Brown v. Costello

• Decision Date: 23 May 1996
• Docket Number: No. 95-9244,95-9244
• Citation: 101 F.3d 685
• Parties: NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. Donald H. BROWN, John Markowicz, Paul Pushlar, Plaintiffs-Appellants, v. Francis COSTELLO, Town of Fenner, Michael Larkin, Lynn Keator, and David Shephard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 685

101 F.3d 685

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

Donald H. BROWN, John Markowicz, Paul Pushlar, Plaintiffs-Appellants, v. Francis COSTELLO, Town of Fenner, Michael Larkin, Lynn Keator, and David Shephard, Defendants-Appellees.

No. 95-9244.

United States Court of Appeals, Second Circuit.

May 23, 1996.

APPEARING FOR APPELLANTS: On Submission.

APPEARING FOR APPELLEES: Timothy J. Perry, Sugarman, Wallace, Manheim & Schoenwald, Syracuse, NY.

N.D.N.Y.

AFFIRMED.

Present: CARDAMONE, ALTIMARI, PARKER, Circuit Judges.

Plaintiff-appellants Donald Brown, John Markowicz, and Paul Pushlar, pro se, appeal from a grant of summary judgment.

Brown operated an unlicensed junkyard on his property, consisting mostly of abandoned vehicles. Markowicz and Pushlar owned some of the contents of the junkyard, which they stored on Brown's property with his consent. In 1988, Brown was convicted in New York state court of unlicensed vehicle dismantling and junkyard operation. The Town of Fenner then served Brown with a summons and complaint, seeking to enjoin him from operating the junkyard. Brown did not respond to the complaint, resulting in a default judgment against Brown. Brown was ordered to stop operating the junkyard and to dispose of its contents within thirty days, or to obtain a permit. Brown neither appealed nor complied with the order. The Town moved to hold Brown in contempt. Brown filed what he termed an "answer under Protest" which the court characterized as an indication that Brown "refuses and will continue to refuse to submit himself to the jurisdiction and orders of this Court." Brown did not appear at his hearing. The state court held Brown in contempt, resulting in a six-month jail term. Brown was released from jail early when he signed an affidavit agreeing to comply with the injunction. Brown still did not obey the injunction.

After again missing a hearing, the court for a second time found Brown in contempt, reinstating his prison term and ordering the appointment of Michael Larkin as receiver of the junkyard, with instructions to take possession of the contents and sell them at fair and reasonable prices. Brown subsequently moved to clarify the terms of the receivership, alleging that Larkin had removed property beyond the scope of the order. The court ordered an inventory of the remaining junk. The parties could not agree on the inventory. Consequently, the court ordered Brown to shelter any items he wanted salvaged. Markowicz, but apparently not Brown, sheltered some vehicles.

Following the removal of the remaining items, the court settled Larkin's account without objection, providing that Brown would be paid $27,567.61 for the scrap value of his junk. Brown refused to accept the payment, so it was deposited with the court.

In February 1993, Brown, Markowicz, and Pushlar filed a complaint against the Town of Fenner and certain town officials, stating four claims. First, plaintiffs alleged that the seizure and disposition of their property constituted a seizure without just compensation in violation of the Fourth and Fifth Amendments of the U.S. Constitution and Article I, § 7(a) and § 12 of the N.Y. Constitution. Second, they claimed that Brown's indictment and conviction in 1988 was based on allegedly perjured testimony by David Shephard, the Town clerk, based on a statute that is void for vagueness, and in violation of the double jeopardy clause of the Fifth Amendment of the U.S. Constitution as well as of Article II, § 6 of the N.Y. Constitution. Third, mirroring the first claim, they alleged that they were denied due process and did not receive just compensation when the items were sold for scrap. Fourth, they claimed that Brown was exposed to tobacco smoke while incarcerated for contempt constituting a denial of due process, cruel and unusual punishment, trespass and battery, and violating New York Public Health Law § 1399-n. Plaintiffs sought declaratory relief and damages under 42 U.S.C. § 1983 for their alleged treatment...