Cais v. East Haddam et al

Filing 45

ORDER granting 35 Motion for Summary Judgment. Signed by Judge Alvin W. Thompson on 7/14/2011. (Rasch, E)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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MILAN CAIS,
:
:
Plaintiff,
:
:
v.
:
:
TOWN OF EAST HADDAM,
:
DONALD ANGERSOLA AND
:
KEITH DARIN,
:
:
Defendants.
:
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Civil No. 3:09cv1511 (AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Milan Cais (“Cais”), brings this action
against the Town of East Haddam, Donald Angersola
(“Angersola”) and Keith Darin (“Darin”) for deprivation of
his property in violation of his rights to procedural and
substantive due process of law pursuant to 42 U.S.C. § 1983.
Defendants Town of East Haddam and Angersola have moved for
summary judgment.1

For the reasons set forth below, their

motion is being granted.
I.

FACTUAL BACKGROUND
Angersola has been the Fire Chief of the East Haddam

Fire Department in East Haddam, Connecticut since 2000.
the night of January 1, 2008, at approximately 7:21 pm,

1

The plaintiff has withdrawn all claims against Darin.
Therefore, defendant Darin’s separate motion for summary
judgement has been granted.
1

On

Angersola was at home when his pager went off alerting him
to a fire at 27 Powerhouse Road in East Haddam, the
plaintiff’s property.

When Angersola arrived at the scene

of the fire, he could not see the primary structure from the
street, but he could see the glow from the fire, which had
“fully involved” the structure.

Angersola attempted to walk

a full circle around the property to identify areas of
access for fire suppression personnel and vehicles, but he
was unable to complete the circle because debris, overgrown
trees and vegetation obstructed his path.

He was able to

observe, however, that on each floor of the structure fire
was coming out of the windows.

This led Angersola to

believe that the fire had fully involved the structure and
caused substantial damage.
After other fire companies arrived on the scene,
Angersola assumed control of the operation and set up access
points.

The firefighters were unable to gain direct access

to the structure because a six-foot chain link fence and a
large amount of debris in the yard obstructed their path.
After an hour of attempting to gain access, Angersola called
for the Town of East Haddam to send a road crew member to
clear a path to the structure.

Approximately forty-five

minutes later, a front-end loader driven by Ralph Nichols
(“Nichols”) arrived on the scene.
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Angersola directed

Nichols to clear an area so that the fire trucks and crews
could gain access to the structure.

Once a large enough

path was cleared, the firefighters were able to combat the
fire.

After six or seven hours, Angersola observed that all

of the floors and the roof of the structure had collapsed
and were burning in the basement of the structure.
At some point during the course of the night, the
plaintiff approached Angersola and asked who he was.
Angersola informed the plaintiff of his identity, and the
plaintiff told him that he had no right to be on his
property and asked that Angersola leave immediately.
Angersola did not leave and continued combating the fire.
Shortly after their conversation, Angersola observed the
plaintiff receiving treatment from emergency medical
personnel.

Angersola never spoke to or saw the plaintiff

again that night.
Around 5:00 or 6:00 am on January 2, 2008, Angersola
ordered most of the firefighters on the scene to go home so
that they could change and eat.

One engine and five

firefighters remained on the scene actively combating the
fire until the others returned around 7:00 am.

While most

of the firefighters were gone, an excavator owned by Jim
Carlson (“Carlson”) arrived on the scene to clear a second
path through the debris so that the firefighters could get
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close enough to fight the fire that continued to burn in the
basement.

The smoke rising from the basement was affecting

adjoining property owners, and although the fire hoses
reached the structure, the exterior walls blocked attempts
to put out the fire inside.
At this time, the exterior walls were no longer
supported because all of the floors and the roof had
collapsed into the basement.

Angersola believed that the

walls posed a risk of collapsing, and because of the risk of
collapse, he refused to send any firefighters into the
structure.

At this point, Angersola made the decision that

the exterior walls needed to be torn down as soon as
possible.

He believed such an action was necessary to

combat the fire that was still burning and keep it from
spreading to neighboring properties via the debris in the
yard.

Though two paths had been cleared, a large amount of

debris remained on the property, and a neighbor had already
reported a fire on the property line which had traveled
through the debris.
Around 6:00 or 7:00 am on January 2, 2008, Angersola
instructed Carlson to tear down the exterior walls with the
excavator.

In making the decision to tear down the walls,

Angersola did not consult with anyone else, including the
plaintiff.

At the time, Angersola did not know the
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whereabouts of the plaintiff and had not spoken with or seen
him in approximately nine hours.

After the walls were torn

down, the firefighters were able to extinguish the fire in
the basement.
II.

LEGAL STANDARD
A motion for summary judgment may not be granted unless

the court determines that there is no genuine issue of
material fact to be tried and that the facts as to which
there is no such issue warrant judgment for the moving party
as a matter of law.

Fed. R. Civ. P. 56(c).

See Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v.
Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir.
1994).

When ruling on a motion for summary judgment, the

court may not try issues of fact, but must leave those
issues to the jury.

See, e.g., Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks Bd.
Of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987).

Thus, the

trial court’s task is “carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them.

Its duty, in short, is

confined . . . to issue-finding; it does not extend to
issue-resolution.” Gallo, 22 F.3d at 1224.
Summary judgment is inappropriate only if the issue to
be resolved is both genuine and related to a material fact.
5

Therefore, the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.

An issue is

“genuine . . . if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248 (internal quotation marks
omitted).

A material fact is one that would “affect the

outcome of the suit under the governing law.”
U.S. at 248.

Anderson, 477

Only those facts that must be decided in order

to resolve a claim or defense will prevent summary judgment
from being granted.

Immaterial or minor facts will not

prevent summary judgment.

See Howard v. Gleason Corp., 901

F.2d 1154, 1159 (2d Cir. 1990).
When reviewing the evidence on a motion for summary
judgment, the court must “assess the record in the light
most favorable to the non-movant and . . . draw all
reasonable inferences in its favor.”

Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware &
Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177
(2d Cir. 1990)).

However, the inferences drawn in favor of

the nonmovant must be supported by evidence.

“[M]ere

speculation and conjecture” is insufficient to defeat a
motion for summary judgment.

Stern v. Trustees of Columbia

Univ., 131 F.3d 305, 315 (2d Cir. 1997) (quoting Western
6

World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d.
Cir. 1990)).

Moreover, the “mere existence of a scintilla

of evidence in support of the [nonmovant’s] position” will
be insufficient; there must be evidence on which a jury
could “reasonably find” for the nonmovant.

Anderson, 477

U.S. at 252.
III. DISCUSSION
The plaintiff claims that by tearing down the exterior
walls of the structure without affording him any form of
hearing beforehand, the defendants deprived him of his
property without due process of law in violation of the
Fourteenth Amendment.
A. Claims Against Angersola
1.

Procedural Due Process

“The Fourteenth Amendment prohibits a state from
‘depriv[ing] any person of life, liberty, or property,
without due process of law. . . .’

Due process requires

that before state actors deprive a person of her property,
they offer her a meaningful opportunity to be heard.”
WWBITV, Inc. v. Vill. of Rouses Point, 589 F.3d 46, 50 (2d
Cir. 2009) (internal citations omitted).

“The Supreme Court

has held, however, that in emergency situations a state may
satisfy the requirements of procedural due process merely by
making available ‘some meaningful means by which to assess
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the propriety of the State’s action at some time after the
initial taking.’”

Id. (quoting Parratt v. Taylor, 451 U.S.

527, 539 (1981)).

“Where there is an emergency requiring

quick action and where meaningful pre-deprivation process
would be impractical, the government is relieved of its
usual obligation to provide a hearing, as long as there is
an adequate procedure in place to assess the propriety of
the deprivation afterwards.”

WWBITV, 589 F.3d at 50

(internal citation omitted).
For the purposes of their motion for summary judgment,
the defendants concede that the plaintiff had a
constitutionally-protected property interest in the
structure located at 27 Powerhouse Road.

Thus, the court

must determine whether there was an emergency, thereby
relieving the defendants of their obligation to provide a
pre-deprivation hearing, and whether adequate postdeprivation remedies were available.
a. Existence of an Emergency Situation
In determining whether an official properly invoked
emergency procedures, the court must “accord the decision to
invoke the procedure some deference and not engage in a
hindsight analysis of whether [the situation] actually
created an immediate danger to the public.”
Weiden, 188 F.3d 56, 62 (2d Cir. 1998).
8

Catanzaro v.

“Such hindsight

analysis of [an official’s] means of dealing with an
emergency would encourage delay and risk increasing the
public’s exposure to dangerous conditions.”
F.3d at 52.

WWBITV, 589

“If an official believes that the public is in

immediate danger, he or she should not hesitate to invoke an
emergency procedure for fear of being sued and being liable
for damages should his or her decision turn out to be
incorrect in hindsight.”

Catanzaro, 188 F.3d at 63.

“[T]he due process guarantee is offended only when an
emergency procedure is invoked in an abusive and arbitrary
manner; therefore, there is no constitutional violation
unless the decision to invoke the emergency procedure
amounts to an abuse of the constitutionally afforded
discretion.”

Id. at 62.

“Whether the official abused his

discretion or acted arbitrarily in concluding that a genuine
emergency exists is a factual issue, subject to the usual
considerations for a district court addressing a summary
judgment motion.”

WWBITV, 589 F.3d at 51.

In Burtnieks v. City of New York, 716 F.2d 982 (2d Cir.
1983), the plaintiff owned a vacant apartment building that
had begun to crack and buckle.

The city determined that the

building was a safety hazard and, without holding a predemolition hearing, ordered that it be demolished.

The

plaintiff hired an architect who reported that demolition
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was not necessary, and the plaintiff presented those
findings to the city.

However, the city refused to call off

the demolition and the building was demolished approximately
three months later.
The plaintiff sued for deprivation of her property
without due process of law based on the failure to provide
her with a pre-deprivation hearing.

The Second Circuit

reversed the trial court’s grant of summary judgment in
favor of the city, finding that there was a genuine issue as
to whether an emergency existed, particularly in light of
the three-month delay between the declaration of an
emergency and the demolition of the building.

The court

held that for emergency procedures to be properly invoked,
“a court must. . . find the necessity of quick action or the
impracticality of providing any predeprivation process.”
Id. at 988.
In Catanzaro, two adjacent buildings owned by the
plaintiff were damaged when a car crashed into one of the
buildings, knocking down its support beams and causing it to
buckle. 188 F.3d at 58.

Due to the building’s proximity to

a street that provided access to a hospital and firehouse,
the city immediately tore it down without a hearing.

The

following day, the city determined that Catanzaro’s other
building was unstable and needed to either be repaired or
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torn down immediately as well.

When the plaintiff claimed

that he could not afford the repairs, the city tore it down
immediately, again without a hearing.
The plaintiff sued for violation of his procedural due
process rights because he was denied an opportunity to
contest the city’s determination that the buildings were a
threat to public safety.

The court found that no reasonable

trier of fact could find that the city officials acted
arbitrarily or abused their discretion in concluding that
there was an emergency.

“[W]here there is competent

evidence allowing the official to reasonably believe that an
emergency does in fact exist

. . . the discretionary

invocation of an emergency procedure results in a
constitutional violation only where such invocation is
arbitrary or amounts to an abuse of discretion.”

Id. at 63.

Here, as in Catanzaro, the material facts as to which
there is no genuine dispute establish that the threat to the
public was ongoing and there was insufficient time to hold a
pre-deprivation hearing.

When Angersola gave the order to

tear down the exterior walls, the fire continued to burn in
the basement of the structure, those walls prevented the
firefighters from effectively combating the fire, and the
whereabouts of the plaintiff were unknown.

Additionally, a

small fire had already traveled through the debris in the
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yard to the property line, and Angersola was concerned that
the fire could spread to neighboring properties.
The plaintiff has presented no evidence that could
support a conclusion by a reasonable trier of fact that
Angersola abused his discretion in ordering the exterior
walls demolished.

The plaintiff attempts to create a

genuine issue of material fact by arguing that: (1) the
brush and debris on the property had been cleared away, (2)
the fire lines were appropriately strung, (3) the fire had
died down, and (4) the plaintiff’s whereabouts were known at
the time that Angersola gave the order to tear down the
walls.

The plaintiff’s arguments are contrary to the

undisputed facts regarding points (1),(3) and (4).

As to

point (2), the fact that the fire lines were appropriately
strung is not material to the question of whether efforts to
fight the fire in the basement were impeded by the exterior
walls; it only means that once the exterior walls were torn
down, the firefighters could then immediately proceed to
fight the fire in the basement.

Therefore, the plaintiff’s

arguments do not create a genuine issue as to whether an
emergency situation existed.
b. Availability of Post-deprivation Remedies
The availability of mechanisms for appeal or postdeprivation remedies precludes a latter action for denial of
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procedural due process.

See, e.g., Bradley v. Town of

Colchester, 863 F.2d 205, 211 (2d Cir. 1988).

Where state

law provides an adequate remedy, claims for loss of personal
property are not cognizable under § 1983.

See Aziz Zarif

Shabazz v. Pico, 994 F. Supp. 460, 473 (S.D.N.Y. 1998).
The defendant asserts, correctly, that the plaintiff’s
opportunity to contest the propriety of Angersola’s decision
and seek monetary damages through a common law action in
state court constitutes meaningful post-deprivation process.
See, e.g., Jackson v. Burke, 256 F.3d 93 (2d Cir. 2001).
Connecticut law provides common law causes of action which
would provide the plaintiff with sufficient post-deprivation
process for the loss of his property.

See, e.g., City of

Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 83-84 (2007)
(an inverse condemnation proceeding may be brought where a
government actor has taken the plaintiff’s property such
that the plaintiff is excluded from his private use and
possession of the property); Mystic Color Lab, Inc. v.
Auctions Worldwide, LLC, 284 Conn. 408, 418 (2007) (a
plaintiff may bring an action for common law conversion
where the defendant engaged in the unauthorized assumption
and exercise of the right of ownership over the plaintiff’s
property, to the exclusion of the plaintiff’s rights);
Barnett Motor Transp. Co. v. Cummins Diesel Engines, Inc.,
13

162 Conn. 59, 64-65 (1971) (a plaintiff may bring a claim
for negligence relating to the loss of personal property).
Because there is no genuine issue of material fact as
to whether an emergency situation existed and adequate postdeprivation remedies are available to the plaintiff,
Angersola’s motion for summary judgment on the plaintiff’s
procedural due process claim is being granted.
2.

Substantive Due Process

For conduct to constitute a denial of substantive due
process, it must be conduct which “can fairly be viewed as
so brutal and offensive to human dignity as to shock the
conscience. . . and is so brutal and offensive that it does
not comport with traditional ideas of fair play and decency
. . . .”

Smith v. Half Hollow Hill Cent. Sch. Dist., 298

F.3d 168, 173 (2d Cir. 2002) (internal citations and
quotation marks omitted).
Substantive due process is an outer limit on the
legitimacy of governmental actions. It does not
forbid governmental actions that might fairly be
deemed arbitrary or capricious. . . . Substantive
due process standards are violated only by conduct
that is so outrageously arbitrary as to constitute
a gross abuse of governmental authority.
Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.
1999).

“Only a substantial infringement of state law

prompted by personal animus, or a deliberate flouting of the

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law that trammels significant personal or property rights,
qualifies for relief under § 1983.”

Id.

As discussed above, it has been established that
Angersola reasonably concluded that an emergency situation
existed.

Therefore, his actions cannot be deemed arbitrary

or capricious such that the plaintiff’s right to substantive
due process was violated.

Accordingly, Angersola’s motion

for summary judgment on the plaintiff’s substantive due
process claim is being granted.
B. Claim Against the Town of East Haddam
A municipality may be liable under § 1983 when an
official policy, practice or custom causes a violation of
the plaintiff’s constitutional rights.

See Monell v. Dept.

of Soc. Servs., 436 U.S. 658, 692 (1978).

If there is no

violation of the plaintiff’s constitutional rights, the
municipality cannot be held liable under § 1983.

Because

there was no violation of the plaintiff’s right to
procedural or substantive due process, the Town of East
Haddam cannot be held liable.

Therefore, the motion for

summary judgment is being granted as to the claim against
this defendant.

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IV. CONCLUSION
For the reasons set forth above, defendants Town of
East Haddam and Donald Angersola’s motion for summary
judgment (Doc. No. 35) is hereby GRANTED.

The Clerk shall

enter judgment accordingly and close this case.
It is so ordered.
Dated this 14th day of July, 2011 at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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