13-1379-cv Henry Heckman v. Town of Hempstead, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2 3 rdday of June, two thousand fourteen. 3 4 PRESENT: DENNIS JACOBS, 5 GUIDO CALABRESI, 6 ROSEMARY S. POOLER, 7 Circuit Judges

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__________________________________________________ 9 10 HENRY HECKMAN, 11 12 Plaintiff-Appellant

, 13 14 -v.- 13-1379-cv 15 16 THE TOWN OF HEMPSTEAD, RAYMOND SCHWARTZ, 17 as Supervisor of Inspection Services for the Town of 18 Hempstead, personally, BUILDING INSPECTOR FOR THE 19 TOWN OF HEMPSTEAD, JOHN DOE #2, personally, 20 BUILDING INSPECTOR FOR THE TOWN OF 21 HEMPSTEAD, JOHN DOE #3, personally, BUILDING 22 INSPECTOR FOR THE TOWN OF HEMPSTEAD, JOHN 23 DOE #4, personally, ROY GUNTHER, Building Inspector for 24 the Town of Hempstead, personally, RALPH 25 VALLAREVELLA, Code Enforcement Officer for the Town 26 of Hempstead, personally, ROBERT STEPPE, Code 27 Enforcement Officer for the Town of Hempstead, personally, 28 GLENN FORDSMAN, Code Enforcement Officer for the 29 Town of Hempstead, personally, SAL MASTRACCHIO, 30 Town of Hempstead Building Department Trainee, personally, 31 TOM BOVE, Town of Hempstead Water Department 32 Employee, personally, 33 34 Defendants-Appellees

, 351 POLICE OFFICER JOHN DOE #1, personally, NASSAU 2 COUNTY, POLICE OFFICER RAMOS, POLICE 3 OFFICER MICHAEL KEANE, personally, 4 5 Defendants

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_____________________________________________________ 7 8 APPEARING FOR APPELLANT: Michelle Caldera-Kopf (William M. Brooks, on the brief ), 9 Mental Disability Law Clinic, Touro College, Jacob D. 10 Fuchsberg Law Center, Central Islip, New York. 11 12 APPEARING FOR APPELLEES: Donna A. Napolitano (Daniel J. Evers, on the brief ), 13 Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., 14 Garden City, New York. 15 16 17 Appeal from the United States District C ourt for the Eastern District of New York 18 (Feuerstein, J. ). 19 20 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 21 AND DECREEDthat the judgment of said District Court be and it hereby is AFFIRMEDin 22 part and VACATED and REMANDEDin part. 23 24 Henry Heckman appeals from a final judgment of the United States District Court for the 25 Eastern District of New York (Feuerstein, J. ), dismissing his federal claims with prejudice 26 pursuant to Federal Rule of Civil Procedure 12(c), and declining to assert supplemental 27 jurisdiction over his state law claims. We assume the parties’ familiarity with the underlying 28 facts, the procedural history, and the issues presented for review. 29 30 We review de novothe district court’s decision to grant a Rule 12(c) motion for judgment 31 on the pleadings, employing the same standard as when deciding a Rule 12(b)(6) motion for 32 failure to state a claim. “To survive a motion to dismiss, a complaint must contain sufficient 33 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 34 Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). We construe all factual 35 allegations in the complaint as true and “draw[] all reasonable inferences in the plaintiff’s favor.” 36 ATSI Commc’ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007). In its review, the 37 Court is entitled to consider facts alleged in the complaint and documents attached to it or 38 incorporated in it by reference, documents “integral” to the complaint and relied upon in it, and 39 facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of 40 Evidence. See, e.g.

, Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000); Audiotext Network, Inc. 41 v. Am. Tel. & Tel. Co. , 62 F.3d 69, 72 (2d Cir. 1995). 42 43 “[I]t is the usual practice upon granting a motion to dismiss to allow leave to replead[.]” 44 Cortec Indus., Inc. v. Sum Holding, L.P. , 949 F.2d 42, 50 (2d Cir. 1991). The amendment 45

2process has its limits, of course, so it is for the district court to decide in the first instance 1 whether to grant leave to amend, and we generally review only for abuse of discretion. 2 Hutchison v. Deutsche Bank Sec., Inc. , 647 F.3d 479, 490 (2d Cir. 2011). However, if “the 3 denial of leave to amend is based on a legal interpretation, . . . [we] conduct[] a de novoreview.” 4 Id. (citation omitted). 5 6 This action arises out of a decision by the Town of Hempstead Building Department to 7 declare Heckman’s residence “unfit for human occupancy” without providing him notice and an 8 opportunity to be heard in advance. The facts recounted here are drawn from the allegations of 9 Heckman’s pleadings and are assumed to be true for present purposes. 10 11 Heckman is a disabled veteran who suffers from post-traumatic stress disorder and 12 obsessive compulsive disorder. He experiences disordered thinking, insomnia, and an inability 13 to concentrate on and complete even basic tasks. He depends on his sister to manage his 14 personal and financial affairs. Moreover, these mental disabilities allegedly contribute to 15 Heckman’s “lack of fine motor skills” and an aversion to “part[ing] with certain objects.” 16 Proposed 2d Am. Compl. ¶¶ 35, 37. As a result, Heckman alleges he has “difficulty” 17 “maintaining his home[,]” which appears “cluttered.” Id . In short, he is a hoarder. 18 19 On December 20, 2007, Heckman arrived home to find it being boarded up by officials of 20 the Town of Hempstead (“the Town”) and its various public safety agencies (collectively, 21 “Defendants”). Defendants had been called to the residence by police officers who, in the course 22 of investigating a reported shooting in the neighborhood, supposedly “smelled gas coming from 23 Mr. Heckmann’s [sic] property.” 2d Am. Compl. ¶¶ 27, 28. The officials did not permit 24 Heckman to enter his house for any reason: neither to retrieve his money from his home; nor to 25 retrieve his medication from his home; nor to “rescue his cat.” Id. ¶¶ 46, 48. Apparently fearing 26 arrest if he continued to protest the boarding of his house, Heckman traveled three hours to the 27 Veteran’s Administration to obtain an emergenc y supply of his medication, and passed the night 28 in a motel. Id. ¶¶ 55, 57, 58. The next day, Heckman went to the Town’s “Department of 29 Buildings,” where “Raymond Shwarz [sic],” the Town’s Supervisor of Inspection services, gave 30 Heckman a “handwritten list of vague alleged problems to be corrected within the house,” and 31 returned Heckman’s house keys. Id. ¶¶ 59, 60, 65. Returning to his house, Heckman discovered 32 the cat inside; however the gas, heat, electricity and water were not turned back on. Id. ¶¶ 69, 33 70. “To date, the ‘unfit for human occupancy’ designation has not been lifted.” Id . ¶ 96. 34 35 I. Heckman’s Claim under the ADA 36 37 As to Heckman’s claim under Title II of the ADA: “no qualified individual with a 38 disability shall, by reason of such disability, be excluded from participation in or be denied the 39 benefits of the services, programs, or activities of a public entity, or be subjected to 40 discrimination by any such entity.” 42 U.S.C. § 12132. To establish a prima faciecase under 41 the ADA, Heckman “must demonstrate (1) that []he is a qualified individual with a disability; (2) 42 that the defendants are subject to [the ADA]; and (3) that []he was denied the opportunity to 43 participate in or benefit from defendants’ services, programs, or activities, or was otherwise 44 discriminated against by defendants, by reason of her disability.” Harris v. Mills , 572 F.3d 66, 45

373-74 (2d Cir. 2009). None of Heckman’s numerous pleadings (including the Complaint, First 1 Amended Complaint, Proposed Second Amended Complaint, and Second Amended Complaint) 2 or any supporting submissions filed here and below, alleges facts that give rise to a plausible 3 inference that any of the defendants intentionally discriminated against him on the basis of his 4 disability. 5 6 Heckman alleges that, when Defendants entered his home to investigate the suspected gas 7 leak, they “cursorily observed the [home’s] clutter, and concluded that the plaintiff was mentally 8 incompetent.” Appellant’s Reply Br. 3; accord Proposed 2d Am. Compl. ¶¶ 35, 49. He further 9 alleges that, “[a]fter concluding that the defendant was mentally incompetent, defendants further 10 concluded that the plaintiff would not be able tocomply with any proposed plan for remediation 11 of any perceived defects in [his] home.” Proposed 2d Am. Compl. ¶ 50. 12 13 These allegations do not suggest a plausible inference that any defendant knew or 14 believed, at the relevant time, that Heckman suffered from a disability. Allegations that 15 Defendants knew of Heckman’s alleged disability because they had “concluded” as much based 16 on the “clutter” are of a purely “conclusory nature,” which “disentitles them to the presumption 17 of truth.” Iqbal , 556 U.S. at 681. 18 19 Accordingly, and finding no merit in Heckman’s other arguments regarding his disability, 20 we conclude that Heckman has failed to state a claim under the ADA. In light of Heckman’s 21 various opportunities to replead and the district court’s careful analysis of the pleadings, 22 proposed pleadings, and non-pleading submissions, the decision to deny as futile leave to amend 23 was no abuse of discretion. 24 25 II. Heckman’s Procedural Due Process Claim 26 27 The Fourteenth Amendment prohibits a state from “depriv[ing] any person of life, liberty, 28 or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1. Due process 29 requires that before state actors deprive a pers on of property, they offer a meaningful opportunity 30 to be heard. See Armstrong v. Manzo , 380 U.S. 545, 552 (1965). In an emergency situation “a 31 state may satisfy the requirements of procedural due process merely by making available ‘some 32 meaningful means by which to assess the propriety of the State’s action at some time after the 33 initial taking.’” WWBITV, Inc. v. Vill. of Rouses Point , 589 F.3d 46, 50 (2d Cir. 2009) (quoting 34 Parratt v. Taylor, 451 U.S. 527, 539 (1981)). “Where there is an emergency requiring quick 35 action and where meaningful pre-deprivation process would be impractical, the government is 36 relieved of its usual obligation to provide a hearing, as long as there is an adequate procedure in 37 place to assess the propriety of the deprivation afterwards.” Id. 38 39 At the pleading stage, then, a plaintiff mustprovide factual allegations that permit a 40 plausible inference that (1) the relevant official(s) lacked “competent evidence . . . to reasonably 41 believe” that an emergency existed; or (2) that an official’s decision to invoke an emergency 42 procedure was “arbitrary or amount[ed] to an abuse of discretion”; or (3) that a state’s post43 deprivation remedies are somehow inadequate. Catanzaro v. Weiden , 188 F.3d 56, 63 (2d Cir. 44 1999); see also WWBITV, Inc. , 589 F.3d at 50. Bound as we are at this stage in the litigation to 45

4“draw[] all reasonable inferences in the plaintiff’s favor,” ATSI Commc’ns, Inc., 493 F.3d at 98, 1 we conclude that Heckman has alleged two plausible grounds on which he might maintain a 2 procedural due process claim going forward. 3 4 A. Emergency 5 6 Heckman’s pleadings sufficiently raise the inference “that no emergency existed at the 7 time of [] [D]efendants’ declaration that [his] home was unfit for human occupation.” 8 Appellant’s Br. 14. The Magistrate’s Report and Recommendation on this issue with respect to 9 the Second Amended Complaint (which was accepted by the district court in its entirety), 10 reiterated the conclusions of the first Report and Recommendation, which noted as follows: 11 12 [The First Amended Complaint] suggests that there were indicia that emergency 13 action on the part of the Town may have been necessary: the detection of a 14 possible gas leak by the police officers, various possible building code violations, 15 and the plaintiff’s own acknowledgment regarding his inability to part with items 16 and the resulting ‘cluttered’ appearance of his home. 17 18 Heckman v. Town of Hempstead, No. 10-5455 (SJF) (GRB), Report & Recommendation of 19 Magistrate Judge (E.D.N.Y. Feb. 11, 2013), at *7 (citation omitted). The Magistrate’s Report 20 found that “[t]he only substantive changes in the current incarnation of the complaint” referred to 21 “best practice procedures for gas leaks[,]” and concluded that these were insufficient to cure any 22 deficiencies in Heckman’s prior pleadings. Id. at *8. 23 24 The Magistrate’s characterization of the Second Amended Complaint is incorrect. 25 Heckman’s Second Amended Complaint adds two allegations: that Schwartz conceded to 26 Heckman’s sister, Barbara Eaton, on January 7, 2008, that “the Town could have sent a letter 27 giving [Heckman] a specific time within which to comply with the demands of the Town”; and 28 that Schwartz conceded that “Town employees would not have taken the action that they did if 29 they believed that the house had been occupied.” Compare2d Am. Compl. ¶ 76 (prior notice), 30 and id. ¶ 78 (house unoccupied), with 1st Am. Compl. ¶ 83 (noting only a December 21, 2007 31 phone call between Schwartz and Eaton). 32 33 These two additional allegations, if true, plausibly allege that the relevant Defendants did 34 not “reasonably believe” that an emergency situation obtained at the time that Defendants 35 boarded up Heckman’s house. Schwartz’s first statement to Eaton literally concedes as much, 36 and had the procedure described by Schwartz been followed it might have put the Town in 37 compliance with its obligations regarding vacating dangerous structures. And Schwartz’s second 38 statement, implying that the Town only began boarding up the house on the assumption that it 39 was uninhabited, read in the light most favorable to Heckman, suggests that concerns other than 40 an emergency posed by the structure to Heckman or others motivated the decision to board up 41 Heckman’s residence. The Town and the Defendants will have the opportunity at later stages in 42 this proceeding to adduce evidence attesting to whatever imminently dangerous emergency 43 conditions they believed justified boarding up Heckman’s house without notice, and causing all 44 utilities to the house to be discontinued indefinitely. See Building Code § 90-1 (listing 45

5dangerous conditions which include, inter alia , various structural deficiencies or buildings that 1 are a “nuisance to the general public.”); Building Code § 90-15 (allowing a building inspector to 2 order the immediate vacation of a building “where it reasonably appears that there is imminent 3 danger to the life or safety of any person”); see also Cantanzaro , 188 F.3d 63-64 (concluding 4 that, at summary judgment, the “undisputed evidence” of structural damage to a building as a 5 result of a car accident, combined with the short time frame in which the defendant town 6 officials ordered its demolition, supported the conclusion that defendants were entitled to 7 summary judgment as to plaintiff’s due process claim). 8 9 B. Post-Deprivation Process 10 11 In his challenge to the post-deprivation procedure, Heckman alleges that he was provided 12 only a note, handwritten on a piece of scrap paper, stating in a perfunctory manner some 13 purported violations of the Town’s Housing and Rehabilitation Code. Moreover, he alleges that 14 he was never informed of his right under the Code to request a hearing to contest those alleged 15 violations. SeeBuilding Code § 88-3(B). 16 17 Defendants disclaim any statutory or constitutional obligation to “inform every citizen of 18 their rights under the publicly available [] Code.” Appellee’s Br. 37. The Code, however, does 19 impose such an obligation on the Manager of the Building Department. SeeBuilding Code § 88- 20 3(A) (requiring that notice of any violations of the Code “shall . . . [s]et forth the procedure 21 rights [for contesting the allegations by hearing] as outlined in § 88-3(B)”). While remedial 22 action may be ordered without notice or hearing in an emergency, see id. § 88-3(E), Heckman’s 23 allegations raise a plausible inference that the violations that he was ultimately ordered to 24 remedy were not sufficiently relevant to an ongoing emergency (i.e., the Town’s remedial action 25 on December 20, 2007 was sufficient to neutralize the emergency). 1 If that were proven, the 26 Town might be held to its self-imposed notice requirements—particularly in light of Heckman’s 27 allegations that he repeatedly expressed specific objections to the alleged Code violations to 28 housing authorities in the days and weeks following the condemnation of his house. 29 30 31 32

1 Indeed, the housing authorities are alleged to have allowed Heckman to return to and sleep in his home notwithstanding its status as “unfit for human occupancy.” Appellant’s Reply Br. 11. Moreover, he was given a significant amountof time to fix the alleged Code violations, suggesting at least that the Town’s actions had ended the emergency such that formal notice of his post-deprivation remedies could be provided. CompareBuilding Code § 88-3(E) (“Any party to whom [an emergency] order is directed shall comply therewith immediately. If such party is not available or does not respond with sufficient promptness to meet the emergency, then the Manager of the Building Department shall have the power to correct the emergency[.]”), with Building Code § 88-3(A)(3), (4) (providing, in non-emergency situations, for service of formal notice on an owner, “[a]llow[ing] a reasonable time for the performance of any act it requires”).

6For the foregoing reasons, we hereby AFFIRMthe dismissal with prejudice of 1 Heckman’s ADA claim, but VACATEthe dismissal of his due process claim. Accordingly, we 2 REMANDto the district court for proceedings consistent with this order. 3 4 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8

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