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BROWN v. COSTELLO

October 31, 1995

DONALD H. BROWN, JOHN MARKOWICZ and PAUL PUSHLAR, Plaintiffs,
v.
FRANCIS COSTELLO, TOWN OF FENNER, MICHAEL LARKIN, LYNN KEATOR, and DAVID SHEPHARD, Defendants.



The opinion of the court was delivered by: MCCURN

 INTRODUCTION

 Plaintiffs, Donald Brown, John Markowicz and Paul Pushlar, commenced this suit on February 1, 1993, alleging that the Town of Fenner, Francis Costello, Lynn Keator, David Shephard, and Michael Larkin violated their constitutional rights. *fn1" Specifically, plaintiffs assert that

 
this is an action for damages to recover for property confiscated by the above-named Defendants in violation of the unreasonable seizure clause of the Fourth Amendment, the deprivation of liberty and property clause of the Fifth Amendment, the private property taken for public use without just compensation clause of the Fifth Amendment, the nature and cause of the accusation clause of the Sixth Amendment, the excessive fines imposed clause of the Eighth Amendment, the cruel and unusual punishments clause of the Eighth Amendment, the due process of law clause of the Fourteenth Amendment, and the equal protection clause of the Fourteenth Amendment.
 
In a nutshell, the Defendants mis-used legal procedure in order to confiscate from Plaintiff Donald H. Brown the valued collection of the three Plaintiffs and other friends, which had been building since 1950 and was stored on the property of the one friend, Plaintiff Brown, and his father, giving rise to this action pursuant to 42 U.S.C. § 1983 and related statutes. A minimum of $ 2,000,000.00 in damages is sought.

 See Plaintiffs' Second Amended Complaint at 1-2.

 Plaintiffs invoke the jurisdiction of this court pursuant to 42 U.S.C. §§ 1983, 1985(3); 28 U.S.C. §§ 1331, 1343(1), 2201, 2202 and 1651; and the Fourth, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendments and their intrinsic human rights. See id. at 2. In addition, plaintiffs request that the court exercise its pendent jurisdiction over their state law claims which allege violations of Article 1, Sections 7(a) and 12, and Article 2, Section 6 of the New York State Constitution. *fn2" See id. at 8.

 Plaintiffs assert four separate causes of action. *fn3" In their first cause of, action, plaintiffs contend that "the confiscation of a 40-year collection of vehicles and other items by the Defendants is an unreasonable seizure of Plaintiffs' property without just compensation, in violation of the Fourth and Fifth Amendments, U.S. Constitution and violates Article I Section 7(a) and 12 of the New York Constitution." See Plaintiffs' Second Amended Complaint at 8. In their third cause of action, which is very similar to their first, plaintiffs allege that they "were denied due process of law and suffered unreasonable seizure of property and private property taken for public use without just compensation, when valuable items were taken and again when Defendants secured an order for said items to be sold on the LOCAL market." See id. at 10.

 Plaintiffs' second cause of action includes a number of claims related to Mr. Brown's indictment by a Madison County Grand Jury in December 1987 for unlicensed vehicle dismantling and unlicensed junkyard operation. See Plaintiffs' Second Amended Complaint at 5. Plaintiffs contend that this indictment was obtained through the use of the perjured testimony of defendant Shephard. See id. Plaintiffs assert, therefore, that the indictment is void. See id. at 9. In addition, plaintiffs contend that the indictment is confusing and that if Counts I and II of that indictment are the same, then he was placed in jeopardy twice for the same offense in violation of the double jeopardy clause of the Fifth Amendment of the United States Constitution and Article 2 [sic], Section 6 of the New York State Constitution. See id. Alternatively, plaintiffs argue that if Count II of the indictment is a misdemeanor, the indictment is void. See id. Moreover, plaintiffs contend that the statute(s) under which Mr. Brown was convicted are void for vagueness as enacted and applied and that because his constitutional rights were violated, his sentence and conviction are a nullity. See id. at 9-10.

 Finally, plaintiffs' fourth cause of action asserts that while incarcerated Mr. Brown was forced to inhale cigarette smoke in violation of New York Public Health Law § 1399-n. See Plaintiffs' Second Amended Complaint at 10. Furthermore, plaintiffs contend that such involuntary exposure to environmental tobacco smoke constituted a denial of due process, trespass, and battery, and posed an unreasonable risk of serious damage to his future health, thus subjecting him to cruel and unusual punishment in violation of the Eighth Amendment. See id. at 10-11.

 As a result of these alleged constitutional violations, plaintiffs request, inter alia, a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 that "the acts of the Defendants violated and continue to violate the Constitutional, statutory, and other rights of the Plaintiffs[,]" and "declaring New York Law § 415-a . . . New York General Municipal Law, Public Health and Safety § 136 . . . New York State Uniform Code § 1242.10b . . . [and] Town of Fenner Local Law # 1 of February 7, 1968 unconstitutional, or as applied in this case." See Plaintiffs' Second Amended Complaint at 12-13. Plaintiffs also seek compensatory and punitive damages for the vehicles confiscated as well as compensatory damages for each day Mr. Brown spent in jail and was forced to breathe second hand smoke. See id. at 11. Finally, plaintiffs seek an order voiding Mr. Brown's felony conviction and granting the return to him of his voting privileges, pistol permit, and confiscated firearms. See id. at 12.

 Discovery having been completed, defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants' motion is based upon several grounds, depending upon the particular cause of action or defendant at issue. Basically, they assert that they are entitled to such relief based upon the doctrines of res judicata/collateral estoppel, absolute quasi-judicial immunity, absolute legislative immunity, and failure to state a claim.

 In opposition to this motion, plaintiffs, all of whom are proceeding pro se, filed a joint memorandum of law, affidavit and statement of facts in dispute. Their opposition focuses almost exclusively upon defendant Larkin's claim of entitlement to absolute quasi-judicial immunity.

 BACKGROUND

 Mr. Brown, a farmer by trade, had situated on his property, among other things, automobiles, automobile parts, and other miscellaneous items, including some farm equipment. Mr. Pushlar and Mr. Markowicz apparently owned some of the items which are at issue in this suit which they stored on Mr. Brown's property with his consent. *fn4" Although Mr. Brown and his fellow plaintiffs characterized these items as part of a "valuable collection," the governmental entities involved concluded otherwise.

 As a result of these items being located on his property, Mr. Brown was indicted by a Madison County Grand Jury in December 1987 for unlicensed vehicle dismantling and unlicensed junkyard operation. See Plaintiffs' Second Amended Complaint at 5. A jury found him guilty of these offenses after a trial before Judge Kevin M. Dowd. See Defendants' Exhibit A. As a result of this conviction, on August 12, 1988, Mr. Brown was sentenced. See id. On January 9, 1989, he was resentenced. There is nothing in the record to indicate that Mr. Brown appealed his conviction or either of his sentences.

 Subsequent to Mr. Brown's criminal prosecution, the Town of Fenner ("Town") enacted a resolution to invoke civil remedies against Mr. Brown to enjoin him from operating an unlawful junkyard in violation of Local Law # 1. See Costello Affidavit at P 8. As a result of this resolution, the Town, through its attorneys, served a summons and complaint upon Mr. Brown on or about April 6, 1989. See id. at P 9 and Defendants' Exhibit F. Mr. Brown neither interposed a proper answer nor a motion to this complaint. See Defendants' Exhibit I. Therefore, the Town moved for a default judgment. See Defendants' Exhibit H. The court granted this motion by decision dated August 17, 1989, and order dated September 25, 1989. See Defendants' Exhibit I. This order directed Mr. Brown to "immediately cease and desist operating an unlicensed and illegal automobile junkyard at premises presently occupied by [Mr. Brown] . . ." See id. Furthermore, the court permanently enjoined Mr. Brown from "maintaining and operating said automobile junkyard upon such premises; . . ." See id. Finally, the court ordered Mr. Brown within thirty days to bring his property into compliance with Local Law # 9 "by either removing and disposing of the automobiles and other junk now situate thereon in a lawful and proper manner or by obtaining a proper and lawful permit to operate such junkyard pursuant to Local law number 9 of the Town of Fenner." See id. Mr. Brown did not appeal this order or the entry of a default judgment against him.

 Mr. Brown failed to comply with the court's order. Therefore, the Town moved for an order punishing him for contempt of court. See Defendants' Exhibit K at 1. In response to this motion, Mr. Brown filed a lengthy document titled "answer under Protest" which the court characterized as an "indication that [Mr. Brown] refuses and will continue to refuse to submit himself to the jurisdiction and orders of this Court." See id. The court held a hearing on the Town's motion on February 23, 1990, at which no appearance was entered on Mr. Brown's behalf. See id. at 2. By order dated March 1, 1990, the court granted the Town's motion, finding that Mr. Brown had failed to obey the court's September 25, 1989, judgment. See id. Furthermore, upon finding that Mr. Brown's actions "indicated a willful, intentional, and deliberate course of action, which it appears that [Mr. Brown] intends to continue, of refusing to recognize the jurisdiction of the Court and the obligation of [Mr. Brown] to obey the judgments and orders of the Court," the court found Mr. Brown guilty of contempt of court. See id. at 2-3. Accordingly, the court sentenced Mr. Brown to a term of six months in the Madison County jail or "until such time as [Mr. Brown] agrees to abide by the court order." See id. at 3.

 On April 9, 1990, Mr. Brown signed an affidavit in which he agreed to abide by the court's judgment dated September 25, 1989. See Defendants' Exhibit N. Based upon this affidavit, the court ordered Mr. Brown released from jail. See Defendants' Exhibit O. Despite this affidavit, Mr. Brown continued to disregard the court's judgment. Therefore, the Town once again moved for an order punishing him for contempt of court. See Defendants' Exhibit S at 1. In addition, the Town moved for appointment of a receiver pursuant to Rule 5106 of New York Civil Practice Law and Rules. See id. On September 21, 1990, the court held a hearing on this motion, at which Mr. Brown did not appear. The court granted the Town's motion finding Mr. Brown had failed to obey its September 25, 1989, judgment and had violated his sworn agreement with the court dated April 9, 1990. See id. at 2.

 Holding that Mr. Brown was guilty of contempt of court, the court reinstated Mr. Brown's prior six month sentence and directed that he be returned to the Madison County jail for service of the balance of his term. See id. at 3. In addition, the court ordered that "Michael Larkin be and is hereby appointed receiver pursuant to CPLR 5106 of a quantity of automobiles, automobile parts, and miscellaneous junk to be found at an unlicensed and illegal automobile junkyard at premises presently occupied by [Mr. Brown] . . ." See id Finally, the court ordered that the receiver carry out its September 25, 1989, judgment according to certain instructions and directions of the court. See id. These instructions, among other things, directed Mr. Larkin to

 
take possession of the offending automobiles, automobile parts, and miscellaneous junk located at the illegal junkyard . . . obtain the services of such contractors and agents as may be necessary to remove such automobiles, automobile parts, and items of miscellaneous junk from the subject premises. . . . [and] sell all items at such prices as may fairly and reasonably be obtained upon the local market . . .

 See Defendants' Exhibit S at 4.

 At some point during the course of the receivership, Mr. Brown moved the court for an order clarifying the term "miscellaneous junk." *fn5" See Defendants' Exhibit T. Mr. Brown argued that the receiver had removed property beyond the scope of the court's order in that he had removed farm equipment and tractor parts. See id. at 2. In response, the Town argued that at the time of the original order the property contained acres of junked automobiles making it impossible to itemize the property with any specificity. See id. at 2.

 At the time that Mr. Brown moved for clarification of the court's order, the parties conceded that the property had been substantially cleared. See id. Finding that the dispute centered primarily on which items of farm equipment were in use and which had been abandoned and, therefore, constituted junk, the court concluded that a specific inventory should be possible at that time. See id. Thus, the court directed the attorneys for both parties "to agree on and submit to this court within 7 days of the date of this decision an inventory of the remaining junk to be disposed of." See id. at 3. If they could not agree, the court directed them to notify the court, whereupon an immediate evidentiary hearing would be directed. See id.

 Apparently, the parties could not agree on an inventory because the court held an in-chambers conference on July 24, 1991. Based upon the parties' arguments as well as submitted photographs, the court directed that

 
[Mr. Brown] shall have seven days from this date to place any vehicles or other articles under cover of barn or other structure. Any articles not placed in a barn within seven days of this date shall be deemed to be "miscellaneous junk" and shall be subject to removal by the Town of Fenner pursuant to the order of this court dated December 20, 1990.

 See Defendants' Exhibit U at 3.

 After all the items were disposed of, the receiver moved for a "settlement of receiver's account." See Defendants' Exhibit V. On May 14, 1993, the court ordered

 
that the motion to confirm the referee's report be granted, and . . . that the account of Michael Larkin, Receiver, duly filed herewith is hereby settled and approved, and . . . that the Receiver is allowed for his commissions as Receiver in this action 5 percent of the total receipts $ 36,491.72 . . . [and] that the Plaintiff, Town of Fenner, be paid the sum of $ 10,061.34 as reimbursement for costs incurred in connection with bringing [Mr. Brown's] property in compliance with local laws, pursuant to Order of the Madison County Supreme Court, entered December 20, 1990 [, and] . . . that . . . the Receiver pay the balance of the sums . . . to [Mr. Brown].

 See Defendants' Exhibit W at 2.

 Upon Mr. Brown's subsequent refusal to accept payment from the receiver, the court ordered that the sum of $ 27,567.61 be paid into the court, after which Mr. Larkin was discharged from his ...


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