designation. George Arsenault.

JUNE 2, 2000

BOWNES, Senior Circuit Judge. The plaintiff-

appellants, John and Eileen Connell, filed a fourteen-count

amended complaint alleging violations of

(1994

& Supp. II 1996), the Massachusetts Civil Rights Act, Mass. Gen.

Laws ch. 12 §§ 11H and 11I (1998), and claims for negligent

infliction of emotional distress. They named as defendants: the

Board of Selectmen of the Town of Harwich, in their official

capacities; Wayne Melville, Town of Harwich Town Administrator,

in his individual and official capacities; Paula J. Champagne,

both individually and in her official capacity as Health

Director for the Town of Harwich Board of Health; and George

Arsenault, former Building Commissioner/Building Inspector, in

his individual and official capacities (collectively “Town

Defendants”). The plaintiffs also alleged that the Town

Defendants conspired with Defendant-Appellee Robin Wilcox to

deprive the plaintiffs of their rights.

All defendants moved to dismiss the action as time-

barred. The district court (Lasker, J.) granted the motions,

and this appeal followed. For the reasons set forth below, we

affirm.

-2- I.

We recount the facts as ably recited by the district

court, noting that for purposes of these motions to dismiss, the

facts alleged in the amended complaint are deemed to be true.

The Connells are the owners and operators of “The Cape Cod

Claddagh Inn” in Harwich, Massachusetts. In July 1993, the

Connells began receiving billing statements from Stanley R.

Sweetster, Inc. (“Sweetster”) for surveying and engineering work

allegedly done on their property. The Connells, however, never

contracted for the work and immediately contacted Sweetster and

informed it of that fact. Sweetster acknowledged that no work

had been contracted for or performed, and that the bills should

be ignored. Nevertheless, Sweetster continued to send bills to

the plaintiffs.

In November 1993, defendant Wilcox telephoned the

Connells, claiming that the Sweetster bill was genuine and that

he was owed for the purported work. The Connells repeatedly

informed Wilcox that they never hired him and owed him nothing.

In late November or early December 1993, Wilcox presented

himself at the Connell home seeking payment for the work billed

by Sweetster. Wilcox also presented the Connells with a

proposal for a septic system for their property. The Connells

again informed Wilcox that they had never hired him or

-3- Sweetster, that they had no contract with either party, and that

consequently they owed nothing to him or Sweetster. Wilcox

became enraged and stated: “I will make things very difficult

for you in the Town of Harwich through my very good friend,

Paula Champagne, the Town of Harwich Health Officer.”

The Connells allege that the defendants thereafter

engaged in a series of wrongful acts, in an effort to disrupt

and damage the Connells' business, including denying them

licenses and permits which were necessary for them to operate

their lodging house and restaurant. The plaintiffs allege that

these acts occurred between April 1, 1994 and June 19, 1995. On

July 12, 1995, the plaintiffs filed suit in Barnstable County

Superior Court seeking an order that the Town of Harwich Board

of Health issue a food service permit which would enable them to

operate their business until they installed the new septic

system required by the Board of Health. At the hearing on July

14, 1995, the court denied the Connells' application for

injunctive relief. The plaintiffs contend that “[w]hether

malevolently or not, the records produced on behalf of the Town

of Harwich and its Health Department . . . were in plain error

and misrepresented the truth” and that the court relied on that

information to deny injunctive relief.

-4- Three years later, on July 14, 1998, the plaintiffs

filed the present action in the United States District Court for

the District of Massachusetts. The defendants moved to dismiss

the action as time-barred. The district court granted the

motions, holding that the plaintiffs' action was not filed

within the applicable three-year statute of limitations and that

“they may not reach back to the pre-limitations period[.]” This

appeal followed.

II.

The plaintiffs argue on appeal that the district court

“plainly erred” in dismissing their amended complaint.

Specifically, the plaintiffs argue that the alleged actions of

the defendants constituted a “systemic” continuing violation

that was not realized until July 14, 1995 and that a further act

of conspiracy occurred on that date. They contend that they

filed their complaint within the three-year statute of

limitations by filing on July 14, 1998. We disagree.

When reviewing a district court's allowance of a motion

to dismiss, we apply de novo review. See New England Cleaning

Servs. v. American Arbitration Ass'n,

(1st

Cir. 1999). For actions brought under

, the

statute of limitations is derived from the forum state's law.

See Owens v. Okure,

(1989). The

-5- appropriate referent here is the general statute of limitations

for personal injury claims. See

In Massachusetts, that

period is three years. See Mass. Gen. Laws ch. 260 § 2A (1998).

The same statute of limitations applies to claims of civil

conspiracy. See id.

A cause of action under

accrues when

a plaintiff knew, or should have known, of the wrongful act or

acts alleged in the complaint. See Morris v. Government Dev.

Bank of Puerto Rico,

(1st Cir. 1994);

Shahzade v. Gregory,

(D. Mass. 1996). The

limitation period may be extended, however, if a plaintiff can

demonstrate a “continuing violation.” Provencher v. CVS

Pharmacy, Div. of Melville, Corp.,

, 14 (1st Cir.

1998). As we have stated: “The continuing violation doctrine

creates an equitable exception to the [limitations period] when

the unlawful behavior is deemed ongoing.” Id. There are two

types of continuing violations: systemic and serial. See Id.

The district court held that “the Connells have not

alleged, nor is there any evidence of, a systemic violation” and

focused its analysis on the serial violation. The plaintiffs

now argue that the defendants' alleged scheme against them “was

not actualized until July 14, 1995 and can be deemed a

'systemic' violation.” A systemic violation “refers to general

-6- practices and policies” and “has its roots in a discriminatory

policy or practice; so long as the policy or practice itself

continues into the limitations period, a challenger may be

deemed to have filed a timely complaint.” Provencher, 145 F.3d

at 14 (internal quotation marks omitted); Sabree v. United Bhd.

of Carpenters and Joiners Local No. 33,

400-402 &

n.7 (1st Cir. 1990). We agree with the district court that

there is no sufficient allegation of a systemic violation in the

plaintiffs' complaint. At best, the plaintiffs allege that they

were personally discriminated against by the defendants between

April 1, 1994 and June 19, 1995. They fail, however, to link

any such alleged discrimination to a policy and practice

attributable to the defendants.

The plaintiffs also contend that the defendants'

actions constitute a “serial violation.” “A serial violation

occurs where a chain of similar discriminatory acts emanating

from the same discriminatory animus exists and where there has

been some violation within the statute of limitations period

that anchors the earlier claims.” Provencher, 145 F.3d at 14.

“The series must contain a specific beachhead violation

occurring within the limitations period.” Pilgrim v. Trustees

of Tufts College,

(1st Cir. 1997).

-7- The plaintiffs claim that the July 14, 1995 decision

of the Barnstable Superior Court was the final overt act

triggering the statute of limitations. They claim that

representations made, “whether malevolently or otherwise,” by

two persons who are not named as defendants here, former Town

Counsel, James Falla, and Bruce Campbell of the Harwich Board

of Health, “impelled the Barnstable County Court to rule against

the Plaintiffs, the Connells, further adversely affecting their

business and livelihood by delaying the proper

continuation/growth of the same by means of a tortious,

negligent and unjustified course of conduct which shocks the

conscience.” They then cite Hoffman v. C.H. Halden,

(9th Cir. 1959), overruled on other grounds Cohen v. Norris,

(9th Cir. 1962), as support for the

proposition that this July 14, 1995 hearing was an overt act of

the defendants. Hoffman is readily distinguishable on the facts

revealed by the plaintiffs' complaint. We hold that the July

14, 1995 hearing was not an overt act of the defendants and

cannot be used as an “anchor” to bind the earlier claims. As we

have stated previously, “residual effects of past discriminatory

conduct . . . are not themselves acts of discrimination and

therefore will not satisfy the anchor violation requirement.”

Provencher, 145 F.3d at 14; see also Pilgrim,

-8- (“Mere subsequent effects of earlier discriminatory action will

not extend the limitations period.”). The plaintiffs'

contention that they suffered from a continuing serial violation

by the defendants lacks merit.

In all events, a continuing violation -- whether

systemic or serial -- will fail “[e]ven where a plaintiff

alleges a violation within the appropriate statute of

limitations period, . . . if the plaintiff was or should have

been aware that he was being unlawfully discriminated against

while the earlier acts, now untimely, were taking place.”

Provencher, 145 F.3d at 14; Sabree,

. In Sabree,

we rejected the plaintiff's continuing violation claim because

the plaintiff “admitted that he believed, at every turn, that he

was being discriminated against.” Sabree,

.

It is clear from our review of the amended complaint

that the plaintiffs knew of the alleged unlawful discriminatory

acts of the defendants while they were taking place. As the

district court noted, the amended complaint makes manifest that

the plaintiffs believed all along that Wilcox's actions and

statements constituted extortion. The plaintiffs not only

reported those actions to the state police and the Massachusetts

Attorney General's Office, but also expressly stated that in

April 1995, “they were quite certain that much of what had

-9- occurred to them by and through various town departments,

agencies, decisions, etc. was motivated to a large degree by

nothing other than malice.” Amended Complaint at ¶ 62.

Indeed, the very fact that the plaintiffs filed their suit in

Barnstable Superior Court on July 12, 1995 seeking injunctive

relief proves that they knew of the alleged wrongful acts of the

defendants prior to the running of the statute of limitations.

As the district court correctly held: “The plaintiffs

were on notice of the unlawful nature of the defendants' alleged

conduct before July 14, 1995 and failed to file this action

within the applicable three-year statute of limitations.

[Accordingly,] they may not reach back to the pre-limitations

period . . . .” Affirmed. Costs to appellees.

-10-