UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
May 7, 1985
JOHN RODRIGUES d/b/a; TONY'S NURSERIES, Plaintiff, against THE VILLAGE OF LARCHMONT, NEW YORK; MARTIN S. QUIGLEY; RICHARD M. McCARTHY; MARGARET PICCONE; MIRIAM CURNIN; MARK SCHEFFLER; FREDERICK KELLOGG, JR.; LEWELL ROSENTHAL; JOSEPH P. BOHAN, JR.; ALAN W. KATZENSTEIN; EDWARD T. BURNS; JANE BRAUS, and LAWRENCE LOWY, Defendants
The opinion of the court was delivered by: EDELSTEIN
OPINION AND ORDER
EDELSTEIN, District Judge:
Plaintiff, John Rodrigues ("Rodrigues"), brought this civil action against the Village of Larchmont (the "Village") and a number of Village officials.
The poorly drafted complaint
alleges a number of constitutional deprivations including a violation of "plaintiff's constitutional and common law right to due process of law and equal protection of the law," a violation of plaintiff's fifth and fourteenth amendment rights to due process of law and equal protection, a conspiracy to deny him the rights guaranteed to him under the Constitution and laws of the United States, and a violation of the privileges and immunities clause of the United States Constitution.
Defendants moved for summary judgment contending that plaintiff had failed to state a claim for relief under 42 U.S.C. §§ 1981, 1982, 1983 and 1985(3) and that defenses were applicable should the court find a claim to be present. Plaintiff has specifically abandoned any claim asserted under Sections 1981 and 1982. Plaintiff failed to respond to defendants' contentions regarding the Section 1985(3) claim and these allegations shall also be considered to have been abandoned. Thus, only the claim under Section 1983 remains.
Rodrigues is a caucasion male of Portuguese ancestry who owns and operates Tony's Nurseries ("Tony's"), a tree and plant nursery in Larchmont, New York. Plaintiff's Section 1983 claim centers around the treatment of his business by the Village and its officials over a twenty year period. These claims will be set forth in the footnote
and referred to by number throughout this opinion to facilitate the analysis of defendants' motion.
Defendants contend that plaintiff has failed to state a claim under Section 1983, that defendants are immune from liability for the acts alleged by plaintiff, that relief for a number of plaintiff's allegations is barred by the statute of limitations, and that the Village is not liable for punitive damages.
A two step analysis will be used to resolve this motion. The first step is to determine whether the facts set forth by plaintiff state a claim under Section 1983; and the second step is to determine whether any of these claims are subject to the defenses asserted by defendants.
I. STANDARD APPLIED TO A MOTION FOR SUMMARY JUDGMENT.
Summary judgment may be granted only where there are no genuine issues of material fact. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962). All evidence submitted to the court must be viewed in the light most favorable to the plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).
The standard is strictly construed in this circuit. United States v. United Scenic Artists Local 829 of the Brotherhood of Painters, Decorators & Paperhangers of America, 27 F.R.D. 499, 501 (S.D.N.Y. 1961). The court finds that partial summary judgment is appropriate because accepting the plaintiff's statements of fact as true, defendants are entitled to judgment as a matter of law on all but one of plaintiff's claims.
II. THE CLAIMS.
Plaintiff makes a number of allegations regarding the conduct of the Village and its officials. In order to succeed on a Section 1983 claim, "plaintiffs must prove both 1) deprivation of a federal constitutional or legal right . . . which 2) resulted from 'the sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution.'" Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980), cert. denied, 451 U.S. 1019, 101 S. Ct. 3009, 69 L. Ed. 2d 391 (1981) (quoting Turpin v. Mailet, 579 F.2d 152, 169 (2d Cir.) (en banc) (Oakes, J., concurring), cert. denied, 439 U.S. 988, 99 S. Ct. 586, 58 L. Ed. 2d 662 (1978)).
A. OBVIOUS STATE LAW ACTIONS
Plaintiff claims that defendants have refused to honor bids (claim 1); have mixed glass into top soil (claim 2); have advocated a boycott of plaintiff's business (claim 8); have refused to do any other business with plaintiff (claim 11). The mere fact that a legally cognizable injury is inflicted by a state official acting under color of state law does not establish a constitutional violation so as to authorize a claim under Section 1983. Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). These claims are clearly state law claims in tort and contract and do not rise to the level of a constitutional deprivation actionable under Section 1983.
B. POLICE PROTECTION
Plaintiff claims that the Village Police Department refused to investigate crimes against the plaintiff and did not permit him to file a complaint and that various individual defendants failed to correct this police inaction and to provide protection for the nursery. (claims 6 and 7). Plaintiff contends that this inaction constitutes a due process violation. There is certainly no constitutional right to be protected from criminal activity. Wright v. City of Ozark, 715 F.2d 1513, 1516 (11th Cir. 1983); Bowers v. Devito, 686 F.2d 616, 618 (7th Cir. 1982); Reiff v. City of Philadelphia, 471 F. Supp. 1262, 1265 (E.D. Pa. 1979). Therefore, the claim based on the individual defendants' inaction is no actionable under Section 1983. The claim that plaintiff was not permitted to file complaints in criminal actions is also defective. Plaintiff admits that while police officers were reluctant to press charges in two robberies of the nursery, charges were eventually brought in both cases. Deposition of John Rodrigues at 204-17. Thus, plaintiff's claim is not supported by his own version of the facts.
C. TRASH COLLECTION AND USE OF VILLAGE DUMP
Plaintiff alleges that defendants restrained trash pick-ups at the nursery on two occasions, Rodrigues Deposition at 228-29, and denied him access to the Village dump. (Claim 9). Rodrigues further claims that defendant Quigley refused to act on these restraints following plaintiff's complaint. (Claim 10). A restraint on the provision of municipal services may establish a Section 1983 cause of action based on denial of equal protection, e.g., Johnson v. City of Arcadia, Fla., 450 F. Supp. 1363, 1378-79 (M.D. Fla. 1978) (Section 1983 action based on discriminatory provision of services based on race); see Beal v. Lindsay, 468 F.2d 287, 288 (2d Cir. 1972) (equal protection claim based on discrimination in level of service provided).
Rodrigues claims that the services were not provided and that he feels that he "had been discriminated against." Rodrigues Deposition at 229. To prevail on this claim, Rodrigues must establish not only that he was discriminated against, but also, because he is not a member of a suspect class, that the alleged discrimination was purposeful or intentional. Teleprompter of Erie, Inc. v. City of Erie, 567 F. Supp. 1277, 1293, (W.D. Pa. 1983); see Burt v. City of New York, 156 F.2d 791, 792 (2d Cir. 1946)
Therefore, plaintiff does state a claim with regard to the restraints on trash pick-up and access to the dump. Plaintiff claims that the restraint on trash pick-up was based on a personal hostility toward the plaintiff, a situation which has been sufficiently articulated to withstand a motion for summary judgment. This is precisely the situation noted by Judge Learned Hand in Burt, 156 F.2d at 791.
D. THREATS REGARDING NURSERY INTERCOM
Plaintiff also claims that defendant Lowy came to the nursery and told the plaintiff to shut off the intercom and that if plaintiff did not shut them off, Lowy would have the police come to shut them off. The intercom was later sabotaged. (Claim 13). The actions attributed to Mr. Lowy are merely statements of future intent. As Rodrigues concedes, the Village received "numerous complaints against the intercom," Rodrigues Deposition at 275, so that the Village was simply responding to these complaints when it took action against plaintiff. Further, Rodrigues admits that the "sabotage" of the intercom was not done by any of the defendants, but was done by a private citizen. Rodrigues Deposition at 277. This clearly cannot be the basis for a civil rights action.
E. ENACTMENT OF VILLAGE ORDINANCES AIMED AT THE NURSERY
Rodrigues contends that the Village Trustees (Claim 14) and the Zoning Board (Claim 17) have attempted to enact ordinances aimed solely at plaintiff and that the Village enacted special provisions when dealing with the nursery (Claim 19). Plaintiff cannot, however, rely on conclusory allegations to survive a motion for summary judgment. See Taylor v. Mayone, 574 F. Supp. 609, 612 (S.D.N.Y. 1983); Saratoga Vichy Spring Co. v. Lehman, 491 F. Supp. 141, 151 (N.D.N.Y. 1979), aff'd, 625 F.2d 1037 (2d Cir. 1980). With respect to the Trustees, plaintiff has not pointed to a single ordinance, proposed or enacted that supports this claim. Defendants have sworn that no such ordinances have been considered or enacted. McCarthy Affidavit PP 7-8; Scheffler Affidavit PP 5,7; Curnin Affidavit P 4; Quigley Affidavit P 4. Plaintiff has not satisfied his burden with respect to this claim. With respect to the Zoning Board, plaintiff refers to an ordinance prohibiting the use of sound equipment at the nursery. Deposition at 278. Rodrigues stated that he did not know whether the ordinance was passed but that "it was found to be unconstitutional." Deposition at 278. The ordinance discussed by plaintiff may not have become law and given plaintiff's statements did not infringe on his constitutional rights.
F. SURVEILLANCE OF THE NURSERY
Plaintiff claims that "[d]efendant Kellogg has engaged in surveillances of plaintiff." Plaintiff's Rule 3(g) Statement P 24. (Claim 20). Plaintiff has included an affidavit by Kellogg and a supporting document that were submitted in a state court action brought by the Village against Rodrigues. Exhibit 28 noted in Plaintiff's Memorandum in Opposition. Unlawful and unjustifiable surveillance that interferes with and obstructs a person's ability and right to earn a living may establish a claim under Section 1983. See McGee v. Hester, 724 F.2d 89 (8th Cir. 1983). In McGee, the surveillance harassed customers and may have cast a chilling effect over the goodwill of the business. There is no claim that the surveillance undertaken by Kellogg in any way intruded on plaintiff's right to earn a living or that it was unjustifiable or illegal. In fact, the very documents which plaintiff has offered to support the fact of the surveillance demonstrates that the surveillance was conducted to insure compliance with a restraining order issued by the Supreme Court. Under these circumstances, the surveillance does not establish a cause of action under Section 1983.
G. FILING AND INVESTIGATION OF COMPLAINTS AGAINST THE NURSERY
Plaintiff also contends the Village directed a number of complaints and violation notices against the plaintiff (claim 22), that defendants have encouraged Village residents to complain about the nursery (Claim 18) and that the Village has joined in citizen complaints to state agencies about the plaintiff (Claim 21). With respect to plaintiff's contention regarding defendants encouraging Village residents to file complaints against the plaintiff, plaintiff has not come forward with any evidence of such action by a defendant. All of the complaints were made by private citizens and plaintiff has failed to set forth any facts which would establish a connection between the actions of the private citizens and defendants. Thus, the filing of the complaints by the private citizens cannot be said to be under color of state law and is not cognizable under Section 1983.
Plaintiff's contentions regarding the filing of complaints be defendants and joining in citizen complaints present a different situation.
These allegations are analogous to a claim of malicious prosecution against the Village. Malicious prosecution, generally does not constitute a deprivation of life, liberty or property without due process of law, and therefore, is not cognizable under 42 U.S.C. § 1983. Cline v. Brusett, 661 F.2d 108, 112 (9th Cir. 1981); see Norton v. Liddel, 620 F.2d 1375, 1378 (10th Cir. 1980). An exception to the rule exists if the alleged malicious prosecutions are so egregious as to subject plaintiff to a deprivation of constitutional dimension. Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir. 1982), cert. denied, 460 U.S. 1086, 103 S. Ct. 1778, 76 L. Ed. 2d 349 (1983); Norton, supra, 620 F.2d at 1378. The complaints in this case merely initiated investigations by the state agencies and did not implicate any constitutional rights or liberties. Compare Cline, supra, 661 F.2d at 112 (prosecution impaired liberty interest); and Dunn, supra, 697 F.2d at 125-26 (implicated right to be free of unreasonable search and seizures). Further, the actions of the defendants were certainly not so egregious as to rise to the level of a civil rights violation. Plaintiffs claims can be adequately addressed in a state court tort action. See Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).
H. ZONING VARIANCES
1. The Denial of the Variance
Plaintiff claims that the Village denied him a sign variance which had been granted to all others who requested it (claim 3) and that the Village Board of Zoning Appeals denied plaintiff's application for a shade structure (claim 4). Plaintiff apparently contends that these actions were intended to drive him out of business and therefore constitute a due process violation. Plaintiff's Memorandum in Opposition at 17-18 (relying on DiMaggio v. O'Brien, 497 F. Supp. 870 (E.D. Pa. 1980)). The circumstances of DiMaggio are quite different from those presented here. The plaintiff in that case was arrested for criminal violations of the zoning laws and the Section 1983 action was based on malicious use and abuse of process. The court found that the abuse of process was a constitutional tort because it is "by definition a denial of procedural due process." DiMaggio, supra, 497 F. Supp. at 878. Plaintiff in this action has not alleged any such abuse of process.
If on the other hand, plaintiff is alleging a violation of equal protection, this states a claim under Section 1983. Plaintiff alleges that he was denied a variance that all others who applied for had received. Under the doctrine of Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946), an equal protection claim may be raised even though the plaintiff is not a member of a suspect class. It must be noted, however, that plaintiff will have to bring forth substantial facts at trial supporting his allegations of discriminatory treatment. Marty's Adult World of New Britain, Inc. v. Guida, 453 F. Supp. 810, 818 (D. Conn. 1978).
2. Procedural Due Process during Zoning Hearings
Plaintiff contends that the Zoning Board of Appeals refused to receive evidence regarding plaintiff's application (Claim 5) and that a defendant refused to permit speakers to testify on behalf of the plaintiff before the Zoning Board of Appeals (Claim 12). Both of these claims apparently relate to plaintiff's application for a set back variance. Plaintiff suggests that these limitations resulted in a denial of procedural due process. Due process claims are subjected to a two-step analysis: first, the court must ascertain whether that which the plaintiff claims he was deprived of amounts to a property interest entitled to due process protection, and second, the court must determine the nature of the process due. Beacon Syracuse Assoc. v. City of Syracuse, 560 F. Supp. 188, 194 (N.D.N.Y. 1983). In this case, the claim fails the first part of the analysis, because "under New York law, no right to a nonconforming use is gained when a landowner applies for a permit," Ellentuck v. Klein, 570 F.2d 414, 429 (2d Cir. 1978).
Plaintiff has alleged facts to support two claims under Section 1983: first, the denial of equal protection by defendant Kellogg in the refusal to pick up trash and permitting [permitting] plaintiff to use the Village dump; and second the denial of equal protection in the denial of a zoning variance. Defendants have interposed a number of defenses to the plaintiff's claims which may preclude liability.
1. Equal Protection Claim for the Denial of Variances
Defendants have asserted that the members of the Village Board of Zoning Appeals are protected by judicial immunity. To refute this argument, the plaintiff relies on Altaire Builders, Inc. v. Village of Horseheads, 551 F. Supp. 1066 (W.D.N.Y. 1982) where the court found that the Village Board of Trustees who reviewed decisions of the zoning board were performing a legislative function and were not protected by judicial or legislative immunity. The Trustees were deemed to be performing an administrative function and were entitled to only a qualified immunity. 551 F. Supp. at 1074-75. Plaintiff asserts that the Board of Zoning Appeals is similar to the board of Trustees in Altaire Builders. The court agrees with this comparison and the analysis of the court in Altaire Builders.
Under this analysis, the Village would also be liable for the actions of the Village Board of Zoning Appeals. The decisions of the Board are intended to be binding on the Village. Thus, the Board members are those officers described by Monell v. New York City Dep't of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) whose joint edicts or acts may fairly be said to represent official policy. Altaire Builders, supra, 551 F. Supp. at 1070. For purposes of Section 1983 liability, the Board of Zoning Appeals and the Village are one and the same. Id.10
The question then becomes whether the Board's actions as alleged by plaintiff are protected by their qualified immunity. Plaintiff asserts that summary judgment is inappropriate on the issue of qualified immunity. This is incorrect. In light of the Supreme Court decision in Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), which removed the subjective element of the defense, summary judgment may be used to resolve the issue of qualified immunity. Pullnow v. Glennon, 757 F.2d 496, slip op. at 2533 (2d Cir. 1985). Thus, summary judgment is appropriate were the conduct itself and the surrounding circumstances are not in question. Id. In this case, the circumstances surrounding the denial of the variance, including the relationship between the Village and the plaintiff are in issue. Therefore, the court cannot grant summary judgment regarding the qualified immunity.
2. Equal Protection Claim for Restraint on Trash Disposal
The claim regarding the restraint on trash collection and use of the dump by defendant Kellogg cannot be placed into any recognized category of immunity. The claims against Kellogg may not be dismissed based on immunity. The Village, however, cannot be held liable for these claims against Kellogg. In order for the Village to be liable, the deprivation of constitutional rights must be caused by an official act, policy or custom of the municipality. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). It is clear that the refusal to collect trash and to use the dump attributed to Kellogg was not the policy of the Village. Official policy cannot ordinarily be inferred from a single incident. Singleton v. City of New York, 632 F.2d 185, 195 (2d Cir. 1980), cert. denied, 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1368 (1981). Municipal liability may also be found where the alleged unconstitutional acts "have been committed by an official high enough in the government so that his or her acts can be said to represent a governmental decision." Losch v. Borough of Parkersburg, 566 F. Supp. 282, 285 (E.D. Pa. 1983). Kellogg was a man with many hats in Larchmont -- Village Engineer, Building Inspector, and Superintendent of the Larchmont-Mamaroneck Joint Garbage Disposal Commission -- but certainly he cannot be considered to be an official high enough so that his actions represent a governmental decision.
B. STATUE OF LIMITATIONS
The appropriate statute of limitations in a Section 1983 action is the statute of limitations for the recovery of damages for personal injuries. Wilson v. Garcia, 471 U.S. 261, 53 U.S.L.W. 4481, 4485, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (U.S. Apr. 17, 1985). The personal injury statute of limitations in New York is three years. N.Y. Civ. Prac. Law § 214 (McKinney Supp. 1984-85). This action was filed on October 4, 1983, so that any claims accruing prior to October 4, 1980 are time barred.
The incident regarding the restraints on trash collection and use of the dump occurred shortly after plaintiff received a letter from defendant Kellogg dated July 18, 1980. Plaintiff's Response to Interogatory No. 25. Plaintiff claims that the restraints continued for one week. Rodrigues Deposition at 232. The incident therefore occurred prior to October 4, 1980 and is therefore time barred.
The denial of the zoning variances also implicate the statute of limitations. Plaintiff asserts that he was denied a variance on two occasions: the first was prior to 1975, Rodrigues Deposition at 142, and the second in 1982 id. at 141. Any cause of action relating the denial of the first variance application is time barred. Thus, the only basis for this action is the 1982 denial of the zoning variance.
Defendant's motion for summary judgment is granted in part and denied in part. The action against the Village and the members of the Village Board of Zoning Appeals regarding the denial of the 1982 variance application may proceed. All other causes of action are dismissed.