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September 27, 1994

JAMES ROTZLER, Individually and in his official capacity as Village of Hancock Fire Chief, Code Enforcement Officer, Building Inspector and Assistant Fire Coordinator for the County of Delaware and B.J. OLMSTEAD, Individually and in his official capacity as Arson Investigator for Village of Hancock and the County of Delaware, and NELSON DELAMETER, Individually and in his official capacity as Fire Coordinator for County of Delaware, THE VILLAGE OF HANCOCK and COUNTY OF DELAWARE, Defendants.

The opinion of the court was delivered by: THOMAS J. MCAVOY


 This action is brought pursuant to 42 U.S.C. § 1981, 1982 and 1983. The complaint also asserts several state law causes of action: negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and conversion. The action arises mainly from a fire which occurred on May 24, 1992 at premises owned by plaintiff, Keith Waldron, located at 37 East Front Street in Hancock, New York. Plaintiff owned two properties in the Village of Hancock, both of which burned down within 3 months of each other in 1992 -- the 37 East Front Street property burned down first and the second property burned down a week after this action was filed. Plaintiff is a 38 year old black male who is disabled and supported himself entirely on the income from these properties and two others he previously owned in Pennsylvania and Liberty, New York.

 The fire at 37 East Front Street began at approximately 12 midnight and took several hours to extinguish. The fire was investigated by B. James Olmstead, Deputy Fire Coordinator for Delaware County, on May 26, 1992, who determined the fire was of suspicious origin. Mr. Olmstead, however, was unable to determine the exact cause.

 Plaintiff claims that he first learned of the fire over nine hours after it began through a local carpenter he had hired to do work on the property. Despite the fact that defendant Fire Chief Rotzler was on the scene of the fire and knew to leave messages for plaintiff at his parents' home as he had done in the past if necessary, plaintiff alleges that Rotzler did not contact him. Plaintiff called Rotzler at approximately 12:45 pm on May 24, 1992 and asked why he had not notified him of the fire. According to plaintiff, Rotzler claimed that a message was left on the answering machine at plaintiff's parents' house. Plaintiff asserts that his parents have never owned an answering machine and his parents attest that they were home all weekend and never received a call from Rotzler, or anyone else, about the fire.

 Rotzler told plaintiff to meet him at the Hancock firehouse at 10:00 am on May 26, 1992. Plaintiff told Rotzler not to touch anything and that he would hire his own fire investigator. Plaintiff explained that he would try to make it and did arrive at 10:45 am, but according to plaintiff, the building was closed and Rotzler could not be found. Defendant Rotzler claims that he waited at the firehouse for two hours but plaintiff did not arrive.

 Plaintiff's building was demolished on May 26, 1992. The only formal notification plaintiff received of the demolition of the building was a notice sent by certified mail that the property would be demolished on May 26th. Plaintiff did not receive this notice until June 2nd. The notice was dated May 26th but was not mailed until May 27th.

 Plaintiff challenges defendants' decision to demolish the remains of his building without notice and an opportunity to be heard. Plaintiff also makes numerous other allegations that he has been discriminated against by defendants. He claims that they have subjected him to building code requirements not enforced against white property owners, and that a potential tenant, Mr. Hua, who trying to open a Chinese restaurant on plaintiff's 37 East Front Street property was subjected to unusual building code requirements. Plaintiff claims that Mr. Hua's inability to acquire the necessary building permits to start his restaurant caused Mr. Hua to breach his ten year lease agreement with plaintiff.

 Plaintiff complains of various other incidents with Village of Hancock officials, including one incident where he was beaten by Police Officer Gene Morgan (not a named defendant) when stopped for a traffic violation immediately after refusing to sell his East Front Street property to local businessmen. He claims that local police frequently monitored his travel to and from Hancock, and on one occasion, chased him over the state line into Pennsylvania. He asserts that village law enforcement failed to investigate incidents of property damage to his buildings, and that a building inspector attempted to enter one of his tenant's residences without the required warrant. Plaintiff claims that he was threatened when he confronted the inspector with his lack of a proper warrant. These all appear to be submitted as support for the concept that he was experiencing ongoing harassment even before the fire took place.

 Defendants Rotzler and the Village of Hancock now move for dismissal under Rule 12(b)(6) and/or for summary judgment. *fn1"


 A. Standard for Rule 12(b)(6) Dismissal

 The court should grant a Rule 12(b)(6) motion only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In determining the legal sufficiency of a claim, the facts must be judged in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974).

1. Claim Under 42 U.S.C. § 1983

 Plaintiff brings a cause of action under 42 U.S.C. § 1983 which requires that the plaintiff make two allegations: (1) that some person has violated the plaintiff's protected rights under the U.S. Constitution or federal law; and (2) that the person who allegedly violated such rights acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). When examining a suit brought under § 1983 it is the duty of the court to examine whether the plaintiff has alleged sufficient facts which, if proved, would comprise an actionable deprivation of a federal right. Robinson v. City of Mount Vernon, 654 F. Supp. 170, 172 (S.D.N.Y. 1987). The federal courts are prohibited from applying a "heightened pleadings standard" to § 1983 cases. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, U.S. , 113 S. Ct. 1160 (1993). Nonetheless, complaints based on civil rights statutes must include specific allegations of facts showing a violation of rights "instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987). It is in light of these considerations that the plaintiff's § 1983 claim is examined.

 It appears clear to the court that what plaintiff has labeled in his complaint as a § 1983 cause of action actually states a § 1981 cause of action, and what is labelled as a § 1981 cause of action actually states a § 1983 cause of action. In deciding a motion to dismiss, the court should scrutinize the complaint to ascertain whether the allegations provide for relief on any viable grounds. Emanuel v. Barry, 724 F. Supp. 1096, 1098 (E.D.N.Y. 1989). "Particularly where a party sues under the wrong section of the federal civil rights statutes, a court may uphold the complaint if the allegations satisfy another section." Id. This being the law, the court recognizes the plaintiff's § 1981 cause of action as being, in reality, his § 1983 cause of action.

 Plaintiff has alleged that the defendants, at all times, acted under color of state law and that plaintiff's property was taken without due process. Plaintiff also claims that Village of Hancock Local Law Number 1 of 1982 § 21 A-13 is facially unconstitutional. This, combined with the general factual allegations found in paragraphs 1 through 64 constitute a sufficient claim that state actors have violated plaintiff's due process rights under the Fourteenth Amendment. Thus, plaintiff has properly pleaded a § 1983 claim.

2. Monell Claim

 For a valid claim of municipal liability under § 1983 the municipality itself must be the wrongdoer rather than one of its employees because § 1983 liability cannot be based on a respondeat superior theory. Monell v. Department of Social Serv., 436 U.S. 658, 98 S. Ct. 2018, 2036-37, 56 L. Ed. 2d 611 (1978). A valid claim of municipal liability under § 1983 must be based on official ...

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