United States District Court, D. Connecticut
RULING ON MOTIONS TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
January 19, 2016, the South Windsor Town Council held another
public hearing and approved a revised blight ordinance.
Id. ¶ 17.
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.
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
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
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.
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[.]”
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
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
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.
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.
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 ...