Duffy v. Mange et al

Filing 69

REPORT AND RECOMMENDATIONS- DENYING 60 MOTION to Strike 53 MOTION for Summary Judgment, DENYING 63 MOTION to Compel Discovery, GRANTING 53 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Ru le of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 2/28/2014. Signed by Judge Sherry R. Fallon on 2/11/2013. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL DUFFY,
Plaintiff,
v.
M. MANGE, KENT COUNTY
DELAWARE, P. BROOKS BANTA and
KENT LEVY COURT INC.,
Defendants.

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Civil Action No. 11-13-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Plaintiff Michael Duffy ("Duffy" or "plaintiff'), who proceeds pro se, 1 filed this lawsuit
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on January 4, 2011, alleging violations ofthe Takings Clause of the Fifth Amendment. (D.I. 1)
Plaintiff subsequently amended the complaint to add a claim under the Fourth Amendment
search and seizure clause. (D.I. 44) Presently before the court are the following motions: the
motion for summary judgment of defendants Kent County Levy Court, Commissioner P. Brooks
Banta, and Michael J. Petit de Mange (collectively, "defendants") (D.I. 53), and plaintiffs
motion to strike (D.I. 60) and motion to compel discovery (D.I. 63). For the reasons set forth
below, I recommend that the court deny plaintiffs motions and grant defendant's motion for
summary judgment.

1

On August 10, 2011, the court entered an order for the Clerk of Court to attempt to refer
representation of plaintiff to a member of the Federal Civil Panel. (D.I. 16) Plaintiff was
represented by an attorney until May 9, 2013, when the court revoked the order appointing
counsel. (D.I. 28)
2
Plaintiff alleged additional causes of action, which were dismissed as frivolous on May
3, 2011. (D.I. 7)

II.

BACKGROUND 3
On February 10, 2001, plaintiff purchased property located at 3028 Kitts Hummock

Road, Kent County, Delaware, for a sum of$500.00. (D.I. 54, Ex. Cat Duffy 1213-15)
However, plaintiff did not record a deed or bill of sale for the property. (Id. at Duffy 1200-02)
In May 2008, a storm damaged plaintiff's property. Following the storm, inspectors from the
Division oflnspections and Enforcement ofthe Kent County Department of Planning Services
inspected a number of parcels in the communities affected by the storm, including plaintiff's
property. (!d.

at~

2) One of the structures on plaintiff's property was condemned as unsafe in

May 2008. (ld. at Duffy 1188)
By letter dated June 16, 2008, the Department of Planning Services notified the record
owners of the property that the property was condemned, and gave the record owners ninety days
to comply with the condemnation order. (!d. at Duffy 1184-86) After the letter was returned as

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The facts discussed herein are derived from the evidence on the record supplied by
defendant unless otherwise noted. The facts are either undisputed, or plaintiff has failed to
properly support his assertions. See Fed. R. Civ. P. 56(c) & (e). Plaintiff has not cited to
particular parts of materials in the record in his answering brief. He admits receiving defendant's
submission and has repeatedly indicated that he has reviewed and continues to review
defendant's submission. (D.I. 59, 60)
Plaintiff was given ample time to develop a record of his own. Plaintiff was appointed
counsel on September 2, 2011 (D.I. 17), and the case was referred to the undersigned magistrate
judge on May 2, 2012 (D.I. 23). Appointed counsel suggested a tentative plan for moving
forward with additional discovery in March 2013 (D.I. 27 at 13:5 - 16:2), but the attorney-client
relationship deteriorated and the order appointing counsel was revoked on May 9, 2013 (D.I. 28).
On the same date, the court entered a scheduling order, setting a discovery deadline of August
12, 2013. (D.I. 29) Plaintiff also made requests for information from defendant prior to the
commencement of litigation, but then refused to accept the requested information when it was
provided to him. (D.I. 54, Ex. C at Duffy 1086)
Plaintiff was also given ample time to respond to defendant's motion for summary
judgment. Defendant filed the motion for summary judgment on September 11, 2013. (D.I. 53)
Plaintiffs deadline to respond was extended to October 18, 2013. (D.I. 58) Between September
11, 2013 and October 18, 2013, plaintiff submitted five filings. (D.I. 59, 60, 61, 62, 63)
Plaintiff's multiple filings within this five week period suggest that he is capable of filing a
timely response.
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undeliverable, defendants posted the notice on the structures located at the property. (!d. at
Duffy 1182-83) Plaintiff contacted defendants on June 24, 2008 with a series of questions about
the procedure. (ld. at Duffy 1177-80) On June 30, 2008, defendants attempted to explain the
process to plaintiff and provide him with written information, but plaintiff declined to accept the
information offered to him. (!d. at Duffy 1175)
Plaintiff identified himself as disabled and requested assistance under the ADA on
September 9, 2008. (/d. at Duffy 1162) Defendants informed plaintiff that he would be granted
an extension oftime for correction of violations at the property if he recorded a deed or bill of
sale by the deadline of October 3, 2008. (!d. at Duffy 1156, 1149) The deed transferring legal
ownership ofthe property to plaintiff was recorded on October 3, 2008. (/d. at Duffy 1129-42)
On October 2, 2008, an inspection of the property was made at plaintiffs request. (/d. at
Duffy 11 08) The inspection revealed that an accessory structure on the property was also unsafe,
and the building was condemned. (!d.) Plaintiff was given ninety calendar days to comply with
the condemnation order. (!d. at Duffy 11 09)
Beginning in October 2008, a volunteer architect assisted plaintiff in navigating the
demolition and rebuilding process. (/d. at Duffy 1113, 1093

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3, 1006-09, 987-95) On October

23, 2008, defendants met with plaintiff to explain the demolition and rehabilitation process. (/d.
at Duffy 1030-35) Defendants outlined the steps needed to apply for a demolition permit or a
temporary shelter permit and also discussed what would be needed to request an extension of the
demolition deadline. (!d.) Defendants also offered to assign a staff member to help plaintiff
navigate the process in response to his ADA accommodation request. (!d. at Duffy 1093-94)
Plaintiff was advised that if he took no action within ninety days of the condemnation order,

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defendants would proceed with the demolition and place a lien on the property to cover the cost.
(!d.)

Also in October 2008, plaintiff submitted a request for a dumpster. (!d. at Duffy 1143)
The request was denied because defendants do not provide county-funded dumpsters for
individual property owners. (!d. at Duffy 1093) Defendants had provided two dumpsters in
September 2008 for a planned community flood clean up weekend, but defendants do not
provide county-funded dumpsters to individual property owners. (!d.

at~

9) Plaintiff has

presented no evidence indicating that county-funded dumpsters were provided to individual
homeowners.
Plaintiff continued to communicate with defendants via email during November 2008.
(!d. at Duffy 1021-25) Defendants reiterated that they would assist plaintiff with the permitting

process, but an extension of the demolition deadline would not be granted unless significant
progress toward rehabilitation or demolition was shown. (!d. at Duffy 1021) Plaintiff was
notified that he had until February 7, 2009 to comply with the condemnation notice. (!d.)
On January 13,2009, plaintiff initiated a civil action against defendant in the Court of
Chancery, requesting injunctive relief to preclude defendant from demolishing the structures. On
January 20, 2009, plaintiffs architect recommended demolishing and rebuilding the structures,
and asked defendants how to apply for a demolition permit. (!d. at Duffy 988-95) Defendants
determined that plaintiff had taken some steps towards compliance with the condemnation order
and suspended the February 7, 2009 compliance deadline. (!d. at Duffy 987)
Plaintiff made no further progress towards obtaining a demolition permit until defendants
issued another notice of intent to demolish the structures as of June 23, 2009. Plaintiff applied
for and was granted a demolition permit on July 6, 2009, which gave him thirty days to complete

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demolition. (Jd. at Duffy 856-57) During the demolition period, volunteers from plaintiff's
church4 demolished the front structure and a portion of the rear structure, but did not complete
demolition of the rear structure. (!d.

at~

18) When contacted by defendants, the volunteers

indicated that they did not plan to complete the demolition.
Defendants provided notice of intent to proceed with the remaining demolition in the
ongoing Court of Chancery litigation, and caused the remaining structure to be demolished in
early December 2009 after soliciting bids from contractors. (!d. at Duffy 758) The demolition
cost $1,400, and that amount has become a lien on the property. (!d. at Duffy 756) Plaintiff did
not submit an application for a building permit or a temporary shelter permit. (!d. at Duffy 943,
1011)
Plaintiff initiated the present case on January 4, 2011, and filed an amended complaint on
June 28,2013. (D.I. 1, 44) The complaints, filed pursuant to the Fourth and Fifth Amendments,
allege that defendants caused a taking of property without compensation, and that the
condemnation and demolition of his property has resulted in an unlawful search and seizure.

III.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
A.

Legal Standard

"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). Material facts are those that could affect the outcome of the proceeding, and "a

dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242,248 (1986)). Pursuant to Rule

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The record suggests that the relationship between plaintiff and the volunteer architect
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56(c)(l), a party asserting that a fact is genuinely disputed must support its contention either by
citing to "particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for the purposes of the motion only), admissions, interrogatory answers, or other materials," or
by "showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R.
Civ. P. 56(c)(l)(A) & (B).
The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden then shifts to the
non-movant to demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough ofWest Chester, Pa., 891
F.2d 458, 460-61 (3d Cir.1989). When determining whether a genuine issue of material fact
exists, the court must view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380
(2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some
evidence in support of the nonmoving party may not be sufficient to deny a motion for summary
judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the
nonmoving party on the issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
If the nonmoving party fails to make a sufficient showing on an essential element of its case on
which it bears the burden of proof, the moving party is entitled to judgment as a matter of law.

See Celotex Corp. v. Catrett, 477 U.S. at 322.

was terminated following the architect's recommendation that the structures be demolished.
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B.

Analysis 5
1.

Fifth Amendment Takings Clause

The Takings Clause of the Fifth Amendment provides that "private property [shall not]
be taken for public use, without just compensation." U.S. Const. amend. V; see also Nat'l

Amusements Inc. v. Borough of Palmyra, 716 F.3d 57,63 (3d Cir. 2013). A physical taking
occurs, and compensation is owed, when the government authorizes a physical occupation of the
property or takes title to the property. Brace v. United States, 72 Fed. Cl. 337, 346 (Fed. Cl.
2006). The government must pay just compensation for such takings unless "background
principles of nuisance and property law independently restrict the owner's intended use of the
property." Lingle v. Chevron USA. Inc., 544 U.S. 528, 537 (2005) (quoting Lucas v. S.C.

Coastal Council, 505 U.S. 1003, 1032 (1992) ("[H]armful or noxious uses of property may be
proscribed by government regulation without the requirement of compensation.")). For instance,
orders temporarily prohibiting access to crime scenes, businesses that violate health codes, firedamaged buildings, and other circumstances implicating public safety concerns are permissible
exercises of the police power. In such circumstances, compensation to the affected individuals is
not warranted. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'! Planning Agency, 535 U.S. 302,
335 (2002).
In the present case, defendants have shown that plaintiff still holds legal title to the
property. (D.I. 54, Ex. D) Defendants have not physically taken the property because

5

Because plaintiff proceeds prose, his pleading is liberally construed and his complaint,
"however inartfully pleaded, must be held to less stringent standards that formal pleadings
drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). However,
"(m]erely because a non-moving party is proceeding pro se does not relieve him of the
obligation under Rule 56( e) to produce evidence that raises a genuine issue of material fact." See
Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402,408 (E.D. Pa. 2000). The Rule 56( e) standard
was highlighted for plaintiff in this court's order dated September 12,2013. (D.I. 55)
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defendants do not hold title to the property. See Nat'! Amusements Inc., 716 F.3d at 63. To the
extent plaintiff alleges that defendants effected a taking by way of the demolition and the lien,
this argument fails because defendants have shown that the condemnation of the structures on the
property was necessary to protect the public safety. See Keystone Bituminous Coal Ass 'n v.
DeBenedictis, 480 U.S. 470,491-92 (1987) ("Long ago it was recognized that 'all property in
this country is held under the implied obligation that the owner's use of it shall not be injurious
to the community,' ... and the Takings Clause did not transform that principle to one that
requires compensation whenever the State asserts its power to enforce it.") (internal citation
omitted). Specifically, defendants have produced evidence showing that both defendants'
inspectors and plaintiff's own volunteer architect recommended demolition of the structures, and
the Court of Chancery allowed demolition of the structures to go forward over plaintiff's request
for a restraining order. (D.I. 54, Ex. Cat Duffy 988-95, 1108, 1184-86) Plaintiff has produced
no evidence to create a genuine issue of material fact as to whether the structures were safe. For
these reasons, I recommend that the court grant summary judgment with respect to plaintiff's
Takings Clause claim.

2.

Fourth Amendment Search and Seizure

The Fourth Amendment provides that "the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated ... " U.S. Const. amend. IV. To establish a Fourth Amendment violation, plaintiff must
prove that defendants seized plaintiffs property and the seizure was unreasonable. A seizure
occurs when there is some meaningful interference with an individual's possessory interest in
property. Soldal v. Cook County, III, 506 U.S. 56, 60 (1992). The demolition of a residence
constitutes a seizure under the Fourth Amendment. See Freeman v. City of Dallas, 242 F.3d

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642,647-48 (5th Cir. 2001); Debari v. Town of Middleton, 9 F. Supp. 2d 156, 161 (N.D.N.Y.
1998).
To determine the reasonableness of the seizure, the court must carefully balance
governmental versus private interests. United States v. Gordon, 231 F.3d 750, 754 (11th Cir.
2000). In the context of a nuisance abatement, the government does not violate the Fourth
Amendment unless it carries out the seizure in a manner that is unreasonable. Factors considered
in the reasonableness analysis include the danger posed by a damaged building to public safety,
the notice given to the owner, and the recourse given to the owner to challenge any action taken
by the government. Manganaro v. Reap, 29 F. App'x 859, 861 (3d Cir. 2002). If a building is
condemned for the danger it poses, proper notice is given to the owner, and adequate recourse is
given for plaintiff to challenge any action taken by the government, demolishing the building
cannot be ruled unreasonable as a matter of law. !d. (citing Freeman v. City of Dallas, 242 F.3d
642, 652-55 (5th Cir. 2001)).
I recommend that the court grant defendants' motion for summary judgment with respect
to plaintiff's Fourth Amendment claims. For the reasons previously stated at§ III.B.1, supra,
defendants have demonstrated that the structures on plaintiff's property posed a danger to public
safety. Defendants have also shown that plaintiffwas given adequate notice of the
condemnation and communicated regularly with defendants regarding the demolition and
permitting processes. (D.I. 54, Ex. Cat Duffy 1175-83) The record also reflects that plaintiff
had multiple opportunities to challenge the actions taken by defendants. Specifically, defendants
extended plaintiff's compliance deadline multiple times, ultimately completing the demolition
more than a year after demolition was originally scheduled to occur. (!d. at Duffy 758, 987,
1021, 11 09) During this time, defendants repeatedly met and communicated with plaintiff to

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assist plaintiff in the process, and plaintiff initiated an action in the Court of Chancery to obtain
an injunction against defendants. No evidence on the record suggests that plaintiff did not have
an opportunity to challenge the condemnation orders.
In light of the undersigned magistrate judge's recommendation regarding plaintiff's
causes of action under the Fourth and Fifth Amendments, the court need not reach the issue of
whether individual defendants P. Brooks Banta and Michael J. Petit de Mange are immune from
suit under the doctrine of qualified immunity.

IV.

PLAINTIFF'S MOTIONS AND OTHER FILINGS
Plaintiff has filed a series of motions and other filings raising a broad spectrum of issues.

Many of plaintiff's allegations and requests for relief are moot in light of the court's
recommendation on summary judgment. Moreover, a number of the issues raised by plaintiff
have been addressed in previous court orders and need not be revisited by the court.

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Plaintiff

seeks to prevent or delay consideration of defendants' motion for summary judgment by taking
issue with the fairness of the discovery process. However, the court has addressed such concerns

supra at footnote 3.
V.

CONCLUSION
For the reasons stated above, I recommend that the court DENY plaintiff's motions (D.I.

60, 63) and GRANT defendant's motion for summary judgment (D.I. 53). As a result, plaintiff's
action should be dismissed.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.

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Issues previously addressed by the court include, but are not limited to, revocation of
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Fed. R. Civ. P. 72(b)(2). The failure of a party to object to legal conclusions may result in the
loss of the right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874,
878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924,925 n.l (3d Cir. 2006). The
objections and responses to the objections are limited to five (5) pages each.
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available at http://www.ded.uscourts.gov.

Dated: February 11, 2014

the order appointing legal counsel (D.I. 28, 34) and the inadequacy of discovery (D.I. 56).
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