Chaney v. Stewart
Filing
30
OPINION AND ORDER: The Court GRANTS Defendant's 27 MOTION to Strike 26 Surreply and 21 MOTION for Summary Judgment. Signed by Judge John M. Conroy on 4/7/2015. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Matthew Chaney,
Plaintiff,
v.
Civil Action No. 2:13-cv-246
Steven Stewart,
Defendant.
OPINION AND ORDER
(Docs. 21, 27)
Plaintiff Matthew Chaney filed this action against Defendant Town of Stowe
police sergeant Steven Stewart pursuant to 42 U.S.C. § 1983. The Complaint alleges that
Stewart, in his individual capacity, violated Chaney’s Fourth Amendment right to be free
from an unreasonable seizure by participating in an illegal eviction from a room at the
Stowe Inn which had been afforded to Chaney as an employee of the Inn. (Doc. 1.) All
parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs.
3, 5.)
Currently pending before the Court is Stewart’s Motion for Summary Judgment
(MSJ). (Doc. 21.) Chaney opposes the MSJ in a response titled, “Objection Re: Motion
for Summary Judgment” (referred to herein as “Opposition”). (Doc. 23.) Stewart filed a
Reply responding to the Opposition (Doc. 25), and Chaney thereafter filed a Surreply
(Doc. 26). Stewart filed a Motion to Strike Chaney’s Surreply, arguing that: (1) the filing
violates Local Rule 7; (2) Chaney has demonstrated no extraordinary circumstances
justifying the need to file briefing beyond that allowed by Rule 7; and (3) the Surreply
mostly just restates the arguments made in Chaney’s Opposition. (Doc. 27.) The Court
heard oral argument on the MSJ and the Motion to Strike on March 12, 2015.1
Preliminarily, the Court GRANTS Stewart’s Motion to Strike Chaney’s Surreply
(Doc. 27) for reasons of judicial efficiency and fairness, and for the reasons stated in the
Motion. The Local Rules do not provide for the filing of a surreply, and Chaney has
neither requested leave of court nor presented extraordinary circumstances justifying the
filing in this case. See L.R. 7(a); The Lee Family v. Int’l Paper Co., No. 1:09-CV-280,
2010 WL 2949635, at *1 n.2 (D. Vt. July 23, 2010). Furthermore, having reviewed the
contents of Chaney’s Surreply, the Court finds that it does not affect the Court’s
consideration of Stewart’s MSJ. See Starr v. Cox, Civil No. 05-cv-368-JD, 2008 WL
1914286, at *2 (D.N.H. Apr. 28, 2008) (“A surreply on this issue will not alter the
outcome of the case. Therefore, [the plaintiff] has failed to establish that there are
‘extraordinary circumstances’ requiring a surreply.”).
The only new argument made in Chaney’s Surreply is that the Court should
consider Chaney’s “Supplemental Statement of Undisputed Material Facts.” (Doc. 26 at
1-3; see Doc. 23-2.) But “[t]his Court has repeatedly reminded litigants that ‘the Local
1
Chaney’s Complaint also includes a count alleging violation of his Fourteenth Amendment
right to procedural due process. In his Opposition, however, Chaney did not argue against that portion of
the MSJ seeking dismissal of this count; and at the March 12 hearing, Chaney’s counsel verbally
withdrew the count. The Court therefore treats this count as abandoned. Zitta v. Graham, 996 F. Supp.
2d 272, 280 (D. Vt. 2014) (quoting Taylor v. City of New York, 269 F. Supp. 2d 68, 69 (E.D.N.Y. 2003))
(“Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground
and the party opposing summary judgment fails to address the argument in any way.”)
2
Rules do not provide an opportunity for the nonmoving party to file a statement of
undisputed facts at the summary judgment stage.’” Zitta v. Graham, 996 F. Supp. 2d
272, 275 n.1 (D. Vt. 2014) (quoting Rotman v. Progressive Ins. Co., 955 F. Supp. 2d 272,
276 (D. Vt. 2013) (citing cases)). Local Rule 56(b) afforded Chaney the opportunity to
bring relevant, disputed factual matters to the Court’s attention, and Chaney took
advantage of this rule by filing a Statement of Disputed Material Facts (Doc. 23-1).2 The
Local Rules contain no provision, however, for the filing of Chaney’s “Supplemental
Statement of Undisputed Material Facts.” (Doc. 23-2 (emphasis added).) As this Court
stated in Schroeder v. Makita Corp., “because [the nonmoving] party’s ability to
withstand summary judgment depends on the existence of disputed facts, not undisputed
ones, there is no need for [that party] to establish undisputed facts at this stage of the
litigation.” No. 2:02-CV-299, 2006 WL 335680, at *4 (D. Vt. Feb. 13, 2006).
2
Although the Court has considered Chaney’s Statement of Disputed Material Facts (Doc. 23-1),
the Statement is deficient, as acknowledged by Chaney’s counsel at the March 12, 2015 hearing. Instead
of contradicting the factual statements made in Stewart’s Statement of Undisputed Material Facts (Doc.
21-2), Chaney proffers additional facts and makes legal arguments in his Statement. (See, e.g., Doc. 23-1
at ¶ 3 (“While the factual statements Defendant cites . . . might be technically accurate . . . , Plaintiff gave
Defendant the termination letter that told Plaintiff to leave his room immediately.”); ¶ 6 (“A reasonable
officer would have recognized the September 10, 2011 Incident as a landlord-tenant dispute.”).)
Moreover, few of Chaney’s statements include any citation to supporting evidence, in violation of Fed. R.
Civ. P. 56(c)(1) and Local Rule 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule
56(e) therefore requires the nonmoving party to go beyond the pleadings and by h[is] own affidavits, or
by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.”) (internal quotation marks omitted); Milnes v. Blue Cross & Blue
Shield of Vt., No. 1:11-cv-00049 (jgm), 2013 WL 1314520, at *2 n.1 (D. Vt. Mar. 28, 2013) (“A party
disputes facts by citing to particular parts of the record in support or showing that the materials cited by
the adverse party are either inadmissible or do not establish a dispute.”). Chaney is entitled to make legal
arguments regarding the facts alleged in Stewart’s Statement, but the Court is not obliged to accept
Chaney’s characterization of those facts as facts themselves. Further, Chaney does not respond to or
controvert many facts contained in Stewart’s Statement in his own Statement, and thus those facts are
deemed admitted. See Rotman, 955 F. Supp. 2d at 276 (“All material facts in the movant’s statement of
undisputed facts are deemed to be admitted unless controverted by the opposing party’s statement.”).
3
Accordingly, the Court does not consider Chaney’s “Supplemental Statement of
Undisputed Facts” in determining Stewart’s MSJ, and Stewart is under no obligation to
respond to it. See id. Moreover, following this Court’s prior rulings, the Court will
disregard Chaney’s additional facts unless it is clear from the parties’ briefing that those
facts are both material and undisputed. See Rotman, 955 F. Supp. 2d at 276 (citing
Schroeder, 2006 WL 335680, at *3–4; Post v. Killington Ltd., No. 5:07-CV-252, 2010
WL 3323659, at *1 n.1 (D. Vt. May 17, 2010); Boule v. Pike Indus., Inc., No. 5:12-cv-7,
2013 WL 711937, at *1–2 (D. Vt. Feb. 27, 2013)).
For the following reasons, the Court GRANTS Stewart’s MSJ (Doc. 21) and
DISMISSES this action.
Relevant Facts
The following facts, which are presented in the light most favorable to Chaney, are
undisputed unless otherwise noted. On September 2, 2010, Chaney began working as an
assistant innkeeper at the Stowe Inn. (Doc. 21-2 at ¶¶ 1–2.) Under the parties’
employment agreement, Chaney would receive $9 per hour plus a room at the Inn in
exchange for his services. (Id. at ¶ 3.) Less than one week later, on September 8th,
Chaney received an “Employee Warning Notice” from the Inn, which stated that he had
violated the employment agreement by neglecting customer needs, leaving tasks for other
employees, and having an unprofessional attitude and demeanor. (Id. at ¶ 5; Doc. 21-3 at
65.)
On September 11, 2010, a few days after Chaney received the Employee Warning
Notice, Heather Elie, another employee at the Inn, informed Chaney that he was being
4
fired and had to vacate his room. (Doc. 21-2 at ¶¶ 8, 10.) Elie and her father, Tim Dow,
the Inn’s general manager, gave Chaney a letter from Lori Lascola, the Inn’s owner,
notifying Chaney that, due to his poor performance, his services were no longer required
at the Inn. (Id. at ¶¶ 11, 12.) The letter requested that Chaney “turn in [his] room key
and vacate [his] room immediately.” (Doc. 21-3 at 64.) Chaney put the letter in his
pocket, stated that he “would think about it,” and started walking toward his room. (Doc.
21-2, ¶ 13.)
Elie and Dow followed Chaney, and the three raced to the room. (Id. at ¶¶ 14–15.)
Dow made it there first, and blocked the door to the room. (Id. at ¶ 16.) In a raised
voice, Chaney told Dow to “get the fuck away from [the] door” and that he was going to
call the police. (Id. at ¶¶ 17–18; Doc. 21-3 at 37.) Dow or Elie may have told Chaney
that they were going to call the police as well. (Doc. 21-2, ¶ 21.)
Chaney left the Inn and drove to the Stowe Police Department. (Id. at ¶ 22.)
When he arrived there, he overheard a dispatcher announcing that he was sending an
officer to the Inn in response to a complaint about an “unruly person.” (Id. at ¶¶ 23–24.)
Chaney told the dispatcher that he was the “unruly person,” and he was told to wait for an
officer. (Id. at ¶¶ 24–25.) Approximately 10–15 minutes later, Sergeant Stewart arrived
to meet with Chaney. (Id. at ¶ 26.) Prior to Stewart and Chaney meeting, Elie had
spoken with Stewart, advising him that Chaney worked at the Inn and had a room there.
(Doc. 23-2, ¶ 5.)
Chaney told Stewart that he lived and worked at the Inn but the Inn was firing him
and had “kicked [him] out” of his room there. (Doc. 21-2, ¶¶ 28–30.) Showing Stewart
5
the termination letter from the Inn, Chaney told Stewart that he had no money and needed
a place to stay. (Id. at ¶ 31; Doc. 23-2, ¶ 7.) Stewart told Chaney that he had received a
complaint from Elie about Chaney using foul language when he was fired. (Doc. 21-2,
¶ 32.) Stewart further stated that there was nothing he could do, including preventing
Dow from blocking him from entering his room at the Inn. (Id. at ¶ 33; Doc. 21-3 at 58–
59, 62.) Stewart advised Chaney that the Inn “could fire him and kick him out [of his
room,] and he would have to leave.” (Doc. 21-2, ¶ 34.)
Although Stewart was a 30-year veteran of the Stowe Police Department with
training in landlord-tenant dispute resolution, and although the Department regularly
referenced a pamphlet entitled “Renting in Vermont,” Stewart did not recognize the
dispute between Chaney and the Inn as a landlord-tenant matter. (Id. at ¶¶ 27, 54; Doc.
23-2, ¶¶ 8–10.) Rather, Stewart believed his function was merely to “keep the peace”
between Chaney and other employees at the Inn. (Doc. 23-5 at 7.)
After meeting with Stewart, Chaney left the Police Department and secured two
nights of free lodging at a nearby hotel. (Doc. 21-2, ¶¶ 38–39.) While at that hotel,
Chaney called Lascola, the Inn owner, to complain about being fired and removed from
his room. (Id. at ¶ 40.) Chaney was upset and raised his voice, telling Lascola that she
would hear from his lawyer. (Id. at ¶ 41.) Chaney then returned to the Stowe Police
Department and met with Stewart again. (Id. at ¶ 42.) He told Stewart about his
telephone conversation with Lascola. (Id. at ¶ 43.) Stewart asked Chaney if he had
threatened Lascola, and Chaney said he had not. (Id. at ¶ 44.) Stewart told Chaney he
would meet him at the Inn, and then went to the Inn “to make sure . . . there was no
6
confrontation between [Chaney] and the hotel management.” (Doc. 21-4, ¶ 11; Doc. 212, ¶¶ 45–46.)
Soon thereafter, Chaney returned to the Inn to collect his belongings. (Doc. 21-2,
¶ 48.) Stewart arrived approximately one minute later and knocked on Chaney’s door.
(Id. at ¶ 49.) Chaney asked Stewart if Stewart would retrieve some food, CDs, and other
items from the Inn, which Stewart did, bringing them to Chaney. (Id. at ¶ 50.)
Everything appearing calm, Stewart left the Inn while Chaney was still assembling his
belongings. (Id. at ¶ 55.) At no time did Stewart raise his voice when speaking with
Chaney, threaten to arrest Chaney, make physical contact with Chaney, or prevent
Chaney from entering his room at the Inn. (Id. at ¶¶ 58–62.)
After Chaney cleaned out his room, he and Elie signed the letter terminating
Chaney’s employment at the Inn. (Id. at ¶ 56.) Thereafter, Chaney sued the Inn in
Vermont Superior Court for an illegal eviction, for which he received a settlement. (Id. at
¶ 66.)
Discussion
Stewart makes the following arguments in his MSJ: (1) Chaney’s claims fail
because there was no state action; (2) Stewart did not violate Chaney’s Fourth
Amendment right against unreasonable seizure because he did not “seize” Chaney’s
property and his actions were reasonable; (3) Stewart did not violate Chaney’s Fourteenth
Amendment right to procedural due process because Stewart did not deprive Chaney of
his interest in the room at the Stowe Inn and, even if he did, Chaney had available to him
7
adequate post-deprivation remedies;3 and (4) Stewart is entitled to qualified immunity
because his conduct did not violate a clearly established federal right. (Doc. 21-1.) In
opposition, Chaney contends that Stewart violated his rights under the Fourth
Amendment because he affirmatively assisted in an illegal eviction by telling Chaney at
the police station, and after the Stowe Inn had taken possession of the room, that he was
required to leave that room, and by being present when Chaney was later permitted by
Inn personnel to retrieve personal articles. (Doc. 23.) Chaney further asserts that Stewart
is not entitled to qualified immunity because a reasonable officer would have known that
he was assisting in the unlawful seizure of Chaney’s dwelling, and thus a clearly
established right was at stake. (Id.)
I.
Standard of Review
Under Federal Rule of Civil Procedure 56(a), a court must 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). The
party seeking summary judgment “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted). Where the moving party meets that burden, the non-moving party “must come
3
As noted previously, Chaney has abandoned this claim.
8
forward with specific evidence demonstrating the existence of a genuine dispute of
material fact.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010). It is not
enough to “simply show that there is some metaphysical doubt as to the material facts,”
and the non-moving party “may not rely on conclusory allegations or unsubstantiated
speculation.” Id. (internal quotation marks and citations omitted).
In ruling on a motion for summary judgment, the Court is required to draw all
factual inferences in favor of, and take all factual assertions in the light most favorable to,
the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012). Nonetheless, “‘[t]he
mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact.’” Scott v. Harris, 550 U.S. 372, 380 (2007)
(quoting Anderson, 477 U.S. at 247–48). The Court’s function in considering a motion
for summary judgment is not to resolve disputed issues of fact, but only to determine
whether there is a genuine issue to be tried. See Anderson, 477 U.S. at 255; Eastman
Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988).
II.
State-Action Requirement
Chaney claims Stewart violated his Fourth Amendment right to be free from
unreasonable seizure “by participating in an illegal eviction and ordering [Chaney] to
leave the Inn.” (Doc. 1, ¶ 24.) Stewart argues that this constitutional claim fails for lack
of state action in the seizure. Specifically, Stewart contends that his failure to prevent the
Inn from ordering Chaney to vacate his room does not amount to state action, and any
9
assistance the Inn gained from Stewart’s inaction was incidental to the eviction. (Doc.
21-1 at 8.) For the following reasons, the Court agrees with Stewart and finds no state
action exists.
Title 42 U.S.C. § 1983 provides a civil claim for damages against “[e]very person
who, under color of any statute . . . of any State . . . subjects, or causes to be subjected,
any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” “The purpose of § 1983 is to deter state actors from using the
badge of their authority to deprive individuals of their federally guaranteed rights[,] and
to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161
(1992). To succeed on a § 1983 claim, the plaintiff must allege that: “(1) the defendant
acted under color of state law; and (2) as a result of the defendant’s actions, the plaintiff
suffered a denial of her federal statutory rights, or her constitutional rights or privileges.”
Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998).
Thus, for Chaney to state a claim under § 1983, he must show that the seizure of
his room at the Inn was the result of state action. Tancredi v. Metro. Life Ins. Co., 316
F.3d 308, 312 (2d Cir. 2003); U.S. v. Int’l Bhd. of Teamsters, 941 F.2d 1292, 1295 (2d
Cir. 1991) (“Because the United States Constitution regulates only the Government, not
private parties, a litigant claiming that his constitutional rights have been violated must
first establish that the challenged conduct constitutes ‘state action.’”). It is not enough
that the Inn’s conduct might have been wrongful; the focus must be on Stewart’s conduct.
In the particular context of claims arising from the seizure of private property, the
Seventh Circuit explained: “The protections of the Fourth Amendment apply only to
10
governmental action and are ‘wholly inapplicable to a search or seizure, even an
unreasonable one, effected by a private individual not acting as an agent of the
Government or with the participation or knowledge of any governmental official.’”
Pepper v. Vill. of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005) (quoting United States v.
Jacobsen, 466 U.S. 109, 113–14 (1984)).
As an on-duty police officer, Stewart was clearly a state actor. The question is
whether his official involvement in the otherwise private dispute between Chaney and the
Inn was sufficient to constitute state action. Chaney’s allegations against Stewart are
based on: (1) Stewart’s failure to intervene to prevent Chaney’s eviction from the Inn; (2)
Stewart’s statement to Chaney at the police station, after Chaney was blocked from
entering his room at the Inn, that there was nothing Stewart could do and that Chaney
would have to leave the Inn; and (3) Stewart’s presence at the Inn when Chaney retrieved
some personal effects. The crux of Chaney’s Complaint is thus Stewart’s inaction, which
occurred after Chaney had already been prevented from accessing his room at the Inn.
There is no clear point at which police action in connection with a repossession or
eviction becomes “state action.” See Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir.
1999). The Second Circuit explained: “[N]o bright line has been drawn delineating the
exact point at which an officer’s presence and activities at the scene of a repossession
become state action in aid of the repossession.”4 Id. But the case law establishes that
4
The facts at issue in Barrett and other cases cited herein, involve a creditor-debtor relationship,
which does not exist in this case. Despite this factual difference, the underlying legal principles followed
in those cases are applicable to this case for the purpose of establishing whether Stewart’s conduct
constituted state action. See Zitta, 996 F. Supp. 2d at 282 n.8.
11
mere police presence during a repossession is insufficient. Id.; see, e.g., Dolan v.
Cassella, 543 F. App’x 90, 91–92 (2d Cir. 2013) (summary order); Wright v. Nat’l Bank
of Stamford, 600 F. Supp. 1289, 1295 (N.D.N.Y. 1985). And the Supreme Court has held
that a state actor’s mere inaction or acquiescence in private wrongful conduct does not
convert that private conduct into state action. Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
164–66 (1978); see also Sauls v. Bristol-Myers Co., 462 F. Supp. 887, 889 n.4 (S.D.N.Y.
1978).
An officer’s presence at a private seizure of property for the purpose of keeping
the peace between the parties, rather than to actively assist in the seizure, has been found
insufficient to constitute state action. See Hensley v. Gassman, 693 F.3d 681, 689 (6th
Cir. 2012); Mitchell v. Gieda, 215 F. App’x 163, 165 (3d Cir. 2007) (“[A]n officer’s
presence at the scene of, and acquiescence in, a private repossession is not state action
unless accompanied by affirmative intervention, aid, intimidation, or other use of power
which converts him from a neutral third party to, in effect, an assistant of the
repossessing party.”); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 510–13 (5th
Cir. 1980) (no state action where officer, upon arriving at scene, informed debtor that
repossession was a civil matter and the only reason police were there was to quiet a
reported disturbance); Ostensen v. Suffolk Cnty., 378 F. Supp. 2d 140, 149 (E.D.N.Y.
2005) (no state action because officer’s “actions at the scene appear to be an effort to
keep the peace between the parties”). As one court explained, “[t]here is a distinction
between a law enforcement officer attending a private seizure to ensure that it transpires
in an orderly and peaceful manner[,] and actively assisting in unlawful conduct.” Id.
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In Barrett, the Second Circuit held that, where an officer’s actions consist of
merely “prevent[ing] violence in the event of a breach of the peace,” there is no state
action. 189 F.3d at 303. The court explained that “the crucial question is whether the
police officer was (1) present simply to stand by in case there was a breach of the peace,
or (2) taking an active role that either affirmatively assisted in the repossession over the
debtor’s objection or intentionally intimidated the debtor so as to prevent him from
exercising his legal right to object to the repossession.” Id. at 302–03. The officer in
Barrett had arrived at the scene of a repossession and witnessed an exchange of
inflammatory words and the objector striking the repossessor. Id. at 299. The officer
told the objector that the repossession was a civil matter and that “if you start any trouble
here, you’ll be going in the back seat of my car.” Id.
The Second Circuit found no state action and affirmed the district court’s grant of
summary judgment to the defendants because the officer’s actions “amounted to no more
than the carrying out of his duty to prevent violence in the event of a breach of the
peace.” Id. at 303. The court explained that, even though the officer was a state actor at
the scene, “the fact of his peacekeeping presence did not convert the private act of
repossession . . . into state repossession action.” Id.; see also Mitchell, 215 F. App’x at
166 (“[A]ctions amount[ing] simply to [an officer’s] acquiescence in the repossession
and presence at the scene to prevent the onset of violence” did not constitute state action);
United States v. Coleman, 628 F.2d 961, 964 (6th Cir. 1980) (“[M]ere acquiescence by
the police to ‘stand by in case of trouble’ was insufficient to convert the repossession of
the truck into state action.”); Sullivan v. Stein, 487 F. Supp. 2d 52, 72–73 (D. Conn.
13
2007) (“[T]he officers’ failure to act on the [plaintiffs’] complaints cannot be transformed
into state action violative of the [plaintiffs’] Fourth and Fourteenth Amendment rights.”).
Similarly, in Zitta, this Court recently found that an officer’s involvement in the
repossession of a fork-lift truck did not constitute state action. 996 F. Supp. 2d at 282–
83. The plaintiffs claimed that the officer unlawfully assisted the repossession by giving
the repossessor permission to drive away with the truck over the objection of the
plaintiffs, who claimed to be its rightful owners. But the Court disagreed, finding that, at
best, the officer’s involvement was “‘greater than mere presence, yet still insufficient to
constitute state action in aid of the repossession.’” Id. at 282 (quoting Barrett, 189 F.3d
at 302).
Generally, the likelihood that state action will be found increases when officers
take a more active role in a repossession or seizure of property, and “as such involvement
becomes increasingly critical, a point may be reached at which police assistance at the
scene of a private repossession may cause the repossession to take on the character of
state action.” Barrett, 189 F.3d at 302. Thus, in Soldal v. County of Cook, for example,
the Seventh Circuit found that the state action issue survived summary judgment, where
police officers, despite knowing that well-established Illinois law required landlords to
obtain a court order of eviction in order for an eviction to be lawful: (1) accompanied a
landlord to unlawfully evict the plaintiffs by removing their trailer from a rented lot; (2)
remained on the scene throughout the entirety of the eviction process; and (3) prevented
the plaintiffs from lawfully resisting the eviction. 942 F.2d 1073, 1074–75 (7th Cir.
14
1991) (en banc), rev’d on other grounds, 506 U.S. 56 (1992);5 see also Harris v. City of
Roseburg, 664 F.2d 1121, 1127 (9th Cir. 1981) (state action where, after plaintiff yelled
at repossessor to get away from his truck, officer ordered plaintiff to “stand back or get
away” and told plaintiff that further interference would result in his arrest). Similarly, in
Cochran v. Gilliam, the Sixth Circuit found that the defendants took an active role in the
seizure of the plaintiff’s personal property by carrying items out of the house and
assisting the landlords in loading the plaintiff’s property into a truck. 656 F.3d 300, 308
(6th Cir. 2011).
In Marcus v. McCollum, the Tenth Circuit noted that the state-action issue in the
context of police officer involvement with a private party’s repossession of property is
“particularly fact-sensitive, so the circumstances must be examined in their totality.” 394
F.3d 813, 819 (10th Cir. 2004) (internal quotation marks omitted). The Marcus court
summarized a list of non-exhaustive factors that courts have considered in determining
the state-action issue in this context. They include the following conduct of the officer,
which may indicate the officer’s assistance in the repossession: accompanying the private
party onto the scene, telling the debtor that the repossession was legal, ordering the
debtor to stop interfering or else he would go to jail, intervening at more than one step in
the repossession process, failing to depart before the repossession has been completed,
standing in close proximity to the creditor, and unreasonably recognizing the
5
Despite Chaney’s reliance on the Supreme Court’s decision in Soldal, 506 U.S. 56 (1992), the
Supreme Court in that case expressly declined to review the Seventh Circuit’s holding that there was
sufficient state action to support a § 1983 action, id. at 60 n.6.
15
documentation of one party over the other. Id. at 818–19 (collecting cases). The Marcus
court concluded that “the overarching lesson of the case law is that officers may act to
diffuse a volatile situation, but may not aid the repossessor in such a way that the
repossession would not have occurred but for their assistance.” Id.
This “overarching lesson” is particularly salient here, even though the facts in
Marcus do not perfectly align with the facts here, partly because the repossession or
seizure of property in this case was in fact an eviction from a rental property where
Chaney was living, and partly because Inn employees had already barred Chaney from
his room by the time Chaney spoke with Stewart at the police station, making Stewart’s
comment that Chaney “had to leave” far from critical to the eviction. (Doc. 21-2, ¶¶ 33–
34.) In all likelihood, if neither Chaney nor Inn employees had involved the police, the
eviction still would have happened. See, e.g., Moore v. Carpenter, 404 F.3d 1043, 1046
(8th Cir. 2005) (“When a police officer is involved in a private party’s repossession of
property, there is no state action if the officer merely keeps the peace, but there is state
action if the officer affirmatively intervenes to aid the repossessor enough that the
repossession would not have occurred without the officer’s help.”).
Chaney claims that Stewart prevented him from “contesting” his eviction from the
Inn (Doc. 23 at 13), but a curbside contest over the Inn’s possession of the room was
surely best avoided. And it would have been foolhardy for Stewart to encourage Chaney
16
to attempt to take repossession of the room.6 Chaney also claims that Stewart
“affirmatively intervened” in his dispute with the Inn. (Doc. 23 at 6.) But Stewart’s
conduct must be viewed in the sequence of the unfolding events. As discussed above,
Chaney had already been denied access to his room by Inn employees when he first met
with Stewart at the station. Stewart’s statements to Chaney at that initial meeting,
therefore, could not have been the critical link to the seizure. Moreover, Chaney has no
constitutional right to a police investigation of the lawfulness of that seizure, or the arrest
or prosecution of the Inn employees. Zitta, 996 F. Supp. 2d at 283. Also noteworthy,
Stewart did not threaten to arrest Chaney, did not align himself physically or otherwise
with Inn employees, and did not assist Inn employees in blocking Chaney from entering
his room to collect his belongings. (Doc. 21-2 at ¶¶ 62–64.) Chaney vacated his room at
the Inn on his own accord, and independently arranged for another place to stay. (Id. at
¶¶ 38–39, 45, 48–57.)
Later, when Stewart arrived at the Inn to ensure there was no disturbance of the
peace, he found Chaney removing his belongings from his room. (Id. at ¶¶ 48–49.)
Stewart left the Inn while Chaney was still packing up the room. (Id. at ¶ 55.) Given
these facts, even if Stewart’s initial statement to Chaney at the police station that Chaney
would have to leave the Inn helped persuade Chaney to vacate his room, it cannot be said
that Stewart encouraged Chaney’s eviction or acted in furtherance of any purpose other
6
One state court recently noted “the potential for retaliatory violence . . . inherent [in] any
forcible real property repossession.” Nickens v. Mount Vernon Realty Grp., LLC, 54 A.3d 742, 753 (Md.
2012).
17
than to maintain peace and order between the parties. See Longmoor v. Nilsen, 312 F.
Supp. 2d 352, 360–61 (D. Conn. 2004) (finding no state action on summary judgment
where, even accepting as true that police told plaintiff her car would be towed whether or
not she surrendered her keys, there was no evidence repossessor and police were working
together, and “any actual inducement achieved by the officers [could] only be ascribed to
their own initiative” of keeping the peace); cf. Harvey v. Plains Twp. Police Dep’t, 421
F.3d 185, 190–91 (3d Cir. 2005) (in tenant’s § 1983 action alleging police officer’s
violation of her Fourth Amendment rights regarding warrantless entry into her apartment
to enable former boyfriend to obtain his belongings, officer’s motion for summary
judgment denied on issue of whether officer was state actor, because landlord opened
tenant’s apartment door at the direction of police officer).
Chaney contends that Stewart’s reliance on cases such as Barrett and Zitta—
which involve the repossession of personal property—is misplaced here. (See Doc. 23 at
3.) He argues that the United States Supreme Court’s decision in Soldal is more
applicable, “provid[ing] the analytical framework for when a law enforcement officer
deprives a tenant of an interest in a residence.” (Id. at 4 (citing Soldal, 506 U.S. 56).) As
noted previously, however, in Soldal, the Supreme Court did not examine the question of
“state action,” given that the issue had been conceded by the defendant. More
importantly, it is not the nature of the property interest that guides measurement of state
action, but rather, the state actor’s involvement in the alleged repossession or eviction.
See, e.g., Barrett, 189 F.3d 297; Zitta, 996 F. Supp. 2d 272. Here, given the controlling
18
Second Circuit precedent discussed above, the undisputed facts demonstrate that
Stewart’s actions were incidental to Chaney’s eviction from the Inn, and thus do not
constitute state action in aid of that eviction. As such, summary judgment is granted in
Stewart’s favor regarding Chaney’s § 1983 claims.
III.
Qualified Immunity
Stewart also contends that the claims against him should be dismissed because he
is entitled to qualified immunity. Qualified immunity protects officials from liability for
civil damages “as long as ‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Gilles v.
Repicky, 511 F.3d 239, 243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)); see Saucier v. Katz, 533 U.S. 194, 201 (2001). To determine whether a right
is clearly established, the Court must consider: (1) whether the right was defined with
reasonable specificity; (2) whether Supreme Court or court of appeals case law supports
the existence of the right; and (3) whether under preexisting law a reasonable defendant
would have understood that his or her acts were unlawful. Scott v. Fischer, 616 F.3d 100,
105 (2d Cir. 2010).
The “dispositive inquiry is whether it would be clear to a reasonable officer that
the conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 194–95.
An officer “will not be held liable for discretionary actions that ‘could reasonably have
been thought consistent with the rights [he is] alleged to have violated.’” Krause v.
Penny, 837 F.2d 595, 597 (2d Cir. 1988) (quoting Anderson v. Creighton, 483 U.S. 635,
638 (1987)). And “[t]he presumption in favor of finding qualified immunity is
19
necessarily high, protecting ‘all but the plainly incompetent or those who knowingly
violate the law.’” Conn. ex rel. Blumenthal v. Crotty, 346 F.3d 84, 102 (2d Cir. 2003)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Where, as here, “there is no
dispute as to the material historical facts, the matter of whether the officer’s conduct was
objectively reasonable is an issue of law to be determined by the court.” Zellner v.
Summerlin, 494 F.3d 344, 368 (2d Cir. 2007).
There are no cases from the Second Circuit or the Supreme Court presenting
materially similar facts to those at issue here that would have put Stewart on notice that
his conduct was unlawful. “[I]t would gravely distort the doctrine of qualified immunity
to hold that a[n] . . . official should ‘fairly be said to know that the law forb[ids] conduct
not previously identified as unlawful.’” Doninger v. Niehoff, 642 F.3d 334, 347 (2d Cir.
2011) (final alteration in original) (quoting Harlow, 457 U.S. at 818). As discussed
above, Stewart acted in an objectively reasonable manner in response to the complaints of
Chaney and other Inn employees regarding the events surrounding Chaney’s termination
and eviction. Even if Stewart may have been mistaken in believing his actions were
justified, it cannot be said that he acted in a “plainly incompetent” manner. Moore v.
Andreno, 505 F.3d 203, 214 (2d Cir. 2007) (“Normally, it is only the ‘plainly
incompetent or those who knowingly violate the law’ . . . who are precluded from
claiming the protection of qualified immunity.”) (quoting Malley, 475 U.S. at 341); see
also Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (“Qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments, and protects all but
20
the plainly incompetent or those who knowingly violate the law.”) (internal quotation
marks omitted).
Chaney asserts that the doctrine of qualified immunity does not apply here because
a reasonable officer, realizing that “a landlord-tenant relationship was at hand” (Doc. 23
at 13), “would have or should have known that it was unlawful to tell [Chaney] to leave
his dwelling” (id. at 12). This argument is premised on Chaney’s claim that Stewart
encouraged the Inn’s violation of Vermont’s statutory scheme requiring that evictions be
accomplished through judicial action. (See Doc. 23 at 3–6 (citing, e.g., 9 V.S.A.
§ 4463(c) (“No landlord may directly or indirectly deny a tenant access to and possession
of the tenant’s property, except through proper judicial process.”)).) But Chaney cannot
use a private party’s alleged violation of a state law to bootstrap his claim against
Stewart, a state actor, for alleged violations of federal constitutional rights. See Davis v.
Scherer, 468 U.S. 183, 194–95 & n.12 (1984) (holding that an officer’s violation of
clearly established state law is not enough to overcome qualified immunity in a § 1983
suit; the plaintiff must show that the very law whose violation forms the basis of the
federal action was clearly established); Hill v. Selsky, 487 F. Supp. 2d 340, 343
(W.D.N.Y. 2007) (“[T]he Supreme Court of the United States has held that the existence
of qualified immunity does not depend on whether the right in question was clearly
established under state law, but on whether the federal right giving rise to the claim was
clearly established at the time of the alleged violation.”); MacCaffray v. U.S., No. 2:97CV-403, 1998 WL 560047, at *5 (D. Vt. Aug. 27, 1998) (“[T]he violation of a state law
unrelated to the basis of the suit does not deprive an official of qualified immunity . . . .
21
Without evidence of a violation of clearly established constitutional or federal statutory
rights, qualified immunity applies . . . .”) (citations omitted).
In deciding whether a right is clearly established, and thus whether qualified
immunity applies, courts must look beyond generalized constitutional protections and
determine if the asserted right was clearly established in a particularized sense. Kerman
v. City of New York, 261 F.3d 229, 237 (2d Cir. 2001). Chaney fails to point to any
authority supporting his contention that Stewart’s particular conduct violated an
established constitutional right in a particularized sense. As discussed above, there is no
bright line indicating when an officer’s conduct at the scene of a private repossession (or
eviction) becomes state action. See Barrett, 189 F.3d at 302; Zitta, 996 F. Supp. 2d at
284 (“The specific point at which an officer’s conduct reaches state action in a private
repossession has not been ‘clearly established,’ and this makes all the difference.”);
Pollock v. Ellingsen, No. 3:07-cv-0637, 2009 WL 909629, at *2 (N.D.N.Y. Apr. 1, 2009)
(“Second Circuit precedent indicates that there is no clear line at which presence at a
repossession becomes state action.”). Rather, the law in this area “is particularly factsensitive, and complicated.” Moore, 404 F.3d at 1046 (citations and internal quotation
marks omitted).
The particular facts at issue here demonstrate that it would not be clear to a
reasonable officer in Stewart’s situation that his conduct was contrary to clearly
established federal law. Even viewed in the light most favorable to Chaney, Stewart’s
conduct was objectively legally reasonable. See Coollick v. Hughes, 699 F.3d 211, 221
(2d Cir. 2012) (“Officials are not liable for bad guesses in gray areas; they are liable for
22
transgressing bright lines.” (internal quotation marks omitted)). Stewart is therefore
entitled to qualified immunity.
Conclusion
For these reasons, the Court finds that Stewart’s conduct did not constitute state
action, and thus Stewart did not commit a constitutional violation. Even if his conduct
did constitute state action, the Court finds that Stewart is entitled to qualified immunity.7
Accordingly, Stewart’s Motion for Summary Judgment (Doc. 21) is GRANTED, and this
action is DISMISSED.
Dated at Burlington, in the District of Vermont, this 7th day of April, 2015.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
7
Because there was no state action and Stewart is entitled to qualified immunity, the Court does not reach
Stewart’s argument that the seizure of Chaney’s room at the Inn was reasonable under controlling Fourth
Amendment standards. (See Doc. 21-1 at 12–13.)
23
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