2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-11-2012

Francisco Munoz v. City of Union City

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2149

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Recommended Citation

"Francisco Munoz v. City of Union City" (2012). 2012 Decisions. Paper 1011.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2149

_____________

FRANCISCO MUNOZ,

 Appellant 

v.

THE CITY OF UNION CITY; 

BRIAN P. STACK, individually and as Mayor of the City of Union City; 

MARTIN MARTINETTI, individually and as Building Director of the City of Union 

City; 

NACIREMA ENVIRONMENTAL SERVICES INC; JOHN DOE (1 TO 20),

a fictitious designation whether a person, male or female and/or a business 

entity, association, partnership or corporation

_____________

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

(Civ. Action No. 08-cv-5057)

District Judge: Honorable Peter G. Sheridan

______________

Submitted Under Third Circuit LAR 34.1(a)

January 23, 2012

______________

Before: FISHER, GREENAWAY, JR., and ALDISERT, Circuit Judges.

(Opinion Filed: May 11, 2012)
2

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Francisco Munoz (“Munoz”) appeals the March 28, 2011 Order of the District 

Court denying his motion for partial summary judgment and granting summary judgment 

in favor of Union City, New Jersey; Union City Mayor Brian P. Stack; Union City 

Construction Code Official Martin Martinetti (collectively, “City Appellees”); and 

Nacirema Environmental Services, Inc. (together, “Appellees”). For the following 

reasons, we will affirm the District Court‟s Order.

I. BACKGROUND

Because we write primarily for the benefit of the parties, we recount only the 

essential facts.

In the early morning hours of September 9, 2006, a fire was reported in a building 

located at 1813 Bergenline Avenue in Union City, New Jersey (the “Building”). The 

Building was a multi-family, three-story dwelling owned by Munoz. North Hudson 

Regional Fire and Rescue was the first firefighting company to respond to the call. Upon 

arrival, several firefighters entered the burning structure. As the intensity and breadth of 

the fire progressed, additional alarms were put out, and the evacuation of emergency 
3

personnel inside the building was ordered. After battling the fire for almost two hours, 

the fire was brought under control at approximately 7:00 a.m. that morning.1

Munoz was not at the scene when the fire began. He first received notification of 

the fire between 5:00 and 6:00 a.m., while at his apartment. After unsuccessfully 

attempting to get within close proximity of the Building, Munoz returned to his apartment

and retained New Jersey Public Adjusters, Inc. to aid him in assessing his losses as a 

result of the fire. At some point thereafter, Munoz left his apartment and was allowed to 

approach the Building to be interviewed by emergency personnel at the scene.

At approximately 10:00 a.m., Martin Martinetti (“Martinetti”), Union City‟s

Construction Code Official, arrived on scene to assess the damage caused by the fire. 

Martinetti believed that the structural integrity of the Building was so compromised that 

he could not enter the Building. He proceeded to the upper floors of the adjacent

building and peered out on the damaged structure. Martinetti observed that the majority 

of the Building‟s roof had collapsed and that the floors were in the process of collapsing.

Martinetti determined that the Building was structurally unsafe and needed to be 

immediately demolished. Martinetti informed Munoz in the presence of Ralph Affuso, 

Munoz‟s insurance adjuster; Scott Sandman, the Deputy Director of Parks for Union 

City; and one of Munoz‟s sons that the Building must be demolished. Around this time, 

Martinetti posted a notice of unsafe structure on the Building, in accordance with N.J. 

Admin. Code § 5:23-2.32(b)(1). Martinetti claims that he told Munoz that Munoz could 

 

1

Sadly, the blaze claimed the life of North Hudson Acting Fire Chief Vincent 

Neglia. 
4

retain a contractor to perform the demolition or Union City would retain one and place a 

tax lien on the property in the amount of the demolition costs. According to Martinetti, 

Munoz informed him that he (Martinetti) could take whatever actions were necessary. 

Martinetti called several demolition companies. Nacirema Environmental 

Services, Inc. (“Nacirema”) was the first company to respond. Affuso had dealt with 

Nacirema in the past and determined that Nacirema would be an appropriate contractor to 

perform the demolition. Nacirema was hired. The razing process began sometime after 

4:00 p.m. on September 9, 2006 and was completed the next day. Contrary to 

Martinetti‟s viewpoint, Munoz claims that he never received oral or written notification

that the Building needed to be demolished and first learned of the demolition 

approximately three to four days after Nacirema performed the razing.

Four due process hearings were held subsequent to the demolition—three in 2007 

and one in 2008. Lane J. Biviano, Esq. was the hearing officer who conducted the 

proceedings. All parties participated fully. In a July 16, 2008 letter, Biviano submitted 

his findings. Biviano concluded that Munoz received sufficient oral notice of the 

impending demolition, prior to the Building being razed. As such, Biviano found that 

Munoz was required to pay $76,767.75 in total costs. Munoz did not appeal Biviano‟s 

decision, which was adopted by Union City‟s Board of Commissioners.

On September 5, 2008, Munoz filed suit in New Jersey state court. Munoz alleged 

numerous federal constitutional violations, pursuant to 42 U.S.C. § 1983, as well as 

violations of New Jersey‟s constitution and state law. The essence of Munoz‟s claims is 

that his Building did not require demolition and, in any event, Appellees failed to follow 
5

required protocol before razing the structure. After answering the complaint, the City 

Appellees removed the case to the District Court. All parties moved for summary 

judgment. On March 28, 2011, the District Court granted City Appellees‟ and 

Nacirema‟s motions for summary judgment, in a telephonic ruling. Munoz filed a timely 

notice of appeal.

II. JURISDICTION AND STANDARD OF REVIEW

City Appellees removed the case to the District Court under 28 U.S.C. § 1441, 

pursuant to federal question jurisdiction. The District Court, therefore, had jurisdiction 

under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.

We exercise plenary review over the District Court‟s grant of summary judgment, 

Doe v. Luzerne Cnty., 660 F.3d 169, 174 (3d Cir. 2011) (citation omitted), including over 

determinations of qualified immunity, Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d 

Cir. 2011) (citation omitted).

III. ANALYSIS

To succeed on a claim brought under 42 U.S.C. § 1983, the “plaintiff must show 

that the defendants, acting under color of law, violated the plaintiff‟s federal 

constitutional or statutory rights, and thereby caused the complained of injury.” Elmore 

v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005) (citation omitted). In particular, the plaintiff 

must prove two elements: “(1) that the conduct complained of was committed by a 

person acting under color of state law; and (2) that the conduct deprived the plaintiff of 

rights, privileges, or immunities secured by the Constitution or laws of the United 

States.” Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011) (citation omitted).
6

The District Court addressed each of Munoz‟s § 1983 claims individually as to 

each Appellee. We shall employ the same analytical structure.

A. Martinetti

Munoz asserted a claim against Martinetti, pursuant to 42 U.S.C. § 1983, on two 

theories. First, Munoz contends that Martinetti violated his procedural due process rights

by failing to notify him before Martinetti made the decision to demolish the Building. 

Second, Munoz argues that Martinetti‟s decision to demolish the Building constituted a 

taking in violation of the Fifth Amendment. We agree with the District Court that 

Martinetti is entitled to qualified immunity under both theories. We will affirm the grant 

of summary judgment in favor of Martinetti.

“The qualified immunity doctrine „protects government officials from liability for 

civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.‟” Sharp v. 

Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 

231 (2009)). Martinetti is entitled to qualified immunity unless Munoz can demonstrate: 

(1) a violation of his constitutional rights; and (2) the right was clearly established, such 

that no reasonable official in Martinetti‟s position would have believed that Martinetti‟s 

conduct was constitutional. Id. Munoz cannot prevail on either prong.

1. Munoz’s Constitutional Rights Were Not Violated

Munoz has alleged violations of both the Due Process Clause and the Takings 

Clause. We begin first with Munoz‟s procedural due process claim. 
7

A plaintiff asserting the deprivation of procedural due process rights “must allege

that (1) he was deprived of an individual interest that is encompassed within the 

Fourteenth Amendment‟s protection of life, liberty, or property, and (2) the procedures 

available to him did not provide due process of law.” Hill v. Borough of Kutztown, 455 

F.3d 225, 234 (3d Cir. 2006) (citation and internal quotation marks omitted). Because 

Martinetti assumes, arguendo, in his brief that Munoz has been deprived of a protected 

property interest, we focus our inquiry on the second prong.

While a due process hearing ordinarily should occur before an individual is 

deprived of his property, “in special circumstances, a state may satisfy the requirements 

of procedural due process merely by making available „some meaningful means by which 

to assess the propriety of the State‟s action at some time after the initial taking.‟” 

Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 417 (3d Cir. 2008) (quoting 

Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other grounds by Daniels v. 

Williams, 474 U.S. 327, 330-31 (1986)). “Where there is „the necessity of quick action 

by the State,‟ or where „providing any meaningful pre[-]deprivation process‟ would be 

impractical, the Government is relieved of the usual obligation to provide a

pre[-]deprivation hearing.” Id. (quoting Parratt, 451 U.S. at 539).

Neither side disputes that Munoz did not receive a due process hearing prior to his 

Building being demolished. Of course, that is not dispositive. We must determine: (1) 

whether a pre-deprivation hearing was required; and (2) if not, whether the State‟s postdeprivation hearings were sufficient. See Elsmere Park Club, 542 F.3d at 417. 
8

As to the first issue, we agree with Martinetti that the Building‟s structural 

instability created an exigent circumstance that warranted immediate and decisive action. 

The New Jersey administrative code contemplates such an emergency situation:

When, in the opinion of the construction official, there is 

actual and immediate danger of collapse or failure of a 

building or structure or any part thereof which would 

endanger life, the construction official shall cause the 

necessary work to be done to render such building or 

structure or part thereof temporarily safe, whether or not the 

legal procedure herein has been instituted. Such work may 

include such demolition as may be necessary in order to 

eliminate any actual and immediate danger to human life; 

provided, however, that any demolition work shall not 

commence until at least 24 hours following service of notice 

of the pending demolition upon the owner, unless such 

service is not possible because the identity or the address of 

the owner cannot be determined from public records. Upon 

expiration of the 24-hour period, demolition may proceed 

unless stayed by order of the Superior Court.

N.J. Admin. Code § 5:23-2.32(b)(2).

Responsibility for executing this emergency mandate provision on September 9, 

2006 lay with Martinetti, Union City‟s Construction Code Official. Based on his 

professional expertise and judgment, Martinetti determined that the fire had significantly 

compromised the structural integrity of the Building. Martinetti concluded that pressing 

safety concerns required the Building to be demolished as soon as possible. We find 

nothing in the record to undermine the propriety of Martinetti‟s decision.2 He acted 

 

2 Munoz would have this Court repudiate Martinetti‟s decision based on Munoz‟s 

own interpretation of photographs of the fire damage, the statements of tenants who lived 

in the Building, and the investigation report filed by the Hudson County Prosecutor‟s 

Office. However, the common deficiency each of these sources suffers from is the lack 

of professional expertise in the field of assessing the architectural integrity of a structure. 
9

based on “the necessity of quick action[,]” Parratt, 451 U.S. at 539, which obviated the 

need for a pre-deprivation hearing.3

Turning to the second prong of our inquiry, we conclude that Munoz received an 

adequate post-deprivation due process hearing to challenge all aspects regarding the 

demolition of the Building. Union City retained Biviano to preside over these hearings. 

Four hearings were held, in total, addressing both the costs associated with the demolition 

and the procedure by which Munoz was notified of the necessary demolition.

4

 On July 

16, 2008, Biviano submitted his findings, concluding that Munoz received adequate 

notice of the demolition under New Jersey law and that Munoz was responsible for costs 

related to the demolition.5 

 

We cannot give credence to the observations of lay individuals in a field dependent on 

the expertise of licensed individuals regarding matters of public safety.

3

The fact that Martinetti commenced demolition prior to the expiration of New 

Jersey‟s 24-hour notice period is inconsequential. Even if this failure rendered Martinetti 

“without authorization[,] . . . the state need only [have] provide[d] post-deprivation 

procedures.” Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 138 (3d Cir. 2010) 

(noting that post-deprivation proceedings can remedy the effects of a state official who 

acts without authority). Moreover, we are not guided by state law in determining whether 

Munoz has alleged a violation of his due process rights under § 1983. See Bayer v. 

Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 193 n.6 (3d Cir. 2009). Although,

it is worth noting, as Biviano concluded in his findings, that Martinetti orally informed 

Munoz that the Building needed to be demolished, to which Munoz responded by 

authorizing Martinetti to take whatever action was necessary.

4 Munoz alleges that the hearings were intended to address only the costs 

associated with the demolition and not any due process considerations. This assertion is 

controverted by the briefing submitted in connection with the hearings as well as 

Biviano‟s findings in which he addressed the due process issue.

5 As Biviano noted, his ability to render a final decision was repeatedly delayed by 

counsels‟ requests for adjournments and additional briefing, as well as the availability of 

witnesses.
10

The post-deprivation procedure followed here was sufficient to satisfy the 

requirements of due process. Although not discussed by the District Court, the exigent 

circumstances that obviated the need for a pre-deprivation hearing, coupled with the 

adequacy of the post-deprivation hearing, is sufficient to support the District Court‟s 

grant of summary judgment to Martinetti on Munoz‟s procedural due process claim.

Munoz also asserted a § 1983 claim against Martinetti for an alleged violation of 

his Fifth Amendment rights. “The Takings Clause of the Fifth Amendment prohibits the 

federal government from taking private property for public use without providing just 

compensation.” Am. Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 

359, 370 (3d Cir. 2012) (citing U.S. Const. amend. V). This applies with equal force 

through the Fourteenth Amendment where the state is the government actor. Id. 

Munoz argues that the demolition of the Building eviscerated the property‟s 

intended purpose of providing rental income. But the Takings Clause asks not whether 

the plaintiff‟s most profitable use of the property has been destroyed. A Takings Clause 

claim cannot lie where the plaintiff was not deprived of all beneficial uses of his property. 

See Andrus v. Allard, 444 U.S. 51, 65-66 (1979). Munoz concedes that he retains a 

possessory interest in the property. Indeed, Munoz is still entitled to put the property to 

any number of beneficial uses. The record reflects that Munoz simply lacks sufficient 

funds to do so, at present. Even if Martinetti was without authority to order the 

demolition, Munoz‟s continuing possessory interest in the property prevents him from 

establishing a Takings Clause violation.
11

2. Martinetti Acted Reasonably

Munoz also cannot demonstrate that no reasonable official would have believed

that Martinetti‟s decision to demolish the Building was a reasonable one. Given that the 

Building‟s structural instability posed an imminent threat to public safety, we agree with 

the District Court that Martinetti acted reasonably in ordering the Building to be 

demolished.

B. Union City

Munoz similarly alleges claims of procedural due process and takings violations

against Union City. A municipality may be liable under § 1983 where it “„subjects‟ a 

person to a deprivation of rights or „causes‟ a person „to be subjected‟ to such 

deprivation.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (quoting Monell v. 

Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691-92 (1978)). As an initial matter, 

municipal liability cannot attach under § 1983 where the government actor did not violate 

the plaintiff‟s constitutional rights. See City of Los Angeles v. Heller, 475 U.S. 796, 799 

(1986). Because we agree with the District Court that Martinetti did not violate Munoz‟s 

constitutional rights, we will affirm the District Court‟s grant of summary judgment in 

favor of Union City.

C. Mayor Stack

Munoz also brought a § 1983 claim against Mayor Stack. The District Court 

concluded that Munoz improperly sought to attribute liability to Mayor Stack based 

solely on Mayor Stack‟s supervisory authority over Martinetti. We agree. We will 
12

affirm that portion of the District Court‟s Order granting summary judgment in favor of

Mayor Stack. 

Mayor Stack is the Commissioner of Public Safety for Union City. The 

Construction Department is one of many departments that falls within the purview of 

Public Safety. Martinetti is the Construction Code Official who works within the

Construction Department. Munoz‟s sole argument as to Mayor Stack is that he failed to 

properly supervise Martinetti by not promulgating a policy that would have prevented 

Martinetti from ordering an unwarranted demolition. 

The theory of respondeat superior cannot support a claim of liability under § 

1983. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Although Munoz claims 

that his failure to supervise argument is distinct from liability premised on respondeat 

superior, we can discern no difference. Aside from the fact that the demolition here was 

proper, absent any evidence that Mayor Stack “participated in violating [Munoz‟s] rights, 

directed others to violate them, or, as the person in charge, had knowledge of and

acquiesced in his subordinates‟ violations[,]” Santiago v. Warminster Twp., 629 F.3d 

121, 129 (3d Cir. 2010) (internal quotation marks and citation omitted), Munoz‟s theory 

of liability is indistinguishable from respondeat superior. Because Munoz has produced 

no facts demonstrating Mayor Stack‟s personal involvement, the District Court‟s grant of 

summary judgment in favor of Mayor Stack was appropriate.
13

D. Nacirema Environmental Services, Inc.

Finally, we address Munoz‟s § 1983 claim against Nacirema. We will affirm the 

District Court‟s grant of summary judgment in favor of Nacirema. 

Munoz asserts in his opening brief that Nacirema is liable only for negligent 

demolition and conversion, both violations of New Jersey state law. Perhaps recognizing 

that § 1983 liability cannot be premised on violations purely of state law, see Anspach ex 

rel. Anspach v. City of Philadelphia, Dep’t of Pub. Health, 503 F.3d 256 (3d Cir. 2007), 

in his reply brief, Munoz asserts for the first time that Nacirema is liable under § 1983 as 

an instrumentality of Union City. 

We generally do not consider arguments raised for the first time on appeal in a 

reply brief. Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 204 n.29 (3d Cir. 

1990). No reason is present here to deviate from this rule; Munoz has waived the

argument that Nacirema is liable under § 1983.6 

Even if we were to look past Munoz‟s waiver, the argument fails on the merits. 

“Although it is possible for a private party to violate an individual‟s § 1983 rights, the 

individual alleging such a violation is not relieved of the obligation to establish that the 

private party acted under color of state law.” Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d 

 

6

This Court‟s finding of waiver is equally supported by Munoz‟s cursory, onesentence argument regarding Nacirema‟s liability, devoid of any legal support. This 

opaque reference is insufficient to preserve the argument on appeal. Cf. United States v. 

Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008) (“This one-sentence footnote falls far short 

of meeting the requirement that an appellant raise an issue in his opening brief or else 

waive the issue on appeal.”).
14

Cir. 1993).7 This requires the plaintiff to show “a sufficiently close nexus” between the 

actions of the private party and the State to warrant treating the actions as those of the 

State. Id. (citation omitted). We have outlined three circumstances in which the requisite 

nexus exists: (1) the private party performed a function typically performed by the State; 

(2) the private party acted in concert with the State; or (3) the State has become 

interdependent with the private party. Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) 

(citation omitted).

We can discern no fact in the record to support a finding that Nacirema was a state 

actor under any of these circumstances. Munoz baldly alleges that Nacirema, a private 

contractor, acted as the agent of Union City in performing the demolition and is liable for 

constitutional violations to the extent Union City is liable. The only supporting fact that 

Munoz points to is the contract between Union City and Nacirema for the demolition. 

Simply because Nacirema performed pursuant to a public contract does not suffice to 

establish state action. Boyle v. Governor’s Veterans Outreach & Assistance Ctr., 925 

F.2d 71, 76 (3d Cir. 1991).8

 

7 Moreover, as the Supreme Court recently held, a private party acting at the 

behest of the state can invoke qualified immunity. Filarsky v. Delia, 132 S. Ct. 1657, 

1666 (2012) (establishing that a private individual retained by the state can seek qualified 

immunity under § 1983).

8

The District Court granted summary judgment regarding all federal claims but 

failed to comment on its discretion to exercise supplemental jurisdiction over the state 

law claims. The District Court would have been required to decline to exercise 

supplemental jurisdiction, absent a countervailing reason, given that the District Court 

disposed of all federal claims providing it with original jurisdiction. Borough of West 

Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (citations omitted). Despite the 

District Court‟s omission, we presume that it declined to exercise pendant jurisdiction 

because Munoz has pointed to no factor counseling in favor of the District Court 
15

IV. CONCLUSION

For the foregoing reasons, we will affirm the District Court‟s Order.

 

retaining jurisdiction over the supplemental state law claims. See Hedges v. Musco, 204 

F.3d 109, 122-23 (3d Cir. 2000) (noting that “considerations of judicial economy, 

convenience, and fairness to the parties” are appropriate justifications for a district court 

to exercise supplemental jurisdiction). Indeed, neither party even raised this issue in their 

briefing. This conclusion is bolstered by the District Court‟s statement on the record that 

it was “going to dismiss the case.” (App. 38.) Accordingly, we perceive no abuse of 

discretion. See Hedges, 204 F.3d at 123-24.