Opinion
CIVIL ACTION NO. 18-2073
11-07-2019
BLAISE MAHALIK v. LISA CANTANIA, SHANE KENNEDY, and CANTANIA ENGINEERING
MEMORANDUM OPINION Savage, J.
This § 1983 action alleging an unconstitutional seizure under the Fourth Amendment arises out of the Borough of Norwood's ordering the padlocking and evacuation of the apartment building where Blaise Mahalik resided while emergency plumbing repairs were made. The defendants Lisa Cantania, the Borough's engineer, and Shane Kennedy, another Borough employee, have moved for summary judgment. They contend they did not make the decision to padlock Mahalik's residence.
We granted the defendants' motion to dismiss as to defendant Cantania Engineering because Mahalik stated no facts to support a claim against Cantania Engineering. December 20, 2018 Mem. Opinion and Order (ECF Nos. 13-14).
Although Mahalik has not filed a formal opposition to the motion, he submitted two affidavits. These affidavits fail to substantiate his claims. On the other hand, the defendants have produced unrebutted evidence that they were not involved in the decision to enter and padlock the property, locking Mahalik out for two days. Therefore, we shall grant the motion for summary judgment.
Factual Background
On the evening of May 20, 2016, Mahalik and Victor Gamble, the owner of the property, together with unnamed individuals were repairing the plumbing main to the property. As they were doing the work, they discovered a "cavern" ten feet by five feet wide and four feet deep under the street in front of the property. They stopped working and called the Borough to report what they had found.
Def.'s Mot. for Summ. J. Exh. C at 2 (ECF No. 23); Pl.'s Affs. at 1 (ECF No. 35).
Pl.'s Affs. at 1.
Id.
Norwood Police Officer Derreck Geisler, Borough Council President Bill Gavin, and defendant Lisa Cantania responded to the scene. Defendant Shane Kennedy, a code enforcement officer, was not on the scene at any time. Gamble explained that a section of the road had collapsed while they were digging. Raw sewage was leaking into the roadway. Cantania advised that the block had to be shut down for public safety reasons. A contractor was hired to cover the hole in the street with steel plates and remove the raw sewage. The police advised Mahalik that the work would be finished in the next couple of days.
Def.'s Mot. for Summ. J. Exh. C at 2.
Id. Exh. G.
Id.
Id.
Id.
Id.
Id. Exh. C at 3.
According to Mahalik, Cantania appeared to be "enraged" because she was late for a dinner date. Mahalik claims Cantania began cursing and "raving and carrying on." He told the police that she was trespassing and he wanted her to leave the property.
Pl.'s Affs. at 1.
Id.
Id.; Def.'s Mot. for Summ. J. Exh. C at 3.
Borough Manager Francine Howat, Borough Health Inspector Danielle Marie Orner, and Borough Plumbing Inspector Thomas Kennedy were called to the scene. After conducting an emergency inspection of the property and observing raw sewage flowing in the street, Thomas Kennedy reported that the property was disconnected from the sanitary main and lacked a functioning lateral. Orner and Thomas Kennedy ordered the property closed and padlocked until the Borough could repair and restore the running water and sewage system for health and safety reasons.
Def.'s Mot. for Summ. J. Exhs. E, F, and G.
Id. Exh. F.
Id. Exhs. E and F.
The following morning, Gavin informed Norwood Police Officer Brook Heverly that Norwood Borough officials declared the residence uninhabitable and ordered the tenants to evacuate until the plumbing was repaired. Gamble was still attempting to fix the plumbing problem with a revoked permit. Heverly advised Gamble to cease his work and to instruct Mahalik and his other tenant, Theresa Miksit, to gather their personal items and vacate the premises because the apartments were going to be padlocked. Gamble paid for the Miksit family to stay at a hotel. Mahalik arranged to stay with a friend. Heverly stood by while Matthew Cleaver from the Borough's service company padlocked the doors.
Id. Exh. D at 3.
Id. Mahalik and Gamble attest that "the plumbing inspector" confiscated the permit. Pl.'s Affs. at 1-2. The defendants do not address whether the permit was confiscated or by whom.
Def.'s Mot. for Summ. J. Exh. D at 3.
Id. Exh. D at 3, Exh. G.
Id. Exh. D at 3.
Id.
The Borough hired contractor A.J. Jurich, Inc. to restore service to the property and repair the damage to the street. Ted Diewal, A.J. Jurich's Project Manager, reported that whoever made the excavation did so without shoring it, causing the street to collapse and allowing raw sewage from the excavation site to flow down the street. His crew neutralized the sewage, covered the hole with steel plates, and repaired the sewer lateral and the street over the course of two days.
Id. Exh. H at 1.
Id.
Id.
The Borough paid $8,245.00 for these services. It sent an invoice for the repairs to Gamble, the owner of the property. On November 21, 2016, the Borough filed a Municipal Lien for Maintenance Charges against Gamble for the damages caused by his failed attempt to repair the sewer and street. Judgment was entered against Gamble for $9,826.75, the cost of the repairs plus interest, court costs, and attorneys' fees.
Id.
Id. Exh. I.
Id. Exh. I at 1.
Id. Exh. I at 3, 11.
Mahalik asserts a claim under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. Mahalik contends the defendants were state actors acting under color of law. Mahalik claims the defendants violated his Fourth Amendment rights by padlocking his residence and seizing his property without a warrant. He alleges that there were no exigent circumstances to excuse the defendants from obtaining a warrant or for confiscating his "legally obtained plumbing permit."
Compl. at 4, 5 (ECF No. 2).
Id. at 4.
Id. at 5.
Id.; Am. Mot. to Quash at 1-2 (ECF No. 10).
Standard of Review
Summary judgment is appropriate "if the movant shows 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). Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In examining the motion, we must draw all reasonable inferences in the nonmovant's favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).
The initial burden of demonstrating that there are no genuine issues of material fact falls on the moving party. Fed. R. Civ. P. 56(a). Once the moving party has met its burden, the nonmoving party must counter with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The nonmovant must show more than the "mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations or suspicions are not sufficient to defeat summary judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
A nonmoving party may defeat summary judgment through the use of an affidavit or declaration. See Fed. R. Civ. P. 56(c)(1)(A) (a plaintiff may assert that a fact is genuinely disputed by "citing to particular parts of materials on the record, including depositions . . . affidavits or declarations"). However, "'conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment.'" Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (quoting Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002)). See also Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990) ("The object of [Rule 56] is not to replace conclusory allegations of the complaint . . . with conclusory allegations of an affidavit."). Instead, the affiant must set forth specific facts that reveal a genuine issue of material fact. Id. (collecting cases). Because they are not subject to cross-examination, affidavits are scrutinized carefully. In re CitX Corp., 448 F.3d 672, 680 (3d Cir. 2006) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ. § 2722, at 373, 379 (3d ed. 1998)).
Discussion
It is undisputed that a street had collapsed, raw sewage was uncontained, the toilets did not work, and the Borough officials ordered the tenants out of the building and padlocked it while plumbing repairs were being made.
What is disputed is who ordered the action constituting the seizure. Mahalik contends it was the two defendants. They claim it was not them and instead were other Borough employees. To support their respective positions, the parties rely on affidavits.
The moving defendants made no decisions to shut off water to the property, padlock it and evacuate it. Those decisions were made by others. The defendants may have interacted with Mahalik, but they were not responsible for the actions taken by those who acted in their official capacities.
To prevail on a § 1983 claim, a plaintiff must show that the defendant violated his constitutional rights. Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005). A plaintiff must establish that the defendant was personally involved in the alleged wrong. Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). A plaintiff may do so through evidence demonstrating "the defendant's participating in or actual knowledge of and acquiescence in the wrongful conduct." Id. (citing Rode, 845 F.2d at 1207).
Orner, Thomas Kennedy, and Howat have explicitly stated in their affidavits that Orner and Thomas Kennedy made the decision to padlock Mahalik's residence until service was restored for public health and safety concerns. They attested that Cantania did not make the decision, nor did she have the power to issue the order in her role as Borough Engineer. Howat stated in her affidavit that Shane Kennedy is involved in code enforcement and was never on the scene at any point in time. This evidence establishes that neither Cantania nor Shane Kennedy were personally involved in the padlocking of Mahalik's residence. See Martinez v. Scerbo, No. 06-819, 2007 WL 2769594, at *3 (D.N.J. Sept. 20, 2007) (granting summary judgment to defendant on plaintiff's § 1983 claim for use of excessive force during an arrest where defendant "unequivocally states in his affidavit that he was not the officer who arrested Plaintiff, and asserts that he never had any involvement with Plaintiff at any other time.").
See Def.'s Mot. for Summ. J. Exh. E ("Lisa Cantania, the Borough Engineer, did not order or make the decision to close down or padlock the property and that is not her role for the Borough."), Exh. F ("[T]his decision is made by the Health Inspector and not the Borough Engineer who was not involved in this decision."), and Exh. G ("The Health Inspector makes the decision to restrict occupancy and the Borough Engineer does not, and did not, make the decision").
See Def.'s Mot. for Summ. J. Exh G ("Shane Kennedy who does code enforcement was not on the scene for this incident at any time.").
Mahalik filed his own affidavit and one from Gamble. These affidavits do not raise any genuine disputes of material fact. Mahalik and Gamble restate the allegations in the complaint that Cantania "made the decision to seize the property" and that "the plumbing inspector" confiscated their "legally pulled permit." The affidavits do not state specific facts rebutting the defendants' evidence that they were not involved in the decision to padlock the property. They offer no evidence to rebut Howat's affidavit attesting that Shane Kennedy was never present at the scene. Indeed, Gamble states that the man at the scene identified by Mahalik as Shane Kennedy was "an imposter" having no authority to act on behalf of the Borough.
Pl.'s Affs. at 1-2.
Id.
Id. Neither Mahalik nor Gamble identifies Shane Kennedy by name in their affidavits, referring to him only as "[Cantania's] friend," "a plumbing inspector," and "this guy." Id.
They offer no evidence, only conclusory statements, to rebut the defendants' showing that Orner and Thomas Kennedy made the decision to padlock the property, and that Cantania had no authority to make that decision in her role as Borough Engineer. Therefore, the defendants have shown there are no genuine disputes of material facts and they are entitled to judgment as a matter of law.
Mahalik does not allege that the defendants were supervising Orner or Thomas Kennedy. Even if Mahalik did allege supervisory liability, "a defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode, 845 F.2d at 1206.
Because we find that the defendants were not personally involved in the decision to padlock and evacuate the property, we need not address the defendants' defenses of exigent circumstances or qualified immunity.
Conclusion
Mahalik has pointed to no evidence creating a genuine dispute of material fact such that a reasonable jury could find in his favor against the defendants. Therefore, we shall grant the defendants' motion for summary judgment.