Catanzaro v. Weiden

140 F.3d 91, 1998 WL 122393

• Court: Court of Appeals for the Second Circuit
• Decided: March 17, 1998
• Docket: No. 256, Docket 97-7140
• Status: Published

Opinions

KEITH, Circuit Judge:

This is a civil rights action by which the plaintiffs assert that defendants, City of Middletown, Mayor Joseph DeStefano, and Alfred Fusco, the Middletown Commissioner of Public Works (collectively the “City”), violated their due process property rights under 42 U.S.C. § 1983, the Fourteenth Amendment’s Equal Protection Clause and the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”). The district court granted the City’s motion for summary judgment, holding that a municipality’s emergency decision to demolish perceived dangerous buildings could not be “repackaged” as a civil rights action, “when New York provides an adequate post-deprivation remedy.” Plaintiffs now appeal that ruling, contending that material issues of genuine fact exist to permit a rational jury to conclude the City violated their civil rights.

I.Background

Plaintiff, Stephen Catanzaro, was the owner of two adjacent three-story buildings, which shared a common wall—82 and 84 East Main Street (hereinafter “building No. 82” and “building No. 84”) in the City of Middletown, New York. The buildings were late 19th and early 20th century mixed-use, commercial and residential structures. In total, the buildings contained a deli and a bar on the buildings’ street level, and eight apartments above. The structures were obsolete in design and lacked many amenities, but nonetheless were useable and common in the urban Middletown community. Middle-town is a small Mid-Hudson city with a deteriorating industrial base and a growing minority population.

On September 1, 1994, Hyman Wieden drove his automobile from the street, across the sidewalk, into building No. 84.¹ Immediately after the accident, defendant Fusco, in his capacity as Public Works Commissioner, arrived at the scene to inspect building No. 84 for structural damage. Mayor DeStephano arrived shortly thereafter. Fusco concluded that the building was structurally unsound and in imminent danger of collapsing into the street. Despite Catanzaro’s objections, Fusco immediately ordered demolition. Thus, the Department of Public Works, using a private contractor, razed building No. 84 the same day. The next day Mayor DeStephano, Fusco and other city officials, including a private consulting engineer, examined the adjoining building No. 82 and determined that the demolition of building No. 84 caused extensive damage to the common wall the buildings shared. Accordingly, the City concluded that the wall required either immediate reconstruction at considerable cost, or immediate demolition of the entire building to avoid its collapse into the street. Fusco discussed these options with Catanzaro, who then signed a consent agreement allowing the City to demolish building No. 82, and the City did so.² Mayor DeStefano allegedly laughed and joked during the entire process, calling the demolition “instant urban renewal.”

On August 31, 1995, the plaintiffs subsequently brought an action against Mayor DeStephano, Commissioner Fusco, and the City of Middletown, claiming that the decision to demolish both buildings was arbitrary and negligent, and that the city’s necessity for emergency demolition was a pretextual attempt to rid the City of housing opportunities for the poor and racial minorities.³ The district court rejected these claims and granted the City’s motion for summary judgment on all grounds. This appeal followed.

II. Discussion

On appeal from a grant of summary judgment, we review the record de novo to determine whether any genuine issues of material fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). We reverse a grant of summary judgment if there is any evidence in the record from which a jury could draw a reasonable inference in favor of the non-moving party on a material fact. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir.1988). A fact is “material” only if the fact has some affect on the outcome of the suit. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Notwithstanding, courts may not make credibility determinations or weigh the evidence when confronted with a motion for summary judgment. All evidence presented by the nonmoving party must be taken as true, and all inferences must be construed in a light most favorable to the nonmoving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

A The Due Process Claims

Catanzaro alleges both procedural and substantive due process violations by the City. Catanzaro’s procedural due process argument is that Fusco and Mayor DeStephano, in their official capacities, failed to give him: (1) an opportunity to contest the determination that the building was a threat to public safety; and (2) notice of their intent to destroy his building.

Generally, procedural due process requires an opportunity for a meaningful hearing prior to the deprivation of a significant property interest. Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981). It has long been recognized, however, that authorized agents may proceed without providing pre-deprivation hearings when an emergency situation necessitates quick action or makes it impracticable to provide a meaningful hearing, so long as the State provides “some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking....” Id. at 539, 101 S.Ct. at 1914-15.

The City contends, under Parratt, that it was within its discretion to conclude building No. 84 was an imminent threat to public safety, and in light of the existing emergency, order its immediate demolition. Catanzaro does not challenge the constitutionality of the City’s procedure for demolishing dangerous buddings, but rather, asserts that Commissioner Fusco and Mayor DeStephano improperly declared the existence of an emergency to invoke the Parratt exception.⁴

In Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.1983), this court held that the district court could not inquire into the adequacy of a state remedy under the Parratt rule, prior to determining “ ‘the necessity of quick action’ or ‘the impracticability of providing any predeprivation process.’ ” “[T]he existence vel non of an emergency” is an issue of material fact that must be considered. Id. In the instant case, where the plaintiffs contest the existence of the emergency, we would be remiss to uphold a grant of summary judgment. Thus, the grant of summary judgment was improper on this ground.

In reaching this conclusion, it is necessary to briefly address the holding from my Circuit, Harris v. City of Akron, 20 F.3d 1396 (6th Cir.1994), to which the City cites in support of its argument. In Harris, the Sixth Circuit held that the demolition of the plaintiffs building without prior notice but pursuant to emergency procedures in the city code did not violate the owner’s procedural due process rights. Id. at 1405. The facts of Harris are identical to those of the instant case. A city building inspector made an onsite determination that the plaintiff’s building needed to be immediately demolished to avoid its imminent collapse. Id. at 1398. As in the instant case, the owner retained an expert who in an affidavit questioned and criticized the need for immediate demolition of the subject building. Id. at 1398-99. On appeal, the owner contended the affidavit raised a genuine issue of fact warranting a trial with respect to his procedural due process claim. Id. at 1399. The Sixth Circuit disagreed and held:

With the authority of the decision makers unchallenged, the question of whether an emergency actually existed constituted nothing more than a question of whether they made the right decision. By attempting to show only that the defendants made the wrong decision, Harris in no sense attacked the constitutionality of the process by which the decision was reached.

Harris, 20 F.3d at 1404. The Harris court noted that the determination of whether an emergency existed was completely within the judgment of the building inspector granted under the relevant city ordinance. Id. at 1404. In its opinion, the non-emergency procedure for the predeprivation hearing “would not have removed the threat to public safety and health perceived by the responsible officials.” Id. at 1405.

To the extent that Harris interprets Parrott to eliminate a plaintiffs opportunity to challenge the arbitrariness of a determination of an emergency at trial, I must find that it was in error. While we recognize that Parrott was based on the conclusion that a risk of harm to the public outweighs the risk of negligent state action, Parratt, 451 U.S. at 538-39, 101 S.Ct. at 1914-15, for summary judgment purposes, precluding such a challenge would deprive the plaintiffs the opportunity to contest a state’s decision to abuse their fundamental rights.⁵

Catanzaro also contends that the emergency circumstances did not exist during the demolition of building No. 82, and that his subsequent consent was coerced. The record clearly evidenced that building No. 82 was not in any danger of collapsing. Catanzaro merely acquiesced to its destruction because city officials convinced him that he could not afford to repair it. Accepting this evidence as true, and drawing all reasonable inferences in favor of Catanzaro, we believe a reasonable factfinder could conclude that a pre-deprivation hearing was appropriate before the City destroyed this building, and thus summary judgment was inappropriate on this claim as well.

Catanzaro further asserts that a reasonable factfinder could conclude that the City arbitrarily destroyed building No. 82 and 84, in violation of his substantive due process rights. “Substantive due process protects [individuals] against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is ‘incorrect’ or ‘ill-advised’.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.1995). The City argues that its actions were not conscience-shocking or arbitrary, but that it carefully followed the procedures prescribed by the city code upon recognizing an apparent danger. Although the City’s claim may have some credence, the Mayor and Commissioner Fusco’s state of mind or intent for ordering the destruction of the buildings is not so established that a reasonable jury could not find for the plaintiffs. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir.1984) (noting that traditionally a jury resolves questions about a tortfeasor’s state of mind). Mayor DeStephano commented during the demolition that the plaintiffs were witnessing “instant urban renewal.” Under a favorable light, the Mayor’s comment, combined with the peripheral inspection of the building before its destruction, could be taken as the City’s predisposition to destroy the buildings in this deteriorating community, regardless of any emergency.⁶ Such an arbitrary decision to deprive the residents of their homes, and Catanzaro of two parcels of real estate, would be constitutionally oppressive, sufficient to violate the plaintiffs’ substantive due process rights. See Armendariz v. Penman, 31 F.3d 860, 867 (9th Cir.1994) (“[A]ny government action which ‘has no substantial relation to the public health, safety, morals, or general welfare’ is arbitrary and unreasonable ____”). Whether the action actually was or was not oppressive should be determined by the factfinder, but for summary judgment purposes, the issue is not precluded.

B. The Equal Protection Claim,

Catanzaro further contends that the City implemented a broad policy to constrict and reduce the supply of housing available to low income members of racial minorities, in violation of the Fourteenth Amendment’s Equal Protection Clause. In his argument, Catanzaro correctly recognizes that state “action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977), but in distinguishing his case, Catanzaro provides correlative statistics on the minority population in low-income dwellings, the limited amount of low-income housing approved during May- or DeStephano’s term, as compared to the amount of low-income housing destroyed during the same period. Catanzaro also presents evidence that the Mayor and City officials knew the racial makeup of the Middletown community. Combined with the evidence of the Mayor’s “urban renewal” comment, the evidence provides a reasonable inference of a systematic policy of racial discrimination. Consequently, the district court’s grant of summary judgment inappropriately precluded the equal protection issue for trial.

C. The Fair Housing Act Claim

As a final challenge, Catanzaro argues that the district court inappropriately granted summary judgment as to whether the City violated the FHA. Section 3604(a) prohibits the state from blocking or impeding the provision of housing based on race. Thus, in contrast to constitutionally discriminatory housing practices, “[h]ousing practices unlawful under [§ 3601 et seq.] include not only those motivated by a racially discriminatory purpose, but also those that disproportionately affect minorities.” United States v. Starrett City Assocs., 840 F.2d 1096, 1100 (2d Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 376, 102 L.Ed.2d 365 (1988). In light of the conflicting evidence regarding the City’s policy towards low-income housing and the district court’s failure to construe the evidence in favor of the plaintiffs, summary judgment was inappropriate on plaintiffs FHA claim.

D. Governmental Immunity

Alternatively, the defendants assert qualified immunity as an affirmative defense. Generally, public officials are entitled to qualified immunity where their mistaken belief or decision was objectively reasonable. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). The law accommodates an official’s reasonable error to encourage decisions without threat of suit. Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984). Notwithstanding, public officials that “knowingly violate the law,” are not entitled to the same protection. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). Because there are genuine issues as to whether Mayor DeStephano and Commissioner Fusco knowingly violated the plaintiffs rights, qualified immunity at this point is precluded. Moreover, the City of Middletown is not entitled to immunity, because the Commissioner and Mayor’s decisions are sufficient to impute liability to the municipality. See Rookard v. Health and Hosp. Corp., 710 F.2d 41, 45 (2d Cir.1983) (finding that where an official has final authority over matters in which he exercises discretion, the choices he makes reflect municipal policy).

III. Conclusion

For the foregoing reasons, we hold that genuine issues of material fact exist as to all claims, that reasonably could be disputed at trial. Accordingly, the district court’s grant of summary judgment to the City of Middle-town is REVERSED.

1 . Wieden was originally named as a defendant in this action, but was dismissed because he was not a state actor for purposes of the fourteenth amendment and civil rights claims.

2 . Catanzaro now alleges his consent was coerced.

3 . The additional plaintiffs include: Rashon Lai, Robert Merino, Delores Merino, Levana Dumenigo, Rose Rivera, and Sergio Rivera, as tenants of buildings No. 82-84, seeking to recover personal properly and damages for interference with their right of possession. Plaintiff Warren Kautz, since deceased, as the owner of the adjacent' building at 80 E. Main Street, also joins seeking damages for harm done to his adjoining building in the course of the demolition work. For the remainder of this discussion all plaintiffs will collectively be referred to as "Catanzaro.”

4 . Catanzaro acknowledges the fact that the Middletown Building Code gives the Commissioner of Public Works full authority to order immediate destruction of dangerous structures posing imminent threat to the public. Appellant's Brief, p. 21.

5 . Contrary to the dissent's contention, our holding does not imply that every discretionary determination hy state officials must be challenged at the caprice of disgruntled plaintiffs. Under the circumstances, however, where there is evidence of the City’s ardor to rebuild this depreciating community regardless of the existence of an emergency, the Plaintiffs at least have a right to assert at trial that the Defendants opportunistically abused their discretion, notwithstanding their chances of success.

6 . The Defendants contend that Mayor DeStephano’s comments cannot support any inferences of predisposition by City officials, because Fusco, in his capacity as Public Works Commissioner, independent of Mayor DeStephano, held sole authority to order the demolition of the buildings. We are not persuaded by their assumption, and note that despite his independence, Fusco made no decision to demolish building No. 84 until after Mayor DeStephano arrived on the scene. Plaintiffs further explain that it was Mayor DeStephano that told Catanzaro "the building would fall down,” and refused his requests to support the facade of building No. 84 with lolly columns. Appellant’s Brief, p. 4. Viewed in a light most favorable to the Plaintiffs, we believe Mayor DeStephano was actively involved in Fusco's decision to demolish the buildings.