Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

United States Court of Appeals

For the First Circuit

No. 06-1523

PETER K. FREI,

Plaintiff, Appellant,

v.

TOWN OF HOLLAND, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

 Torruella, Lynch and Howard,

Circuit Judges.

Peter K. Frei on brief pro se.

Nancy Frankel Pelletier, Dorothy Varon and Robinson Donovan,

P.C., on brief for appellees.

January 5, 2007
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Per Curiam. Pro se appellant Peter Frei appeals from

the district court's grant of defendants' Fed. R. Civ. P. 12(c)

motion for judgment on the pleadings. After careful consideration

of the record and appellate claims, we affirm, substantially for

the reasons given in the comprehensive and well-written Memorandum

and Order by District Judge Ponsor, which is dated February 17,

2006. We make only the following additional comments.

1. Even if we deem the April 3, 2001 event Frei

highlights to have been within the limitations period, that would

not affect the result here. By itself, the April 3rd event did not

state a federal claim and so could not "anchor" the remaining

untimely claims against the board of health. Centro Medico del

Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 7 (1st Cir. 2005)

(where serial continuing violations are alleged, "the act that

falls within the limitations period must itself constitute an

actionable violation"). 

2. In his appellate brief, Frei fails to address a

critical element of his "class of one" equal protection claim

against the town planning board. See Barrington Cove Ltd.

Partnership v. Rhode Island Housing & Mortg. Finance Corp., 246

F.3d 1, 8 (1st Cir. 2001) (confirming that the complaint must

adequately allege all of the relevant respects in which the

plaintiff and more favorably treated applicants were "similarly

situated"). Thus, he has waived or forfeited his right to
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appellate consideration. Casillas-Díaz v. Palau, 463 F.3d 77, 83

(1st Cir. 2006) ("Few principles are more a part of the warp and

woof of appellate practice than the principle that 'issues adverted

to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived.'") (citation omitted).

3. The pertinent state law, M.G.L. c. 41, §§ 81L and

81P, did not entitle Frei to the planning board's endorsement of

his plans to divide one parcel of land. The mandatory language

Frei focuses on is qualified by other statutory language, as the

district judge recognized. Hence, the dismissal of the procedural

due process claim was proper for that reason alone.

4. The substantive due process claim based on

allegations of perjury, falsification of documents, and retaliatory

action, fails under this circuit's case law. See, e.g., Cruz-Erazo

v. Rivera-Montañez, 212 F.3d 617, 623-24 (1st Cir. 2000) (rejecting

substantive due process claim based on police provision of false

affidavits and testimony to support a trumped-up burglary charge);

Pagán v. Calderón, 448 F.3d 16, 33-34 (1st Cir. 2006) (rejecting

retaliation claim because "[s]ubstantive due process is an

inappropriate avenue of relief when the governmental conduct at

issue is covered by a specific constitutional provision" like the

First Amendment).

5. Frei has not established that the district judge's

decision on his takings claim is inconsistent with Supreme Court
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law, as he maintains. He fails to cite any case or other authority

that would support his claim that the one-year limitations period

for his state remedy renders that remedy inadequate. At this

point, it is speculative whether the state law cap on municipal

liability would render the state remedy inadequate. 

6. As for the retaliation claim against the town

planning board, the complaint itself indicates that the board

declined to endorse Frei's plans before learning that Frei intended

to file a mandamus action. Moreover, Frei's prior applications to

state courts or agencies were all too remote in time to give rise

to an inference of retaliation by the board. See Centro Medico,

406 F.3d at 11 n.5 (even a two-year lapse of time between the

plaintiff's and defendant's actions "undercuts rather than

supports" the existence of a causal connection).

7. Contrary to Frei's contention on appeal, the district

judge did rule on his motion to amend his complaint a second time,

denying it as untimely. Moreover, the claim Frei now seeks to add

-- that one defendant misrepresented the facts and law to the state

court judge presiding over Frei's mandamus action -- is not a

federal claim. See Cruz-Erazo, supra, 212 F.3d at 623-24.

Affirmed.