Ace Partners, LLC v. East Hartford et al

Filing 51

ORDER granting in part and denying in part 35 Motion for Summary Judgment; granting in part and denying in part 36 Motion for Summary Judgment. Please see attached ruling. Signed by Judge Robert N. Chatigny on 09/30/2011. (Wittlin, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ACE PARTNERS, LLC d/b/a TC’s
PAWN COMPANY,
Plaintiff,
V.
TOWN OF EAST HARTFORD; TOWN OF
EAST HARTFORD POLICE
DEPARTMENT; MARK J. SIROIS;
JOHN MURPHY,
Defendants.

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CASE NO. 3:09-CV-1282 (RNC)

RULING AND ORDER
Plaintiff Ace Partners, LLC d/b/a TC’s Pawn Company, brings
this action under 42 U.S.C. §§ 1981 and 1983 against the Town of
East Hartford, the Town of East Hartford Police Department, its
Chief of Police, and its former Deputy Chief seeking damages for
alleged violations of its Fourteenth Amendment rights to
procedural and substantive due process.

Plaintiff alleges that

defendants unlawfully deprived it of the use of its pawnbroker
and precious metals licenses when they failed to renew the
licenses.

Defendants have moved for summary judgment, and

plaintiff has moved for partial summary judgment.

For the

reasons that follow, defendants’ motion is granted in part and
denied in part, and plaintiff’s motion is also granted in part
and denied in part.

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I.

Facts
Plaintiff runs TC’s Pawn Company, a pawnbroker and precious

metals business.

In October 2007, plaintiff opened an East

Hartford location of TC’s Pawn Company, and from then until
August 9, 2009, it operated under one-year pawnbroker and
precious metals licenses issued by Chief Mark J. Sirois of the
Town of East Hartford Police Department.

The licenses issued in

2008 were set to expire on August 9, 2009.
In 2009, the Connecticut State’s Attorney’s Office led an
investigation that focused on pawnbrokers in Connecticut
suspected of selling stolen merchandise.

As a result of the

investigation, on June 2, 2009, the State obtained and executed
search warrants at plaintiff’s East Hartford location.

Two of

plaintiff’s employees were arrested on charges of attempt to
commit larceny.

Months later, on August 11, plaintiff’s general

manager Jay Sargent was arrested and charged with attempt to
commit larceny.

In 2010, the State agreed not to prosecute TC’s

Pawn Company or Sargent.
After the June arrests, Sirois learned from then Deputy
Chief John Murphy that two of plaintiff’s employees had been
arrested in connection with the State’s investigation, and that a
third arrest was forthcoming.

Sirois Dep. 34:14-35:12.

He also

knew that the investigation was initiated in response to a
concern that stolen goods were being fenced by local pawn shops.

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Sirois Dep. 36:1-4.
arrests.

He did not know any other details about the

Several weeks later, on June 30, 2009, Chief Sirois

drafted a letter to plaintiff stating that “[r]ecent occurrences
at TC’s PAWN CO demonstrate that there exists cause to revoke
each License.”

Pl.’s Ex. 9.

The letter provided an opportunity

for plaintiff to contest the revocation by requesting a hearing.
Chief Sirois never sent the letter, however, and plaintiff
continued to operate under its pawnbroker and precious metals
licenses.
On July 20, 2009, plaintiff applied for renewal of its
licenses.

Sirois decided not to renew plaintiff’s licenses, and

he sent a letter on August 7, the Friday before plaintiff’s
licenses were to expire, saying the licenses would not be
renewed.

Plaintiff received Sirois’s letter denying its

application for renewal on Saturday, August 8, 2009.

The letter

did not provide for a post-deprivation hearing.
Between the June arrests and the August denial, plaintiff’s
general manager Sargent spoke with officers and administrators at
the East Hartford Police Department about the license renewals.
He talked with two police officers numerous times, and received
assurances that there would be no problem getting the licenses
renewed.

Pl.’s Supp. Ex. 1 ¶¶ 4-5.

After plaintiff applied for

renewal, Sargent spoke several times with Donna Lemaire, the
records supervisor, who told him that he should not worry, that

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she had not heard of problems with the applications, and that
nobody wanted to talk to him about the applications.

As late as

August 7, Lemaire told Sargent the renewals would be taken care
of, and Sargent should call the detectives he usually dealt with
on Monday and tell them he was still waiting for approval, in
order to avoid problems after the license expired.

Sargent never

spoke with Sirois.
II.

Discussion
Plaintiff asserts both procedural and substantive due

process claims.

It claims that defendants infringed its

procedural due process rights by refusing to renew the licenses,
thereby depriving it of use of the licenses, without notice or
opportunity for a hearing.

It also claims that defendants

infringed its substantive due process rights by depriving it of
the licenses without justification.

Defendants move for summary

judgment on the ground that plaintiff did not have a property
interest in the renewal of its licenses.

They also contend that

defendant Murphy lacked the personal involvement necessary to be
liable for damages under § 1983, that Sirois and Murphy are
protected by qualified immunity, and that the claims against the
City fail because it had no custom or policy to violate
constitutional rights.

Plaintiff moves for partial summary

judgment on its procedural due process claim.

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A.

Procedural Due Process
To show a violation of its procedural due process rights,

plaintiff needs to show it had a protected property interest in
the renewal of its licenses.

See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985).

Plaintiff must have had

“more than a unilateral expectation” that its licenses would be
renewed to have a property interest; instead, it must have had “a
legitimate claim of entitlement” to renewal. Bd. of Regents v.
Roth, 408 U.S. 564, 577 (1972).

Entitlements giving rise to

property rights are created not by the Fourteenth Amendment
itself but “by existing rules or understandings that stem from an
independent source such as state law."

Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. at 538 (quoting Bd. of Regents v. Roth, 408
U.S. at 577).

Plaintiff may have a property interest if there

are “rules or mutually explicit understandings that support [its]
claim to entitlement.”

Perry v. Sindermann, 408 U.S. 593, 601

(1972).
i.

The Pawnbroker License
If state law gives a government official discretion to

decide whether to grant a benefit, a plaintiff cannot claim an
entitlement to that benefit and therefore cannot demonstrate a
protected property interest.

See Sanitation & Recycling Indus.,

Inc. v. City of New York, 107 F.3d 985, 995 (2d Cir. 1997); Conde
v. Town of Sharon, 421 Fed. Appx. 26, at *1 (2d Cir. 2011).

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Section 21-40 of the Connecticut General Statutes, governing the
issuance, renewal, and revocation of pawnbroker licenses, gives a
chief of police some degree of discretion, in that it requires
the chief to issue licenses only to “suitable persons.”
The Connecticut Supreme Court, analyzing licensing statutes
that use the same language, has found that a licensing official,
in determining whether an applicant is suitable, must exercise
“judgment and reasoned discretion.”

Ballas v. Woodin, 231 A.2d

273, 275 (Conn. 1967) (citations omitted).

The Court has defined

“suitable person” as “a person who is shown to the licensing
authority to be suited or adapted to the orderly conduct of a
business which the law regards as dangerous to public welfare
unless conducted by a carefully selected person duly licensed.”
Hopson's Appeal, 31 A. 531, 531 (Conn. 1894).
Connecticut courts have applied this line of cases
developing the “suitable person” standard to the pawnbroker
statute at issue here.

See Aurilio v. Sweeney, 1999 WL 171414

(Conn. Super. Ct. Mar. 11, 1999), aff'd 60 Conn. App. 908 (2000)
(refusing to issue writ of mandamus ordering chief of police to
renew and reinstate plaintiff’s licenses).

Significantly, the

plaintiff in Aurilio sought a renewal of his license, not a new
license entirely, and the state court analyzed his renewal claim
under the statutory scheme for license issuance.
I conclude that the level of discretion conferred on a chief

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of police by the pawnbroker statute precludes a legitimate claim
of entitlement.
995.

See Sanitation & Recycling Indus., 107 F.3d at

In the related context of land use permits, the Second

Circuit has held that a license applicant has a property interest
if “absent the alleged denial of due process, there is either a
certainty or a very strong likelihood that the application would
have been granted.”

Yale Auto Parts, Inc. v. Johnson, 758 F.2d

54, 59 (2d Cir. 1985).

The “suitable person” determination gives

the chief of police enough discretion that a given applicant,
such as TC Pawn, cannot be certain that he will be found
suitable.
It is true that "[o]nce licenses are issued...their
continued possession may become essential in the pursuit of a
livelihood."

Bell v. Burson, 402 U.S. 535, 539 (1971).

However,

plaintiff had a one-year pawnbroker license, not an indefinite
one.

Plaintiff’s property right in the license, then, lasted for

one year only.

A plaintiff may have a property interest in the

renewal of a license if mandatory language restricts the
reviewing body’s discretion.

See Thornton v. City of St. Helens,

425 F.3d 1158, 1164 (9th Cir. 2002).

But no such language can be

found in the pawnbroker statute.
Plaintiff argues that “mutually explicit understandings”
created a property interest in renewal of the pawnbroker license,
while defendants argue that such understandings cannot create a

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property interest when they are contrary to the express
provisions of a statute.

I agree with the defendants.

See Chu

v. Schweiker, 690 F.2d 330, 334 (1982); Baden v. Koch, 638 F.2d
486 (2d Cir. 1980).

The pawnbroker statute gives discretion to

the chief of police and understandings to the contrary do not
create a property interest.
To the extent that a promise by a licensing official may
create an entitlement to a license, plaintiff has provided no
evidence of a promise from Chief Sirois.

Sargent spoke with

police officers and an administrator about the license, but never
spoke to Chief Sirois directly.

Plaintiff has not shown that

anyone claimed to speak on behalf of the chief.

Only Chief

Sirois had the discretion to grant the application, and only
Chief Sirois’s statements could create an entitlement.

See

Santella v. Chicago, 936 F.2d 328, 332 (7th Cir. 1991)(“Promises
may have been made to [plaintiff].

They might even have been

made by some very influential people. But because they were not
made by the only person who counted, they were unauthorized,
nonbinding, and without legal effect.”).
ii.

The Precious Metals License
Connecticut law provides a different standard for the

issuance of a license to purchase precious metals.

Section

21-100(a) of the Connecticut General Statutes says:
No person may engage in or carry on the business of
purchasing gold or gold-plated ware, silver or silver plated
ware, platinum ware, watches, jewelry, precious stones or
coins unless that person is licensed by the chief of police
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or, if there is no chief of police, the first selectman of
the municipality in which such person intends to carry on
such business.... The license may be revocable for cause,
which shall include, but not be limited to, failure to
comply with any requirements for licensure specified by the
licensing authority at date of issuance. A chief of police
or first selectman shall refuse to issue a license under
this subsection to a person who has been convicted of a
felony....
Unlike the pawnbroker statute, the precious metals statute
does not have any language delineating the chief’s discretion.
Courts have differed on how to interpret this absence of
discretionary language.

A judge of the Superior Court has read

this language as granting the chief unlimited discretion.

See

Aurilio, 1999 WL 171414, at *5 (“Section 21-100 contains no
criteria for issuing precious metals licenses, but rather relies
on the defendant's exercise of discretion.”).

A judge of this

Court has read the section as granting no discretion.

See Curcio

v. Torres, 2000 WL 1610767, at *3 (D. Conn., Oct. 4, 2000)
(“Section 21-40 requires that the holder of a pawnbroker's
license must be ‘a suitable person,’ and the Police Chief has
some discretion in issuing or revoking such licenses.

With

respect to precious metals licenses, the only requirement seems
to be that the holder not be a convicted felon and there was no
evidence that the plaintiff is a convicted felon.”).

While

federal courts must give “proper regard” to the decisions of
lower state courts, we may also consider federal court decisions
interpreting state law.

Phansalkar v. Andersen Weinroth & Co.,

L.P., 344 F.3d 184 (2d Cir. 2003)(citing Santalucia v. Sebright

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Transp., Inc., 232 F.3d 293, 297 (2d Cir. 2000); Travelers Ins.
Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994); and
AXA Marine and Aviation Ins. (UK) Ltd. v. Seajet Indus. Inc., 84
F.3d 622, 626 (2d Cir. 1996)).
the decision in Curcio.

In this instance, I agree with

Section 21-100 charges the chief of

police with issuing precious metals licenses.

It prohibits him

from issuing a license to a felon and it recognizes that he may
set “requirements for licensure.”

If an applicant fulfills those

requirements, the chief has no discretion as to whether to issue
the license.

Because a qualified applicant is entitled to a

precious metals license, the applicant has a property interest in
the license.

See RRI Realty Corp. v. Incorporated Village of

Southampton, 870 F.2d 911, 918 (2d Cir. 1989).
Defendant Sirois declined to renew plaintiff’s precious
metals license even though the applicant was not a felon.
Plaintiff was not afforded notice or an opportunity for a hearing
of any kind to show that it was qualified.

Therefore, plaintiff

was denied procedural due process with respect to its application
for a precious metals purchasing license, and I grant plaintiff’s
motion for summary judgment in relevant part.
B.

Substantive Due Process
Plaintiff claims that its right to substantive due process

was violated when defendants refused to renew its licenses.
substantive component of the Fourteenth Amendment Due Process

The

Clause protects individual rights against “certain government

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actions regardless of the fairness of the procedures used to
implement them.”

Collins v. City of Harker Heights, Tex., 503

U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327,
331 (1986)).

To show a substantive due process violation, a

plaintiff must first identify the constitutional right and then
demonstrate that the state action was constitutionally arbitrary.
See Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994).
Plaintiff’s substantive due process claim can succeed only
if it was deprived of a constitutionally cognizable property
interest.

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,

378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996).

As

discussed above, plaintiff did not possess a property right in
the renewal of its pawnbroker license.

Its substantive due

process claim with respect to that license therefore fails.
Plaintiff did, however, possess a property right in the
renewal of its precious metals license.

To succeed on its claim,

then, plaintiff must show that the government’s action was
“constitutionally arbitrary,” in that it was not merely
irrational but so egregious as to “shock[] the conscience.”
O'Connor v. Pierson, 426 F.3d 187, 204 (2d Cir. 2005) (quoting
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).
“[W]hether executive action shocks the conscience depends on the
state of mind of the government actor and the context in which
the action was taken.”

Id. at 203.

If a defendant acts out of

incompetence or confusion, his actions do not “shock the

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conscience.”

Id. at 204.

However, if he acts “out of spite, or

to keep a plaintiff from exercising a right by whatever means
necessary,” then the defendant's oppressive actions may be
egregious enough to support a substantive due process claim.
Garlasco v. Stuart, 602 F. Supp. 2d 396 (D. Conn. 2009) (quoting
O’Connor, 426 F.3d at 204). “[C]onduct deliberately intended to
injure in some way unjustifiable by any government interest is
the sort of official action most likely to rise to the
conscience-shocking level.”

County of Sacramento v. Lewis, 523

U.S. 833, 849 (1998).
Plaintiff has not presented evidence that Sirois’s decision
was constitutionally arbitrary.

Plaintiff provides no reason to

infer that Sirois’s decision was motivated by animus or that he
engaged in deliberate disregard of the law.
Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988).

See Silverman v.
Chief Sirois, under

the impression that nonrenewal of a precious metals license did
not require a hearing, denied plaintiff a license after he
learned of arrests at plaintiff’s shop.

The precious metals

statute mandates that the chief not issue licenses to felons,
presumably because the government has an interest in keeping
criminals from running precious metals purchasing businesses.
While Chief Sirois did not know the details of the arrests,
including that they were for misdemeanors, and while the refusal
to renew the precious metals license was an impermissible
deprivation of property, these mistakes did not result from

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“gross abuse of governmental authority.”

Natale v. Town of

Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999).
reasonably find otherwise.

No jury could

The defendants’ motion for summary

judgment on both substantive due process claims is therefore
granted.
C.

Defendant John Murphy
Defendants argue that former Deputy Chief John Murphy was

not personally involved in the decision to not renew the licenses
and therefore cannot be held liable under § 1983.
not respond to this argument.

Plaintiff does

I agree with the defendants.

"It is well settled in this Circuit that personal
involvement of defendants in alleged constitutional deprivations
is a prerequisite to an award of damages under § 1983."

Farid v.

Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (internal quotation marks
omitted).

It is also “well-settled that where the complaint

names a defendant in the caption but contains no allegations
indicating how the defendant violated the law or injured the
plaintiff, a motion to dismiss the complaint in regard to that
defendant should be granted." Dove v. Fordham Univ., 56 F. Supp.
2d 330, 335 (S.D.N.Y. 1999) (internal quotation marks omitted).
Even now, at the summary judgment stage, plaintiff has not
indicated how defendant Murphy’s conduct caused plaintiff injury.
Murphy told defendant Sirois that there had been arrests at
plaintiff’s shop, but he did not decide to deny plaintiff’s
applications.

Sirois alone made that decision.

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Summary judgment

is therefore granted as to all claims against defendant Murphy.
D.

Qualified Immunity
Defendants also argue that Chief Sirois’s actions are

protected by qualified immunity because they did not violate
clearly established federal law.

Again, plaintiff does not

respond to this argument, and again, I agree with the defendants.
Qualified immunity protects a government official carrying
out an executive or administrative function from personal
liability so long as his actions do not violate “clearly
established statutory or constitutional rights of which a
reasonable person would have known.”

Pearson v. Callahan, 555

U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)).

While a general right to procedural due process is

clearly established, that general right does not defeat qualified
immunity.

For an official to be held personally liable, “the

right the official is alleged to have violated must have been
‘clearly established’ in a more particularized, and hence more
relevant, sense: the contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.”
640 (1987).

Anderson v. Creighton, 483 U.S. 635,

A right is “clearly established” only if “it would

be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.”

Saucier v. Katz,

533 U.S. 194

(2001).
It would not have been clear to a reasonable officer that

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refusing to renew a precious metals license without a hearing
violates an applicant’s federal due process rights.

A

Connecticut trial court had ruled that a police chief has
unfettered discretion in issuing precious metals licenses, and an
appellate court had affirmed that ruling.

See Aurilio v.

Sweeney, 1999 WL 171414 (Conn. Super. Ct. Mar. 11, 1999), aff'd
60 Conn. App. 908 (2000).

The existence of an unpublished

federal court decision to the contrary, Curcio v. Torres, 2000 WL
1610767 (D. Conn., Oct. 4, 2000), did not clearly establish the
law.

Because the state law was ambiguous when Chief Sirois

declined to renew the license, the federal right was not clearly
established, and qualified immunity protects Sirois against
personal liability under § 1983.

Summary judgment is granted in

his favor.
E.

Municipal Liability
Defendants argue that plaintiff’s claims against the Town of

East Hartford must fail because the Town had no unconstitutional
custom, policy, or practice that led to plaintiff’s injury.
Plaintiff responds that Chief Sirois is an authorized policymaker
whose actions may be imputed to the Town of East Hartford.

Here,

I agree with plaintiff that the claim against the Town of East
Hartford should survive.
A plaintiff suing a municipality under § 1983 must show that
the violation was a result of a municipal custom, policy, or
practice.

Fitzgerald v. Barnstable School Committee, 555 U.S.

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246, 257-58 (2009) (citing Monell v. New York City Dept. of
Social Servs., 436 U.S. 658, 694 (1978)).

A municipality cannot

be held liable for its employees’ actions under the doctrine of
respondeat superior, Roe v. City of Waterbury, 542 F.3d 31, 36
(2d Cir. 2008); however, a town may be liable for the decision of
an authorized policymaker, an individual whose “acts or edicts
may fairly be said to represent official policy.”

Pembaur v.

City of Cincinnati, 475 U.S. 469 (1986) (quoting Monell, 436 U.S.
at 694).
Chief Sirois’s decisions with respect to the issuance,
renewal, and revocation of precious metals licenses represented
the official policy of the Town of East Hartford.

State law

determines whether an official is an authorized policymaker for
the purpose of municipal liability, City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988), and Section 21-100 of the
Connecticut General Statutes puts the chief of police in charge
of issuing licenses.

Further, all evidence indicates that the

Town of East Hartford gave Chief Sirois complete authority over
renewal of the licenses.

Chief Sirois has testified to the usual

process for reviewing license applications, which ends when he
reviews available material and makes a decision.
22:23-24:6.

Sirois Dep.

In his affidavit, Jay Sargent swears that after his

application was denied, the Mayor of East Hartford told him that
all she could do for him was strongly suggest to Sirois that he
meet with Sargent to discuss the renewal.

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Pl.'s Supp. Ex. 1 ¶¶

12-13.

Nobody from the Town of East Hartford or the police

department has suggested that any Town policy constrained
Sirois’s decision-making.

Chief Sirois was the Town of East

Hartford’s authorized policymaker with respect to the issuance,
renewal, and revocation of licenses, and therefore his actions
are properly attributed to the Town.

Defendants’ motion for

summary judgment on the claims against the Town of East Hartford
is denied.1
III. Conclusion
Defendants’ motion for summary judgment (doc. 35) is hereby
granted in part and denied in part.

Plaintiff’s motion for

partial summary judgment (doc. 36) is also hereby granted in part
and denied in part. Defendants’ motion for summary judgment is
granted with respect to plaintiff’s procedural and substantive
due process claims regarding the pawnbroker license, plaintiff’s
substantive due process claim regarding the precious metals
license, and all claims against John Murphy, Mark Sirois in his
individual capacity, and the Town of East Hartford Police
Department. Plaintiff’s motion for summary judgment is granted
with respect to plaintiff’s procedural due process claim
regarding the precious metals license against Mark Sirois in his

1

The Town of East Hartford Police Department is not an
independent legal entity and is therefore not subject to suit
under § 1983. See Weaver v. Good, 2008 WL 509452, at *2 (D.
Conn., Feb. 4, 2008). The Town of East Hartford is the
appropriate named defendant for plaintiff’s claims against the
police department. Summary judgment is granted as to all claims
against the Police Department.
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official capacity and the Town of East Hartford.

The matter will

be referred to Magistrate Judge Martinez for a hearing on
compensatory damages.

No punitive damages may be awarded because

municipalities are immune from punitive damage awards under §
1983.

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271

(1981).
So ordered this 30th day of September, 2011.

/s/ RNC
Robert N. Chatigny
United States District Judge

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