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AKINS v. DEPTFORD TWP.

February 10, 1993

BRUCE R. AKINS, SR., and KAREN E. AKINS, Plaintiffs,
v.
DEPTFORD TOWNSHIP, WILLIAM F. COUGHLIN, HOPE FICARA, RUSSEL PAUL, CHARLES J. SPRINGMAN, and JOHN McFEELEY, 3RD, Defendants



The opinion of the court was delivered by: JOSEPH E. IRENAS

IRENAS, District Judge:

 I. BACKGROUND

 Plaintiffs Bruce and Karen Akins filed the instant suit on February 7, 1992, alleging that certain state government officials had acted unlawfully in denying them construction permits and certificates of occupancy. The complaint contained both federal claims under 42 U.S.C. ยง 1983 and pendant state claims.

 On July 6, 1992, plaintiffs filed an amended complaint, which added as a defendant the Gloucester County Construction Board of Appeals (the "Board") and its members. The Board is the agency that hears appeals from decisions of county construction officials. *fn2" The amended complaint specifically alleged that the Board had conspired with defendant William F. Coughlin, Deptford County Construction Official, "to not file, process or otherwise perfect plaintiffs' appeal, thus allowing defendant Mr. Coughlin to file municipal court charges against plaintiffs." Amended Complaint, P 43; see also Plaintiffs' Brief at 6. *fn3" The parties do not dispute that under New Jersey law, if an appeal had been pending before the Board, it would have been a procedural bar to filing of the municipal court charges.

 The papers provided to the court reveal the following sequence of events. On July 15, 1991, plaintiffs submitted to the Gloucester County Construction Board of Appeals a document captioned "Notice of Appeal from Construction Official's Notice & Order of Penalty." Campbell Aff., P 3 & Exhibit A. Maryfrances Campbell, the Board's Secretary, did not file or process the appeal at that time. Instead, she called Mr. Akins to inform him that he had to resubmit his appeal on a standard application form, which she would mail to him. See Campbell Aff., P 5. *fn4"

 Had plaintiffs' appeal been processed when filed, it should have been heard at the Board meeting on August 13, 1991. Campbell Aff., P 5. As the meeting date approached, Campbell contacted Akins again about the appeal. Id. at P 5. On or about August 13, Campbell asked Vito Sabetta, Board Chairman, what to do about Akins' appeal, and was essentially told that she had done all she had to do. See Transcript, State of New Jersey v. Akins, No. A-79-91 (N.J. Super. Ct. Law Div., March 13, 1992), [hereinafter "Superior Court Transcript"] at 10, 13-14. Ultimately, the appeal was neither listed nor heard at the August 13 Board meeting. Campbell Aff., P 6; Superior Court Transcript at 11-12. *fn5"

 At an earlier state court proceeding related to this matter, Campbell had been questioned as to why she did not process the Notice of Appeal filed on July 15. She testified that "State regulations" required that the appeal be on the standard form, Superior Court Transcript at 8, that she couldn't have scheduled the appeal as filed without getting in trouble, id. at 10, and that "the UCC book [and] Vito Sabetta, my boss" told her to proceed as she did, id. at 22.

 On November 6, 1991, plaintiffs were found guilty of the construction-related offenses cited in the October 28 summons. Transcript, State of New Jersey v. Akins (Deptford Twp. Municipal Court, November 6, 1991), at 49. The Akins appealed their convictions, and succeeded in having them overturned. See Order of New Jersey Superior Court Judge John E. Wallace, March 31, 1992 (attached as Exhibit 5 to Amended Complaint).

 In overturning the convictions, the Superior Court held that the Board had acted improperly in not processing the appeal filed by Akins on July 15, and that the Board appeal had been perfected at that time and was still perfected. Superior Court Transcript at 36. The court below therefore had not had jurisdiction over the case due to the pending appeal. Id.

 II. STANDARD FOR SUMMARY JUDGMENT

 The standard for granting a motion for summary judgment under Fed. R. Civ. P. Rule 56 is demanding and stringent. Wilson v. Sullivan, 709 F. Supp. 1351 (D.N.J. 1989). Under Fed. R. Civ. P. Rule 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party such that a reasonable jury could return a verdict for that party. Id. Although the moving party bears the initial burden of informing the district court of the basis for its motion, there is no requirement in the ...


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