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Norton v. Galligan

United States District Court, D. Connecticut

June 1, 2018

KRISTIN NORTON and ROCK WILLIAMS, Plaintiffs,
v.
MATTHEW B. GALLIGAN, TOWN OF SOUTH WINDSOR, KEITH YAGALOFF, ESQ., BILLY MITCHELL A/K/A WILLIAM MITCHELL, ENVIRONMENTAL SERVICES, INC., Defendants.

          RULING ON MOTIONS TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Kristin Norton and Rock Williams (“Ms. Norton and Mr. Williams” or “Plaintiffs”) filed this lawsuit against Matthew Galligan, the Town of South Windsor, Thomas Delnicki, Michele Lipe, Pamela Oliva, Keith Yagaloff, Dr. M. Saud Anwar, Billy Mitchell, Environmental Services, Inc., and John Does 1-10, alleging civil rights violations under Section 1983, the Connecticut Constitution, and the common law. Compl., ECF No. 1.

         Defendants previously filed two motions to dismiss, which were granted in part and denied in part; the Court also granted Plaintiffs leave to amend to correct deficiencies in the original Complaint. See ECF No. 49 (Order granting in part and denying in part Town Defendants' motion to dismiss); ECF No. 50 (Order granting ESI Defendants' motion to dismiss).

         Plaintiffs filed an Amended Complaint on February 14, 2018. Am. Compl., ECF No. 51. The Amended Complaint again alleges violations under Section 1983, the Connecticut Constitution, and the common law against Mr. Galligan, the Town of South Windsor, Keith Yagaloff, Esq., Billy Mitchell, and Environmental Services, Inc. Am. Compl. ¶¶ 22-31.

         Defendants again have filed two motions to dismiss the Amended Complaint. The first, filed by the Town of South Windsor, Mr. Galligan, and Mr. Yagaloff (“Town Defendants”), asserts that Plaintiffs have failed to state a claim, and dismissal therefore is warranted under Federal Rule of Civil Procedure 12(b)(6), and that Plaintiffs have exceeded the scope of the Court's leave to amend. Town Second Mot. Dismiss at 1-2, ECF No. 52. The second, filed by Environmental Services, Inc., and Mr. Mitchell (“ESI Defendants”), asserts that Counts One and Two should be dismissed as to the ESI Defendants because those Defendants acted as agents of the Town of South Windsor. ESI Second Mot. Dismiss at 1, ECF No. 53.

         For the following reasons, the Town Defendants' motion to dismiss Count One is DENIED and their motion to dismiss Count Two is GRANTED. The ESI Defendants' motion to dismiss Count One is DENIED and their motion to dismiss Count Two is dismissed as moot.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations[1]

         Ms. Norton owns a single-family house in South Windsor, where she lives with her twenty-four year old son, as well as Mr. Williams. Am. Compl. ¶¶ 4, 12. 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. ¶ 12. 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. ¶ 13.

         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. ¶ 14. Ms. Norton allegedly called Pamela 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. ¶ 15. Mr. Yagaloff allegedly did not mention a blight lien “or any present danger to the public.” 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. Plaintiffs claim that “[a]t this point, the fence completely encircled the backyard of the Property thereby shielding from public view all of the Personal Property stored in the backyard.” 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. ¶ 16. 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. ¶ 17.

         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. ¶ 18. 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. Id. 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. ¶ 19. 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 removed Plaintiffs' Personal Property, including inventory, antiques and collectibles, filling approximately 10 - 12 large roll off dumpsters[.]” Id. Plaintiffs also allege that they observed “various agents and employees of the town of South Windsor putting some of the Personal Property in their 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. Id. Mr. Yagaloff, whom Plaintiffs allege “was at the real property during this unlawful conduct and observed the actions of his fellow defendants, ” allegedly explained to Ms. Norton that the property was being removed to prevent the spread of the Zika virus, and “told Plaintiff Norton ‘Don't worry; you won't be paying for this, the bank will. In fact, if it will help you out, put more stuff you don't want in the backyard and the bank will pay for its removal.'” 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. ¶ 20. 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. ¶ 21. 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

         On March 8, 2017, Plaintiffs filed their original Complaint, alleging a variety of claims. Compl., ECF No. 1. First, Plaintiffs alleged 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 alleged 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 alleged 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 alleged that Mr. Yagaloff made a slanderous statement about Plaintiffs. Id. at 12. Fifth, Plaintiffs alleged 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. Town 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 Defendants were not alleged to be personally involved in the conduct at issue. 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 brought a substantive due process claim, it should have been dismissed because there were specific sources of constitutional protection for the claims that Plaintiffs had made. Id. at 13. Finally, they moved to dismiss Count Five under Rule 12(b)(6) for failing to state a claim upon which relief could 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, the ESI Defendants also filed a motion to dismiss Counts Two, Three, and Five. ESI First Mot. Dismiss, ECF No. 34. As to Count Two, they argued 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, they asserted that the claim for just compensation was not ripe for adjudication. Id. at 6. As to Count Five, they claimed that they were agents of the Town entitled to governmental immunity against claims for trespass. Id. at 9.

         The Court held a hearing on January 23, 2018, and then, on January 25, 2018, issued an Order granting in part and denying in part Defendants' motions to dismiss. ECF ...


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