case, the court finds that, by posting the dangerous building notices, Capozzi was deprived of a property interest and that, in doing so, Blakeslee was acting under color of state law. The question remains as to whether Blakeslee deprived Capozzi of property without due process of law, and whether Blakeslee is entitled to qualified immunity for his actions.
Qualified immunity shields government officials from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Washington Square Post No. 1212 v. Maduro, 907 F.2d 1288 (2d Cir. 1990). Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective level of reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken. Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Once disputed factual issues are resolved, the application of qualified immunity to the facts is a question of law for the court to decide. Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 1990).
In McGee v. Bauer, supra, the court found that the building inspector was entitled to qualified immunity based on his decision to declare a structure uninhabitable prior to a hearing. Finding undisputed facts that the structure was in disrepair, that there were excessive animals in the house, that animal waste, rats, and electrical cords running through hay on the back porch were observed, and that there was raw sewage in the basement, the court found that it was objectively reasonable for the inspector to declare house to be uninhabitable. McGee, supra, at 736. Further, the court found that the inspector was entitled to qualified immunity for any failure to notify the plaintiff of his right to a hearing as there was no affirmative duty placed on the inspector to provide notice of a right to a hearing, and that, the inspector would only be a witness at, not an arbiter of, any hearing that was held. McGee, supra, at 738.
In this case, the court has previously determined that Blakeslee lawfully entered Capozzi's home, and that it was also lawful for him to continue to inspect the home upon his viewing of the condition of the house. Similar to the facts in McGee, it is clear from the undisputed facts in this case that the condition of Capozzi's house was very poor, that there was no heat at the time Blakeslee was in the house, that the wood stove had flammable objects in and around it, that there was water damage to the kitchen ceiling, and that the house was full of debris of all kinds "from the floor to the ceiling and from wall to wall." See Exhibit B, Plaintiff's Notice of Motion. As such, the court finds that it was objectively reasonable for Blakeslee to characterize the house as uninhabitable, and to direct Capozzi that he must vacate the premises.
Further, the court finds that Blakeslee was not under any duty to notify Capozzi of his right to a hearing. The City of Olean Ordinance provides that the building inspector shall "appear at all hearings conducted by the fire chief and testify as to the condition of the dangerous buildings." City of Olean Ordinance § 6-239(7). While the notices posted on Capozzi's house and sent to Capozzi did not contain information regarding his right to a hearing, Blakeslee was clearly not responsible for the wording of the forms. The court finds that Blakeslee could have "reasonably assumed that he was not the official designated to advise [Capozzi] of his legal right to a hearing." McGee, supra, at 738. As such, the court finds that Blakeslee is entitled to qualified immunity for his actions relating to Capozzi's home.
Second, as to Defendant John Hart, at the time of the incident at issue in this case, Hart was the attorney for the City of Olean. Plaintiff's only claim against Hart is that Hart failed to take action to restore Capozzi to his residence, and that Hart failed to inform Capozzi of his right to a hearing. However, the City of Olean Ordinance does not set forth a duty on the City Attorney to provide notice to a person deprived of a property interest. That duty is placed on the Fire Chief, pursuant to City of Olean Ordinance § 6-240(2). Nor has Plaintiff offered any caselaw establishing that such an independent duty exists under the Fourteenth Amendment. The court therefore finds that Capozzi has failed to set forth a claim under § 1983 against Hart, as Hart did not deprive Capozzi of a property interest. Further, even if had a proper claim had been raised against Hart, Hart would be entitled to qualified immunity for his actions as the court finds that it was objectively reasonable for Hart not to inform Capozzi of his right to a hearing, or to schedule such a hearing.
Third, as to Defendant John Gibbons, Gibbons was away on vacation at the time of the December 23, 1993 incident. He returned to duty on approximately January 2, 1994. See Exhibit C, Plaintiff's Notice of Motion, at p. 13, P48. The City of Olean ordinance provides that the fire chief shall "upon receipt of a report of the building inspector . . . give written notice to the owner . . . to appear before him on the date specified in the notice . . to show cause why the building or structure reported to be a dangerous building should not be repaired, vacated, or demolished . . ." City of Olean Ordinance § 6-240(1). Further, under the ordinance, the fire chief shall "hold a hearing and hear such testimony as the building inspector, the owner . . . shall offer relative to the dangerous building." City of Olean Ordinance § 6-240(2). The fire chief is then required to make written findings of fact, and issue an order based upon such findings of fact. City of Olean Ordinance § 6-240(3) and (4).
It is clear in this case that no such notice was sent to Capozzi regarding his right to a hearing. Defendant claims that he never received a notice of non-compliance from the building inspector triggering his obligation to hold such a hearing. The court finds that there are disputed issues of fact relative to the reason why Gibbons never convened a hearing, and why Capozzi was never informed as to his right to a hearing, including but not limited to what Gibbons knew of the incident, whether Blakeslee ever informed Gibbons of the incident, what steps were taken to inform Capozzi of his rights under the City of Olean ordinances, and whether Capozzi waived his right to a hearing through his attorney by a letter sent to City Attorney Hart on January 31, 1994. Accordingly, the court finds that summary judgment may not be granted in Gibbons favor.
However, as to Defendant Melfi, while he was acting in the capacity of Acting Fire Chief on December 23, 1993, as Gibbons was on vacation, it is clear that, on December 24, 1993, he forwarded a memo to Defendant Gibbons, informing him of the incident and what steps had been taken. Further, Capozzi was served the notice from the building inspector regarding the condition of his property on January 3, 1994, after Gibbons had returned from vacation. See Exhibit B, Plaintiff's Notice of Motion, Certified Mail Receipt. Therefore, the court finds that the Fire Chief's affirmative duties pursuant to the ordinance were triggered after Gibbons return, and that Melfi's actions taken following the December 23, 1993 incident were objectively reasonable, entitling him to qualified immunity for his actions.
Finally, as to the City of Olean, to prevail on a § 1983 claim against a municipality, a plaintiff must show that the alleged violative acts were taken pursuant to an official policy or custom. Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The plaintiff must also establish a "causal link" between the official policy or custom and his injuries. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). "Municipal liability under § 1983 attaches where, and only where, a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Sorlucco v. New York City Police Department, 780 F. Supp. 202, 211 (S.D.N.Y. 1992) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986)).
Under Jett v. Dallas Independent School District, 491 U.S. 701, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989) there is a two step process for imposing municipal liability under § 1983. First, the court must identify the officials or government entities that have final policy making authority for the municipality in question by "reviewing the relevant legal materials, including state and local positive law, as well [as] '"custom or usage" having the force of law.'" Jett, supra, at 737. Second, once that legal decision is made, the jury must decide whether the officials or entities so identified have "caused the deprivation of rights at issue by policies which affirmatively command that it occur or by acquiescence in a longstanding practice or custom which constitutes the 'standard operating procedures' of the local governmental entity." Jett, supra, at 737.
In ascertaining the first question, the court must consider that an official with final authority in the relevant sphere makes the municipality's final decisions. Rookard v. Health and Hospitals Corporation, 710 F.2d 41, 45 (2d Cir. 1983). Where an official has final authority over significant matters involving the exercise of discretion, the choices he mades represent government policy. Id. An official has final authority if his decisions, at the time they are made, for practical and legal reasons constitute the municipality's final decisions. Id. A municipality may be liable if actions taken by a policy-making official, taken in his official capacity, violated a plaintiff's constitutional rights. McGee, supra, at 733.
In this case, the court finds that the City of Olean ordinances clearly gave the discretion to Defendant Gibbons, as the Fire Chief, as to the holding of a hearing, and the issuance of notices sufficient to provide an adequate post-deprivation remedy. As such, as Gibbons had final decision making authority over the notification and holding of a hearing regarding the decision to direct Capozzi to vacate his home, the court concludes that Gibbons was the policy-making official for the City of Olean for the actions taken in this case. The court further finds that questions of fact remain, and that, therefore, it is a jury question as to whether Gibbons' actions or inactions caused a deprivation of Capozzi's rights in such a manner as to hold the City of Olean liable under § 1983 for Capozzi's due process claims. Accordingly, the court concludes that the City of Olean should not be granted summary judgment in this matter.
Based on the foregoing, Plaintiff's motion for summary judgment is DENIED. Defendants' cross-motion for summary judgment is GRANTED as to City of Olean, New York, Department of Code Enforcement; Ronald Blakeslee; City of Olean, New York, Police Department; Patrick Brandow; Unknown Police Officer/s; City of Olean, New York, Fire Department; Paul Melfi; and, John M. Hart, Jr. Defendants' cross-motion for summary judgment is DENIED as to the City of Olean, New York, and John W. Gibbons.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: November 28, 1995
Buffalo, New York