Ziskis v. Kowalski, Civ. No. H-80-487(AHN).
| Decision Date | 07 December 1989 |
| Docket Number | Civ. No. H-80-487(AHN). |
| Citation | 726 F. Supp. 902 |
| Parties | Harvey ZISKIS v. Beatrice KOWALSKI. |
| Court | U.S. District Court — District of Connecticut |
Sue Wise, Williams & Wise, New Haven, Conn., for plaintiff.
April Haskell, Montstream & May, Glastonbury, Conn., Deborah Freeman, Skelley, Vinkles, Williams & Rottner, Richard Sheridan, Attorney General's Office, Hartford, Conn., for defendant.
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
On August 30, 1977, Harvey Ziskis was summarily ejected from the jai-alai fronton in Hartford, Connecticut. He brought suit in 1980, pursuant to 42 U.S.C. Section 1983 and Connecticut common law, against various officials of the State of Connecticut and the Connecticut Commission on Special Revenue (now the Division of Special Revenue) (collectively, the "public defendants"), and Hartford Jai-Alai, Inc., World Jai-Alai, Inc., WJA Realty, and EHP Corporation (collectively, the "private defendants"). Nine years and a multitude of pleadings, motions, and rulings later, the court has before it cross-motions for summary judgment, brought by the plaintiff, the public defendants, and the private defendants. For the reasons that follow, the plaintiff's motion for summary judgment is denied and the defendants' motions for summary judgment are granted.
The undisputed facts in this case support the following narrative.1 The plaintiff Harvey Ziskis ("Ziskis"), at times prior to this action, was a frequent bettor at jai-alai games. Defendant Hartford Jai-Alai, Inc. ("HJA") was a private corporation licensed by the State of Connecticut Commission on Special Revenue ("Commission") to operate the Hartford Jai-Alai fronton and was subject to the Commission's rules and regulations. Defendants World Jai-Alai, Inc., WJA Realty and EHP Corporation are or were private organizations with ownership or associated interests in HJA.
On August 30, 1977, Ziskis was ejected and permanently barred from the Hartford Jai-Alai fronton after he had cashed, but retained possession of, a winning jai-alai ticket.2 The ejection was effected by Gerald Coakley, then assistant general manager and director of security of HJA, in accordance with Commission Regulation 12-574-D25(c)(2),3 then in effect. Subsequent to his ejection, the plaintiff unsuccessfully appealed to fronton management for reinstatement and to the Commission on Special Revenue for a hearing. In the absence of a statutory and/or regulatory requirement to comply, the Commission did not respond.4
In September of 1977, after being denied reinstatement by fronton management, the plaintiff brought allegations before the Commission of various wrongdoings taking place at the Hartford Jai-Alai and other frontons in the state. The Commission initiated an investigation into plaintiff's allegations on systems betting and commenced a formal inquiry through a series of hearings which extended from November 1977 until January 1978. The plaintiff testified at those hearings regarding his claimed knowledge of violations of Commission rules and regulations by HJA management. In the course of the Commission's investigation, Commission representatives received reports from employees of HJA alleging that the plaintiff was involved in "game fixing" at the state jai-alai frontons,5 and that HJA had failed to report these allegations to the Commission. As a result, the Commission held disciplinary hearings in March and April, 1978 concerning HJA's noncompliance with Commission rules. At the hearings, Ziskis was subpoenaed but refused to testify, relying on his fifth amendment privilege to remain silent.
In March 1978, the Commission invited Ziskis to submit a written specific request for a hearing. On May 15, 1980, Ziskis requested "a patron reinstatement hearing." The Commission agreed to hold a patron reinstatement hearing, even though not required by statute or regulation to do so, with the reservation that Ziskis be prepared to answer questions about the allegations made against him concerning player fixing. A hearing was scheduled and held on September 8, 1980. However, Ziskis did not attend.6
To prevail on a Rule 56 motion, a movant must demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The burden of demonstrating the absence of a genuine issue rests with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). This burden does not shift when cross-motions are before the court: each motion must be judged on its own merits. Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir.1981). In the instant matter, the parties are not in dispute as to any of the material facts; instead, they differ in their interpretations of the law applicable to the case. Because resolution of questions of law is uniquely a judicial function, the court finds that the cross-motions have placed the disputed issues squarely before the court.
The heart of this dispute involves whether or not there are protected property or liberty interests of which the plaintiff was deprived. The court finds that such interests are not present and that there is no reason, therefore, to address other issues.
In this case the plaintiff claims that his ejection from Hartford Jai-Alai deprived him, under color of state law, of substantive and procedural due process—loss of liberty, suspension from his employment as a bettor, loss of livelihood, and deprivation of property without due process of law—in contravention of the first, fifth and fourteenth amendments and in violation of his civil rights under 42 U.S.C. Section 1983. The threshold issue before this court, therefore, is whether there exists a protected liberty or property interest in the profession of gambling, the deprivation of which constitutes a denial of due process and thus a violation of section 1983.
In order to maintain an action under section 1983, a plaintiff must show that he has been deprived of a constitutional right by a person acting under color of state law.7 Rodic v. Thistledown Racing Club, 615 F.2d 736, 739, (6th Cir.), cert. denied, 449 U.S. 996, 101 S.Ct. 535, 66 L.Ed.2d 294 (1980). The initial inquiry, however, is whether the plaintiff has been deprived of any protected liberty or property interest. If there has been no deprivation of liberty or property, then no process is due and the court need not address the issue of whether the deprivation occurred under color of state law. As the Supreme Court stated in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972):
Id. at 569-71, 92 S.Ct. at 2705. The Supreme Court in Roth defined a property right as a security interest which a person has acquired in a specific benefit:
Id. at 577, 92 S.Ct. at 2709. See also Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). Thus, "the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976).
To establish a property interest in this case, there must be a federal or state statute or rule of law or understanding that entitles the plaintiff to participate as a gambler in state parimutuel activities. Thus, in order for Ziskis successfully to argue that he was deprived of a hearing, he must first point to a specific state or federal law source for his claimed property or liberty interest in pursuing his profession of gambling. Unless Ziskis can clear this initial hurdle, the court need not even reach the state action question. See Rodic, 615 F.2d at 739.
There is no federal rule of law creating a general right to be a patron of a jai-alai fronton or other gambling establishment. Title II of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a(c), which deals with public accommodations, including places of amusement, creates only a right not to be discriminated against on the basis of race, color, religion, or national origin. Indeed, the plaintiff does not argue that there exists a right to gamble secured by the Constitution, claiming instead that "it was purely and simply the existence of State laws which gave rise to the plaintiff's protectable liberty and property interests." Plaintiff's Memorandum in Support of Motion for Summary Judgment at 28, n. 9 ("Plaintiff's Memorandum").
The plaintiff contends that he had a legitimate claim of entitlement, a property interest in pursuing his career in gambling, secured by existing state law. The plaintiff cites Conn.Gen.Stat. Section 53-358 as a state law source for his entitlement to attend jai-alai exhibitions. Plaintiff's Memorandum at 18. This statute, which deals with public accommodations, including places of amusement, like the federal s...
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