09-1453-cv
Norton v. Town of Islip

                            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 25th day of May, two thousand and ten.

PRESENT:

       JOSÉ A. CABRANES,
       ROBERT A. KATZMANN ,
              Circuit Judges,
       J. GARVAN MURTHA ,
              District Judge.*

-------------------------------------------x

HOWARD NORTON ,

               Plaintiff-Counter-Defendant-Appellee,

       v.                                                            No. 09-1453-cv

TOWN OF ISLIP, et al.,

               Defendants-Counter-Claimants-Appellants,

County of Suffolk,

               Defendant.



       *
          The Honorable J. Garvan Murtha, Senior Judge of the United States District Court for the
District of Vermont, sitting by designation.

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FOR PLAINTIFF-COUNTER-DEFENDANT-APPELLEE:

                               RICK OSTROVE (Matthew Marks, on the brief), Leeds, Morelli & Brown P.C.,
                               Carle Place, New York.

FOR DEFENDANTS-COUNTER-CLAIMANTS-APPELLANTS:

                               ROBERT M. CALICA , Rosenberg Calica & Birney LLP, Garden City, New York
                               (Erin A. Sidaras, Assistant Town of Islip Attorney, Islip, New York, and
                               Edward M. Ross and Judah Serfaty, Rosenberg Calica & Birney LLP, Garden
                               City, New York, on the brief).

        Appeal from a March 27, 2009 order of the United States District Court for the Eastern
District of New York (Nicholas G. Garaufis, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the District Court’s order is REVERSED in part and the cause is
REMANDED.

        Because this action presents an unusually complicated background, we briefly summarize the
relevant facts and procedural history. We assume the parties’ familiarity with the remaining facts
and procedural history.

         In 1986, plaintiff-counter-defendant-appellee Howard Norton (“plaintiff”) purchased a
house at 725 Ferndale Boulevard in the Town of Islip, New York (the “Town”). Norton v. Town of
Islip, No. 04-cv-3079, 2009 WL 804702, at *1 (E.D.N.Y. Mar. 27, 2009). Under the Town’s zoning
ordinances, the owner of the house was required to use it as a “single-family detached dwelling[ ].”
Id. Nonetheless, the house had been converted into a two-family dwelling, and the Town had
acknowledged that the house constituted a “legal nonconforming use.” Id. Indeed, when plaintiff
purchased the home, the Town’s records contained a “certificate of occupancy” that certified the
house as a “legal nonconforming two-family dwelling.” Id. Plaintiff relied on that certificate when
he purchased the house. Id.

        Two years later, in 1988, plaintiff wished to rent the house and applied for a rental permit
from the Town. The Town denied the permit on the ground that the house had lost its “legal
nonconforming” status after it had been left vacant for a year. Plaintiff brought an Article 78
petition in New York Supreme Court to challenge the City’s denial of the permit. Id. at *2. The
Supreme Court denied the petition but declined to determine whether the house was—or was
not—a legal nonconforming two-family dwelling. Id.



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        “[S]ometime” in 1990, after the conclusion of the Article 78 hearing, the Commissioner of
the Town’s Department of Building and Engineering (the “Commissioner”) made several notations
on the house’s certificate of occupancy in the Town’s files. Id. at *3. The Commissioner’s notations
described the denial of the rental permit and the fact that the denial of the permit had been
“sustained” in the Article 78 proceeding. The Commissioner’s notations also concluded, without
elaboration, that the house’s “non-conforming use” had been “lost due to non-use in excess of one
consecutive year.” Id. at *2. Plaintiff was not informed that the Commissioner had made those
notations, nor was plaintiff provided an opportunity to challenge the Commissioner’s conclusion
that the “non-conforming use” had been “lost.”

       In March 1997, the Town Attorney’s Office brought a criminal action against plaintiff
charging him with violating the Town Code by using the house as a two-family dwelling. Id. The
charging instrument claimed that the “last issued” certificate of occupancy established that the house
could not be used as a two-family dwelling. Id.

         Six months later, in September 1997, an Assistant Town Attorney provided to plaintiff’s
counsel a copy of the purported “last issued” certificate of occupancy. Id. The certificate in
question was unsigned and undated, and it was stamped “DEPT. COPY.” (We subsequently refer
to this certificate as the “Department Copy Certificate.”) The Department Copy Certificate also
contained the Commissioner’s notations, including his conclusion that the legal nonconforming use
had been “lost.” The next month, the Town produced a new certificate of occupancy that was
signed and dated October 21, 1997. This new certificate also included the Commissioner’s
notations. Id. at *3.

        Plaintiff then brought an action in the District Court under 42 U.S.C. § 1983 claiming that
his rights under the Due Process Clause of the Fourteenth Amendment had been violated insofar as
the Town—acting through the Commissioner—concluded in his notations on the certificate of
occupancy that the house’s legal nonconforming use had been “lost.” With the consent of the
Town, the criminal proceeding against plaintiff was stayed pending the outcome of the § 1983
action. Id.

         In 2003, the District Court held that the Town had, in fact, violated the Due Process Clause
by failing to provide plaintiff notice and an opportunity to challenge the Commissioner’s conclusion
on the certificate of occupancy. The Court granted plaintiff’s request for a declaratory judgment and
declared that a certificate of occupancy that had been issued in 1990 (before the Commissioner had
made his notations) was now to be considered the operative “last filed” certificate of occupancy.
Norton v. Town of Islip, 239 F. Supp. 2d 264, 276 (E.D.N.Y. 2003), aff’d, 77 Fed. App’x 56, 56-57 (2d
Cir. 2003) (summary order).



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        As a result, the operative “last filed” certificate of occupancy now “expressly certified the
[house] as a legal nonconforming dwelling and permitted its use as a two-family home.” Norton,
2009 WL 804702, at *3. That undermined the Town’s criminal allegations against plaintiff, and the
Suffolk District Court dismissed the criminal charges. Id. at *4.

          Norton then brought this action in the District Court. Unlike his first action in the District
Court, which challenged the legality of the Commissioner’s notations on the certificate of
occupancy, Norton now brings claims in connection with the criminal proceeding instituted against
him. In particular, Norton brings claims under 42 U.S.C. § 1983 and state law alleging malicious
prosecution and malicious abuse of process on the part of several of the Town’s attorneys and
investigators. (We refer to those defendants as the “individual defendants.”) Id. at *5. Norton also
brings claims against the Town and the County of Suffolk (the “County”) under Monell v. Department
of Social Services, 436 U.S. 658, 690-91 (1978).

        Submitting the record created in the first § 1983 action, the individual defendants moved for
summary judgment in the District Court arguing, among other things, that they were entitled to
either absolute immunity or qualified immunity. With respect to plaintiff’s claims under federal law,
the District Court granted absolute immunity to several of the individual defendants but denied both
absolute and qualified immunity to the remaining individual defendants. (We sometimes refer to the
individual defendants who were not granted immunity as the “remaining individual defendants.”)
The District Court did not discuss whether defendants were immune from plaintiff’s state-law
claims. The District Court also denied summary judgment to the City and the County with respect
to plaintiff’s Monell claims. See Norton, 2009 WL 804702, at *7-29.

         All defendants except the County then brought this interlocutory appeal arguing (1) that the
District Court erred by declining to grant qualified immunity to the remaining individual defendants,
(2) that the District Court erred by failing to address whether the individual defendants are entitled
to immunity with respect to plaintiff’s state-law claims, and (3) that the District Court erred by
failing to grant summary judgment to the Town with respect to plaintiff’s Monell claims.

        We have jurisdiction over the District Court’s denial of qualified immunity insofar as that
denial “turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Kelsey v. County of
Schoharie, 567 F.3d 54, 60 (2d Cir. 2009). We have pendent jurisdiction over the other aspects of the
District Court’s decision only insofar as they are “‘inextricably intertwined’” with the District Court’s
immunity ruling or “‘necessary to ensure meaningful review’” of that ruling. Bolmer v. Oliveira, 594
F.3d 134, 141 (2d Cir. 2010) (quoting Ross v. Am. Express Co., 547 F.3d 137, 142 (2d Cir. 2008)).




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I.      Qualified Immunity With Respect to Plaintiff’s Federal-Law Claims

        A government official is entitled to qualified immunity “if it was objectively reasonable for
the [official] to believe that his conduct did not violate” a “ constitutional right.” Gilles v. Repicky,
511 F.3d 239, 244 (2d Cir. 2007). “The qualified immunity test is an objective one.” Zellner v.
Summerlin, 494 F.3d 344, 367 (2d Cir. 2007). It looks to the circumstances confronting an official,
not to the official’s “subjective intent.” See Anderson v. Creighton, 483 U.S. 635, 641 (1987). The
principal question is whether “‘[officials] of reasonable competence could disagree’ on the legality of
the action at issue in its particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

        Thus, to establish that they are entitled to qualified immunity in this action, the individual
defendants need not demonstrate that there was, in fact, probable cause to prosecute plaintiff.
Instead, the individual defendants need only demonstrate that it would have been objectively
reasonable for officials in their position to believe that there was probable cause for the prosecution.
See Norton, 2009 WL 804702, at *24.

        It is undisputed that the individual defendants were confronted with two items of
information at the time they chose to prosecute plaintiff. First, the individual defendants had the
Department Copy Certificate—the unsigned and undated certificate of occupancy marked “DEPT.
COPY”—that contained notations explaining that the house’s legal nonconforming use had been
“lost.” Id. at *2. Second, a Town investigator had visited the house to confirm that it was being
used as a two-family dwelling. See id. at *15.

         We have no trouble concluding that it would have been “objectively reasonable” to believe,
Gilles, 511 F.3d at 244, based on those two items of information, that there was probable cause to
commence a criminal prosecution against plaintiff. Although the notations on the Department
Copy Certificate were, after several years of litigation in the District Court, eventually held to violate
the Due Process Clause, it was by no means clear that those notations suffered from any
constitutional defect at the time the individual plaintiffs commenced the criminal proceeding.
Therefore, although it would have been a mistake for the individual defendants to rely on those
notations as a basis for probable cause, it would, at the time, have been a “reasonable mistake[].”
Saucier v. Katz, 533 U.S. 194, 205 (2001); see also Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
(“[Q]ualified immunity applies regardless of whether the government official’s error is a mistake of
law, a mistake of fact, or a mistake based on mixed questions of law and fact.” (internal quotation
marks omitted)).

       Furthermore, even though the Department Copy Certificate was unsigned and undated, it is
undisputed that the Department Copy Certificate was an “unofficial copy” of the certificate that
would have “appear[ed] exactly as the original appear[ed].” J.A. 400 (Dep. of Carl Maltese, Nov. 13,

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2000, at 61). Therefore, the individual defendants would have had no reason to doubt that the
Department Copy Certificate was an accurate facsimile of the operative certificate of occupancy
located in the Town’s files.

        It was, therefore, objectively reasonable for the individual defendants to believe (1) that the
house’s legal nonconforming use had been “lost,” (2) that plaintiff was nonetheless using the house
as a two-family dwelling, and thus (3) that there was probable cause to prosecute plaintiff for a
violation of the Town Code.

         Plaintiff argues the qualified immunity question turns on issues of fact and that he needs
discovery in this action to uncover evidence that the individual defendants acted out of a bad faith
intent to prosecute him. Such issues of fact, however, are irrelevant to the qualified immunity
inquiry, because mere assertions of bad faith “do[] not reintroduce into qualified immunity analysis”
an “inquiry into officials’ subjective intent.” Anderson, 483 U.S. at 641. Rather, the only question
here is “the objective (albeit fact-specific) question whether a reasonable [official] could have
believed” the prosecution of plaintiff “to be lawful, in light of clearly established law and the
information the [officials] possessed.” Id.

        Here, examining the undisputed facts about what “information” the individual defendants
“possessed,” it is clear, as a matter of law, that their decision to prosecute plaintiff was objectively
reasonable. Plaintiff’s bald assertions of bad faith do not alter that analysis and thus do not create
issues of material fact or demonstrate a need for discovery.

         In sum, based on undisputed facts in the record, the remaining individual defendants—that
is, those individual defendants who were not granted immunity by the District Court—are entitled
to qualified immunity with respect to plaintiff’s federal-law claims.

II.     Immunity With Respect to Plaintiff’s State-Law Claims

         The District Court did not discuss whether the individual defendants are entitled to
immunity with respect to plaintiff’s state-law claims. Plaintiff argues that the individual defendants
failed to move for summary judgment on that ground; the individual defendants argue that they did,
in fact, seek immunity with respect to the state-law claims in their motion for summary judgment.

        In light of this confusion, and without any discussion of the issue by the District Court, we
remand to the District Court to address, in the first instance, the individual defendants’ argument
that they are entitled to immunity with respect to plaintiff’s state-law claims. The District Court may
address whether the individual defendants failed to raise that argument in their motion for summary
judgment. We intimate no view on the issue.


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III.   Mo n e ll Claims Against the Town

         Finally, the Town argues that “[a]ll of the remaining claims against the Town, including
plaintiff’s declaratory judgment claims, are premised on plaintiff’s federal and state malicious
prosecution claims.” Appellants’ Br. 60. Thus the Town claims that, if we conclude that the
individual defendants are entitled to qualified immunity, “plaintiff’s claims against the Town should
likewise be dismissed.” Id.

         The individual defendants’ reasoning on this point, which occupies a mere two paragraphs
of their 61-page brief, is far from clear. In any event, we lack jurisdiction to review the District
Court’s denial of summary judgment with respect to the claims against the Town unless the issues
raised by that denial are “‘inextricably intertwined’” with the District Court’s immunity rulings.
Bolmer, 594 F.3d at 141 (quoting Ross, 547 F.3d at 142). Accordingly, rather than risk a decision on
an issue that is poorly briefed and that may exceed our jurisdiction, we remand the cause to the
District Court to reassess the claims against the Town in light of our holding that the individual
defendants are entitled to qualified immunity with respect to plaintiff’s federal-law claims.

                                          CONCLUSION

       For the foregoing reasons, the District Court’s March 27, 2009 order is REVERSED in part
and the cause is REMANDED for further proceedings consistent with this order.




                                               FOR THE COURT,

                                               Catherine O’Hagan Wolfe, Clerk of Court




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