Opinion
CV155016831S
01-24-2017
Stephen C. McCullough v. Town of Rocky Hill
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #116
Peter E. Wiese, J.
I
PROCEDURAL HISTORY
On September 11, 2015, the plaintiff, Stephen C. McCullough, filed his writ, summons and complaint against the defendant, the Town of Rocky Hill (town). On July 18, 2016, the plaintiff filed a twelve-count amended complaint, the operative pleading, against the defendant. Count one of the amended complaint alleges the claim of abuse of process and sets forth the following relevant facts. The plaintiff is a resident of Rocky Hill where he owns a property without a mortgage. In late September 2012, after the town removed shrubs and trees up to sixty feet high, which provided shade and privacy to the plaintiff's property, and left three to four feet high stumps in his front yard, the plaintiff sent the town an invoice for $400,000 and informed several town officials that he intended to sue the town for the tree related damages.
On November 5, 2012, the town brought a foreclosure action on the plaintiff's home under the guise of enforcement of delinquent tax obligations, which amounted to $4,642.24, pursuant to § 12-181 with the primary purpose to avoid its financial responsibility to the plaintiff for $400,000 in damages. The foreclosure action against the plaintiff was the town's only foreclosure filing in more than seven years, the plaintiff's oldest lien was three years old at the time the foreclosure action was filed while other liens were eight to nine years in arrears, and the plaintiff never received any notices from the town prior to the action. By enforcing a tax lien foreclosure action against the plaintiff, the town violated the plaintiff's rights to equal protection of the law and circumvented its blight ordinance. The timeline of events demonstrates the town's intent to abuse the process of tax lien foreclosure.
See Rocky Hill v. McCullough, Superior Court, judicial district of New Britain, Docket No. CV-12-6018310-S.
Count two of the amended complaint incorporates all the allegations in the first count and further alleges that the town's foreclosure action was extreme and outrageous and by engaging in it the town intended to inflict emotional distress upon the plaintiff. As a result, the plaintiff suffered severe emotional distress. Count three of the amended complaint sounds in invasion of privacy and incorporates the paragraphs from count one that allege the underlying tax lien foreclosure action, the town's blight ordinance and the abuse of town's authority. It further alleges that on June 10, 2013, while the underlying foreclosure matter was pending, a town police officer " used warrantless unannounced search in an improper manner and to accomplish a purpose for which it is not designed . . . The town did not follow proper methods of discovery to gain access to plaintiff's backyard and terrace . . . Such breach of access, intentionally and unreasonably, intruded on the solitude or seclusion of the plaintiff." Count four of the amended complaint, entitled " intentional tort, " incorporates the allegation of abuse of town's authority from the first count and further alleges that on November 19, 2013, the town raised the assessed value of the plaintiff's home " without just cause and with malice to the plaintiff."
Counts five and six of the amended complaint allege trespass. The fifth count does not incorporate any allegations from the previous counts and alleges the following relevant facts. On August 28, 2012, town workers cut down trees lining plaintiff's property without plaintiff's permission. As a result of those acts, the plaintiff's wire fence was crumpled, ground was stripped to the dirt, logs were left on the ground, and a line of three foot high stumps was left on the west boarder of his property. Trees, shrubs and branches that were cut fell on the plaintiff's property. The sixth count incorporates paragraphs 1-17 from count four of the amended complaint and further alleges that on August 28, 2012 the town's independent contractor cut a large tree on the plaintiff's property without the plaintiff's permission. Count seven of the amended complaint sounds in trespass to chattels. This count incorporates all the allegations from the fifth count and further alleges that the towns' employees ripped the cover on the plaintiff's car and obtained the car's license plate number without plaintiff's knowledge or permission.
This court notes that there are eight paragraphs in count four of the amended complaint.
Count eight of the amended complaint, entitled " abuse of process, " incorporates paragraphs 1-17 from the fourth count and further alleges the following relevant facts. The town was not authorized to order the plaintiff to remove his vehicles from his property. The town's ordinance regarding unlicensed vehicles is invalid, invades the plaintiff's right to own motor vehicles, and does not apply to " classic" automobiles. The town's all-night parking ban is unconstitutional because it prevents the plaintiff from keeping his cars on the street.
See footnote two.
Count nine of the amended complaint alleges intentional infliction of emotional distress. This count incorporates all allegations from the eighth count and further alleges that the town's order to the plaintiff to remove his motor vehicles was extreme and outrageous conduct, by engaging in which the town intended to inflict emotional distress upon the plaintiff, and that, as a result, the plaintiff suffered severe emotional distress. Count ten of the amended complaint is entitled fraud by non-disclosure. This count incorporates all allegations from the fifth count and further alleges that " [t]own officials misrepresented themselves in order to induce the plaintiff to act and gain access to information that would otherwise not be provided. Such information . . . led to the enforcement of tax liens." Town's fire marshals visited the plaintiff's property at least a dozen times from May through October 2012 and asked the plaintiff information about finances, employment, property taxes, registration of vehicles, house ownership, and other not fire related issues. The plaintiff would not have given said marshals that information had he known that the town would use it for not fire related purposes.
Count eleven of the amended complaint alleges abuse of process. This count does not incorporate any allegations from the previous counts and alleges that the town issued the plaintiff citations for violation of its ice and snow removal ordinance. " The ordinance required the [public sidewalk] abutting plaintiff to purchase abrasives or chemicals . . . [and] goes beyond the power that the state and federal governments bestow on municipalities and placed and continues to place an undue burden on the homeowner[s] and plaintiff" Count twelve of the amended complaint alleges trespass and 42 U.S.C. § 1983 violation of the fourth amendment. This count does not incorporate any allegations from the previous counts and alleges the following relevant facts. The town's officials unreasonably and intentionally intruded on the plaintiff's property and inspected it. The town sent the plaintiff a letter stating that its staff found an unregistered/inoperable vehicle on his property and ordering that the vehicle be either registered or properly stored. The plaintiff's automobile is listed in the antique automobile club of America and is, therefore, exempt from the town ordinance.
On August 17, 2016, the defendant filed a memorandum of law in support of the motion to strike all counts of the plaintiff's amended complaint. The plaintiff filed an objection to the motion dated October 28, 2016. The parties appeared and argued the motion and objection at short calendar on October 31, 2016.
II
DISCUSSION
A. Applicable Law
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), our Supreme Court stated: " Prior case law ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint . . . the proper course for the court is to strike those allegations only." (Internal quotation marks omitted.) Id. In order to ascertain the causes of action alleged, the court needs to analyze the language of the complaint. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) (" Because we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged"); see also Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV-03-0829825-S, (September 28, 2004, Shapiro, J.) (" [t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative").
B. Defendant's Motion to Strike
1. Abuse of Process
In its memorandum of law in support of the motion, the defendant argues that counts one, eight and eleven, which allege abuse of process, are legally insufficient. The defendant claims that § 52-557n(b) " sets forth many exceptions under which an injured party may not pursue a direct action in negligence against a municipality"; Spears v. Garcia, 263 Conn. 22, 33, 818 A.2d 37 (2003); and particularly relies on § 52-557n(b)(5), which does not allow a cause of action against a municipality for " the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568." Accordingly, the defendant claims that because the plaintiff fails to support a vexatious litigation claim under § 52-568, counts one, eight and eleven are legally insufficient and, therefore, should be stricken.
General Statutes § 52-568 provides: " Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
With respect to count one, the defendant maintains that because the allegations admit that the plaintiff owed property taxes, there was probable cause to initiate and maintain the tax lien foreclosure action against him. Therefore, the defendant asserts, count one is legally insufficient pursuant to § 52-557n and § 52-568. With respect to counts eight and eleven, the defendant claims that because the town's order for vehicle removal and citations for ordinance violation are not a " civil action or complaint" as contemplated by § 52-568, these counts are also legally insufficient. In his objection to the motion, the plaintiff counters that count one alleges a claim for abuse of process, which is a permitted cause of action against a municipality and which is legally sufficient. Regarding counts eight and eleven, the plaintiff maintains that because town's issuing orders and citations is equivalent to the commencement of a civil action, these counts are legally sufficient.
" An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed . . . Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process . . . the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . [T]he addition of [the word] primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Emphasis in original; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn.App. 63, 77, 918 A.2d 889, cert. granted in part 282 Conn. 912, 924 A.2d 137, aff'd 286 Conn. 548, 944 A.2d 329 (2007). " Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently, in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause." (Internal quotation marks omitted.) Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn.App. 168, 170-71, 526 A.2d 532 (1987). " The essence of abuse of process is misuse of the process, regardless of how properly it was obtained, for a purpose other than that for which it was designed to accomplish." Smith v. Globe Ford, Inc., 39 Conn.Supp. 27, 34, 467 A.2d 1262 (1983).
a. Count One
In this count, the plaintiff alleges that the defendant used legal process, enforcement of $4,642.24 in tax liens through a foreclosure proceeding, primarily to accomplish a purpose for which it was not designated, i.e., to offset $400,000 in damages that the defendant allegedly owed to the plaintiff. This court finds that these allegations, if taken as true, are sufficient to support a claim for abuse of process.
Notably, in addition to the claim for abuse of process, this count also alleges that by enforcing the tax lien foreclosure against the plaintiff the town violated the plaintiff's " Constitutional rights to equal protection of the law." Liability in an equal protection case based on selective enforcement of the laws " should depend on proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." (Emphasis omitted; internal quotation marks omitted.) Schnabel v. Tyler, 230 Conn. 735, 762, 646 A.2d 152 (1994). " Mere laxity in the administration of the law, no matter how long continued, is not and cannot be held to be a denial of the equal protection of the law. To establish arbitrary discrimination, inimical to constitutional equality, there must be something more, something which in effect amounts to an intentional violation of the essential principle of practical uniformity . . . For the plaintiffs to prevail, they must show a pattern of discrimination consciously practiced." (Citations omitted; internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 559-60, 254 A.2d 898 (1969).
In this count, the plaintiff alleges that he was selectively treated compared with others similarly situated because his " oldest lien was only 3 years old at the time of original summons when others were '8-9 years in the arrears.' Town of Rocky Hill Town Council Meeting of September 16, 2013" and he is the only taxpayer against whom the town enforced delinquent taxes during the period of over seven years. The plaintiff, however, does not allege the number of taxpayers on the rolls of the town, how many of those on the rolls were current, how many delinquent and similarly situated in dollars of delinquencies to the plaintiff. See Carrie Santangelo Realty Ass'n v. Derby, Superior Court, Docket No. CV-09-6055447-S, (January 30, 1998, Flynn, J.) (holding lack of such factual allegations as " an insufficient factual matrix set out in the complaint"). Despite the plaintiff alleges " a pattern [of] continued ongoing abuse of authority" and " a pattern of wanton, negligent, and abusive behavior, without regard to civil rights, " he has failed to substantiate these legal conclusions with facts. The plaintiff fails to allege any facts that demonstrate " intentional violation of the essential principle of practical uniformity." Bianco v. Darien, supra, 157 Conn. 560. The allegations of the defendant's laxity in the administration of the law, i.e., lack of enforcement of delinquent taxes by other taxpayers, are insufficient to support a claim for selective enforcement of tax laws in violation of the equal protection clause. Therefore, the motion to strike as to the claim for abuse of process is denied, the motion as to the claim for selective enforcement of the laws is granted.
b. Counts Eight and Eleven
These counts fail to allege any facts that by ordering the plaintiff to comply with town ordinances and by issuing him citations for noncompliance the town used legal process for any purpose other than the one for which it was designated. Although in his opposition to the motion the plaintiff states that the town ordered him to comply with the ordinance regarding unlicensed/inoperable vehicles because one of the cars " might have been in the way of their illegal tree-cutting" and because the town intended to profit from removing the plaintiff's cars, which " he would not be able to get back, " in ruling on motion to strike court cannot resort to information outside of complaint. Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).
Additionally, " [l]egal process is generally defined within the scope of the tort of abuse of process as process which emanates from or rests upon court authority." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 405, 876 A.2d 522 (2005). " [A]lthough the definition of process may be broad enough to cover a wide range of judicial procedures, to prevail on an abuse of process claim, the plaintiff must establish that the defendant used a judicial process for an improper purpose ." (Emphasis in original; internal quotation marks omitted.) Id., 406-07. The allegations in these counts do not involve a judicial procedure and, therefore, as a matter of law, do not support an abuse of process claim.
With respect to the defendant's argument that town's orders and citations are not a " civil action or complaint" as contemplated by § 52-568, because the complaint does not allege a vexatious litigation claim under this statute, the court will not address this argument in its decision on this motion to strike.
The plaintiff further alleges that the town's ordinances regarding unlicensed vehicles and snow and ice removal as well as the all-night parking ban are unconstitutional and go beyond the power that the state and federal governments bestow on municipalities. Before addressing this allegation, this court will determine whether the plaintiff has standing to raise claims challenging the facial validity of the ordinances. " If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . Further, the court has a duty to dismiss, even on its own initiative, any [portion of the complaint] that it lacks jurisdiction to hear . . . Standing is . . . a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 808-09, 761 A.2d 705 (2000). Thus, in order for the plaintiff to have standing to challenge the constitutionality of said town ordinances, he has to make a claim that he has " a specific and personal interest in the[ir] validity." (Internal quotation marks omitted.) Id., 809.
In count eight of the amended complaint, the plaintiff alleges that the ordinance regarding unlicensed vehicles invades his individual property rights, which is a constitutionally protected interest under " the well established principle that there can be no regulatory taking, and thus no deprivation of private property without just compensation." (Internal quotation marks omitted.) Port Clinton Associates. v. Board of Selectmen of Town of Clinton, 217 Conn. 588, 599, 587 A.2d 126, 133 (1991). This allegation, however, is a legal conclusion unsupported by facts. The town's letter attached to the complaint states that the plaintiff has engaged in conduct that is in violation of the town ordinance regarding unlicensed vehicles, and the ordinance is enforced through a fine of $90 per violation. See complaint, exhibit A. Although the plaintiff states in his memorandum of opposition to the motion to strike that zoning enforcement officer Kelley threatened to remove all three of his cars, " [i]t is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). Therefore, the plaintiff fails to allege a claim of direct injury to his specific and personal interest that he has suffered or is likely to suffer as a result of his violation of this ordinance.
The fifth amendment to the United States constitution provides: " nor shall private property be taken for public use, without just compensation." The constitution of Connecticut, article first, § 11, provides: " The property of no person shall be taken for public use, without just compensation therefore."
The allegation that said ordinance does not apply to the plaintiff's car that qualifies as a " classic" automobile has no bearing on either the plaintiff's claim for abuse of process or on the challenge of the facial validity of the ordinance.
With respect to the all-night parking ban, the plaintiff merely alleges that the ban restricts his private use of the public space. In count eleven, the plaintiff alleges that the ordinance concerning snow and ice removal requires " the abutting plaintiff to purchase abrasives and chemicals, " which " place[s] an undue burden on the homeowner[s] and plaintiff" This allegation, however, is another legal conclusion unsupported by facts. Therefore, this court concludes that the plaintiff has not alleged that said town ordinances violate his constitutional rights and, accordingly, the plaintiff does not have standing to challenge their facial validity. The motion to strike counts eight and eleven is granted.
2. Intentional Torts and Fraud by Non-Disclosure
In its memorandum of law in support of the motion, the defendant argues that counts two, three, four, five, six, seven, nine, ten and twelve of the amended complaint allege intentional torts and fraud by non-disclosure and, therefore, are barred by General Statutes § 52-557n(a)(2)(A), which provides governmental immunity to the municipality for " [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct." The plaintiff counters that because the defendant's acts violated his constitutional rights, governmental immunity does not apply.
This court notes that the plaintiff does not either state or incorporate by reference the allegations of constitutional rights violations in each challenged count.
a. Counts Two and Nine
In these counts, the plaintiff alleges the claim for intentional infliction of emotional distress. A " municipality may not be held liable for the intentional acts of its employees pursuant to § 52-557n(a)(2)(A), including intentional infliction of emotional distress." Martin v. Westport, 108 Conn.App. 710, 730, 950 A.2d 19 (2008); see also Pane v. Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004), overruled on other grounds by Grady v. Somers, 294 Conn. 324, 330, 984 A.2d 684 (2009). Accordingly, this claim is barred under § 52-557n(a)(2)(A). The motion to strike counts two and nine is granted.
b. Count Three
In this count, the plaintiff alleges the claim for invasion of privacy by stating that the town " intentionally and unreasonably intruded on the solitude or seclusion of the plaintiff, and his private affairs and concerns." " Because there is no distinction between 'intentional' and 'wilful' conduct . . . the plaintiff's allegations of invasion of privacy amount to 'wilful misconduct' under the statute and, therefore, § 52-557n(a)(2) provides the defendant immunity from the allegations." (Citations omitted.) O'Connor v. Board of Education of Town of Wethersfield, 90 Conn.App. 59, 65, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005). The motion to strike count three is granted.
c. Count Four
In this count, entitled " intentional tort, " the plaintiff alleges that the town raised the assessed value of his home " without just cause and with malice to the plaintiff." Because governmental immunity applies to acts which constitute " actual malice"; see General Statutes § 52-557n(a)(2)(A); the motion to strike count four is granted.
d. Counts Five and Six
In these counts, the plaintiff alleges the claim for trespass by stating that the defendant's workers (count five) and an independent contractor (count six) intentionally cut trees, shrubs and branches on his property. Because " [t]respass to land is, by definition, an intentional tort"; Robert v. Scarlata, 96 Conn.App. 19, 23 n.1, 899 A.2d 666 (2006); pursuant to § 52-557n(a)(2), generally, the municipal defendant is immune from a trespass claim. Donaghy v. Bristol, Superior Court, judicial district of New Britain, Docket No CV-07-6001200-S, (May 20, 2008, Gilligan, J.); Perreault v. Southington, Superior Court, judicial district of New Britain, Docket No. CV-11-6008331-S, (September 26, 2011, Swienton, J.). Connecticut exemption from governmental immunity applies to trespass claims that involve damage caused by discharge of surface waters. Emerick v. Glastonbury, Superior Court, judicial district of Hartford, Docket No CV-11-5035304-S, (May 14, 2015, Wiese, J.); Margaitis v. Morris, Superior Court, judicial district of Litchfield, Docket No CV-09-4008675-S (April 13, 2011, Pickard, J.) (51 Conn.L.Rptr. 738, ) . Because this exemption does not apply to the plaintiff's trespass claims, the motion to strike counts five and six is granted.
e. Count Seven
In this count, the plaintiff alleges a claim for trespass to chattels by stating that the town's employees lifted and ripped his car's cover and illegally obtained the car's license plate number, which was " an unreasonable intrusion upon the plaintiff." First, pursuant to § 52-557n(a)(2), the municipal defendant is immune from a trespass to chattels claim because it is an intentional tort. See Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (2006) (trespass to chattels is " intentionally [a] dispossessing another of the chattel, or [b] using or intermeddling with a chattel in the possession of another"). Second, to the extent the allegation of " an unreasonable intrusion" attempts to support a claim for invasion of privacy, as this court discussed above this claim is also barred by governmental immunity. Therefore, the motion to strike count seven is granted.
f. Count Ten
In this count, the plaintiff alleges a claim for fraud by non-disclosure by stating that " town officials misrepresented themselves in order to induce the plaintiff to act and gain access to information that would otherwise not be provided . . . and [that] led to the enforcement of tax liens." Because a municipality may not be held liable for " [a]cts or omissions of any employee, officer or agent which constitute . . . fraud"; see General Statutes § 52-557n(a)(2)(A); the plaintiff's claim for fraud by non-disclosure is barred by governmental immunity. The motion to strike count ten is granted.
g. Count Twelve
In this count, the plaintiff alleges claims for trespass and for 42 U.S.C. § 1983 violation of the fourth amendment by stating that the town's zoning enforcement officer inspected his property in violation of the fourth amendment and as a result of that inspection found an unregistered/inoperable vehicle. As this court discussed above, because there is no Connecticut exemption applicable to this trespass claim, it is barred under § 52-557n(a)(2). With respect to the claim of municipal liability pursuant to 42 U.S.C. § 1983 for the deprivation of a constitutional right, our Appellate Court set forth the legal principles applicable to this claim in Edgewood St. Garden Apartments, LLC v. Hartford, 163 Conn.App. 219, 135 A.3d 54, cert. denied, 321 Conn. 903, 136 A.3d 642 (2016). " Plaintiffs who seek to impose liability on local governments under § 1983 must prove that action pursuant to official municipal policy caused their injury . . . [W]here the policy relied upon is not itself unconstitutional, considerably more proof than [a] single incident [of unconstitutional activity] will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the 'policy' and the constitutional deprivation." (Citations omitted; internal quotation marks omitted.) Id., 231-32.
Section 1983, entitled " Civil action for deprivation of rights, " provides in relevant part: " Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law."
The allegation that the town ordered the plaintiff to have his antique car, which is exempt from the ordinance regarding unregistered/inoperable vehicles, to be either registered or stored in accordance with the ordinance is irrelevant for both the trespass and § 1983 claims.
The fourth amendment to the United States Constitution, which is made applicable to the states through the fourteenth amendment, provides that " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., amend. IV. " [A]dministrative searches of residences must comply with the fourth amendment." Bozrah v. Chmurynski, 303 Conn. 676, 685, 36 A.3d 210 (2012). " [A] zoning official may inspect a single property--not part of a routine or area wide search--pursuant to [an ordinance] if the zoning official first obtains an injunction issued upon probable cause by a judicial officer." Id., 697.
In this count, the plaintiff alleges that the enforcement of the town's ordinance regarding unregistered/inoperable vehicles caused a deprivation of his constitutional right, i.e., an inspection of his property in violation of the fourth amendment. Nonetheless, there is no allegation that said town's ordinance itself mandated a constitutional violation by authorizing an inspection. The plaintiff bases his claim of municipal liability pursuant to 42 U.S.C. § 1983 for the deprivation of a constitutional right on an allegation of " [a] single incident [of unconstitutional activity] . . . [w]here the policy relied upon is not itself unconstitutional." Edgewood St. Garden Apartments, LLC v. Hartford, supra, 163 Conn.App. 232. Accordingly, the plaintiff's 42 U.S.C. § 1983 claim is legally insufficient. The motion to strike count twelve is granted.
III
CONCLUSION
For the foregoing reasons, the motion to strike counts two through twelve of the amended complaint is granted. With respect to count one, the motion to strike the claim for selective enforcement of the laws is granted, the motion to strike the claim for abuse of process is denied.
SO ORDERED.