Neil T. Mulrain v. Board of Selectmen of The Town of Leicester, 944 F.2d 23, 1st Cir. (1991)

944 F.
2d 23
Neil T. MULRAIN, Plaintiff, Appellant,

v.
BOARD OF SELECTMEN OF The TOWN OF LEICESTER,
et al.,
Defendants, Appellees.
No. 90-2016.
United States Court of Appeals,

First Circuit.
Heard June 3, 1991.
Decided Sept. 10, 1991.
Mark I. Zarrow with whom Zarrow, George, Lian & Abraham was on
brief, for plaintiff, appellant.
Richard J. Shea with whom Andrew C.J. Meagher and Wolfson, Dodson,
Keenan & Cotton were on brief, for defendants, appellees.
Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE,*
Senior District Judge.
PER CURIAM.
Petitioner Neil Mulrain appeals from the district court's grant of summary
judgment in favor of the Board of Selectmen of the Town of Leicester. The
case below, brought pursuant to 42 U.S.C. 1983, however, was not the first
time that this matter was brought to the attention of the courts. Petitioner has
sought redress for the same wrong on three prior occasions. Because we believe
that res judicata controls, we affirm the district court's dismissal of the
petitioner's case.
I. BACKGROUND
2
In 1960 the Town of Leicester, Massachusetts enacted a bylaw requiring all

municipal employees to live in the town. The bylaw contained an exception for
"emergency or necessary skilled professions."1 Petitioner was appointed to the

police force in December, 1977. Concerned about the bylaw, he asked the
police chief on several occasions if it would affect his employment if he were to
move out of town. The chief told him that it would not. In reliance on these
statements, petitioner moved to a nearby town in June, 1980. Despite the police
chief's assurances, however, on July 8, 1980, petitioner was notified by the
Board of Selectmen that if he did not move back to the town within 90 days, the
bylaw would be enforced. Petitioner did not move and on October 7, 1980 the
Board voted to dismiss him. Petitioner now alleges that the Board never
enforced the bylaw, neither before nor since his termination and that such
"selective prosecution" states a cause of action under 1983.
3
To state the petitioner's claim, however, does not, in and of itself, explain this
appeal. It is the procedural history of the case, when combined with the
underlying facts, that is dispositive. That procedural history began in 1980,
when petitioner filed two actions, one in Massachusetts Superior Court and one
before the Massachusetts Civil Service Commission ("Commission"). Both
actions arose from his dismissal. In Superior Court, petitioner sought, first, a
declaration that the bylaw was invalid because it conflicted with state law and,
second, an injunction barring enforcement of the bylaw. See Mass.Gen.L. ch.
31, 582 and ch. 41, 99A (1979). 3 The Superior Court determined that police
officers did not fall within the exception to the bylaw and that the bylaw was
valid under state law, specifically Mass.Gen.L. ch. 41, 99A. On appeal, the
Massachusetts Appeals Court affirmed the Superior Court decision, finding that
the bylaw was valid and that police officers did not fall within the bylaw
exception. See Mulrain v. Board of Selectmen, 13 Mass.App.Ct. 48, 430
N.E.2d 831 (1982).
The issue before the Commission was whether or not there was just cause for
petitioner's dismissal. The hearing officer made findings and recommendations.
He determined that petitioner should be reinstated because, as a police officer,
he fell within the bylaw exception. Moreover, he found that the Town had
never before enforced the law. Upon petitioner's motion, the hearing officer,
however, refused to adopt two factual findings: 1) that the bylaw "has not been
enforced with respect to other similarly situated employees," and 2) that the
bylaw "was enforced ... in an arbitrary manner." His stated reason for refusing
to add the findings was that there had been insufficient evidence presented on
those points. The hearing officer's final recommendation was that petitioner be
reinstated with back pay.
The Commission adopted the hearing officer's report and thereby ordered
reinstatement with back pay on January 7, 1982. However, on July 23, 1982,
the Commission amended its opinion and reversed, apparently in reliance on

the intervening Appeals Court decision holding that the bylaw exception did not
shield police officers from the residency requirement. The Commission held
that petitioner should be suspended rather than reinstated and that if petitioner
relocated to Leicester by January 1, 1983, the suspension would be lifted,
without back pay. Petitioner appealed the revised decision to the Spencer
District Court, which upheld the Commission's decision on May 23, 1983.
6
In 1982, new cases were filed in Massachusetts Superior Court by both

petitioner and the Board of Selectmen. This time, petitioner alleged that the
Board did not reinstate him even though he moved back and that, pursuant to
the Massachusetts Civil Rights Law, Gen.L. ch. 12, 11, the Board had
violated his rights by retaliating against him for appealing the Commission
decision. The Board, on the other hand, appealed the Commission's order of
reinstatement. The Superior Court consolidated the cases and held that: 1) the
Commission's decision would be upheld, 2) the termination of petitioner would
be upheld because he failed to re-establish residency by the deadline, and 3) the
Board did not violate the state civil rights law. No appeal was taken.
The present action was filed on July 7, 1983 under 1983. Petitioner alleges
that the Board of Selectmen, in their individual and official capacities, violated
his constitutional rights by terminating him in a manner that was arbitrary and
capricious and motivated by discriminatory intent. The theory of the complaint
is basically that of selective enforcement. Petitioner also brought a pendent
state claim for emotional distress. Defendants moved for summary judgment
seeking dismissal of the pendant state law claim and dismissal of the federal
claim under theories of res judicata, collateral estoppel, statute of limitations
and failure to state a claim. A magistrate recommended that the state claim be
dismissed but that the motion otherwise be denied. The district court dismissed
the state claim and granted summary judgment against petitioner on res judicata
grounds.
II. DISCUSSION
8
In this case, although the parties have also briefed and argued the issues of
collateral estoppel and failure to state a claim, we need not reach those issues
because we affirm the district court on res judicata grounds. It is undisputed
that "[r]es judicata applies in civil rights actions." Isaac v. Schwartz, 706 F.2d
15, 16 (1st Cir.1983). Moreover, a federal court must give preclusive effect to
state court judgments in accordance with state law. Id. As we are dealing with a
state court judgment, specifically the 1980 state court proceedings, we look to
Massachusetts res judicata principles.
In Isaac we reviewed Massachusetts law on res judicata and summarized the

basic principles.
10
Massachusetts
courts apply res judicata in a perfectly traditional manner. That is to
say, the doctrine prevents the relitigation of "issues that were or could have been
dealt with in an earlier litigation." The entry of a valid and final judgment on the
merits "extinguishes ... all rights of a plaintiff to remedies against the defendant with
respect to all or any part of the transaction, or series of connected transactions, out of
which the complaint arose."
******
11
12 Massachusetts, as elsewhere, a second claim is barred "even though the plaintiff
In
is prepared in the second action ... to present evidence, grounds or theories of the
case not presented in the first case...." The issue is "not whether the plaintiff in fact
argued his [civil rights] claims in the state proceeding, but whether he could have."
******
13
14 question, as put by the Massachusetts courts, is whether the second claim
The
"grows out of the same transaction, act, or agreement and seeks redress for the same
wrong," or whether "the second claim is an impermissible variation on the theme of
the first." Id. at 16-17 (citations omitted).
15
The Massachusetts standard is essentially the same transactional test as that

dictated by federal law. As this Court has recently stated,
16the claims asserted ... [are] sufficiently related, that is, if they [are] founded upon
if
the same transaction, [arise] out of the same nucleus of operative facts, and [seek]
redress for essentially the same basic wrong, the two suits [advance] the same cause
of action notwithstanding any differences in remedies sought or theories of recovery
pleaded. Kale v. Combined Insurance Co. of America, 924 F.2d 1161, 1166 (1st
Cir.1991).
17
In the present case, there was plainly only one transaction--the allegedly
wrongful termination of petitioner Mulrain. As petitioner conceded during oral
argument, there were no specific events after the 1980 state suit that form the
basis of the present suit. Additionally, nothing prevented him from bringing his
1983 claim in state court. The state court would have had jurisdiction over the
claim and been able to award full relief. See id. at 1168. Also, petitioner was
obviously aware of the possible grounds for the current civil rights action
because he raised the issue of arbitrary enforcement in the Commission
proceedings which occurred simultaneously with the state court action. See
Isaac, 706 F.2d at 18. There is thus no reason why all of petitioner's claims
could not have been raised in one case.
18
"[R]es judicata ... not only reduce[s] unnecessary litigation and foster[s]
reliance on adjudication, but also promote[s] the comity between state and
federal courts that has been recognized as the bulwark of the federal system."
Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308
(1980). This case presents a classic example of the sort of claim splitting that
res judicata was designed to prevent. After eleven years and four lawsuits, we
now put this case to rest.
19
Affirmed.
Of the District of Rhode Island, sitting by designation
Section 2, Chapter 8 of the Leicester Bylaws provides in part: "Officials or

employees paid for services to the town, other than competitive contract,
emergency or necessary skilled professions, shall be residents of the town and
shall so reside."
Mass.Gen.L. ch. 31, 58 permits a police officer to live within ten miles of the
perimeter of a town that employs him
Mass.Gen.L. ch. 41, 99A allows towns to supersede the provisions of ch. 31,
58

Neil T. Mulrain v. Board of Selectmen of The Town of Leicester, 944 F.2d 23, 1st Cir. (1991)

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Neil T. Mulrain v. Board of Selectmen of The Town of Leicester, 944 F.2d 23, 1st Cir. (1991)

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944 F.

Neil T. MULRAIN, Plaintiff, Appellant,

United States Court of Appeals,

In 1960 the Town of Leicester, Massachusetts enacted a bylaw requiring all

"emergency or necessary skilled professions."1 Petitioner was appointed to the

the Commission amended its opinion and reversed, apparently in reliance on

In 1982, new cases were filed in Massachusetts Superior Court by both

In Isaac we reviewed Massachusetts law on res judicata and summarized the

The Massachusetts standard is essentially the same transactional test as that

Of the District of Rhode Island, sitting by designation

Section 2, Chapter 8 of the Leicester Bylaws provides in part: "Officials or

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