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Jeffrey Bartoszewski v. Town of Hannibal

September 1, 2012

JEFFREY BARTOSZEWSKI, STEVEN BARTOSZEWSKI, DAVID BARTOSZEWSKI, AND BART'S TRUCKING & WATER COMPANY, PLAINTIFFS,
v.
TOWN OF HANNIBAL, RONALD GREENLEAF, AARON CASS, DWAYNE SHEPARD, AND JOE BLANCHARD, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, JOINTLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Defendants' motion for summary judgment on Plaintiffs' second amended complaint in its entirety.

II. BACKGROUND

Defendant Town of Hannibal ("Town") operates the Town of Hannibal Water System ("Town Water System"), which Defendant Town regulates pursuant to its Water Use Law. Defendant Town's Water Use Law requires customers to use meters to reflect their water usage accurately. In addition, the law makes unmetered water use a misdemeanor and allows Defendant Town's representatives "to enter the premises of any customer served by the Town

[W]ater System, at all reasonable hours, to read meters, examine fixtures and connections and/or make necessary repairs," see Dkt. No. 21-3, at § X, para. XXI, and, in the event of an emergency, "to take such emergency measures as may be deemed necessary to protect the public water supply," see id. at § XI.

Plaintiff Bart's Trucking & Water Company used to sell bulk water to commercial and residential customers out of two locations - 84 Mill Street in the Village of Hannibal ("Mill Street Property") and 8879 Route 104 in the Town of Hannibal ("Route 104 Property").*fn1

Pursuant to an agreement with Defendant Town, Plaintiffs set up a "water hydrant" in the front yard of their Mill Street Property to access water to be loaded, transported, and sold to their customers. Around the spring of 2007, because Plaintiffs had not installed a meter to monitor the hydrant's water usage, Defendant Town directed Plaintiffs to cease any and all access to water from that hydrant. Plaintiffs, however, failed to install a water meter on their Mill Street Property. Accordingly, and due to alleged public health and safety concerns regarding the hydrant, Town Water System employees - Defendants Duane Shepard (assistant water operator) and Joe Blanchard (laborer) - shut off and removed Plaintiffs' hydrant from the property.

Shortly thereafter, Defendants inspected Plaintiffs' Route 104 Property and determined that water to the property had been accessed unlawfully and, thus, temporarily shut off water service to the property. In doing so, Plaintiffs contend that Defendants arbitrarily "entered onto the Route 104 property and proceeded to dig up the driveway, bury a false curb stop and riser, and leave Plaintiffs' driveway a mess."*fn2 See Dkt. No. 33-1 at 9. Plaintiffs assert that they should have received notice and an opportunity to be heard before Defendants damaged their land. Later, however, after Plaintiffs installed a water meter on their Route 104 Property, Defendant Town reactivated their water service there.

In its Memorandum-Decision and Order dated March 31, 2011, the Court granted in part and denied in part Defendants' motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and granted Plaintiffs' cross-motion to amend their amended complaint. See generally Dkt. No. 26. Specifically, with regard to Defendants' motion for judgment on the pleadings, the Court (1) denied Defendants' motion as to Plaintiffs' procedural due process claim; (2) granted Defendants' motion as to Plaintiffs' takings claims; (3) denied Defendants' motion as to Plaintiffs' illegal search and seizure claim;*fn3 (4) granted Defendants' motion as to Plaintiffs' equal protection claim; (5) denied Defendants' motion as to Plaintiffs' malicious abuse of process claim under 42 U.S.C. § 1983; and (6) denied Defendants' motion as to Plaintiffs' Monell claim. See id. As such, Defendants' instant motion for summary judgment seeks judgment as a matter of law with respect to Plaintiffs' procedural due process claim, illegal search and seizure claim, malicious abuse of process claim, and Monell claim.

III. DISCUSSION

A. Standard of review

Summary judgment is warranted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court must view all facts, draw all inferences, and resolve all ambiguities in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted). To survive summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as ...


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