Marty's Adult World of New Britain, Inc. v. Guida

• Decision Date: 29 June 1978
• Docket Number: Civ. A. No. N-76-364.
• Citation: 453 F. Supp. 810
• Court: U.S. District Court — District of Connecticut
• Parties: MARTY'S ADULT WORLD OF NEW BRITAIN, INC. and Velma Ross, Plaintiffs, v. Bartholomew GUIDA, Thomas Keyes, Jr., Roy Davidson, Gerald Sachs, Charles Demusis, Thomas Loricco, Frederick Ross, Jr., Orland Silvestri, James Meehan, Thomas Lyden, Jr., David McDonald, Edward Murphy, and Edward Lynch, Defendants.

453 F. Supp. 810

MARTY'S ADULT WORLD OF NEW BRITAIN, INC. and Velma Ross, Plaintiffs, v. Bartholomew GUIDA, Thomas Keyes, Jr., Roy Davidson, Gerald Sachs, Charles Demusis, Thomas Loricco, Frederick Ross, Jr., Orland Silvestri, James Meehan, Thomas Lyden, Jr., David McDonald, Edward Murphy, and Edward Lynch, Defendants.

Civ. A. No. N-76-364.

United States District Court, D. Connecticut.

June 29, 1978.

COPYRIGHT MATERIAL OMITTED

Richard H. Kosinski, New Britain, Conn., for plaintiffs.

Barney Lapp and John G. Haines, Asst. Attys. Gen., Hartford, Conn., Dennis L. Pieragostini, Deputy Corp. Counsel, Joseph D. Garrison, Sp. Asst. Corp. Counsel, New Haven, Conn., for defendants.

MEMORANDUM OF DECISION

DALY, District Judge.

In 1973 Marty's Adult World of New Britain, Inc. Marty's began efforts to open an establishment planned as a "health club" in New Haven. During the next two years, various New Haven city officials and a court clerk allegedly obstructed the opening of the health club, ultimately succeeding in forcing Marty's to abandon its plans. Marty's and plaintiff Velma Ross, an officer and shareholder in the corporation, now seek damages under 42 U.S.C. §§ 1983 and 1985 from the city officials and court clerk for alleged deprivations of their rights guaranteed under the Fourteenth Amendment and Article I, Section 10 of the United States Constitution. Jurisdiction is properly asserted under 28 U.S.C. § 1343.

Defendants have filed two motions to dismiss, which for purposes of this opinion, will be considered together. Defendants claim that plaintiff Velma Ross lacks standing to sue and that neither plaintiff has stated a claim upon which relief can be granted. Under the latter challenge, defendants have raised the following points: (a) the necessary elements for a Section 1985 cause of action have not been alleged, (b) defendant Edward Lynch as a court clerk is immune from suit under the doctrine of judicial immunity, (c) the actions of Mr. Lynch do not amount to a constitutional infraction, and (d) there is no merit to the federal claims because plaintiffs' case merely revolves around an allegedly wrongful construction of New Haven zoning ordinances. For the reasons stated below, this Court grants the motions to dismiss as to plaintiff Velma Ross and as to all claims grounded upon 42 U.S.C. § 1985, but denies the motions to dismiss as to Marty's claims against defendants under 42 U.S.C. § 1983.

I. STATEMENT OF FACTS

For purposes of a motion to dismiss, the Court accepts all material allegations in the complaint as true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). On November 9, 1973, the New Haven Building Inspector issued Marty's a building permit to alter and repair the future health club premises. Six days later, the Inspector revoked the permit without a hearing on the ground that Marty's did not intend to use the facilities in conformity with permissible uses in the particular business zone. Plaintiffs claim not only that the Inspector's revocation of the permit was illegal because the intended use was permitted under the zoning ordinance, but also that the Inspector planned and conspired with other city officials to revoke the permit.

The New Haven Board of Zoning Appeals (Board) upheld the decision of the Inspector and denied Marty's application for a special exception to the zoning ordinance on December 13, 1978. Plaintiffs allege that the Zoning Director of the City Planning Department submitted a libelous and hearsay report to the Board, that the Board hearing was incomplete because stenographic paper ran out during the hearing, and that the Board's decision was made after consultations with the Mayor, the City Corporation Counsel, the Zoning Director, and the Building Inspector or their agents.

Plaintiffs appealed the Board's decision to the Court of Common Pleas for New Haven County pursuant to Section 8-8 of the Connecticut General Statutes. Although the appeal was claimed as a privileged matter for the court trial assignment list on February 22, 1974, plaintiffs allege Edward Lynch, clerk of that court, failed to place the appeal in its proper position on the list in violation of the Connecticut Practice Book.

After hearing the appeal on April 23, 1974, the Court of Common Pleas sustained the appeal on July 11, 1974, directing the Inspector to reinstate the building permit. Counsel for the City of New Haven filed a petition for certification to the Connecticut Supreme Court as allowed by Conn. Gen. Stat. § 8-8. Plaintiffs allege Mr. Lynch, the court clerk, failed promptly to prepare the record on petition for submission to the Connecticut Supreme Court although required to do so by § 761K of the Connecticut Practice Book. On November 1, 1974 the Connecticut Supreme Court denied the city's petition for certification.

Plaintiffs allege that between November 6, 1974 and March 2, 1975 Building and Electrical Inspectors for the City of New Haven refused to issue an electrical permit, insisted Marty's submit plans for correction of claimed violations on other premises owned by the landlord from whom Marty's was leasing the property, refused promptly to inspect the premises of the future health club, and delayed ordering and then enforcing the order against Marty's landlord to correct violations. Plaintiffs also allege that between the above dates employees of the city Fire Marshal harassed Marty's with numerous inspections and by generally imposing unusual, arbitrary, and capricious requirements under the fire safety code. Plaintiffs claim that all the actions of defendants were done under the direction of the then Mayor of New Haven,¹ that the conspirators' actions deprived them of equal protection and due process rights and impaired their contractual obligations, and that they incurred great expense, loss of profits, and in the case of Velma Ross, loss of anticipated salary and dividends as a result of defendants' actions.

II. VELMA ROSS' STANDING TO SUE

As stockholders and employees of Marty's, Martin and Velma Ross claim they are entitled to anticipated dividends and salaries which were lost as the result of defendants' actions. Martin Ross, now deceased, had been the principal stockholder, President and Treasurer of Marty's. Velma Ross was a stockholder and Secretary of Marty's and, as Martin Ross' executrix, is also suing on behalf of his estate.

Defendant Lynch has challenged plaintiff Velma Ross' standing to sue either as a stockholder and employee of Marty's or as the executrix of Martin Ross. Stockholders have been denied standing to sue in civil rights actions for damages suffered by a corporation in which they own shares. Smith v. Martin, 542 F.2d 688, 690 (6th Cir. 1976), cert. denied, 431 U.S. 905, 97 S.Ct. 1697, 52 L.Ed.2d 388 (1977); Erlich v. Glasner, 418 F.2d 226, 227 (9th Cir. 1969); Merco Properties, Inc. v. Guggenheimer, 395 F.Supp. 1322, 1325 (S.D.N.Y. 1975). Although plaintiffs present a novel argument that they as officers suffered personal losses of anticipated salaries which would not be recovered through damages paid to the corporation for lost profits, this does not change the situation here. Any losses suffered by Velma and Martin Ross still flow from the alleged losses Marty's incurred by the denial of the building permit and subsequent events. There are no allegations of separate injuries to plaintiffs as individuals, such as an allegation of damage to their reputations.²See Merco Properties, Inc. v. Guggenheimer, supra at 1325. In the three cases cited above which denied standing to individual plaintiffs, all the plaintiffs were also corporate officers. Therefore, these cases are apposite and the motion to dismiss the claims of Velma Ross, suing individually and as executrix of the estate of Martin Ross, is granted. Since the issue of Velma Ross' standing to sue is jurisdictional, the dismissal of her claims applies to all defendants.

III. MARTY'S § 1985 CLAIM

The remaining plaintiff, Marty's, alleges that defendants conspired to deprive it of equal protection of the laws in contravention of 42 U.S.C. § 1985. Section 1985(3) gives a remedy to parties injured when "two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws." Although by the statute's terms "any person" may seek relief for alleged deprivations, the Supreme Court in interpreting Section 1985(3) has narrowed the statute's scope by requiring as an element of the cause of action "some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action."³ Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). The facts in Griffin relate to a private conspiracy, but the allegation of a class-based, invidiously discriminatory animus is still necessary to maintain a claim against public officials. See, e.g., Ellentuck v. Klein, 570 F.2d 414, 426 (2d Cir. 1978) (defendants included building department officials); Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); Harrison v. Brooks, 519 F.2d 1358, 1359 (1st Cir. 1975) (defendants included planning board member and building inspector); Denman v. Leedy, 479 F.2d 1097, 1098 (6th Cir. 1973); cf. Elmwood Properties, Inc. v. Conzelman, 418 F.2d 1025, 1028 (7th Cir. 1969), cert. denied, 397 U.S. 1063, 90 S.Ct. 1498, 25 L.Ed.2d 684 (1970).

Marty's has failed to allege any racial or other class-based, invidiously discriminatory animus motivating the actions of the alleged coconspirators. Even if Marty's were able to show personal animus of defendants towards it, such evidence would not be probative: the complaint must allege facts showing that defendants conspired against plaintiff because of its...