    08-6229-cv
    Marshall v. Middlefield


                              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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 12 th day of January, two thousand ten.

    PRESENT:
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
                            Circuit Judges,
             LOUIS L. STANTON,*
                            District Judge.
    _____________________________________

    Kerry L. Marshall,

                                   Plaintiff-Appellant,

                       v.                                  08-6229-cv

    Town of Middlefield, Anne L. Olszewski, Town of
    Middlefield’s Tax Collector, ind., Jane Doe, ind.,

                                   Defendants-Appellees.

    _________________________________




             *
          Louis L. Stanton, Senior Judge of the United States
    District Court for the Southern District of New York, sitting by
    designation.
FOR PLAINTIFF-APPELLANT:      Kerry L. Marshall, pro se,
                              Middlefield, Connecticut.

FOR DEFENDANT-APPELLEE:       No appearance. See Fed. R. App. P.
                              31(c).



     Appeal from the United States District Court for the

District of Connecticut (Kravitz, J.).

     UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is

AFFIRMED.

     Appellant Kerry L. Marshall appeals from the judgment

of the United States District Court for the District of

Connecticut (Kravitz, J.) granting Defendants’ summary

judgment motion on the ground that the Tax Injunction Act,

28 U.S.C. § 1341, and the principle of comity deprived it of

subject matter jurisdiction over his 42 U.S.C. § 1983

claims.     We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and

the issues on appeal.

     This Court reviews de novo a district court’s legal

conclusion that it lacked subject matter jurisdiction.      See

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

To the extent that the district court granted summary



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judgment, this Court reviews such orders de novo and

determines whether the district court properly concluded

there was no genuine issue as to any material fact and the

moving party was entitled to judgment as a matter of law.

See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202-03 (2d

Cir. 1995).   Summary judgment is appropriate where “there is

no genuine issue as to any material fact and . . . the

movant is entitled to a judgment as a matter of law,” Fed.

R. Civ. P. 56(c), i.e., “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the

non-moving party.”   Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

    The Tax Injunction Act (“TIA”) provides that “[t]he

district courts shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had in the

courts of such State.”   28 U.S.C. § 1341; see Long Island

Lighting Co. v. Town of Brookhaven, 889 F.2d 428, 431 (2d

Cir. 1989) (explaining that the TIA prevents district courts

from providing injunctive and declaratory relief as long as

there is a “plain, speedy and efficient” state court

remedy).   Similarly, the principle of comity prevents a


                              3
taxpayer from seeking damages in a § 1983 action if a plain,

adequate, and complete remedy may be had in state court.

See Long Island Lighting Co., 889 F.2d at 431.   Before the

TIA may be invoked to bar district court jurisdiction, two

conditions must exist: (1) the assessment or surcharge in

question must constitute a tax; and (2) the plaintiff must

lack a “plain, speedy and efficient remedy in state court.”

Hattem v. Schwarzenegger, 449 F.3d 423, 427 (2d Cir. 2006).

This Court has explained that “the TIA should be interpreted

to preclude jurisdiction only where ‘state taxpayers seek

federal-court orders enabling them to avoid paying state

taxes.’” Luessenhop v. Clinton County, 466 F.3d 259, 267 (2d

Cir. 2006) (quoting Hibbs v. Winn, 542 U.S. 88, 107 (2004)).

    Here, the district court properly concluded that

Appellant’s complaint sought to avoid the payment of taxes.

The parties disputed whether Appellant had paid a particular

motor vehicle property tax bill that had been assessed on

his Dodge Intrepid.   Furthermore, although Appellant argues

that his case is analogous to Luessenhop and Wells v.

Malloy, 510 F.2d 74, 77 (2d Cir. 1975), he is not directly

challenging the method by which he was notified of the

delinquent taxes, nor the state statute specifying that he


                              4
must pay the delinquent taxes on the Dodge Intrepid before

he is allowed to pay the taxes on his other automobile.

    We note that Connecticut provides multiple methods by

which a taxpayer may contest property taxes: (1) the

taxpayer may administratively appeal the assessment to a

board of assessment appeals, and he may then appeal that

decision to Connecticut Superior Court, under Conn. Gen.

Stat. § 12-117a; or (2) the taxpayer may directly file an

action in Connecticut Superior Court to claim that the

property has been wrongfully assessed, under Conn. Gen.

Stat. § 12-119.    See, e.g., Second Stone Ridge Coop. Corp.

v. City of Bridgeport, 597 A.2d 326, 326 (Conn. 1991)

(distinguishing between § 12-119 and § 12-117a, which was

formerly codified as § 12-118, in the context of challenges

to valuation).    Appellant argues that it would have been

impossible for him to have timely filed a claim under § 12-

119 in state court since the assessment concerned the 1997

tax year and he only learned of the assessment in 2007.

However, even assuming this is true, it does not appear

likely that the Connecticut state courts would construe the

statute of limitations in a way that would completely

foreclose any claim.    See, e.g., Wiele v. City of


                               5
Bridgeport, No. CV074020814S, 2008 WL 5253146, at *2-4

(Conn. Super. Ct. 2008); Lawrence & Memorial Hosp. v. City

of New London, No. CV074007075, 2008 WL 271664, at *4-5

(Conn. Super Ct. 2008); cf. Interlude, Inc. v. Skurat, 754

A.2d 153, 158 (Conn. 2000) (calling a result in which

application of the § 12-119 statute of limitations would

have left plaintiff with only six days to file an appeal

“bizarre”).

    Thus, the district court properly concluded that it

lacked subject matter jurisdiction to consider his claims

under the TIA and the principle of comity.   See Long Island

Lighting, 889 F.2d at 433.   Accordingly, the district

court’s judgment is AFFIRMED.


                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk

                             By:___________________________




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