The opinion of the court was delivered by: MOTLEY
Defendant, New York City Department of Environmental Protection ["DEP"]
, moved to dismiss this 42 U.S.C. § 1983 case on the ground that the complaint failed to state a claim upon which relief could be granted. By Order dated November 21, 1997, the court converted the motion to dismiss into a motion for summary judgment. For the reasons stated below, the court grants DEP's motion for summary judgment and dismisses plaintiff's complaint against defendant DEP.
I. Standards for Granting Summary Judgment
"Uncertainty as to the true state of any material fact defeats [a summary judgment] motion." Gibson v. American Broadcasting Corp., 892 F.2d 1128, 1132 (2d Cir. 1989). It is not the role of the trial court to weigh the evidence presented or to resolve any factual issue, but rather it is the court's job to determine whether, after the parties have conducted adequate discovery, any such issues remain to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed. R. Civ. P. 56(c). A factual issue is unresolved if a reasonable fact finder could determine in favor of either party. See Anderson, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Gibson, 892 F.2d at 1132. Moreover, the court must view the inferences to be drawn from the facts in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Eastway Constr. 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). The non-moving party may defeat the motion for summary judgment by producing sufficient facts to establish a genuine issue of material fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Title 42 § 1983 provides in relevant part that "every person who, under color [of law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . . ." Thus, 42 U.S.C. § 1983 does not itself confer any substantive rights on litigants, but rather provides a remedy in instances in which a plaintiff demonstrates a violation of a right protected by the Constitution or by federal law. See Graham v. Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989); Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979). Chun has alleged that DEP's custom and policy of overbilling for water services and its deliberate indifference to customer attempts to rectify erroneous meter readings deprives him of the liberty and property interests secured by the Due Process Clause of the Fourteenth Amendment. With respect to property, he alleges deprivations of both procedural and substantive due process.
"In order to sustain an action for deprivation of property without due process of law, a plaintiff must first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process." Local 342 et al. v. Town Bd. of Town of Huntington, 31 F.3d 1191, 1193 (2d Cir. 1994) (citation omitted). Chun alleges that DEP's actions deprive him of the use and enjoyment of his financial property. Even if Chun does have a property interest in an accurate water bill, his complaint fails.
When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b)claims based on random unauthorized acts by state employees. In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy. When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process. See Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (emphasis added).
Although Chun's complaint alleged a stated or unstated policy of overbilling, there is nothing in his complaint or in his reply papers to defendant's motion to suggest anything more than his belief that his meters were misread, and the pattern/custom element is the repeated non-receptiveness of the DEP to his letters. In other words, the pattern he refers to is a patter of behavior with respect to him. Even assuming that the DEP has been negligent or worse in its treatment of its billing dispute with Mr. Chun, this stance conforms more closely to unauthorized acts rather than to established state procedures. The remedy of an Article 78 procedure serves to satisfy procedural due process.
Chun does not even address the existence of a state procedural remedy, although he implicitly acknowledges it: "Defendant's only basis for seeking dismissal is that plaintiff's 'procedural protection' was not violated . . . Defendant totally fails to address plaintiff's substantive due process right, which is separate and apart from his procedural due process right." Pl.'s Mem. of Law in Supp. of his Cross-Mot. For Summ. J., 6.
However, Chun's substantive due process claim fails as well. This circuit recognizes substantive due process claims which involve "fundamental" rights, which an interest in an accurate individual water bill is not, especially where the state has provided a procedural remedy. Local 342, 31 F.3d at 1196 ("It is well settled that ...