Wyrostek et al v. Nash, Jr. et al, No. 1:2010cv00351 - Document 37 (D.R.I. 2013)
Court Description: OPINION AND ORDER granting 27 Motion for Summary Judgment.. So Ordered by Judge William E. Smith on 10/31/2013. (Urizandi, Nisshy)
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND ___________________________________ ) JEFFREY AND LINDA WYROSTEK, ) ) Plaintiffs, ) ) v. ) C.A. No. 10-351 S ) WILLIAM NASH, JR., Individually ) and in his Official Capacity as ) Building/Zoning Official and ) TOWN OF WARREN, by and through ) its Finance Director CHERYL ) SILVA in her Official Capacity, ) ) Defendants. ) ___________________________________) OPINION AND ORDER WILLIAM E. SMITH, United States District Judge. A breeze ruffled the neat hedges of Privet Drive, which lay silent and tidy under the inky sky, the very last place you would expect astonishing things to happen. Rowling, Harry Potter (Scholastic Press 1997). and the Sorcerer s Stone J.K. 17 And yet, according to Plaintiffs Jeffrey and Linda Wyrostek ( Plaintiffs or Wyrosteks ), astonishing things did happen at Number Four Privet Drive. 1 The Wyrosteks come to court seeking declaratory and injunctive relief, as well as damages, against the Town of 1 This Number Four Privet Drive, unlike the infamous Dursley residence, Little Whinging, County Surrey, England, is located squarely in the Muggle World, in Warren, Rhode Island. Warren, Rhode Island ( Warren ) and William J. Nash, Jr., a Warren building and zoning official collectively with Warren, Defendants ). ( Nash , and They allege that the construction of their home was delayed, at great cost, by a series of actions that Nash took, including issuing a stop work order and requiring that continued construction be subject to certain inspections and regulatory approvals. Plaintiffs claim that these actions violated their due process and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution, and Article One, Section Two of the Constitution of the State of Rhode Island. Before the Court is a motion for summary judgment filed by Defendants (ECF No. 27). For the reasons set forth GRANTED below, Defendants motion is and summary judgment is entered in Defendants favor on all counts. I. Facts The Wyrosteks purchased a vacant parcel of land at Four Privet Drive in Warren in April 2004. ECF No. 1.) In July 2007, Plaintiffs (Compl. ¶¶ 5-6, applied for received a permit to build a single-family residence. at ¶ 7.) and (Id. That the construction phase did not go according to plan is to put it mildly. 2 Although Plaintiffs had submitted a permit application indicating that the basement of the house was to be a crawl space, they instead constructed a full basement. (Defs. Statement of Undisputed Facts in Supp. of Mot. for Summ. J. ( Defs. SUF ) ¶¶ 9-10, ECF No. 28.) On August 23, 2007, Nash issued a stop work order based on concerns that the full basement would result in the structure exceeding townimposed height restrictions, and requested that Plaintiffs submit as-built plans. (Compl. ¶ 8.) In the meantime, in August 2007, the owner of abutting property contacted Nash with concerns that the grading of the new construction would adversely affect his property through increased water runoff. (Defs. SUF ¶ 12.) On September 24, 2007, Robert Boyer ( Boyer ), a land surveyor hired by Plaintiffs, submitted engineering data to Nash addressing Nash s height concerns. 2 12.) Shortly thereafter, Nash responded requesting some additional information. Between October and (Compl. ¶¶ 10, December by letter, (Defs. SUF ¶ 13.) 2007, encountered a series of additional setbacks. Plaintiffs In October, Nash required that Plaintiffs redesign portions of the lot to address drainage and runoff concerns. 2 (Compl. ¶ 16.) Plaintiffs allege that this data was sent to Nash twice, first on September 6, but Nash responded at that time that he was too busy. (Compl. ¶ 10.) 3 In November, about rain Nash runoff required that Plaintiffs provide from roof and soil the about control and stabilization. 3 (Id. at ¶¶ 17-18.) December, sent Warren officials a letter to data erosion Then, in Plaintiffs inquiring as to what steps they intended to take to address disrepair in a drainage detention pond located across the street from Plaintiffs home. 4 On December engineering data Plaintiffs home. 12, 2007, to Nash (Id. at ¶ 19.) Boyer delivered regarding (Id. at ¶ 23.) the additional height of Nash then sent a letter to Plaintiffs lifting the stop work order, but noting that Plaintiffs needed to submit as-built plans addressing the runoff and certificate drainage of concerns occupancy prior ( CO ). Construction resumed in January 2008. to (Id. receiving at ¶¶ a 24-25.) (Id. at ¶ 27.) In February 2008, the Wyrosteks received a bill from Pare Engineering ( Pare ), a firm that Warren had engaged 3 While Plaintiffs allege that a neighboring property was built with no such requirement, Defendants point out that the Wyrosteks ordered and installed a significant amount of soil, or fill, which changed the topography of the property. (See Mem. in Supp. of Defs. Mot. for Summ. J. ( Defs. Mem. ) 21, ECF No. 27-1.) 4 While Plaintiffs complain that none of their neighbors received a similar notice, the record indicates otherwise. (See Defs. Mem. Exs. O and P, ECF No. 27-2.) 4 to review certain of Plaintiffs engineering data. 5 ¶ 28.) (Id. at As part of its review of Plaintiffs data, Pare had recommended to Nash and to Boyer that Plaintiffs record the existence of the drainage system on their property deed. (Defs. Mem. Ex. F, ECF No. 27-2.) form of a suggestion, Although it was in the Plaintiffs characterize this correspondence as a new requirement and suggest that such a requirement had not previously been imposed on a singlefamily residence in Warren. (Compl. ¶ 22.) Construction continued throughout much of 2008, until the project entered the inspection phase in the fall. On September 10, the project failed a plumbing inspection, and Nash required that the Wyrosteks obtain a fire sprinkler permit, which they did on September 15. 6 37.) Then, on September insulation inspection. 23, Nash (Id. at ¶ 38.) (Id. at ¶¶ 33, failed the home s On September 30, 5 This fact is the basis for Plaintiffs seeking a declaratory judgment that they are not liable for the fees that Pare incurred. Defendants contend, however, that the issue need not be addressed as Warren is no longer seeking payment of these funds. (Defs. Mem. 33.) Accordingly, this claim is denied as moot. 6 Plaintiffs allege that this inspection was delayed because Nash failed to respond to telephone calls. (Compl. ¶¶ 30-31.) That Nash was slow to respond to the Wyrosteks is a consistent theme. Defendants point out, however, that Nash was generally prompt in his handling of issues, particularly given the many demands on his time imposed by multiple municipal responsibilities. (See Defs. Mem. 16.) 5 Nash again conducted an time gave his approval. In March inspections, Wyrosteks. when inspection, and violation. 7 (Id. at ¶ 41.) the ostensibly property the was last ready hurdle for facing failed the project (Id. at ¶¶ 49-50.) five days later, for a cellar CO the handrail Nash conducted a second CO and this time failed project because of an issue with a vapor barrier. ¶ 52.) this The first inspection took place on March 5, Nash inspection 2009, insulation the (Id. at Finally, on March 11, Nash conducted a third CO inspection and approved the project. (Id. at ¶ 53.) Plaintiffs paint Nash as some kind of a Draco Malfoy character, planting obstacles in their way for sport or spite, and singling them out, imposing obligations never previously Warren. that they imposed on owners of single-family homes in For example, Plaintiffs point to the suggestion record certain engineering documents on their deed, Nash s requirement that they submit as-built plans, and the requirement that they obtain a fire permit as evidence of his crusade against them. 8 sprinkler Plaintiffs 7 Plaintiffs allege that a neighboring property had passed its CO inspection despite lacking a handrail on an outdoor deck. (Compl. ¶ 50.) 8 (See, e.g., Pls. Mem. in Supp. of Objection to Defs. Mot. for Summ. J. 5, ECF No. 33-1) ( In the history 6 offer as proof that certain other single-family homes under construction in the vicinity were not subject to similar requirements. (See Pls. Statement of Undisputed Facts ( Pls. SUF ) ¶¶ 26-28, ECF No. 34.) Plaintiffs filed suit in August 2010, alleging that Nash was motivated by malice or ill will, and that his actions were reckless or made with callous indifference to their constitutional rights. 9 (Compl. ¶ 57.) Plaintiffs seek compensatory and punitive damages, injunctive relief in the form of a prohibition against harassment by Nash or other Warren officials, and, as noted above, a declaratory judgment that Plaintiffs are not liable to Warren for the cost of Pare s engineering services. II. (Id. at ¶¶ 60-63.) Discussion Summary judgment is appropriate when, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009). A genuine issue of fact exists of Warren, Rhode Island generally . . . no one has been treated the way the Wyrosteks have been treated. ). 9 It should also be noted that Plaintiffs allege that Nash withheld evidence and lied during his deposition after commencement of this suit. (See Pls. Statement of Undisputed Facts ¶ 53-54, ECF No. 34.) 7 where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Taylor, 576 F.3d at 24 (internal citation and quotation marks omitted). Because the Court concludes that Defendants conduct, as it is alleged or as established in the undisputed facts, does not give rise to claims for due process or equal protection violations, the entry of summary judgment is appropriate. A. Due Process Plaintiffs assert that Nash s actions violated their right to substantive due process. The due process clauses of the United States and Rhode Island Constitutions each prohibit the deprivation of without due process of law. R.I. Const. art. I, § 2. life, liberty or property U.S. Const. amend. XIV, § 1; As the similarity of the texts would suggest, due process analysis under both documents is identical. See, e.g., Rhode Island Depositors Econ. Prot. Corp. v. Brown, 659 A.2d 95, 100 (R.I. 1995). [I]n order to state a substantive due process claim of any ilk, a plaintiff must allege behavior on the part of the defendant conscience. 19 (1st conscience is so outrageous that it shocks the Mongeau v. City of Marlborough, 492 F.3d 14, Cir. determining that 2007). when There conduct shocking is no rises to behavior 8 precise the necessary formula level to of sustain for the a substantive due process claim. 16, 32 (1st Cir. 2006). Pagan v. Calderon, 448 F.3d But, courts have previously described such behavior as extreme and egregious, truly outrageous, uncivilized and intolerable, and stunning. Id. (internal citations omitted). Moreover, what is clear is that not every perceived slight or discourteous act by a public official constitutes a due process violation, and the federal courts are not designed to be a Universal Miss Manners, overseeing business. the day-to-day conduct of town hall See Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992). Some examples of conduct that has been found to be conscience shocking corruption or interfere with are illustrative: self-dealing, otherwise cases hampering involving development constitutionally to protected activity, bias against an ethnic group, Blain v. Twp. of Radnor, 167 Fed. Appx. 330, 333 (3d Cir. 2006) (citing Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir. 2004)), bribery, threatening of Mongeau, municipal 492 F.3d officials at by Nestor Colon Medina, 964 F.2d at 47. 19-20, political and the leaders, A run-of-the-mill dispute between a developer and a town official typically will not amount to conscience shocking behavior. Mongeau, 492 Inc. F.3d at 19; see also 9 Creative Env ts, v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982) ( Every appeal by a disappointed developer from an adverse ruling by a local . . . planning board necessarily involves some claim that the board exceeded, abused or distorted its legal authority in some manner, often for some allegedly perverse (from the developer s point of view) reason. ). Plaintiffs due process claim arises from: (1) Nash s decision to issue the stop work order; (2) his requirement that continued construction and issuance of a CO be subject to further regulatory approval; and (3) his alleged withholding of evidence and lying in his deposition. The issuance of the stop work order does not support a substantive due process claim. The record indicates that Plaintiffs installation of a full basement significantly departed from plans that had previously been approved by Warren officials. It is understandable then that Nash would issue a stop work order to seek assurances that the height of the completed structure would not violate applicable town restrictions. Plaintiffs argue that the fact that the finished home adhered to the town height restrictions is evidence that Nash was irresponsible in his decision to issue the stop work order in the first place. (Pls. SUF ¶ 44.) Even if one were to conclude that Nash exercised poor judgment in 10 this regard (which is by no means apparent), this alone does not rise to the level of conscious shocking behavior. See, e.g., Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006) (finding that a mistake in judgment on the part of a municipal official would not shock the conscience). Plaintiffs allege further that Nash s actions after the initial issuance of the stop work order were conscience shocking. They point to Nash s demand for as-built plans, his insistence on drainage remediation, the required fire sprinkler permit, examples. However, courts assessing conduct that went far above beyond and and what the is many failed alleged conduct not conscience shocking. 385 F.3d property at not 286 (applying applied to here inspections have found as the See, e.g., Eichenlaub, requirements other to properties, plaintiff s subjecting plaintiffs to unannounced and unnecessary inspections and enforcement actions, and delaying permits and approvals); Licari v. Ferruzzi, 22 F.3d 344, 349-50 (1st Cir. 1994) (revocation enforcement of permits, orders, and unauthorized delays in issuance approving an of amended permit application). The Wyrosteks, record while indicates that undoubtedly 11 Nash s burdensome, demands were of sought the in good faith to building code. require strict adherence to municipal The sort of malicious, self-serving conduct that courts have found to be conscious shocking in the due process context simply cannot compare. Plaintiffs final pitch is that Nash both withheld evidence during discovery, and lied under oath during his deposition. (Pls. SUF ¶¶ 54-55.) These claims, like the ghost of Moaning Myrtle, are plainly vaporous. Plaintiffs allege that Nash withheld an email that he sent on October 14, 2008 to a Pare employee, which implied that Nash would not issue the Wyrosteks a CO until they made payment on the fees owed to Pare. ECF No. 34-5.) (Pls. SUF, Ex. 33, Plaintiffs suggest that this quid pro quo, and the withholding of the email, are evidence of Nash s invidious motive. This is just Hufflepuffery. First, because the email correspondence in question appears to be nothing more than a communication about fees owed to Pare, it is arguable Plaintiffs threatening that the discovery to email was not request. withhold CO even Second, approval might covered by although suggest an improper motive in some circumstances, the record indicates that Nash failed the first two CO inspections because of legitimate structural deficiencies, 12 and then ultimately approved the project notwithstanding the fees, all within six days. Finally, Plaintiffs incredulously assert that Nash lied during his deposition regarding his recollection of the date on which he issued the stop work order. Nash stated, based on a review of his notes, that he recalled issuing the stop work order on August 23, 2007. ¶ 54.) (Pls. SUF Plaintiffs, outraged, point to the set of notes in question, which in fact suggest that Nash issued the order in early August 2007. (Id. at Ex. 37, ECF No. 34-5.) This discrepancy, they say, is evidence of Nash s deceit and reverence of the Dark Arts of municipal malfeasance. Nash s confusion (by a mere couple of weeks) about the date of issuance occurring of some his three stop work years order after the in a fact deposition leaves this Court s conscience decidedly un-shocked. The bottom allegations line depict is Nash perhaps a bit inflexible. this: as being at worst, highly Plaintiffs demanding In a word, a stickler. and Perhaps Nash could even be fairly characterized as a pain in the back-side. But Nash s behavior, even when viewed in the light most favorable to Plaintiffs, while perhaps not the model of courtesy or efficiency, does not come close to 13 shocking the conscience. Thus, recovery under substantive due process law cannot be had. B. Equal Protection Plaintiffs protection next under the allege that Fourteenth they were Amendment denied of the equal United States Constitution, 42 U.S.C. § 1983, and Article One, Section Two Island. of the Broadly Constitution speaking, the of the Equal State of Protection Rhode Clause provides that similarly situated persons are to receive substantially similar treatment from their government. Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004). Typically, a plaintiff asserting an equal protection violation is required to demonstrate that compared with others similarly situated, [he] was selectively treated . . . based on religion, impermissible intent to considerations inhibit or punish such the as race, exercise of constitutional rights, or malicious or bad faith intent to injure a person. Id. (quoting Barrington Cove Ltd. P Ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001)) (emphasis omitted). However, in certain cases, a plaintiff may advance an equal protection claim challenging adverse zoning or land-use decisions rendered by a town or its local theory. officials under the so-called class of one Such a claim is cognizable only when a plaintiff 14 alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Cordi-Allen v. Conlon, 494 F.3d 245, 250 (1st Cir. 2007) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)) (per curiam). that the plaintiff Importantly, both theories require prove dissimilar treatment vis-à -vis similarly situated third parties. Plaintiffs clarify, for the first time, in their objection to the motion for summary judgment, that they base their equal protection claims on the class of one theory. 10 (See Pls. Mem. in Supp. of Their Objection to Defs. Mot. for Summ. J. 11, ECF No. 33-1.) It is arguable that this theory is a newly-minted cause of action not set forth in the complaint and therefore subject to dismissal. See Steeves v. City of Rockland, 600 F. Supp. 2d 143, 179 (D. Me. 2009) (internal citations omitted). 10 Defendants briefed the issue of whether Plaintiffs had identified similarly situated third parties, but did not brief the issue of whether there was a rational basis for any disparate treatment. Instead, concluding based on the complaint that Plaintiffs were asserting a traditional equal protection claim, Defendants briefed the issue of whether any of the allegedly adverse actions had been malicious or undertaken in bad faith. Defendants cannot be faulted for drawing this conclusion, as the complaint makes no mention of the class of one theory and Plaintiffs raise this issue for the first time in opposition filings to Defendants motion for summary judgment. 15 Nevertheless, the Court will consider the claim properly brought, but finds that because Plaintiffs have failed to establish that they were treated differently from other similarly situated individuals, they are precluded from establishing liability under either a traditional or class of one equal protection theory. Moreover, the record makes clear that even if Plaintiffs were similarly situated, a class of one claim would fail because there was a rational basis for Defendants actions; and a traditional equal protection claim would fail because there is no evidence that Defendant s actions were undertaken maliciously or in bad faith. [P]laintiffs claiming an equal protection violation must . . . identify and relate specific instances where persons situated similarly treated differently. in all relevant Cordi-Allen, 494 aspects F.3d at were 250-51 (quoting Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006)) (emphasis in original). To prove substantial similarity, plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves. Id. at 251 (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). the standard does not correlation, there must require be 16 there sufficient be an proof While [e]xact on the relevant aspects of the comparison to warrant a reasonable inference of substantial citations omitted). similarity. Id. (internal Therefore, Plaintiffs must show that the parties with whom [they] seek[] to be compared have engaged in the entity same without such activity vis-à -vis the or distinguishing government mitigating circumstances as would render the comparison inutile. Id. (internal citations omitted). The Wyrosteks repeatedly state that Nash singled them out and subjected them to regulatory hurdles not previously imposed on other single-family homeowners. Specifically, they allege that Nash required them to provide an erosion control and soil stabilization procedure, despite the fact that the property across the street was developed without any such requirement. they submit as-built They point to Nash s request that plans, obtain the fire sprinkler permit, and compensate Pare for its services, and suggest that they are unique among single-family Warren to endure these requirements. homeowners in Finally, they contend that they alone were the recipients of a suggestion from Warren officials that they record certain engineering documents on their deed. While Plaintiffs provide evidence indicating that other single-family homes in the vicinity were not subject 17 to these requirements, this is comparing quaffles to snitches, and such generalized comparisons to other homes overlook the project. unique See challenges Cordi-Allen, posed 494 by F.3d this at particular 251 ( It is inadequate merely to point to nearby parcels in a vacuum and leave it to the municipality to disprove conclusory allegations that the owners of those parcels are similarly situated. ). For ordered installed and significantly example, the a changing fact large the that the quantity property s Wyrosteks of fill, topography and prompting a neighbor to voice concerns about water runoff, gave Nash ample stabilization foundation reason to procedures. required by request the Likewise, the erosion the and change installation of soil to the the full basement instead of a crawl space not surprisingly prompted Nash to would require not as-built exceed plans applicable to assure height that the home restrictions. See Cordi-Allen, 494 F.3d at 252 (finding that the project that plaintiffs rejected by intended to municipal undertake, officials, but could that not had been usefully be compared to projects undertaken by their neighbors because of differences in the size, projects). 18 scope and timing of the Further, Plaintiffs never demonstrate whether any of these other significant notifying single-family change in Defendants, residence their and owners building Plaintiffs made plans never a without state whether any of the other residence owners had neighbors who raised zoning, elevation or runoff concerns. Because a plaintiff s obligation to prove that he or she is similarly situated to the third parties allegedly treated differently is a prerequisite to establishing liability under either the traditional or class of one equal protection theories, the Wyrosteks cannot prevail. Even were the Wyrosteks to demonstrate that they are similarly situated, they cannot satisfy the second elements of either a traditional or class of one equal protection claim. Were Plaintiffs asserting traditional equal protection claims (as the complaint would suggest), they have not shown that any differing treatment was unconstitutional, that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, person. or malicious or bad faith intent to injure a Tapalian, 377 F.3d at 5; see also Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995). 19 Malicious or bad faith intent claims are infrequent. Rubinovitz, 60 F.3d at 911. must establish more than Normally, such a plaintiff that the government official s actions were simply arbitrary or erroneous; instead, the plaintiff must establish that the defendant s constituted a gross abuse of power. at 6 (citation omitted). actions Tapalian, 377 F.3d The First Circuit has held that an arbitrary denial of a permit does not rise above the constitutional threshold for equal protection claims, even if the denial was in violation of state law and in bad faith. Baker v. Coxe, 230 F.3d 470, 474 (1st Cir. 2000). In Rubinovitz, violations when plaintiffs city officials alleged equal protection cut their utilities, off charged them with code violations, interfered with their hiring of a contractor, and otherwise frustrated the use of their property after plaintiffs evicted a friend of a city official. First 60 F.3d at 908-09. Circuit evidence that indicate to found a there favorable case to approaching here, was malicious causing substantial harm. The Even with this vendetta, the only orchestrated when viewed Plaintiffs, does not level Tapalian, 377 F.3d at 6. enough campaign Id. at 912. even the barely of a in submit gross the light most anything even abuse of power. What is before this Court appears 20 to be a pretty typical case of bureaucratic red tape, but nothing that demonstrates an abuse of power that shocks the conscience, or action that Baker, 230 F.3d at 474. is legally irrational. Thus, even were Plaintiffs to demonstrate that they are similarly situated, they could not satisfy the second prong of a traditional equal protection claim. Finally, were Plaintiffs to proceed, as they attempt to clarify theory, the at this record late stage, reflects that on the Nash class and of other one Warren officials had a rational basis to make their many demands based on Plaintiffs specifications. early divergence from the See Cordi-Allen, 494 F.3d at 254. project As a result, again assuming that Plaintiffs were to prevail on the issue of being similarly situated, they likewise cannot satisfy the second prong of a class of one equal protection claim. C. Qualified Immunity and Injunctive Relief The parties extensively briefed the issue of whether Nash, in his role as a government official, is entitled to qualified immunity. Because the Court finds that Nash s conduct does not amount to a constitutional violation, any further discussion of this issue is unnecessary. 21 Finally, as noted above, with respect to Plaintiffs claim for declaratory relief regarding liability for payment of Pare s fees for engineering services, the Court accepts Defendants representation that Warren is no longer seeking these fees, and thus this claim is moot. III. Conclusion That the Wyrosteks encountered so many setbacks and cost overruns regrettable. in the construction of their home is But the record indicates that these setbacks and overruns were the result of an early deviation from the project specifications, combined with the oversight of a demanding but scrupulous public official. These circumstances, while unfortunate, cannot be said to give rise to viable due process or equal protection claims. such, Defendants motion for summary judgment is GRANTED. IT IS SO ORDERED. /s/ William E. Smith William E. Smith United States District Judge Date: October 31, 2013 22 As
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