At approximately 1:15 p.m., Robinson told Coons, King, and the other Town personnel present that she would contact plaintiff. Robinson Aff. P 10. Her attempt was unsuccessful, however, and upon returning outside, she was told by Coons that because of the "imminent danger" the Church presented, a decision had been made to knock out the most obviously bulging sections of the walls. Id. P 11. Coons did not indicate that the entire structure would be demolished, nor did he give Robinson anything in writing regarding the Town's authority to take such action, or regarding plaintiff's responsibilities in connection therewith. Furthermore, defendants did not attempt to contact an engineer at any point. Robinson Aff. P 12; Pl. Ex. H at 8-9; Pl. Ex. I at 22-24.
Coons contacted defendant George Corlew, the Town Highway Superintendent, and asked him if he had anything available with which to demolish the Church. Def. Ex. H at 50; Ex. I at 8. Corlew brought the "Gradall", a ditch digging device with a bucket. Def. Ex. I at 14. The demolition began soon thereafter. Id. at 15. After the center of the Church had been knocked down, the remaining front side of the wall was demolished. Robinson Aff. P 12. The rest of the Church followed; by 3 p.m. on August 12, 1995, the entire Church was destroyed. See Def. Ex. G.
B. Procedural History
Plaintiff commenced this lawsuit on March 20, 1996, alleging that defendants, under color of law, deprived him of his rights under the Fourth, Fifth,
Ninth and Fourteenth Amendments to the United States Constitution. Plaintiff brings these federal claims under 42 U.S.C. § 1983, and brings state law claims for intentional infliction of emotional distress, negligence, and injunctive relief.
Defendants now move to dismiss the Complaint, or, in the alternative, for summary judgment.
A. Defendant's Motion to Dismiss/Summary Judgment.
Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's Complaint for failure to state a claim upon which relief may be granted, or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Rule 12(b) provides, however, that where matters outside the pleadings are submitted to and considered by the Court on a motion to dismiss under Rule 12(b)(6), "the motion shall be treated as one for summary judgment...and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." The parties have submitted a number of materials on the present motion, which itself is pled in the alternative, putting plaintiff on notice that defendants were moving for summary judgment. "Thus, the Court finds that the most practical alternative under Rule 12(b) is to treat the motion as one for summary judgment." Nason v. American Canadian Tour, Ltd., 942 F. Supp. 220, 223 (D. Vermont 1996); see Janneh v. Runyon, 932 F. Supp. 412, 415 and n.2 (N.D.N.Y. 1996), aff'd, 108 F.3d 329 (2d Cir. 1997); Dawson v. DEA, 927 F. Supp. 748, 751 n.6 (S.D.N.Y. 1996), aff'd, 112 F.3d 503 (2d Cir. 1997).
(1) The Standard for Summary Judgment.
Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).
Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 585-86. A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). The motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & H.R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir.1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 125 (1991)(quoting Matsushita, 475 U.S. at 586).
It is with these considerations in mind that the Court addresses defendants' motion for summary judgment.
(2) Property Interest
Defendants first argue that because the Church had become a danger and a nuisance, plaintiff had no protected property interest at the time of the demolition.
In support of their argument, defendants cite Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 120 L. Ed. 2d 798, 112 S. Ct. 2886 (1992) and Mugler v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887). These cases, however, are inapposite: each addressed the type of uses that may be proscribed in the context of the Supreme Court's Takings Clause jurisprudence, and did not deal with property interests under the Fourteenth Amendment.
Even if we assume, arguendo, that the Church was in serious disrepair at the time of the demolition, plaintiff nonetheless retained a protectible property interest in the building. "So long as a property deprivation is not de minimis, 'its gravity is irrelevant to the question of whether account must be taken of the due process clause.'" Propert v. District of Columbia, 292 U.S. App. D.C. 219, 948 F.2d 1327, 1331 (D.C.Cir. 1991) (quoting Goss v. Lopez, 419 U.S. 565, 576, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975)). Cf. Price v. City of Junction, Texas, 711 F.2d 582, 589 (5th Cir.1983) ("Whether a junk car has little or great value, it is constitutionally protected property."). Moreover, while the question of whether the property presented a danger or nuisance is relevant to the question of what process was due plaintiff, the danger the Church presented cannot diminish the fact that, in the most literal sense, plaintiff was deprived of property.
(3) Substantive Due Process
Defendants next argue that because plaintiff's claim is properly addressed under the procedural component of the Due Process Clause, his substantive due process claim should be dismissed. The Court disagrees.
The Supreme Court has held that "where a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114, (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)); see also Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995); Ayeni v. Mottola, 35 F.3d 680, 691 (2d Cir.1994), cert. denied, 514 U.S. 1062, 115 S. Ct. 1689, 131 L. Ed. 2d 554 (1995). The Court does not conclude, however, that plaintiff's procedural due process claim and the Albright decision foreclose a claim based upon substantive due process. Rather than providing separate sources of constitutional protection, the procedural and substantive components of the due process clause are two sides of the same coin. See, e.g., DeMarco v. Sadiker, 952 F. Supp. 134, 137 (E.D.N.Y. 1996). The Court thus concludes that the 14th Amendment's guarantee of procedural due process is not the sort of "explicit source of constitutional protection" that would foreclose a substantive due process claim.
Nonetheless, the crux of plaintiff's substantive claim is in fact derived from an explicit textual source: the Fourth Amendment. First, the Supreme Court has held that a "seizure" under the Fourth Amendment "occurs when 'there is some meaningful interference with an individual's possessory interests in that property.'" Soldal v. Cook County, Illinois, 506 U.S. 56, 60, 121 L. Ed. 2d 450, 113 S. Ct. 538 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984)). In the present case, there can be no question that the demolition of plaintiff's Church amounted to a seizure within the meaning of the Fourth Amendment. Though the property was not literally seized and carried away, as in Soldal, it was reduced to rubble. That the Church remained on plaintiff's land in thousands of pieces likely makes little difference to plaintiff, and, the Court concludes, makes little difference under the Fourth Amendment. See, e.g., Fuller v. Vines, 36 F.3d 65, 67 (9th Cir. 1994) (killing of dog by police was Fourth Amendment seizure), cert. denied sub nom., 514 U.S. 1017 (1995); Thomas v. City of Dallas, 1997 U.S. Dist. LEXIS 4983, 1997 WL 472502 at *5 (N.D. Texas) ("the [plaintiffs] have been permanently deprived of their possessory interest in their home in that it is no longer standing. This certainly qualifies as a "seizure" for purposes of the Fourth Amendment."); Suss v. A.S.P.C.A., 823 F. Supp. 181, 186 (S.D.N.Y. 1993) (forced entry and demolition of outer wall constituted Fourth Amendment seizure).
Moreover, because plaintiff contends that defendants acted unreasonably at best in demolishing the Church, his claim fits squarely within the contours of the Fourth Amendment's protections. Because this claim is grounded in an explicit textual source, his substantive due process claim must be dismissed.
Even if the Court were to reach the merits of plaintiff's substantive due process claim, plaintiff has failed to raise an issue of fact as to the nature of defendants' conduct in this respect. To prove his substantive due process claim plaintiff must establish that in depriving him of a property interest, the defendants acted in an arbitrary or irrational manner. Crowley v. Courville, 76 F.3d 47, 51 (2d Cir. 1996); Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 102 (2d Cir.1992), cert. denied, 507 U.S. 987, 123 L. Ed. 2d 153, 113 S. Ct. 1586 (1993). Viewing the evidence in the light most favorable to plaintiff, Coons' decision was ill-informed, hasty, and unreasonable. "Substantive due process protects against government action that is arbitrary, conscience shocking, or oppressive in a constitutional sense, but not against a government action that is 'incorrect or ill-advised.'" Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.1995); see also Harris v. City of Akron, 20 F.3d 1396, 1405 (6th Cir.) (evidence of faulty and hasty decision to demolish building insufficient to support substantive due process claim), cert. denied, 513 U.S. 1001, 130 L. Ed. 2d 419, 115 S. Ct. 512 (1995). On the present record, no jury could reasonably conclude that Coons' decision was arbitrary or irrational, or that it shocks the conscience.
The case in many respects is similar to Harris v. City of Akron. In that action, the Building Inspector's office responded to a call regarding a potential building hazard. Harris, 20 F.3d at 1398. The superintendent of building responded, and found a two story brick building that he believed was dangerously close to falling onto the street and a neighboring house. Id. The building inspector himself then inspected the home, and determined that an emergency demolition was necessary. Id. The demolition began four hours after the danger was reported. Id.
In opposition to the defendants' summary judgment motion, the plaintiff submitted the affidavit of an expert in building construction and diagnostics, who averred, inter alia, that the defendants' inspection "did not remotely meet minimal standards for ascertaining structural worthiness", and that there was no evidence that the roof was collapsing at the time the demolition was ordered. Harris, 20 F.3d at 1398-99. The Sixth Circuit found such proof unconvincing on plaintiff's substantive due process claim, noting that the evidence raised no issue of arbitrary, unreasonable, or bad faith conduct. Id. "Although perhaps the defendants could have made further inquiries concerning the condition of the building, their deposition testimony made clear that they acted on the basis of their observations and training." Id.
The Court is constrained to reach the same conclusion in the present case. Though plaintiff produces a multitude of evidence calling into question the wisdom and propriety of Coons' decision, none of that evidence would lead a factfinder to conclude that his decision was made in bad faith or without a rational basis. Thus, plaintiff's substantive due process claim is without merit.
(4) Procedural Due Process
Defendants next argue that the post-deprivation remedies available to plaintiff under state law are all the process to which he is entitled.
Fourteenth Amendment procedural due process generally requires a pre-deprivation hearing before property rights can be terminated. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 298-300, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981). However,
either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of due process.
Parratt v. Taylor, 451 U.S. 527, 539, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Defendants thus argue that since the condition of the Church presented an imminent danger to public safety, quick action was required, and plaintiff is entitled only to postdeprivation remedies.
The flaw in defendants' argument is that it assumes there is no factual dispute as to whether an emergency existed at the time of the demolition. The Court concludes otherwise. On this record, a reasonable jury could conclude that "the necessity of quick action" was not present on August 13, 1995 at the Church. First, there is considerable dispute as to whether demolition was in fact necessary. The Lynch affidavit, though failing to illustrate that defendants' conduct was arbitrary or irrational, clearly raises a fact issue as to whether demolition reasonably was necessary. See Lynch Aff. P 12. Lynch explicitly states that in his opinion, the Church was not in imminent danger of collapsing following the collapse of the steeple. Id. Second, it is undisputed that Coons was inexperienced in making such assessments, and that his inspection, viewed in plaintiff's favor, was cursory at best. See, e.g., Def. Ex. I at 13, 31, 41. Coons' own testimony reflects his ambivalence as to how "imminent" the danger was:
Q. And did you know if there was an imminent threat of danger?
A. I wouldn't say immediately, but I am talking about in the next few days or maybe a week or two, we could have got a heavy wind, a heavy rain and I would say that that would have taken the walls down, yes.