11-2256-cv
Manza v. Newhard
                          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 20th day of March, two thousand twelve.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                                 Circuit Judges,
                 JED S. RAKOFF,
                                 District Judge.*
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PAUL T. MANZA, DOMAR HOMESTEAD, LLC,
                                 Plaintiffs-Appellants,

                         v.                                             No. 11-2256-cv

MICHAEL NEWHARD, in his official capacity as
Mayor of the Village of Warwick, County of Orange,
State of New York and individually, MICHAEL D.
METH, in his official capacity as Village Attorney of the
Village of Warwick, County of Orange, State of New
York and individually, VILLAGE OF WARWICK,
                                 Defendants-Appellees.
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FOR APPELLANTS:                  Steven J. Spiegel, Spiegel & Jones, LLP, Florida, New York.


         *
      Judge Jed S. Rakoff of the United States District Court for the Southern District of
New York, sitting by designation.

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FOR APPELLEES:              Stephen J. Gaba, Drake, Loeb, Heller, Kennedy, Gogerty, Gaba
                            & Rodd, PLLC, New Windsor, New York, for Appellees
                            Michael Newhard and Village of Warwick.

                            James F. Creighton, Steinberg & Cavaliere, LLP, White Plains,
                            New York, for Appellee Michael D. Meth.

       Appeal from the United States District Court for the Southern District of New York

(J. Frederick Motz, Judge).**

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on May 4, 2011, is AFFIRMED IN PART, VACATED

IN PART, and REMANDED.

       Plaintiffs Paul T. Manza and an entity under his control, Domar Homestead, LLC,

(hereinafter “Manza”), appeal the dismissal of their complaint for damages under 42 U.S.C.

§ 1983 charging the Village of Warwick, Village Mayor Michael Newhard, and Town

Attorney Michael D. Meth with violations of the Fourth, Fifth, and Fourteenth Amendments

to the Constitution in connection with the cancellation of water service to Manza’s property,

an action subsequently reversed by the New York State Supreme Court in a post-deprivation

Article 78 proceeding. See Decision & Order, Manza v. Wendel, No. 9372/2009 (N.Y. Sup.

Ct. Orange Cnty. July 16, 2010). Because plaintiffs do not pursue their Fourth Amendment

claim on this appeal, we deem it waived, see Norton v. Sam’s Club, 145 F.3d 114, 117

(2d Cir. 1998), and focus on their arguments challenging the dismissal of their substantive



       **
        Judge J. Frederick Motz of the United States District Court for the District of
Maryland, sitting by designation.

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and procedural due process claims. We review de novo a district court’s grant of a motion

to dismiss, accepting all factual claims in the complaint as true, and drawing all reasonable

inferences in plaintiffs’ favor. See Tiberio v. Allergy Asthma Immunology of Rochester, 664

F.3d 35, 36 (2d Cir. 2011). In applying those principles here, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm the dismissal of Manza’s substantive due process

claim and to vacate the dismissal of his procedural due process claim.

1.     Substantive Due Process

       Manza contends that the district court erred in dismissing his substantive due process

claim. We reject the argument and, in doing so, expand on the grounds provided by the

district court. See Carpenter v. Republic of Chile, 610 F.3d 776, 781 n.6 (2d Cir. 2010)

(“[W]e may affirm the judgment of the District Court on any ground that the record

supports.”).

       Substantive due process prohibits government actors from interfering with cognizable

property interests in such an arbitrary and capricious way as “to shock the contemporary

conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998); accord, e.g.,

Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 58 n.2 (2d Cir. 2010). We

recognize that “the cessation of essential services for any appreciable time works a uniquely

final deprivation” of a property interest. Memphis Light, Gas & Water Div. v. Craft, 436

U.S. 1, 20 (1978). The cessation here, however, occurred only after 60 days notice precisely

to afford the property owner an opportunity to pursue legal remedies. Moreover, as the

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district court observed, exhibits attached to the complaint indicate that defendant Meth’s

2008 opinion that multiple 19th century deeds did not support free water service to the land

at issue was based, in part, on a 1980 Village Attorney opinion that came to a similar

conclusion.   Further, when the State Supreme Court ultimately ruled otherwise, it

acknowledged that the case was “unique.” Manza v. Wendel, Decision & Order, No.

9372/2009, slip op. at 10. In these circumstances, neither Meth’s issuance of the opinion

letter nor Mayor Newhard’s reliance on it can be deemed so unreasonable as to shock the

conscience insofar as it ultimately led to the Village charging Manza for water service in

December 2008, and terminating that service for non-payment in June 2009, pursuant to

Village of Warwick Code § 141-40. Cf. Natale v. Town of Ridgefield, 170 F.3d 258, 263

(2d Cir. 1999) (observing that substantive due process does not forbid governmental actions

merely because “they might fairly be deemed arbitrary or capricious and for that reason [are]

correctable in a state court lawsuit seeking review of administrative action”).

       Nor can Manza avoid dismissal of his substantive due process claim by pointing to

allegations that the mayor’s decisions were made in bad faith or informed by personal

grudges. While “malicious and sadistic abuses of power” serving no legitimate purpose and

intended to oppress or injure can violate substantive due process, Velez v. Levy, 401 F.3d

75, 94 (2d Cir. 2005), such a claim cannot be deemed plausible when, as here, conclusory

pleadings are unsupported by factual content, see Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.

1937, 1951 (2009).



                                             4
       The same conclusion obtains with respect to Manza’s conclusory allegations that the

Village of Warwick engaged in a “pattern or practice” of having its village attorney

retroactively justify mayoral decisions through flawed legal decisions. Compl. ¶ 94. While

Manza notes that the complaint proposes to disclose similar incidents in camera, such a

proposal is at odds with both the principle of notice pleading, see Fed. R. Civ. P. 8(a), and

the Supreme Court’s holding that “[t]o survive a motion to dismiss a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 129 S. Ct. at 1949 (internal quotation marks omitted; emphasis

added).

       In sum, because the complaint fails to state a plausible substantive due process claim,

much less one that any reasonable official would have recognized was violated by the

conduct at issue, we identify no error in the district court’s dismissal of this claim either

outright or, with respect to the individual defendants, on grounds of qualified immunity. See

Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011) (recognizing that official is entitled

to qualified immunity where there is no showing of claimed constitutional violation).

2.     Procedural Due Process

       In dismissing Manza’s procedural due process claim, the district court explained that

“[t]he Article 78 proceeding itself provided due process of law.” Memorandum, Manza v.

Newhard, 10-cv-8892 (JFM), at 3 (S.D.N.Y. May 3, 2011), ECF No. 32. This is correct

insofar as the Article 78 proceeding provided Manza with a sufficient post-deprivation

remedy. But it does not address whether Manza received sufficient pre-deprivation process.

                                               5
See Zinermon v. Burch, 494 U.S. 113, 127 (1990); accord New Windsor Volunteer

Ambulance Corp. v. Meyers, 442 F.3d 101, 115 (2d Cir. 2006) (noting procedural due

process requires at a minimum “notice and some opportunity to be heard prior to the

deprivation” where complained-of action is not random and unauthorized (internal quotation

marks omitted; emphasis in original)). Applying the balancing approach outlined in

Mathews v. Eldridge, 424 U.S. 319 (1976), for determining what pre-deprivation process is

due, the Supreme Court has ruled that “some administrative procedure for entertaining

customer complaints prior to termination is required to afford reasonable assurance against

erroneous or arbitrary withholding of essential services.” Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. at 18. This requirement, however, need not be onerous: “[t]he opportunity

for informal consultation with designated personnel empowered to correct a mistaken

determination constitutes a ‘due process hearing’ in appropriate circumstances.” Id. at 16

n.17; see also Locurto v. Safir, 264 F.3d 154, 173–74 (2d Cir. 2001) (noting pre-deprivation

hearing in employment context can be “very limited” and need not involve neutral

adjudicator (internal quotation marks and emphasis omitted)).

       Defendants maintain that Manza was afforded such procedure through numerous

meetings with Village officials in early 2009. But this fact is not established as a matter of

law from the complaint and the documents attached thereto. See, e.g., Halebian v. Berv, 644

F.3d 122, 130 (2d Cir. 2011) (setting limits on judicial review of motion to dismiss). Indeed,

in Newhard’s sworn affidavit in the Article 78 proceedings—referenced and attached to the

complaint—the mayor stated that the decision to begin billing Manza for water was final on

                                              6
December 15, 2008, and that at that time “no further administrative remedies were available

to [Manza] in the Village of Warwick.” Aff. of Michael Newhard, Mayor of the Village of

Warwick, Resp’t, Manza v. Wendel, No. 9372/2009 (N.Y. Sup. Ct. Orange Cnty. Oct. 16,

2009). Thus, while we do not foreclose the possibility that defendants may adduce further

evidence in discovery demonstrating the constitutional sufficiency of the procedures afforded

Manza and, thereafter, move for summary judgment, defendants are not entitled to dismissal

of Manza’s procedural due process claim at this early stage.1

       Defendants further contend that Manza’s claim to free water service is based

essentially on a contractual right and therefore does not merit constitutional protection. In

fact, we have recognized that rights stemming from contractual relationships may rise to the

level of a constitutionally protected interest. See New Windsor Volunteer Ambulance Corp.

v. Meyers, 442 F.3d at 105; S & D Maint. Co. v. Goldin, 844 F.2d 962, 965 (2d Cir. 1988).

At this stage, we cannot conclude as a matter of law that the free water service at issue,

provided to this property for well over 130 years, does not merit constitutional protection.2


       1
        The pleadings also do not permit a court to decide whether an Article 78 proceeding
was available to Manza as a pre-deprivation remedy and whether that would satisfy the
requirements of due process. Compare New York State Nat’l Org. for Women v. Pataki, 261
F.3d 156, 168 (2d Cir. 2001) (concluding, after applying Mathews analysis, that Article 78
mandamus proceedings could force agency decisions before prejudicial delay occurred), with
Kapps v. Wing, 404 F.3d 105, 120 (2d Cir. 2005) (declining to apply NYS NOW to review
of correctness, rather than timing, of agency decisions); see also Decision & Order, Manza
v. Wendel, No. 9372/2009, slip op. at 6 (concluding that “Village’s determination became
final and binding on June 18, 2009, when the water to the real property was shut off”).
       2
        To the extent defendants contend that any right to free water service was not “clearly
established” until the Article 78 court’s decision, Newhard Br. at 38, they conflate our

                                              7
       Nor are we persuaded that Manza’s procedural due process claim is barred by res

judicata, as defendants urge. See Parker v. Blauvelt Volunteer Fire Co. 93 N.Y.2d 343, 348,

690 N.Y.S.2d 478, 482 (1999); Davidson v. Capuano, 792 F.2d 275, 276 (2d Cir. 1986).

Defendants point to no change in New York law since the Court of Appeals definitively

rejected this contention in Parker.

       In vacating the dismissal of Manza’s procedural due process claim, we note that the

district court’s brief treatment of the claim is understandable in light of the parties’ sparse

briefing of the question below. Defendants’ memorandum in support of dismissal addressed

procedural due process in less than a page; Manza’s opposition did not discuss the claim at

all.3 On remand, the parties may develop this claim, and the district court may address it

further as warranted.



qualified immunity jurisprudence with whether a right is constitutionally cognizable. See
Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999) (noting “the Fourteenth Amendment
‘has never been interpreted to safeguard only the rights of undisputed ownership’” (quoting
Fuentes v. Shevin, 407 U.S. 67, 86 (1972))). Thus, even if Manza’s right to free water
service was not clearly established until the Article 78 proceeding, Memphis Light, Gas &
Water Div. v. Craft established a right to some pre-deprivation process before an essential
service (even one provided for a fee) could be terminated.
       3
         Notwithstanding Manza’s briefing failure, we reject defendants’ contention that
Manza is now precluded from appealing the district court’s ruling. Manza’s theory of
procedural due process was evident from the complaint, and so we do not view his failure
to respond to defendants’ very cursory discussion of the issue in their motion to dismiss as
a waiver. Cf. New Jersey Carpenters Pension & Annuity Funds v. Biogen Idec, 537 F.3d 35,
54 (1st Cir. 2008) (identifying no waiver by plaintiff where, in briefing of motion to dismiss,
neither plaintiff nor defendant addressed theory that was evident from complaint). In any
event, we may entertain arguments that Manza failed to raise below. See Kurzberg v.
Ashcroft, 619 F.3d 176, 185 n.9 (2d Cir. 2010); Virgilio v. City of New York, 407 F.3d 105,
116 (2d Cir. 2005).

                                              8
3.    Conclusion

      For the reasons stated, we AFFIRM the dismissal of Manza’s complaint with the

exception of his procedural due process claims against the Village of Warwick and Mayor

Newhard. With respect to those claims, the district court’s judgment is VACATED and

REMANDED for further proceedings consistent with this order. The parties shall bear their

own costs.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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