Toussie v. Powell

• Decision Date: 20 March 2003
• Docket Number: Docket No. 02-7770.
• Citation: 323 F.3d 178
• Parties: Robert I. TOUSSIE and David Park Estates, Inc., Plaintiffs-Appellees, v. John POWELL, Defendant-Appellant, Felix Grucci, individually and in his official capacity as former Supervisor of the Town of Brookhaven, Town of Brookhaven, Board of Zoning Appeals of the Town of Brookhaven, Mario M. Cavalieri, individually and in his official capacity as a former member of the Board of Zoning Appeals, Grace M. Coppes, individually and in her official capacity as a member of the Board of Zoning Appeals, Vincent Liguori, Jr., individually and in his official capacity as a member of the Board of Zoning Appeals, Frank C. Trotta, individually and in his official capacity as a member of the Board of Zoning Appeals, Eugene Zangi, individually and in his official capacity as a member of the Board of Zoning Appeals, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

323 F.3d 178

Robert I. TOUSSIE and David Park Estates, Inc., Plaintiffs-Appellees, v. John POWELL, Defendant-Appellant Felix Grucci, individually and in his official capacity as former Supervisor of the Town of Brookhaven, Town of Brookhaven, Board of Zoning Appeals of the Town of Brookhaven, Mario M. Cavalieri, individually and in his official capacity as a former member of the Board of Zoning Appeals, Grace M. Coppes, individually and in her official capacity as a member of the Board of Zoning Appeals, Vincent Liguori, Jr., individually and in his official capacity as a member of the Board of Zoning Appeals, Frank C. Trotta, individually and in his official capacity as a member of the Board of Zoning Appeals, Eugene Zangi, individually and in his official capacity as a member of the Board of Zoning Appeals, Defendants.

Docket No. 02-7770.

United States Court of Appeals, Second Circuit.

Argued: January 30, 2003.

Decided: March 20, 2003.

COPYRIGHT MATERIAL OMITTED

Christopher A. Jeffreys, Melville, N.Y., for Defendant-Appellant.

David N. Yaffe (William P. Caffrey, Jr., on the brief), Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP, Melville, N.Y., for Plaintiffs-Appellees.

Before: JACOBS, CALABRESI, and SOTOMAYOR, Circuit Judges.

CALABRESI, Circuit Judge.

John Powell appeals the district court's denial of his motion to dismiss. See Fed. R.Civ.P. 12(b)(6). Among other things, the district court held that Powell did not enjoy qualified immunity from a suit under 42 U.S.C. § 1983. We affirm that decision and hold that qualified immunity does not protect a private defendant against § 1983 liability where that private defendant is alleged to have conspired with government officials to deprive another of federal rights. Since the other issues Powell raises on appeal are not inextricably intertwined with the question of qualified immunity or otherwise necessary to ensure meaningful review of that question, we do not have jurisdiction to consider them in this interlocutory appeal.

BACKGROUND

John Powell is a defendant in an action that claims violations of 42 U.S.C. § 1983. Powell moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the claims against him. He appeals the decision and order of the United States District Court for the Eastern District of New York (Hurley, J.) denying that motion.

Because on a 12(b)(6) motion a court must treat as true the pleading's factual allegations, McCall v. Pataki, 232 F.3d 321, 322 (2d Cir.2000), we set forth the relevant facts as they are alleged in the complaint and assume for the purposes of our review that those assertions are true.

In the Spring of 1998, Robert Toussie and his company, David Park Estates, Inc., (collectively "Toussie") obtained a variance from the Brookhaven Board of Zoning Appeals ("the Board") and a building permit from the Town of Brookhaven, authorizing Toussie to build a single family home on property he owned. After Toussie began construction on the property, John Powell, then Chairman of the Republican Party of Brookhaven and Suffolk County, and Felix Grucci, the Supervisor of the Town of Brookhaven, separately demanded that Toussie stop all construction on the lot. When Toussie refused, Powell and Grucci successfully pressured the Board to rescind the variance.

Toussie then brought an action against the Board in the Suffolk County Supreme Court, which vacated and annulled the Board's decision to deny Toussie the setback variance and directed the Board to reinstate the variance and issue a new building permit. The Board, however, did not immediately comply with this order, but delayed development of the property by filing a frivolous appeal, which the Board subsequently failed to perfect in a timely manner. As a result of the delay caused by these actions, the buyers of the home Toussie was building cancelled their contract and Toussie was prevented from selling or developing the property for more than two years.

Powell and Grucci then retaliated against Toussie by securing an amendment (informally known as the "Toussie Law") to the Brookhaven Town Code that made it significantly more expensive for Toussie to develop his substantial land holdings.

Toussie brought this suit in the Eastern District for New York against a number of defendants, including Powell. Toussie claims violations of 42 U.S.C. § 1983 in that the defendants deprived him of his rights to due process and to the equal protection of the laws, and retaliated against him for having engaged in activities protected by the First Amendment.¹

Powell alone moved to dismiss the claims against him, arguing (1) that the complaint failed to state a § 1983 claim against Powell, since he was a private individual and did not act under color of state law, (2) that the complaint did not allege that Powell himself caused any constitutional violation, (3) that Powell was protected by qualified immunity, (4) that the action was time-barred, and (5) that Powell was not properly served with a summons and complaint. The district court rejected each of these contentions and denied Powell's motion to dismiss. On appeal, Powell takes exception to the district court's rulings on all of the above issues, except the matter of proper service.

DISCUSSION

Our review of the district court's rejection of Powell's Rule 12(b)(6) motion to dismiss is de novo. Conboy v. AT & T Corp., 241 F.3d 242, 246 (2d Cir.2001). As noted above, in determining whether the motion should have been granted, we assume that the factual allegations in the pleadings are true. McCall, 232 F.3d at 322.

I.

Toussie maintains that we do not have jurisdiction to hear this interlocutory appeal. He argues that Powell is a private person and hence that the recognized reasons for allowing interlocutory appeals of certain qualified immunity decisions — to prevent "the general costs of subjecting officials to the risks of trial," Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (internal quotation marks omitted)—do not apply. See Chicago & N.W. Transp. Co. v. Ulery, 787 F.2d 1239, 1240-41 (8th Cir.1986) ("[The Mitchell] rationale has no application ... where the defendants ... are not public officials but private parties."); Lovell v. One Bancorp, 878 F.2d 10, 12-13 (1st Cir.1989). But cf. DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 717 (10th Cir.1988) ("[W]e hold that private parties acting pursuant to contractual duties may bring interlocutory appeals from the denial of qualified immunity.").

If private persons in Powell's position might be entitled to qualified immunity, however, then they must be able to bring an interlocutory appeal on the issue, for qualified immunity "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806 (emphasis in original). To date, our cases have not decided whether a private defendant who is alleged to have conspired with government officials to deprive another of federal rights is entitled to qualified immunity. Because Powell has, under our prior cases, a colorable claim to qualified immunity, we have jurisdiction to consider his claim, since otherwise that claim would be "effectively lost." See Felix E. Santana v. Valez, 956 F.2d 16, 19-20 (1st Cir.)("To ascertain whether the appellants have a right to an interlocutory appeal requires that we determine whether they would be entiled to raise the defense of qualified immunity." cert. denied 506 U.S. 817, 113 S.Ct. 59, 121 L.Ed.2d 28 (1992). Cf. Richardson v. McKnight, 521 U.S. 399, 402, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (suggesting that Mitchell authorized the Sixth Circuit to hear private defendants' interlocutory appeal of the trial court's determination that, as private persons, they could not claim qualified immunity). Whether after our holding in this case, which is that private defendants in Powell's position are not entitled to qualified immunity, such a defendant may bring an interlocutory appeal of a denial of qualified immunity is a question that we need not and do not reach.

II.

Jurisdiction having been established, this appeal turns on Powell's argument that, despite the fact that he is not a government official, he is entitled to qualified immunity. Our evaluation of that argument begins with the Supreme Court's decision in Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992), which considered whether private defendants charged with § 1983 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional were entitled to qualified immunity from suit. The Wyatt Court first asked "whether there was an immunity at common law that Congress intended to incorporate in the Civil Rights Act" and found that private defendants enjoyed no such common law immunity from the closest analogous torts, malicious prosecution and abuse of process. Id. at 164, 112 S.Ct. 1827. It then examined policy considerations and stated that "we have recognized qualified immunity for government officials where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service." Id. at 167. Wyatt observed that "[t]hese rationales are not transferable to private parties" and concluded that qualified immunity is not available for private defendants faced with § 1983 liability for invoking state replevin, garnishment, or attachment statutes. Id. at 168-69.

There is some question as to how broadly Wyatt should be read. Wyatt's holding is expressly limited to the question of qualified immunity and leaves open the possibility that a private defendant to a § 1983 action "could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983...