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Fallick v. Deerfield Township


September 15, 2003


The opinion of the court was delivered by: Irenas, Senior District Judge


Presently before the Court is Defendants' Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below we will grant Defendants' motion as to Plaintiff's 42 U.S.C. § 1983 claim, and dismiss Plaintiff's state law malicious prosecution and malicious abuse of process claims without prejudice, pursuant to 28 U.S.C. § 1367.


The present case comes to us as a dispute between a small business owner and a town zoning board. The Plaintiff, John Fallick ("Plaintiff", "Fallick"), operated a locksmith business in Deerfield Township at 522 Morton Avenue for 8 years, from 1991 to 1999. The Defendants are Deerfield Township ("Deerfield", "Township"), Ronald Sutton ("Sutton"), a Deerfield zoning official, and Cosmo Lauretta ("Lauretta"), a member of the Deerfield Township governing council. Fallick now argues that Defendants' actions led to the failure of his locksmith business, violating his Fourteenth Amendment substantive due process and procedural due process rights.

In April, 1999, Defendant Sutton cited Plaintiff for storing unlicensed and unregistered vehicles outside his business contrary to local zoning laws. Sutton's notice of violation to Fallick described a breach of Section 301.10 of the Building Officials and Code Administrators ("BOCA") National Existing Structures Code, which limits to two the number of unlicensed or unregistered vehicles permitted on the exterior portion of a property. § 301.10.2 BOCA National Existing Structures Code (1987). Defendant Sutton had observed three unlicensed and unregistered vehicles stored on the exterior of Plaintiff's property. Upon receipt of the notice, Fallick was entitled to appeal to the County Construction Board of Appeals within 20 days. § 111.1 BOCA Property Maintenance Code (1990). Fallick never appealed the notice with the County Construction Board.

Defendants brought Plaintiff before the Deerfield Township Municipal Court on August 23, 1999, Judge Casarow presiding. On that date, Judge Casarow: (1) instructed Plaintiff to appear before the Township Planning Board on September 8, 1999; (2) rescheduled the municipal court hearing for September 13, 1999; and (3) advised Plaintiff that if the Board did not grant his request, the unlicensed and unregistered vehicles in violation of the Code must be removed by September 13. On September 8, the Township Planning Board determined that it did not have jurisdiction over Plaintiff's application. At the September 13, 1999 hearing before Judge Casarow, Fallick was convicted and fined for violating the BOCA Code.

Subsequent to this conviction and fine, Fallick's locksmith business failed. Fallick attributes the failure, at least in part, to his September 13 conviction. He argues that a significant portion of his locksmith business involved unlicensed and unregistered cars, and the conviction effectively ended this aspect of his business. Compl. ¶ 12.

Fallick appealed his conviction on August 14, 2000, filing a motion for a new trial with the New Jersey Superior Court. On December 1, 2000, Judge Rushton H. Ridgeway denied Plaintiff's appeal. However, on March 26, 2001, discovering that Municipal Court Judge Casarow had a conflict of interest in the original matter, Judge Ridgeway granted Fallick's appeal. The prosecutor for Deerfield Township chose not to reprosecute the case because Fallick no longer maintained unregistered or unlicensed vehicles on the property.

On September 5, 2001, Plaintiff filed a complaint in this Court, alleging that Defendants deprived him of substantive and procedural due process rights, under color of state law, violating 42 U.S.C. § 1983. Plaintiff also asserts state law malicious prosecution and abuse of process claims.


A. Standard of Review

Under Fed. R. Civ. P. 56(c) a court may grant summary judgment "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." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not to "weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v.Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987)(Becker, J., concurring).

B. Plaintiff's 42 U.S.C. § 1983 Claim

To prevail under 42 U.S.C. § 1983, a plaintiff must show that a person acting under color of state law deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States. 42 U.S.C. § 1983 (1994). Plaintiff Fallick claims that he has been deprived of hit Fourteenth Amendment substantive and procedural due process rights by the Defendants. We disagree on both counts. First, the property rights that Plaintiff asserts do not give rise to substantive due process protection under the Constitution. Second, Plaintiff's procedural due process claim is defeated on the merits due to his failure to exhaust all available administrative and state remedies before initiating this action.

1. Substantive Due Process

Section 1983 confers no rights on its own; rather, it provides a direct cause of action for breaches of rights secured by the Constitution. Plaintiff Fallick argues that he is entitled to relief under § 1983 because "the actions of the defendants effected a deprivation of... property rights." Compl. ¶ 55. We disagree. Although the Third Circuit in DeBlasio v. Zoning Board found that substantial interference with a business interest may create a substantive due process violation, Fallick's present grievance does not rise to that level. 53 F.3d 592 (3d Cir. 1995). In DeBlasio, the plaintiff, DeBlasio, operated an interstate battery distribution business in a residential area. The disturbance caused by the business' traffic violated local zoning laws. The zoning board, therefore, threatened DeBlasio's business with immediate and total cessation. Id. at 592-95.

The present § 1983 claim, however, is quite different. Fallick's business was never threatened with immediate or even eventual cessation - he was merely ordered to reduce the number of unlicensed and unregistered vehicles stored outside his locksmith business to two. The record does not support the argument that this limitation directly caused the failure of his business. We are further persuaded by these additional facts: (1) Defendant Sutton "noted that the [three unlicensed and unregistered] vehicles had appeared to be stationary for a long period of time, since bushes and weeds were growing up around them,"; (2) on August 23, 1999, Fallick admitted that these unregistered vehicles had sat on his property for more than eight months, and; (3) Fallick identified the three cars as "one... belonging to a customer who owed him $97.00, a second... trailer which belonged to a customer, and the third... belonged to his wife." Br. Supp. Summ. J. ¶ 16, 33, 34.

In light of these facts, it does not appear that Plaintiff Fallick actually suffered any real injury as a result of Defendants' enforcement of the BOCA Code. The removal of the vehicles described above could not have significantly impacted Fallick's business. They certainly do not warrant a comparison to DeBlasio, where immediate cessation of an entire business was threatened. Ultimately, Fallick's claim does not rise to the level of a constitutional substantive due process right. Put more simply, there is no federally protected right to store more than two unlicensed and unregistered vehicles for unlimited amounts of time in violation of local municipal laws.

2. Procedural Due Process

A plaintiff generally need not avail himself of all available state and administrative remedies before commencing an action under § 1983. Zinermon v. Burch, 494 U.S. 113, 126 (1990). However, there is an exception to this general rule where a plaintiff claims a violation of procedural due process. Id. at 123. For these claims, the existence of available state remedies is highly relevant, for violations of due process will only be said to occur where "the State has failed to provide due process." Id.

In Rogin v. Bensalem Township, the Third Circuit denied a plaintiff's procedural due process § 1983 claim in a zoning matter, because the plaintiff "set forth... [no] structural allegations from which [one] can infer that [the] process was unconstitutional." 616 F.2d 680, 694 (3d Cir., 1980). Later, in Bello v. Walker, the Third Circuit held that a state provides adequate due process in a municipal zoning matter where, "reasonable remedies to rectify a legal error by a local administrative authority," exist. 840 F.2d 1124, 1128 (3d Cir., 1988).

In the present case, Fallick was entitled to appeal the initial violations issued to him by Defendant Sutton to either the County Construction Board of Appeals or to the state court. By taking neither course of action, Fallick failed to pursue available administrative and state remedies - and a plaintiff that ignores the procedural due process offered him cannot simultaneously claim a procedural due process violation.

Therefore, we grant summary judgment for the Defendants on Plaintiff's substantive and procedural due process § 1983 claims.

C. Supplemental Jurisdiction

The remaining causes of action against Defendants are New Jersey state law claims of malicious prosecution and malicious abuse of process. The district court has discretion to retain these claims for disposition or to dismiss them without prejudice now that there are no longer any federal claims. Carnegie-Mellon Univ. v. Colhill, 484 U.S. 343 at 357 (1988); Felice v. Sever, 985 F.2d 1221, 1230-31 (3d Cir. 1993). When a federal count is subject to dismissal on a motion for summary judgment, the district court "should ordinarily refrain from exercising jurisdiction [over pendant state claims] in the absence of extraordinary circumstances." Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976); see also United Mine Workers v. Gibbs, 383 U.S. 715 (1966)("if the federal claims are dismissed before trial... the state claims should be dismissed as well."). Therefore, we follow the instructions of Tully and Gibbs and dismiss the remaining claims without prejudice pursuant to 28 U.S.C. § 1367.

D. Attorney's Fees

In their motion for summary judgment, Defendants requested attorney's fees from Plaintiff, in the amount of $253.00, pursuant to 42 U.S.C. § 1988. *fn1 We deny this request.

While successful plaintiffs are entitled to attorney's fees in §1983 actions, courts have relied on "at least two strong equitable considerations" to impose a more stringent standard when awarding fees to a prevailing defendant. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418 (1978). "First... the [§1983] plaintiff is the chosen instrument of Congress to vindicate `a policy that Congress considered of the highest priority,'... second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law." Id. Clearly, "these policy considerations... are not present in the case of a prevailing defendant." Id. at 418-419.

Under the standard set out in Christiansburg, the successful defendant may recover § 1988 fees only if "the plaintiff's action was frivolous, unreasonable, or without foundation." Id. at 421. Accordingly, the Court cautioned the district courts to "resist the understandable temptation to engage in post hoc reasoning by concluding that because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Id. at 422. Though we find that Plaintiff's arguments do not form a viable § 1983 claim, we do not deny that there is a genuine dispute between these parties. Therefore, we deny Defendants' request for attorney's fees.

An appropriate order will be entered on the date herewith.


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