Kuck v. Danaher

• Decision Date: 23 March 2010
• Docket Number: Docket No. 08-5368-cv.
• Citation: 600 F.3d 159
• Parties: M. Peter KUCK, individually and on behalf of others similarly situated, Plaintiff-Appellant, v. John A. DANAHER III, Commissioner, CT State Dept. of Public Safety, Albert J. Masek, Jr., Commanding Officer, CT State Dept. of Public Safety, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

600 F.3d 159

M. Peter KUCK, individually and on behalf of others similarly situated, Plaintiff-Appellant, v. John A. DANAHER III, Commissioner, CT State Dept. of Public Safety, Albert J. Masek, Jr., Commanding Officer, CT State Dept. of Public Safety, Defendants-Appellees.

Docket No. 08-5368-cv.

United States Court of Appeals, Second Circuit.

Argued: September 17, 2009.

Decided: March 23, 2010.

Rachel M. Baird, Law Office of Rachel M. Baird, Torrington, CT, for Plaintiff-Appellant, M. Peter Kuck.

Clare E. Kindall, Assistant Attorney General, for Richard Blumenthal, State of Connecticut Attorney General, Hartford, CT, for Defendants-Appellees, John A. Danaher III, et al.

Before: STRAUB, B.D. PARKER, and LIVINGSTON, Circuit Judges.

B.D. PARKER, JR., Circuit Judge:

Plaintiff-Appellant M. Peter Kuck appeals from a judgment of the United States District Court for the District of Connecticut (Bryant, J.) dismissing his complaint. Kuck's claims arise from his efforts to renew his permit to carry a firearm with the Connecticut Department of Public Safety ("DPS"). His principal claim is a procedural due process challenge alleging that DPS—in tandem with the Board of Firearms Permit Examiners ("the Board")—has a practice of improperly denying permits, unnecessarily prolonging the appeals that follow, and then quietly resolving disputes at the last minute. In addition, Kuck claims that his firearm permit appeal was deliberately delayed by state officials in retaliation for his outspoken criticism of DPS and Board practices, in violation of his First Amendment rights.

Based, in part, on this Court's intervening decision in Spinelli v. City of New York, 579 F.3d 160 (2d Cir.2009), we conclude that Kuck has stated a procedural due process claim. It remains to be seen, however, whether Kuck has named, or will be able to name, the appropriate defendants for this case to proceed.¹ While he attempted to amend his complaint to add additional defendants, that motion was denied as futile by the district court. We remand so that the district court may consider, in the first instance, whether any relief is available to Kuck or any putative class in light of the proposed amended complaint.

I. BACKGROUND

In March 2007, Kuck applied to DPS to renew his permit to carry a firearm. He was subsequently contacted by Defendant Albert J. Masek, an employee of DPS, who requested that Kuck provide a U.S. passport, birth certificate, or voter registration card in support of his renewal application.²See Compl. ¶ 36. In response, Kuck inquired into the basis for the request. He was told that, by statute, the State could not issue a firearm permit to any "alien illegally or unlawfully in the United States," and therefore DPS was required to verify his citizenship. See Conn. Gen. Stat. §§ 29-28(b), 29-28(f), 29-29(d); cf. Conn. Const. art. I, § 15 (limiting the right to bear arms to "citizens"). Kuck objected to the requirement, arguing that he had submitted proof of citizenship when he first applied for a permit in 1982 and, over the subsequent 25 years, had never before been asked to provide such proof with a renewal application. See Am. Compl. ¶¶ 36-37.³ He claimed then, as he does now, that the DPS requirement was arbitrary, designed to harass, and, in any event, not authorized by state law. Ultimately, he refused to provide the requested documents. As a result, DPS denied his renewal application.

Kuck then filed an appeal with the Board, seeking a hearing on whether his refusal to submit a U.S. passport or birth certificate provided "just and proper cause" for the denial of his application. See Conn. Gen.Stat. § 29-32b(b). However, his appeal hearing was not scheduled to occur for eighteen months, during which time he was deprived of a permit to carry a firearm. In October 2008, after this suit was filed, Kuck finally received his hearing. Shortly before the hearing, he provided a voter registration roll supporting his citizenship and residency status; as the result, his renewal application was granted. Despite this resolution, he continues to seek damages from various state officials under 42 U.S.C. § 1983 for alleged violations of his due process and First Amendment rights.

Notably, at the time of his renewal application, Kuck was the Secretary of the Board. Members of the Board are appointed by the Governor and include individuals nominated by gun clubs in Connecticut. See Conn. Gen.Stat. § 29-32b(a). In 1998, Kuck was nominated by Ye Connecticut Gun Guild, Inc. to the seat on the Board reserved for its representative.

Kuck alleges that, since his appointment, the estimated waiting-period for a hearing has increased dramatically, and that the Board Chairman, Christopher Adams, opposed his efforts to speed up the appeals process. See Compl. ¶¶ 78-118. He contends that DPS and the Board have acted to burden gun-owners' ability to obtain carry permits by improperly denying applications in the first instance and then subjecting applicants to unjustified and prolonged appeals.

Kuck asserts three constitutional claims: (1) a violation of procedural due process, based on the allegedly arbitrary denial of his firearm permit and excessive delay in obtaining an appeal hearing; (2) a violation of substantive due process on the same grounds; and (3) a First Amendment retaliation claim, alleging that DPS, acting through one of its detectives, threatened and harassed Kuck after he criticized DPS and the appeals process. See Compl. ¶¶ 78-96. Kuck filed his suit as a putative class action, seeking to represent a class of individuals whose permits have been erroneously denied by DPS and have subsequently been subjected to a long-delayed appeal before the Board.

Defendants moved pursuant to Fed. R.Civ.P. 12(b)(6) to dismiss the complaint, contending that Kuck had failed to state claims upon which relief could be granted. The district court agreed and dismissed the suit, holding that the hearing delay was not so long as to make the availability of review "meaningless or nonexistent." See Kuck v. Danaher, No. 3:07-cv-1390, 2008 WL 2902032, at *3 (D.Conn. July 25, 2008). In light of this determination, the district court denied Kuck's motion to amend his complaint as futile. This appeal followed.

II. DISCUSSION

A. Standard of Review

A district court's decision granting a motion to dismiss is subject to de novo review. See Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir.2006). As a matter of substance, "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

B. Procedural Due Process Claim

1. Applicable Law

Kuck's main contention is that the eighteen-month period he waited to receive an appeal hearing before the Board was, in light of the liberty interest at stake, excessive and unwarranted, and thus violated due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ("At some point, a delay in the post-termination hearing would become a constitutional violation."). Kuck further alleges that, as a matter of practice, DPS deliberately seeks to prolong the appeals process in order to unlawfully deprive citizens of pistol permits. See Compl. ¶¶ 53-69.

Appellees concede that Kuck possesses a liberty interest, created by the Connecticut Constitution, in his right to carry a firearm. See Conn. Const. art. I, § 15; Benjamin v. Bailey, 234 Conn. 455, 662 A.2d 1226, 1231-32 (1995). They dispute, however, that the time required to resolve Kuck's appeal violated due process. This waiting-period, they argue, is the product of a substantial caseload and the State's acute interest in ensuring that firearms are borne only by those fit to carry them.

Our procedural due process analysis is controlled by the three-factor test prescribed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). This test requires that we balance: "(1) the private interest at stake; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value (if any) of alternative procedures; (3) the government's interest, including the possible burdens of alternative procedures." O'Connor v. Pierson, 426 F.3d 187, 197 (2d Cir.2005); see also FDIC v. Mallen, 486 U.S. 230, 242, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988). In Kuck's view, his private interest in lawfully possessing a firearm carries the day, at least at the motion to dismiss stage, particularly in light of his allegations that DPS routinely denies permits arbitrarily only to reverse course on the eve of the appeal hearing. See Compl. ¶¶ 60-61.

Broadly speaking, a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interest at stake. "The mere assertion that state remedies are lengthy ... will not render state remedies inadequate under the Due Process Clause unless they are `inadequate to the point that they are meaningless or nonexistent.'" Gyadu v. Workers' Comp. Comm'n, 129 F.3d 113 (2d Cir.1997) (table) (quoting Easter House v. Felder, 910 F.2d 1387, 1406 (7th Cir.1990) (en banc)). We, as well as other circuits, have acknowledged that administrative determinations may require a non-trivial amount of time to complete, especially where caseloads are heavy. "Regrettably, delay is a natural concomitant of our administrative bureaucracy." Isaacs v. Bowen, 865 F.2d 468, 477 (2d Cir.1989) (upholding a nineteen-month delay in resolving disputed Medicare Part B claims). Ultimately, determining the moment at which state procedures become so untimely that they become meaningless is a matter of context, driven by the Mathews factors. See Mallen, 486 U.S....