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Norton v. Galligan

United States District Court, D. Connecticut

January 25, 2018

KRISTIN NORTON and ROCK WILLIAMS, Plaintiffs,
v.
MATTHEW B. GALLIGAN, TOWN OF SOUTH WINDSOR, THOMAS DELNICKI, MICHELE R. LIPE, ZONING ENFORCEMENT OFFICER PAMELA OLIVA, KEITH YAGALOFF, DR. M. SAUD ANWAR, BILLY MITCHELL, ENVIRONMENTAL SERVICES, INC., and JOHN DOES 1-10, Defendants.

          RULING ON DEFENDANTS' MOTIONS TO DISMISS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE.

         Kristin Norton and Rock Williams (“Ms. Norton and Mr. Williams” or “Plaintiffs”) have sued Matthew Galligan, the Town of South Windsor, Thomas Delnicki, Michele Lipe, Pamela Oliva, Keith Yagaloff, Dr. M. Saud Anwar (“Town Defendants”), and Billy Mitchell, Environmental Services, Inc., and John Does 1-10 (“ESI Defendants”), alleging civil rights violations under Section 1983, the Connecticut Constitution, and the common law. Plaintiffs claim that Defendants trespassed onto Plaintiffs' property, removed their personal property without permission or due process of law, and defamed Plaintiffs at a town meeting.

         Defendants have filed two motions to dismiss. The first, filed by the Town Defendants, Town of South Windsor, Matthew Galligan, Thomas Delnicki, Michele Lipe, Pamela Oliva, Keith Yagaloff, and Dr. Anwar, seeks to dismiss Counts One, Two, Three, and Five under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The second, filed by the ESI Defendants, Environmental Services, Inc., and Billy Mitchell, seeks to dismiss Counts Two, Three, and Five under Rules 12(b)(1) and 12(b)(6).

         For the following reasons, Defendants' motions to dismiss are GRANTED IN PART and DENIED IN PART.

         The Town Defendants' motion to dismiss Count One is DENIED as to Defendant Galligan, and GRANTED as to Defendants Lipe, Anwar, Delnicki, Oliva, and Yagaloff. Plaintiffs may serve an Amended Complaint within twenty-one days of this Order, if they wish to address the dismissed claims against these Defendants.

         Defendants' motion to dismiss Count Two is GRANTED for lack of subject-matter jurisdiction under Rule 12(b)(1). Defendants' motion to dismiss Count Three is GRANTED for lack of subject matter jurisdiction under Rule 12(b)(1). Defendants' motion to dismiss Count Five is GRANTED, as Plaintiffs do not oppose the motion to dismiss.

         Because Counts Two, Three and Five are dismissed, the ESI Defendants' motion to dismiss is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Ms. Norton owns a single-family house in South Windsor, where she lives with her twenty-four year old son, as well as her boyfriend and business partner, Mr. Williams. Compl. ¶ 17, ECF No. 1. For work, Ms. Norton cleans out foreclosed homes and either collects abandoned items or buys them at flea markets, yard sales, and antiques shops. Id. Ms. Norton organizes and stores the items in her backyard, and then sells them at flea markets, tag sales, and auctions. Id. Mr. Williams helps Ms. Norton clean homes and collect items. Id. ¶ 18.

         In 2014, Ms. Norton allegedly received a notice from South Windsor claiming that her property was blighted and that the Town intended to place a lien on the property. Id. ¶ 19. Ms. Norton allegedly called Ms. Oliva, the Zoning Enforcement Agent of the Town, and asked how she could fix the problem. Id. Ms. Oliva allegedly responded that Ms. Norton needed to install a fence or put her personal property in a garage. Id. Ms. Norton allegedly installed, “at considerable cost and expense, ” a six-foot fence that surrounded the backyard. Id.

         Ms. Norton allegedly did not hear from Defendants again until 2015, when Mr. Yagaloff, the town attorney, called her to tell her that the camper was still visible over the top of the fence, and, because of a gap in the fence, the personal property in the backyard was also still visible. Id. ¶ 20. Mr. Yagaloff allegedly did not mention a blight lien. Id. Plaintiffs allegedly repaired the gap in the fence, but Mr. Yagaloff called several more times to say that the camper was still visible. Id. Ms. Norton allegedly went to South Windsor's Planning & Zoning office, where she asked Ms. Oliva and Ms. Lipe how she could remediate the alleged blight. Id. Ms. Norton claims that “Defendant Lipe rudely snapped at [her], telling her to clean up the Property, ” and “Defendant Oliva claimed there was still blight and that Plaintiff Norton needed to remove the camper.” Id. Shortly after that conversation, Ms. Norton allegedly removed the camper, and believed she had solved the problem. Id.

         On January 4, 2016, the Town Council allegedly held a meeting “where members of both the Town Council and participants voiced their opinions about the Property, calling it ‘pathetic', ‘an untenable situation', ‘the worst of the worst'.” Id. ¶ 21. Mr. Yagaloff allegedly said that Plaintiffs were “the 2% of folks that don't care about their community or themselves.” Id.

         On January 19, 2016, the South Windsor Town Council held another public hearing and approved a revised blight ordinance. Id. ¶ 22. Plaintiffs allege that “Defendants Delnicki and Anwar of the Town Council demand[ed] immediate action in regard to Plaintiff's property.” Id.

         Plaintiffs allege that “[o]n April 19, 2016, with absolutely no prior notice, Defendants Galligan and Mitchell suddenly appeared at the Plaintiff's Property, trespassed upon the Plaintiff's property and began to peer over the top of the stockade fence whereupon Plaintiff Rock [Williams], now alerted to their presence, asked them to leave.” Id. ¶ 23. Mr. Galligan and Mr. Mitchell allegedly ignored Mr. Williams and told him that they would return the next day to remove the personal property. Id.

         In response, Ms. Norton went to the Town Hall to speak to Mr. Galligan. Plaintiffs allege that “[h]e began rudely and loudly yelling at her thereby causing Plaintiff Norton fear and trepidation and she left in frustration without any explanation as to the Town's specific concerns or proposed actions.” Id. Ms. Norton allegedly also called Mr. Yagaloff, who “assured her that Defendant Galligan was not seizing everything, only hazardous materials that Galligan deemed a danger to the health, safety and welfare of the public.” Id.

         On April 20, 2016, Plaintiffs allege that Defendants and John Does acting under their control, with no notice, warrant, court order, or administrative procedure, and no “probable cause to suspect that a crime had taken place, or reasonable suspicion that a crime might take place, and with no identifiable threat to the health, safety or welfare of the public, appeared unannounced en masse at the Property.” Id. ¶ 24. Plaintiffs allege that Defendants broke through their fence and told Plaintiffs that “if they interfered with the seizure and removal of any of the Personal Property, they would be placed under arrest.” Id.

         Plaintiffs allege that “Defendant ESI, with Defendants Mitchell and Galligan supervising John Does 1 through 10, removed Plaintiffs' Personal Property, including inventory, antiques and collectibles, filling approximately 10 - 12 large roll off dumpsters[.]” Id. Plaintiffs also allege that some John Does took the personal property into their own cars “for their own use and conversion.” Id. Mr. Galligan and Mr. Mitchell allegedly refused to tell Plaintiff where or whether the property would be stored, and Mr. Yagaloff allegedly explained to Ms. Norton that the property was being removed to prevent the spread of the Zika virus. Id. The personal property allegedly consisted of “valuable framed antique photographs, antique books and furniture, works of art, tools, farm and garden equipment, lawn furniture, household furnishings, working appliances and Plaintiff Williams'[s] tools of trade and valuable scrap metal, ” totaling over $100, 000. Id.

         Ms. Norton claims that, as a result of the seizure of her property, she could no longer make a living and was forced to file for Chapter 7 bankruptcy. Id. ¶ 25. She then discovered that a blight lien was recorded against the Property. Id. Plaintiffs claim that “Defendants caused damage to Plaintiffs by, inter alia, trespassing upon her home and property, violating their civil rights, seizing without cause and just compensation the Personal Property, and harming their ability to make a living so as to provide life's basic necessities such as food, clothing, shelter, etc.” Id. ¶ 26. Plaintiffs also allege that they “suffered embarrassment and ridicule which was embarrassing, demeaning, threatening and demoralizing to Plaintiffs” and that Defendants caused Plaintiffs “mental anguish, fear and trepidation[.]” Id.

         B. Procedural History

         Plaintiffs filed this Complaint on March 8, 2017, alleging a variety of claims. First, Plaintiffs allege that all Defendants violated Plaintiffs' right to be secure from unreasonable searches and seizures under the Fourth Amendment, 42 U.S.C. § 1983, and Article I, Section 7 of the Connecticut Constitution. Id. at 10. Second, they allege that all Defendants violated Plaintiffs' right to due process of law under the Fifth and Fourteen Amendments, 42 U.S.C. § 1983, and Article I, Section 8 of the Connecticut Constitution. Id. at 10-11. Third, Plaintiffs allege that all Defendants violated Plaintiffs' right to just compensation under the Fifth and Fourteenth Amendments, 42 U.S.C. § 1983, and Article I, Section 11 of the Connecticut Constitution. Id. at 11. Fourth, Plaintiffs allege that Mr. Yagaloff made a slanderous statement about Plaintiffs. Id. at 12. Fifth, Plaintiffs allege that all Defendants intentionally trespassed on Plaintiffs' property. Id. at 12-13.

         On May 30, 3017, the Town of South Windsor, Matthew Galligan, Thomas Delnicki, Michele Lipe, Pamela Oliva, Keith Yagaloff, and Dr. M. Saud Anwar filed a motion to dismiss. First Mot. Dismiss, ECF No. 26. They moved to dismiss Counts One, Two, Three, and Five as to Defendants Lipe, Anwar, Delnicki, Yagaloff, Oliva, and Galligan under Rule 12(b)(6), asserting that Plaintiffs failed to state a claim upon which relief can be granted because Plaintiffs did not demonstrate that those Defendants were personally involve in the alleged conduct. Id. at 4, 9. They also moved to dismiss Count Three for lacking subject-matter jurisdiction under Rule 12(b)(1), asserting that Plaintiffs' claim that they were deprived of just compensation was not ripe for adjudication. Id. at 10. These Defendants also argued that, to the extent that Count Two brings a substantive due process claim, it must be dismissed because there are specific sources of constitutional protection for the claims that Plaintiffs have made. Id. at 13. Finally, they claim that Count Five must be dismissed under Rule 12(b)(6) for failing to state a claim upon which relief can be granted because “trespass to land is an intentional tort for which a municipality and its employees cannot be held liable.” Id. at 15.

         On July 24, 2017, Environmental Services, Inc. (“ESI”) and Billy Mitchell also filed a motion to dismiss. Second Mot. Dismiss, ECF No. 34. These Defendants asserted that Counts Two, Three, and Five should be dismissed as to the ESI Defendants. Memo. of Law, ECF No. 35. As to Count Two, these Defendants, as in the First Motion to Dismiss, argue that, “[t]o the extent that the plaintiffs allege a substantive due process violation, that claim should be dismissed because there is an explicit source of constitutional protection in the Fourth and Fifth Amendments.” Id. at 4. As to Count Three, these Defendants assert that the claim for just compensation is not ripe for adjudication. Id. at 6. As to Count Five, Defendants argue that ESI and Mr. Mitchell are agents of the Town, and trespass is an intentional tort for which governmental immunity applies. Id. at 9.

         II. STANDARD OF REVIEW

         Defendants have moved to dismiss the Complaint for lack of subject-matter jurisdiction and for failing to state a claim upon which relief can be granted.

         “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of establishing by a preponderance of the evidence that the Court has subject matter jurisdiction over the claims. Id. In evaluating whether the plaintiff has established that the Court has subject matter jurisdiction, “the court may resolve the disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing.” Karlen ex rel. J.K. v. Westport Bd. of Educ., 638 F.Supp.2d 293, 298 (D. Conn. 2009) (citing Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)).

         Under Rule 12(b)(6), the Court will grant a motion to dismiss only if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Fed.R.Civ.P. 12(b)(6); see also Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (“All complaints must be read liberally; dismissal on the pleadings never is warranted unless the plaintiff's allegations are doomed to fail under any available legal theory.”); Fed.R.Civ.P. 8(a) (Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief”). Allegations need not be detailed, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Complaint must contain “factual amplification . . . to render a claim plausible.” Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009)).

         At this stage, the Court views the facts alleged in the Complaint in the light most favorable to the plaintiff and draws all reasonable inferences in the plaintiff's favor. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 358 (2d Cir. 2013); see also Twombly, 550 U.S. at 555 (“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests'.” (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))). The court will ...


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