ROBERT GARDNER vs. GOVERNOR APARTMENTS ASSOCIATES & others. [Note 1]

WILKINS, J. We consider here whether the ruling of a judge of the Boston Housing Court that the plaintiff is entitled to relief under 42 U.S.C. Section 1983 (1982) is correct. We conclude that no State action was involved in the wrongs the defendants committed and consequently that Gardner is not entitled to relief under Section 1983.

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Gardner was a tenant in the defendants' premises at 197 Kelton Street in the Brighton section of Boston from May, 1975, until February, 1981, when he moved as a tenant to other premises owned by the defendants in Brighton. In September, 1980, the Boston Redevelopment Authority had authorized the defendants to rehabilitate the premises on Kelton Street, pursuant to G. L. c. 121A (1984 ed.). Gardner was one of the tenants who were relocated to enable the defendants to rehabilitate the premises. He received assurances from the defendant Wingate Management Company, the designated relocation agency under G. L. c. 79A (1984 ed.), that he could reoccupy the rebuilt premises. In the fall of 1981 tenants began moving into the rehabilitated building.

The defendants decided, however, on what the judge found to be pretexts, that Gardner was not entitled to return. Gardner had opposed the defendants in various ways, such as suing to challenge the Boston Redevelopment Authority's approval of the G. L. c. 121A tax agreement, helping to organize a union of all the defendants' tenants in Boston, and persuading the housing inspection department of Boston to inspect sixty apartments owned by the defendants for sanitary code violations. The judge found that the defendants knew Gardner well as "a source of constant consternation . . . because of his engagement in various activities protected under [G. L. c. 186, Section 18]."

The trial judge issued two orders for judgment in this case. First, in March, 1982, he directed the defendants promptly to provide Gardner with a suitable apartment within the rehabilitated premises. The judge concluded that the defendants had broken their agreement with Gardner that he could return to the premises and had attempted to deprive Gardner of his rights under State law in retaliation for his activism. In the first order, the judge did not consider whether the defendants had violated 42 U.S.C. Section 1983 (1982), and thus did not face the question whether Gardner's Federal rights had been infringed by a person engaging in State action.

The second order, entered in December, 1983, dealt with Gardner's claim for damages based on (a) G. L. c. 186, Section 18 (1984 ed.) (concerning reprisals against a tenant for engaging

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in certain protected activities), (b) 42 U.S.C. Section 1983 (1982), and (c) G. L. c. 12, Section 11I (1984 ed.) (the State "equivalent" of Section 1983). The judge found a violation of G. L. c. 186, Section 18, and awarded Gardner damages of three months' rent, the maximum amount allowable absent a showing of actual damages. He awarded no attorney's fees under Section 18 because he did so under 42 U.S.C. Section 1988 (1982), as to the Section 1983 action. The judge further found a violation of G. L. c. 12, Section 11I, but he awarded no damages on this claim because he allowed recovery under other theories of liability. Finally, the judge determined that the defendants' refusal to allow Gardner to move back into the rehabilitated premises violated rights secured to him by State and Federal law. The judge then concluded that these were actions of the State itself, citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974), and two earlier Federal Circuit Courts of Appeal decisions cited below, and awarded Gardner punitive damages of $20,000 and attorney's fees of $10,000. [Note 2]

The second order was entered one week before this court issued its opinion in Phillips v. Youth Dev. Program, Inc., 390 Mass. 652 (1983), concerning the meaning of State action under Section 1983. The judge's memorandum mentions neither the Appeals Court opinion in the Phillips case ( 14 Mass. App. Ct. 626 [1982]), nor the trilogy of Supreme Court opinions on the same subject issued on June 25, 1982. See Blum v. Yaretsky, 457 U.S. 991 (1982); Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); Rendell-Baker v. Kohn, 457 U.S. 830 (1982). Any analysis of the meaning of State action within the purposes of Section 1983 must take into account the restrictive views that those opinions express on the scope of Section 1983.

The judge made no finding that any State official or employee had been involved directly or indirectly in the denial of Gardner's rights. He made no explicit ruling as to which Federal

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law violated by the defendants was the basis of Gardner's Federal (Section 1983) claim. [Note 3] In ruling that State action was involved in the defendants' conduct, the judge relied exclusively on the role the defendants assumed in rehabilitating residential housing pursuant to State statutes and regulations.

Under G. L. c. 121A, Section 2, an authorized corporation is engaged in developing property for the purpose of eliminating blighted, decadent, or substandard conditions, and it receives governmental assistance such as subsidized rents (42 U.S.C. Section 1437[f] [1982]), tax benefits (G. L. c. 121A, Section 10), and financial assistance in relocating tenants (G. L. c. 79A, Section 3 [1984 ed.]). Although these facts alone, coupled with general governmental regulation, might once have sustained a ruling that action by such a corporation against tenants (or a relocated tenant) constitutes State action for purposes of Section 1983 (see, e.g., Geneva Towers Tenants Org. v. Federated Mortgage Investors, 504 F.2d 483, 488 [9th Cir. 1974]; McQueen v. Drucker, 438 F.2d 781, 784-785 [1st Cir. 1971], on which the trial judge relied), recent Supreme Court cases require more. See Blum v. Yaretsky, supra at 1011. The act of improving the housing stock of the Commonwealth pursuant to incentives established by law is not per se State action.

There is no record support for a claim that either State policy or an official or employee of the State was behind the defendants' wrongful conduct. The defendants' actions were not prescribed by the State, nor did any State official put the weight or the authority of the State behind those actions. In short, this case involves neither wrongful action compelled or encouraged by the State (see Blum v. Yaretsky, 457 U.S. 991, 1004-1005 [1982]), nor "the abuse of authority doctrine recognized in Monroe v. Pape, 365 U.S. 167 (1961)" (see Lugar v. Edmondson Oil Co., 457 U.S. 922, 940 [1982]). There is no suggestion here that the Commonwealth was a joint participant in, or that it profited in any way from, the defendants' challenged activity. See Burton v. Wilmington Parking Auth., 365

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U.S. 715, 724 (1961). Nor is the activity of rehabilitating decadent housing traditionally an exclusive governmental function. See Fantasy Book Shop, Inc. v. Boston, 531 F. Supp. 821, 824 (D. Mass. 1982).

Thus, "the focus must be on whether government action was involved in the particular conduct that is challenged as wrongful." Phillips v. Youth Dev. Program, Inc., 390 Mass. at 656. See Blum v. Yaretsky, supra at 1004; Rendell-Baker v. Kohn, supra at 839-841. Only if the State has coerced or significantly encouraged the private decision can it "be said that the State is responsible for the specific conduct of which the plaintiff complains" (emphasis in original). Blum v. Yaretsky, supra. See Kolinske v. Lubbers, 712 F.2d 471, 480 (D.C. Cir. 1983). Compare Miller v. Hartwood Apartments, Ltd., 689 F.2d 1239, 1243-1244 (5th Cir. 1982) (no State action where no government staff was involved in apartment management, including tenancy and eviction decisions), with Jeffries v. Georgia Residential Fin. Auth., 678 F.2d 919, 923 (11th Cir.), cert. denied, 459 U.S. 971 (1982) (State action where government agency participated in eviction procedures). The circumstances of this case, including the fact that one of the defendants acted as a relocation agency, do not permit the conclusion that State action was involved in the defendants' wrongful conduct. Gardner, therefore, was not entitled to relief under Section 1983.

The defendants do not challenge the portion of the judgment entered against them under G. L. c. 186, Section 18. They acknowledge that they are liable for attorney's fees under Section 18 (and, we think also, provided there is no duplication of fees, under G. L. c. 12, Section 11I). The case should be remanded for a determination of attorney's fees under those statutes. Because Gardner did not prevail on his Federal claim for punitive damages, an award of attorney's fees would be inappropriate under 42 U.S.C. Section 1988 (1982).

The judgment is vacated, and the case is remanded to the Housing Court of the City of Boston for determination of attorney's fees and the entry of judgment consistent with this opinion.

So ordered.