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ALIKI PISHEV )
PLAINTIFF )
)
VS ) NO.
)
CITY OF SOMERVILLE AND )
SOMERVILLE DEPARTMENT OF PUBLIC WORKS )
DEFENDANTS )
)
A. Parties
Public Works is the duly authorized department of public works under G.L. c.
41 responsible for maintaining and altering public ways in Somerville and has
B. JURISDICTION
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 2 of 10
under 28 U.S.C. 1331 because Pishev asserts claims for relief under the
States and 42 U.S.C. 1983 and the court has supplemental jurisdiction of
C. Facts
The Property
5. Pishev and her family have owned the Property since 1970 when her
years old, built by Pishevs father, with bays and facilities that are suitable
for and have been used by various commercial uses, including but not
7. The building has two sections which have typically been occupied by
separate commercial tenants since the Pishevs have owned the Property.
by JN Phillips Auto Glass and until February, 2017, the other section (Section
G.L. c. 121B urban renewal plan, the Union Square Revitalization Plan (USR
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 3 of 10
2012.
12. On August 14, 2015, Pishev filed suit in the Middlesex Superior
Court to prevent the City from taking her property by eminent domain under
the Plan because the properties designated to be taken thereunder were not
decadent under G.L. c. 121B but thriving businesses and thus the Plan was
1581cv05346.
14. The City has entered into an agreement with a private company
must either purchase the properties itself from the current owners or pay the
City some or all of the costs to the City to take the properties by eminent
domain.
16. Permits and licenses for the operation of the JN Phillips business at
JN Phillips and Fabio Gomes were issued originally for two year periods as
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 4 of 10
17. In February, 2017, when the tenants permits and licenses were up
for renewal, City officials advised them that the licenses would only be issued
for three month periods because the properties they leased were slated for
18. The City officials also for the first time required that Gomes acquire
and use expensive equipment as part of his operation that it had never
required before.
Curb Stops
19. The front of the building and the bays in both sections face
Webster Avenue.
20. Automobiles have always entered and exited the bays for both
21. On information and belief, the curb cut to Webster Avenue from the
22. There is also a small curb cut on the Concord Ave side of the
building.
23. JN Phillips Auto Glass uses the lot to park its vans under a permit
issued by Somerville.
25. Under the Somerville City Charter, the power . . . to lay out,
locate anew, alter, widen and discontinue public ways and streets and to
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 5 of 10
avenues, courts, lanes, alleys, squares, places and sidewalks, and each of
not order the curb stops to be installed on the Webster Avenue curb cut.
28. On information and belief the installation of the curb stops was
(OSPCD).
30. The STID does not have authority to alter or terminate the access
31. At no time did Pishev receive a notice of any public hearing nor was
there any public hearing held by the city Aldermen or otherwise concerning
32. Pishev has been deprived of this valuable property right without
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 6 of 10
33. The installation of the curb stop barriers on the Webster Avenue
curb cut by the Department of Public Works was ultra vires, unauthorized,
COUNT ONE
CLAIM FOR DAMAGES UNDER 42 U.S.C. 1983 CAUSED BY DEPRIVING PISHEV OF HER
RIGHT UNDER THE FOURTEENTH AMENDMENT TO EQUAL PROTECTION AND THE FIFTH AND
FOURTEENTH AMENDMENTS TO DUE PROCESS AND HER RIGHT UNDER THE FIRST
AMENDMENT TO FREEDOM OF SPEECH
35. The income from the commercial tenants at the Property is vital to
Pishev.
discourage the lease and productive use of the Property in order to force
retaliation for Pishevs state law suit in violation of her right to free speech
39. The installation of the curb stops without notice and a hearing
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 7 of 10
deprived Pishev of procedural due process under the Fifth and Fourteenth
40. In February, Fabio Gomes, the tenant renting Section 2, quit the
premises and ceased paying his monthly rent because of the regulatory
curb stops.
41. Because of the curb stops, JN Phillips Glass can no longer park its
vehicles in the parking lot which has severely impacted its business and
42. The potential new tenant for Section 2 has indicated that its lease
43. The curb stops were installed in order to discourage the lease and
productive use of the Property in order to force Pishev to sell it to the Master
44. The curb stops were installed in retaliation for Pishevs lawsuit
45. The installation of the curb stops is part of the defendants overall
Amendment, due process under the Fifth and Fourteenth Amendments, and
1983 for all her injuries caused by the defendants deprivation of her rights
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 8 of 10
secured by the Constitution and laws; her reasonable attorneys fees and
costs under 42 U.S.C., 1988; interest; and such other relief as the court
deems warranted.
COUNT TWO
INJUNCTIVE RELIEF TO ENJOIN THE DEFENDANTS FROM SUBJECTING PISHEVS TENANTS TO
REQUIREMENTS AND BURDENS DIFFERENT FROM THOSE SIMILARLY SITUATED AND TO
REMOVE THE CURB STOP BARRIERS
requirements for the tenants of the Property and installation of the curb
stops because the Property has been designated to be taken under the USR
Plan and to coerce its sale under duress has deprived her of rights secured
by the Constitution to due process under the Fifth Amendment and equal
U.S.C. 1983.
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 9 of 10
COUNT THREE
DAMAGES UNDER G.L. C. 79, 12
50. The curb stop barriers have prevented reasonable access to the
52. The curb stop barriers will prevent Pishev from leasing Section 2.
53. The curb stop barriers have taken Pishevs right of access to
Webster Avenue.
54. The curb stop barriers have caused injury which is special and
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Case 1:17-cv-12071-FDS Document 1 Filed 10/23/17 Page 10 of 10
peculiar to Pishev.
property taken or otherwise for all injury caused by the curb stop barriers.
Pishev hereby claims the right to trial by jury of all issues and
claims so triable.
ALIKI PISHEV
By her attorney,
Philip H Cahalin
Philip H. Cahalin, Esq., BBO # 545538
85 Exchange Street, Suite 206
Lynn, MA 01901
t. 781.598.3130
pcahalin@cahalinlaw.com
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Case 1:17-cv-12071-FDS Document 1-1 Filed 10/23/17 Page 1 of 1
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
(b) County of Residence of First Listed Plaintiff Middlesex County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
1. Title of case (name of first party on each side only) Aliki Pishev v City of Somerville
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I. 410, 441, 470, 535, 830*, 835*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.
II. 110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720,
740, 790, 820*, 840*, 850, 870, 871.
III. 120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 376, 385,
400, 422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890, 896,
899, 950.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES 9 NO 9
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC
2403)
YES 9 NO
9
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?
YES 9 NO
9
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC 2284?
YES 9 NO 9
7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of
Massachusetts (governmental agencies), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES
9 NO 9
A. If yes, in which division do all of the non-governmental parties reside?
YES 9 NO 9
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME Philip H Cahalin
ADDRESS 85 Exchange Street, Suite 206, Lynn, MA 01901
TELEPHONE NO. 781.598.3130
(CategoryForm6-2017.wpd )