Prisley v. Town of Deep River Planning and Zoning Commission
Filing
39
ORDER granting 26 Motion for Summary Judgment, for the reasons stated in the attached Memorandum of Decision. The Clerk of Court is directed to enter judgment in favor of the Defendant and to close this case. Signed by Judge Kari A. Dooley on 8/5/2020. (Cahill, Leslie)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RONALD S. PRISLEY,
Plaintiff,
No. 3:18-cv-01065 (KAD)
v.
TOWN OF DEEP RIVER PLANNING
AND ZONING COMMISSION,
Defendant.
August 5, 2020
MEMORANDUM OF DECISION
RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 26)
Kari A. Dooley, United States District Judge:
Plaintiff Ronald S. Prisley (“Prisley” or the “Plaintiff”) filed this action against the Town
of Deep River Planning and Zoning Commission (the “Commission,” or the “Defendant”) pursuant
to 42 U.S.C. § 1983 alleging an equal protection “class of one” claim based upon the Commission’s
denial of Prisley’s 2014 re-subdivision application for a property located in Deep River,
Connecticut. Pending before the Court is the Commission’s motion for summary judgment (ECF
No. 26), to which Prisley has objected (ECF No. 27), and to which the Commission has filed a
reply. (ECF No. 28.) Oral argument was held on July 15, 2020. (ECF No. 38.) For the reasons
that follow, the Defendant’s motion for summary judgment is GRANTED.
Standard of Review
The standard under which the Court reviews motions for summary judgment is wellestablished. “The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “A genuine issue of material fact is one that ‘might affect the outcome of the suit
under the governing law’ and as to which ‘a reasonable jury could return a verdict for the
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nonmoving party.’” Noll v. Int’l Bus. Machines Corp., 787 F.3d 89, 94 (2d Cir. 2015) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The inquiry conducted by the Court when reviewing a motion for summary judgment
focuses on “whether there is the need for a trial—whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” Anderson, 477 U.S. at 250. Accordingly, the moving party
satisfies its burden under Rule 56 “by showing . . . that there is an absence of evidence to support
the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002)
(per curiam) (quotation marks and citations omitted). Once the movant meets its burden, “[t]he
nonmoving party must set forth specific facts showing that there is a genuine issue for trial.”
Irizarry v. Catsimatidis, 722 F.3d 99, 103 n.2 (2d Cir. 2013) (quoting Rubens v. Mason, 527 F.3d
252, 254 (2d Cir. 2008)). “[T]he party opposing summary judgment may not merely rest on the
allegations or denials of his pleading” to establish a disputed fact. Wright v. Goord, 554 F.3d 255,
266 (2d Cir. 2009). “[M]ere speculation or conjecture as to the true nature of the facts” will not
suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). The standard thus
requires “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson, 477 U.S. at 249. “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Id. at 249–50 (internal citations omitted).
In assessing the presence or absence of a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)
(per curiam) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). “In deciding a motion
for summary judgment, the district court’s function is not to weigh the evidence or resolve issues
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of fact; it is confined to deciding whether a rational juror could find in favor of the non-moving
party.” Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002).
Material Facts
The following facts are drawn from the Defendant’s Local Rule 56(a)(1) Statement of
Undisputed Material Facts (ECF No. 26-2) and exhibits in the record. The Plaintiff has admitted
each of the factual propositions set forth in the Defendant’s Local Rule 56(a)(1) Statement (see
ECF No. 27-1) and acknowledges that there are no facts in dispute. (Pl.’s Mem. at 1.)
This action arises out of the denial of a re-subdivision application submitted by Prisley to
the Commission for a parcel of real estate located at 164 Cedar Lake Road in Deep River,
Connecticut (the “Property”). Plaintiff purchased the Property in 2002 and first requested a
subdivision in 2006. (Def.’s Local Rule 56(a)(1) Statement ¶ 32.) The application at issue here
was Plaintiff’s sixth application for re-subdivision of the Property. (See Cathie Jefferson Mem. at
1, Def.’s Ex. F, ECF No. 26-8.) The Commission denied Prisley’s first complete subdivision
application, which was submitted in 2010, for several reasons, including non-compliance with the
Deep River Zoning Regulations requiring that: (1) the building rectangle maintain a side coincident
with the street line; (2) rear lots not be stacked or nested; and (3) the maximum number of rear lots
not exceed 30%. (Def.’s Local Rule 56(a)(1) Statement ¶¶ 1–2.) Prisley appealed the denial to
the Superior Court.
In its November 14, 2012 decision, the Superior Court upheld the
Commission’s rejection of Prisley’s application principally because he failed to submit a fire
protection plan but also found support for the Commission’s other stated reasons for the denial.
(See Nov. 2012 Decision at 7, Def.’s Ex. A, ECF No. 26-3.)
Prisley submitted the re-subdivision application at issue here to the Commission on
October 16, 2014. (Subdivision Checklist, Def.’s Ex. B, ECF No. 26-4; Cathie Jefferson Aff. ¶ 8,
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Def.’s Ex. C, ECF No. 26-5.) He subsequently requested waivers of the subdivision regulations
he was unable to satisfy: the building rectangle requirement; the rule prohibiting the stacking or
nesting of rear lots, and the requirement that rear lots not exceed 30%. (Def.’s Local Rule 56(a)(1)
Statement ¶ 5; Jefferson Aff. ¶ 10; Jefferson Mem. at 2–3.) The subdivision regulations authorize
the Commission to grant a waiver of any of its requirements by a three-quarters vote of all members
and based upon a finding of “extraordinary hardships or practical difficulties.” (See Jefferson
Mem. at 2 (quoting Deep River Subdivision Regulation 3.5.).) For each approved waiver the
Commission must further find that:
(1) The granting of a waiver will not have a significant adverse impact on adjacent property
or on public health and safety; and
(2) The conditions upon which the request for a waiver are based are unique to the proposed
subdivision for which the waiver is sought and are not applicable generally to other
potential subdivision[s]; and
(3) The waiver will not create a conflict with the provision of the Zoning Regulations, the
Plan of Development, town ordinances, or regulations of other Town boards and
commissions.
(Id. (quoting Subdivision Regulation 3.5.1).) Waiver requests must be submitted in writing at the
time of the initial subdivision application. (Id.)
In her January 28, 2015 memorandum to the Commission, Zoning Enforcement Officer
Cathie Jefferson (“Jefferson”) noted that with respect to the first waiver request, regarding the
building rectangle requirement, Prisley’s attorney had referenced a prior subdivision application
that Prisley believed was approved without meeting the requirement. (Jefferson Mem. at 3.) In
response, the Commission reviewed that other application and determined that “while the building
rectangle was not shown at the street line, both lots were able to demonstrate that they contained
the frontage and lot width to meet the requirement.” (Id.) As to the second waiver request,
regarding the no stacking rule, Jefferson noted that contrary to the comments of the Plaintiff’s
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counsel, Prisley’s re-subdivision application would create “three lots with three houses stacked
one behind the other.” (Id.) As to the third waiver, regarding the number of rear lots, Jefferson
observed that because the original subdivision would need to be accounted for in Prisley’s resubdivision application, Prisley’s proposal would result in one front lot and two rear lots—yielding
66% rear lots and not merely 50% rear lots as the Plaintiff had claimed. (Id.) In addition to the
fact that Prisley’s waiver requests were first submitted at a third scheduled public hearing and were
thus untimely, Jefferson also noted that there was nothing “unique” about Prisley’s desire to
subdivide his lot for financial gain within the meaning of the waiver-authorizing regulation. (Id.)
She also observed that to approve the waivers would contravene the November 2012 Superior
Court decision upholding the Commission’s denial of Prisley’s re-subdivision application, which
found adequate record support for the Commission’s determination that Prisley’s application was
not compliant with these same three regulations. (Id.; see also Nov. 2012 Decision at 3–4, 7.)
The Commission reviewed Jefferson’s memorandum and considered Prisley’s waiver
requests at a February 19, 2015 meeting, although it noted it was not obligated to do so because
the waiver requests were not submitted at the time of the application as required. (See Tr. of Feb.
2015 Meeting at 3–4, Def.’s Ex. E, ECF No. 26-7.) Each of Prisley’s waiver requests was rejected
by unanimous vote. (See id. at 8–12.) Thereafter, so was the re-subdivision application. (Id. at
14–16.) In voting to deny Prisley’s application, the Commission reiterated that in light of its
decision to reject the requested waivers, the application was not compliant with the building
rectangle, rear lot stacking, and rear lot percentage subdivision regulations discussed above. (Id.
at 15.)
The Commission notified the Plaintiff of the denial of his application by letter dated
February 27, 2015, citing five distinct reasons, each of which had been discussed at the February
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19 meeting. (Def.’s Local Rule 56(a)(1) Statement ¶ 6; Jefferson Aff. Ex. 4.) Prisley again
appealed the denial to the Superior Court, challenging all five of the Commission’s stated
reasons—non-compliance with each of the three regulations at issue, failure to submit proposed
easements for access and maintenance of a fire protection plan, and lack of review by the
Conservation and Inland Wetlands Commission and Connecticut River Area Health District. (See
August 29, 2016 Decision at 3, Def.’s Ex. G, ECF No. 26-9.) The Superior Court rejected Prisley’s
argument that the Commission’s denial of Prisley’s waiver requests exceeded its authority (id. at
6) and found the Commission’s application of the stacking and rear lot percentage regulations to
be supported by substantial evidence. (Id. at 8.) Because the court “found a number of reasons”
to sustain the Commission’s decision when it needed only one, the court did not address the other
bases for Prisley’s appeal. (Id. at 8–9.)
On June 22, 2018, Prisley filed this action against the Commission pursuant to 42 U.S.C.
§ 1983, alleging a violation of his right to equal protection of the law guaranteed by the Fourteenth
Amendment to the United States Constitution. (Compl. ¶ 13, ECF No. 1.) He alleges that the
Commission attributed its denial to Prisley’s failure to comply with Section 2.3.10 of the
Subdivision Regulations because “one side of the Building Rectangle was not coincident with the
street line, specifically . . . the street line along Cedar Lake Road,” even though the Commission
had recently “approved a subdivision application for 20 Hemlock Drive in which neither the
existing lot nor the proposed lot had a side that occupied the same space as the street line.”1 (Id.
¶¶ 7–8.)
Jefferson reviewed this alleged comparator, which Prisley had brought to the
1
While Prisley’s complaint identifies the property located at 20 Hemlock Drive as the only comparator to support his
equal protection claim, he cited three additional properties in his responses to the Defendant’s interrogatories. (See
Def.’s Ex. H at 3, ECF No. 26-10.) At oral argument, however, the Plaintiff disavowed his reliance on these three
properties and submitted that the property located at 20 Hemlock Drive is the only alleged comparator sufficiently
similar to the subject Property to survive the Defendant’s motion for summary judgment.
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Commission’s attention at the time of his application, and determined that the property located at
20 Hemlock Drive “is not comparable to the plaintiff’s lot because the subdivision resulted in two
conforming front lots” with 7.54 acres and 302.65 feet of frontage and 3.82 acres and 247.32 feet
of frontage comprising Lots A and B, respectively. (Jefferson Aff. ¶ 14.) Moreover, according to
Jefferson, “[w]hile the building rectangle on lot B was shown at the desired house location, I
reported at the hearing that the building rectangle fit at the street line.” (Id.) The minutes of the
Commission meeting on the application for 20 Hemlock Drive reflect that it was for a two-lot resubdivision that “meets all the requirements of the Subdivision Regulations,” and that it was
approved unanimously by the Commission. (December 10, 2019 Meeting Minutes at 1, Jefferson
Aff. Ex. 5.)
Discussion
Two different theories of equal protection liability could potentially arise from the type of
challenge Prisley poses to governmental action.2 First, a plaintiff could prevail on a theory of
selective treatment based upon a showing “that (1) the [plaintiff], compared with others similarly
situated, was selectively treated; and (2) that such selective treatment was based on impermissible
2
The Court questions, as a threshold matter, whether the Commission is a “person” subject to suit for purposes of 42
U.S.C. § 1983. Compare, e.g., Farmington-Girard, LLC v. Planning & Zoning Comm’n of City of Hartford, No. 3:17CV-1915 (MPS), 2019 WL 935500, at *10–12 (D. Conn. Feb. 26, 2019) (explaining that under Connecticut law, the
municipality is the proper defendant to a Section 1983 suit, and finding that in the absence of statutory authority
conferring distinct legal status upon a municipal department such that it can sue and be sued, the Planning and Zoning
Commission of the City of Hartford is not a “person” for purposes of Section 1983), and Watrous v. Town of Preston,
902 F. Supp. 2d 243, 255–58 (D. Conn. 2012) (same, and holding that the Town of Preston Inland Wetlands and
Watercourses Commission is not a legal entity that can be sued under Section 1983), with Pappas v. Town of Enfield,
18 F. Supp. 3d 164 (D. Conn. 2014), aff’d, 602 Fed. Appx. 35 (2d Cir. 2015) (addressing the merits of Section 1983
claim against, inter alia, the Enfield Planning and Zoning Commission without discussion as to whether the entity
was a proper party to the suit), and Arrigoni Enterprises, LLC v. Town of Durham, No. 3:08-CV-520 (AWT), 2011
WL 4572025, at *7–*8 (D. Conn. Sept. 30, 2011), adhered to in relevant part on reconsideration, 2012 WL 13020055
(D. Conn. Feb. 14, 2012), aff’d on different grounds, 629 Fed. Appx. 23 (2d Cir. 2015) (holding that local planning
and zoning commissions can be sued for the allegedly unconstitutional actions of their officers under Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)). Because the Defendant does not raise this issue and because it
is apparent to the Court that the Plaintiff has otherwise set forth insufficient evidence to withstand a motion for
summary judgment on his equal protection claim, the Court assumes for purposes of the instant motion only that the
Plaintiff can proceed with a claim against the Commission.
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considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights,
or malicious or bad faith intent to injure a person.” LeClair v. Saunders, 627 F.2d 606, 609–10
(2d Cir. 1980). Second, the Supreme Court has “recognized successful equal protection claims
brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). At oral
argument and in his opposition to the motion for summary judgment, Prisley confirmed that he
alleges only a “class of one” theory of equal protection liability as contemplated in Olech.
To prevail on such a “class of one” claim, the Second Circuit requires “an extremely high
similarity between [the plaintiffs] and the persons to whom they compare themselves,”—that is,
the “plaintiff must be prima facie identical to the persons alleged to receive irrationally different
treatment.” Progressive Credit Union v. City of New York, 889 F.3d 40, 49 (2d Cir. 2018)
(quotation marks and citations omitted). “The purpose of requiring sufficient similarity is to make
sure that no legitimate factor could explain the disparate treatment.” Fortress Bible Church v.
Feiner, 694 F.3d 208, 222 (2d Cir. 2012).3
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The Commission identifies a prior split among courts in this Circuit regarding the “similarly situated” standard
applied in selective enforcement (i.e., LeClair) versus “class of one” (i.e., Olech) cases. (See Def.’s Mem. at 12–13).
The Second Circuit recently clarified the relationship between these two iterations of equal protection law. The court
explained that while both theories “require a showing that the plaintiff was treated differently from another similarly
situated comparator, they differ in at least two key respects.” Hu v. City of New York, 927 F.3d 81, 93 (2d Cir. 2019).
Specifically:
First, unlike a malice-based LeClair claim, an Olech claim does not require proof of a defendant’s subjective
ill will towards a plaintiff. Instead, a plaintiff can prevail on an Olech claim on the basis of similarity alone.
However, the similarity standard for an Olech claim is more stringent than the standard for a LeClair claim.
While Olech requires an “extremely high” degree of similarity between a plaintiff and a comparator, LeClair
merely requires a “reasonably close resemblance” between a plaintiff’s and comparator’s circumstances.
Id. Thus, unlike a “typical, class-based Equal Protection claim, . . . in an Olech claim, the disparate treatment and
impermissible motive inquires are virtually one and the same.” Id. at 94 (quotation marks and citation omitted).
“An Olech claim asserts that the distinction between the plaintiff’s case and those similarly situated is so arbitrary and
irrational that it fails to pass even the ‘minimal’ equal protection standard: that distinctions among the objects of
government action must be rationally related to a legitimate government objective.” Id.
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“Where a plaintiff challenges a zoning decision, that standard requires [him] to identify
comparators who are similarly situated to [him] with regard to the zoning board’s ‘principal
reasons’ for denying the application.” Pappas v. Town of Enfield, 602 Fed. Appx. 35, 36 (2d Cir.
2015) (summary order) (quoting Fortress, 694 F.3d at 223–24). Ultimately, Prisley must identify
sufficient evidence for the fact-finder to conclude “that (i) no rational person could regard the
circumstances of the plaintiff to differ from those of a comparator to a degree that would justify
the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in
circumstances and difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.” Progressive Credit Union, 889 F.3d at 49 (quoting
Ruston v. Town Bd. for Skaneateles, 610 F.3d 55, 60 (2d Cir. 2010)); accord Hu, 927 F.3d at 94.
“While that showing is generally a ‘fact-intensive inquiry,’ a court may nevertheless ‘grant
summary judgment on the basis of lack of similarity where no reasonable jury could find that the
persons to whom the plaintiff compares [him]self are similarly situated.’” Pappas, 602 Fed. Appx.
at 36 (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (ellipses omitted)).
The Commission seeks summary judgment on Prisley’s equal protection claim because
there is insufficient evidence for a jury to identify the existence of a similarly situated comparator
so as to establish differential treatment. The Commission also argues that the doctrines of res
judicata and collateral estoppel bar Prisley from relitigating the denial of his subdivision
application, citing the Superior Court’s 2012 adjudication of Prisley’s appeal from the
Commission’s adverse decision on his 2010 application. By admitting to the Defendant’s Local
Rule 56(a)(1) Statement, Prisley acknowledges that the application for the property located at 20
Hemlock Drive is not comparable to that which he submitted for the Property “because the
subdivision resulted in two conforming front lots.” (Def.’s Local Rule 56(a)(1) Statement ¶ 36.)
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He nonetheless argues that the Commission has failed to establish that the differences between the
two re-subdivision applications were material as a matter of law and contends that a reasonable
fact finder could therefore conclude that Prisley was treated differently without justification. He
also argues that issue or claim preclusion do not bar the present action because Prisley was required
to exhaust his remedies in the state courts, which did not consider his constitutional claims.4
The Court agrees with the Commission that Prisley has not set forth sufficient evidence—
or truly any evidence—that would enable a reasonable fact finder to conclude that the two resubdivision applications at issue were prima facie identical. As noted above Prisley has admitted
that the property located at 20 Hemlock Drive “is not comparable to the Plaintiff’s lot because the
subdivision resulted in two conforming front lots,” (Def.’s Local Rule 56(a)(1) Statement ¶ 36)
whereas “Plaintiff could not configure his property with the building rectangle to create the front
lot.” (Id. ¶ 33.) “Approval of the [Plaintiff’s] resubdivision,” on the other hand, “would result in
one frontage lot and two rear lots creating 66% rear lots.” (Jefferson Mem. at 3.) In addition,
Jefferson found “that the building rectangle fit at the street line” for the application for 20 Hemlock
Drive (Jefferson Aff. ¶ 14), whereas Plaintiff sought a waiver of the building rectangle requirement
for the Property. (Id. ¶ 10.)
Indeed, that the two re-subdivision applications are not similarly
situated is evidenced by the very fact of the Plaintiff’s requested waivers—which were itself
acknowledgements “that he was unable to meet” each of the three regulations at issue. (Def.’s
Local Rule 56(a)(1) Statement ¶ 5.) At the hearing concerning the application for the property at
20 Hemlock Drive, by contrast, “Jefferson noted that the application meets all the requirements of
4
The Second Circuit has recognized that “[a]lthough it is the ordinary practice of this court to decide a res judicata
claim before reaching the merits, when the res judicata issue raises difficult and important questions of federalism and
comity, and the merits can be readily decided in favor of the party urging preclusion, we think it better to avoid the
unnecessary resolution of the res judicata question.” Pettis Moving Co. v. Roberts, 784 F.2d 439, 440–41 (2d Cir.
1986). Because the merits of this matter can be readily decided in favor of the Commission, the Court likewise
declines to wade into the question of the preclusive effect of the prior Superior Court decision.
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the Subdivision Regulations.” (December 10, 2019 Meeting Minutes at 1.) Prisley does not
challenge any of these factual assertions.
Thus, the Commission has satisfied its burden of establishing that there is no genuine issue
of material fact regarding whether Prisley’s application was similarly situated to the application
regarding 20 Hemlock Drive—it was not. As a result, it is Prisley’s burden to “come forward with
admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary
judgment.” E.g., CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.
2013) (quotation marks and citation omitted). Yet Prisley has not identified any evidence to
support his contention that the application for 20 Hemlock Drive, like his property, did not satisfy
the building rectangle requirement. As indicated, the undisputed fact is that it did. Nor has Prisley
put forth evidence that would enable the fact finder to otherwise determine that the two properties
were similarly situated. Indeed, even if the application for 20 Hemlock Drive included a noncompliant building rectangle, Prisley offers no evidence to overcome the Commission’s contention
that the two properties were dissimilar by virtue of the fact that Prisley’s application would have
yielded two rear lots—thus violating not one but two subdivision regulations, while the application
at 20 Hemlock Drive yielded two front lots. In short, “[a]bsent any evidence that those other
projects raised any of the same concerns cited by the Commission to explain its denial of [Prisley’s]
application, [Prisley] cannot carry [his] burden of establishing that ‘no rational person could regard
[Prisley’s] circumstances . . . to differ from those of [his] comparators to a degree that would justify
the differential treatment.” Pappas, 602 F. Appx. at 36 (quoting Fortress, 694 F.3d at 222).
Summary judgment must accordingly enter for the Commission.
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Conclusion
For the foregoing reasons, the Defendant’s motion for summary judgment is granted. The
Clerk of Court is directed to enter judgment in favor of the Defendant and to close this case.
SO ORDERED at Bridgeport, Connecticut, this 5th day of August 2020.
/s/ Kari A. Dooley
KARI A. DOOLEY
UNITED STATES DISTRICT JUDGE
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