Mark FERRAN, Nadia Ferran, Plaintiffs-Appellants,
v.
TOWN OF NASSAU, Robert Whitney, Bernard Clifford, Town Supervisor, George Flemings, former Highway Superintendent, Joseph Meizinger, Town Highway Superintendent, Ruth Bridgham, former Town Attorney, County of Rensselaer, County of Rensselaer Highway Department, Ralph Colongione, Deputy County Engineer, individually and in his official capacity, John Toma, County Highway Supervisor for the Southern Tier, individually and in his official capacity, John F. Richardson, Joanne Richardson, Henry Goebel, Jr., individually and in his official capacity as Town
Justice, William Gonzales, N.Y. State Trooper (shield #3912), individually and in his official capacity, Janet I. Nadler, Defendants-Appellees.
Docket No. 02-9459.
United States Court of Appeals, Second Circuit.
Argued: August 9, 2004.
Decided: December 15, 2006.
Mark Ferran, Albany, NY, Pro Se.
Nadia Ferran, Albany, NY, Pro Se.
Rebecca M. Vaccariello, Dreyer Boyajian LLP, Albany, NY, for Defendants-Appellees Town of Nassau, Robert Whitney, Bernard Clifford, Joseph Meizinger, Ruth Bridgham, Henry Goebel, Jr.
David Reilly, Law Office of Joseph W. Buttridge, Albany, NY, for Defendants-Appellees County of Rensselaer, County of Rensselaer Highway Department, Ralph Colongione, John Toma.
Before JACOBS, Chief Judge, B.D. PARKER, and HALL, Circuit Judges.
PER CURIAM.
A decade and a half ago, Plaintiffs-Appellants Nadia Ferran and her son, Mark Ferran, ("the Ferrans") embarked on a campaign against numerous town and county officials and private individuals, contending that the Defendants-Appellees had violated the Ferrans' constitutional rights by interfering in their use and enjoyment of certain parcels of land they owned in Rensselaer County, New York. Over the years, in orders dated August 11, 2000 and October 30, 2001, the District Court whittled down the parties and claims, a process which culminated in a final order and judgment dated September 30, 2002 in the United States District Court for the Northern District of New York (Scullin, C.J.), granting summary judgment to the remaining Defendants-Appellees and dismissing the action in its entirety. The Ferrans appeal from all three orders, as well as a November 4, 2002 denial of their motion for reconsideration.
On appeal, the Ferrans have made a number of arguments, many of which they did not raise before the District Court. In addition, they have waived their §§ 1985, 1986, discrimination, and defamation claims, as they are not raised on appeal. See LoSacco v. City of Middletown,
BACKGROUND
In 1991, the Ferrans, appearing pro se, filed a complaint against neighbors John Richardson, Joanne Richardson, and Janet (Alleman) Nadler, as well as the Town of Nassau ("the Town") and Town officials, including: Robert Whitney, former Town Supervisor; Bernard Clifford, then Town Supervisor; George Flemings, former Town Highway Superintendent; Joseph Meizenger, then Town Highway Superintendent; Ruth Bridgham, former Town Attorney; and Henry Goeble, Jr., Town Justice. Also named in the complaint were the County of Rensselaer ("the County") and the County Highway Department, as well as County officials Ralph Colongione, Deputy County Engineer, and John Toma, County Highway Supervisor; and William Gonzales, a New York State Trooper. The Ferrans charged that the Defendants-Appellees, from 1986 to 1991, separately and in concert, committed various acts that interfered with their use, possession, and enjoyment of a portion of their 90 acres of land located in the Terrace Gardens subdivision of the Town of Nassau, Rensselaer County, New York. The parcel of land at issue, marked "Reserved for Parking" on a 1950 subdivision map of Terrace Gardens, is approximately 21 feet wide at its northern end, fanning out at its southern end to approximately 50 feet wide where it borders the Burden Lake shoreline. The western side of the parcel borders Van Patten Road, a public road maintained by the Town.
The Ferrans' complaint asserted the following § 1983 causes of action: (1) an equal protection claim; (2) a takings claim under the Fifth Amendment; (3) a due process claim under the Fourteenth Amendment; (4) a claim under the Petition Clause of the First Amendment; and (5) a claim of unreasonable seizure under the Fourth Amendment. The complaint also asserted three separate causes of action for conspiracy under 42 U.S.C. § 1985; a claim under 42 U.S.C. § 1986; a claim that Nadia Ferran was discriminated against on the basis of her gender and disability (the "disability of bereavement"); and state law claims for slander, defamation, and interruption of the life of a disabled person. These causes of action stemmed from various acts allegedly committed by the Defendants-Appellees. For example, the Ferrans asserted that John and Joanne Richardson, who owned a parcel of land bordering the Ferrans' "Reserved for Parking" area, had encroached upon the Ferrans' property by parking vehicles and storing firewood there. The Ferrans claimed that they had called the police, complained to Town officials, and petitioned the Town Court about the Richardsons' misuse of their property. Instead of resolving the problem, however, the various Town and County officials allegedly conspired with the Richardsons by responding that the "Reserved for Parking" area had been in the public domain for over thirty years.
Most relevant to our decision here, the Ferrans contended that the Town had illegally widened Van Patten Road when it paved the road, thereby encroaching on the "Reserved for Parking" parcel. They also contended that Town snow plows would "sometimes turn[ ] around at the lower part of the right of way, using some of the ['Reserved for Parking'] strip of land." In anticipation of a defense of easement, the Ferrans argued that such use did not transform that strip of land, or the "Reserved for Parking" parcel, into a town road or public easement. In short, they asserted that "[t]he section of Van[ ]Patten road adjacent to the plaintiffs' property is not a public highway, nor is any part of plaintiffs' parcel adjacent to Van[ ]Patten Road a public highway." In addition, without elaborating, the Ferrans alleged that all of the Defendants-Appellees had deprived them of their right to petition the State of New York for the redress of grievances.
In 1992, the County, Town, and individual Defendants-Appellees filed separate motions to dismiss pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6). The Ferrans moved for permission to amend their complaint. The District Court granted the motions to dismiss, dismissed the complaint against Trooper Gonzales for failure to serve him process, and denied the Ferrans' request for leave to file an amended complaint. The Ferrans appealed. We affirmed the lower court's dismissal of the Ferrans' § 1985 claims as duplicative of their § 1983 claims, but remanded for further proceedings, holding that the District Court had "abused its discretion in denying plaintiffs' request for leave to file their amended complaint." Ferran v. Town of Nassau,
Subsequently, the Ferrans initiated a state court action to determine their property interests and, in July 1994, the District Court stayed the federal court action. The record on appeal, however, contains no information about the Ferrans' state court suit, such as who they sued and what claims they asserted. As the District Court later observed, "that [state court] proceeding was ultimately dismissed for Defendants' failure to answer and Plaintiffs' failure to prosecute." Given that the state court proceeding had not addressed the ownership issue presented in the federal action, the District Court re-established discovery and motion filing deadlines in January 1999.
In May 1999, the Ferrans submitted a motion for partial summary judgment on the issue of "land ownership/property interest." The County, individual County officials, and Janet Nadler cross-moved for summary judgment, and the Town and individual Town officials cross-moved for partial summary judgment.
A. The District Court's August 11, 2000 Order and January 18, 2001 Hearing
In denying the Ferrans' motion for partial summary judgment, the District Court pointed out that the Town had changed its position in the litigation: it no longer asserted an ownership interest in the "Reserved for Parking" area. Instead, the Town claimed an easement under New York Highway Law § 189. In response, the Ferrans conceded that part of Van Patten Road had become a public highway by virtue of its use by the public and maintenance by the Town, but charged that the Town had
expanded its maintenance of the road beyond that which is permitted by law, that the road does not extend into the whole of the "Reserved for Parking" parcel, and that the neighbors have used the parcel for reasons other than parking — all in violation of Plaintiffs' rights as property owners.
Based on these contentions, the District Court found that questions of fact existed concerning "the ownership of the property at issue," denied the Ferrans' motion for partial summary judgment, and scheduled a hearing. The District Court noted that it considered this Court to have "clearly established what time frame applies for purposes of determining liability, to wit — September 24, 1988," but nevertheless reserved decision on whether evidence of events prior to that date might be introduced.
The District Court granted the individual Town officials' motion for summary judgment on all claims. The Ferrans' substantive due process and Petition Clause claims remained extant against the Town because the Town had not sought summary judgment on the due process claim, and had not sufficiently opposed the Petition Clause claim. The District Court also granted the County and individual County officials' motion for summary judgment on most of the Ferrans' claims except for the Petition Clause and the substantive due process claims against the County and John Toma.
In January 2001, the District Court held an evidentiary hearing. During the course of the hearing, the Town and County both stipulated that neither entity disputed the Ferrans' ownership of the "Reserved for Parking" parcel. Kevin J. McGrath, a licensed land surveyor, testified that, at the request of the Town, he had created a survey map of Van Patten Road.2 McGrath stated that the width of Van Patten Road was eighteen feet maximum "for the majority of it," except for a portion north of the "Reserved for Parking" area. He never explicitly discussed the boundaries of the Town's public easement.
Defendant Joseph Meizenger, the Town Highway Superintendent from December 1989 to January 2000, testified that the highway department had consistently maintained the gravel road by plowing it, grading it, and ensuring that the culverts were clear. When the road was paved by a subcontractor in 1992, he claimed that the asphalt was put down on top of the gravel and that there had been no deviation from the contours or perimeter of the gravel road. At one point, Meizenger testified that he had told the pavers that once they "got down to the turn-around area, to widen the road," and then clarified that he told them to "stay within the graveled area," describing the turn-around area at the bottom (southern end) of the road as "slightly wider than the upper part of the road."
B. The October 2001 Decision and Order
On October 30, 2001, the District Court issued a Decision and Order resolving the question presented at the January hearing: whether the Ferrans' ownership of parcels of land in the Terrace Gardens subdivision, "particularly the `Reserved for Parking' area, is subject to a public easement; i.e., Van Patten Road." The District Court found that the evidence elicited at the hearing established that: the Ferrans owned the "Reserved for Parking" parcel of land; the location of Van Patten Road had remained the same since at least 1972; Van Patten Road was originally a gravel road, which the Town had consistently maintained by plowing, regraveling, regrading, and repairing; when the Town blacktopped the road "in approximately 1994," the asphalt was laid on top of the gravel and the blacktopped road did not deviate from the gravel road's perimeter and contours; and the width of the shoulders was three feet on each side.
Based on this evidence, the District Court held that the Town had not unlawfully encroached upon the "Reserved for Parking" area when it paved the road, regardless of whether or not the Town had widened the road at its southern end, and that "the Town's maintenance of the road — including the disputed area — was necessary to the public use of the road and to insure the integrity of that road." The court concluded that Van Patten Road, in its current location, was a public highway and, "as such, constitutes a public easement to which [the Ferrans'] property is subject" and dismissed the Ferrans' claim that the Town had violated their due process rights with respect to the "Reserved for Parking" area or any other land they owned adjacent to Van Patten Road. The District Court also dismissed the Ferrans' Petition Clause claim against the Town — that the Town had deprived them of their land in retaliation for petitioning the courts and other officials to redress their grievances — on the ground that this claim relied on the due process claim, which failed.
Having granted summary judgment in favor of the Town on all claims against it, the court held that only the substantive due process and Petition Clause claims against the County and Toma remained, and stated that it would entertain their renewed cross-motions for summary judgment.
C. The September 2002 Decision and Final Judgment
In a decision and order dated September 20, 2002, the District Court granted the County's and Toma's motion for summary judgment on the due process and petition claims, and it dismissed the case in its entirety.3 In evaluating these claims, the court employed a different analysis than it had used on the same claims against the Town. The due process claim was dismissed because the Ferrans had offered no evidence of an official policy or custom of removing trees from the Ferrans' property for anything other than reasonable County purposes, and because respondeat superior liability was not applicable to individual Town employees.
As to the Petition Clause claim, the court used the two-prong test set forth in Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
DISCUSSION
I. Standard of Review
This Court reviews the grant of summary judgment de novo. See Physicians Comm. for Responsible Med. v. Johnson,
II. Analysis
The only issue we address here is whether the District Court properly granted summary judgment to the Town on the Ferrans' substantive due process and Petition Clause claims. We hold that it did, but through this opinion we add to the District Court's analysis. We agree with and affirm the District Court's reasoning with respect to all other claims asserted against the Town and County, as well as the other Defendants-Appellees.
A. Due Process Claim
In order to succeed on a constitutional action against the Town for damages under § 1983, the Ferrans are required to show that (1) their "harm was caused by a constitutional violation," and, if it was, (2) that the Town was "responsible for that violation." Collins v. City of Harker Heights, Texas,
To establish that the Town violated the Ferrans' substantive due process rights, we must first inquire "whether a constitutionally cognizable property interest is at stake." See Villager Pond, Inc. v. Town of Darien,
To establish a substantive due process violation, the Ferrans must show that the Town's alleged acts against their land were "arbitrary," "conscience-shocking," or "oppressive in the constitutional sense," not merely "incorrect or ill-advised." Lowrance v. C.O. S. Achtyl,
Assuming all facts alleged by the Ferrans are true, only two of these acts (the snow plowing and the widening of the road) have any chance of satisfying the second prong of the Collins test, which requires that we ask whether an official municipal policy caused the constitutional tort. See Collins,
B. Petition Clause Claim
With respect to the Petition Clause claim against the Town, the District Court's analysis of the same claim against the County applies equally here. The Ferrans have simply not met their burden of demonstrating that the Town retaliated against them for exercising their First Amendment right to seek redress of their grievances. See Gierlinger v. Gleason,
CONCLUSION
For the foregoing reasons, the judgment of the District Court is affirmed.
Notes:
Notes
The Ferrans eventually filed an amended complaint in September 2000
McGrath's map, to which he constantly referred, although "received" by the District Court, has for some unknown reason not been made a part of the record before this Court
The District Court also dismissed the claims against individual Defendants John and Joanne Richardson on the ground that the Ferrans had not proffered any evidence tending to establish that the Richardsons had acted in concert with public officials to render them liable under § 1983
As the record stands, we cannot affirm the District Court's determination as to the scope of the Town's purported easement over the "Reserved for Parking" parcel. As mentioned in note 2,supra, the record does not contain the map prepared by the land surveyor Kevin J. McGrath, which was received at the January 2001 hearing. Furthermore, the District Court never specifically defined for the record the parameters of the easement so as to allow for review by this Court.