the Township for the issuance of a standard sewage permit for the Coles' property. Cogen visited the Coles' property on June 6th and observed that no construction had taken place. Subsequently, Ludgate met with the Sewage Enforcement Officer, Julian O. Finsel, to make payments for sewage permits on other properties in the Township. During the meeting, Ludgate and Finsel discussed the payment of $ 1,000 for a standard sewage permit on the Coles' property. Finsel met with Ludgate again on June 22nd at which time Ludgate paid the sum $ 1,000 for the sewage permit. The money used to pay Finsel was marked and provided to Ludgate by the Bureau of Criminal Investigation.
Defendant Reinhardt was first assigned to the Kidder Township matter on or about July 3, 1985. As of that date no construction had place on the Coles' property; nor, did Reinhardt have substantial evidence that the permit issued to the Coles was invalid.
In July and August of 1985, Defendant Reinhardt attempted to obtain Finsel's cooperation in the investigation hoping to gather information which would justify the prosecution of some of the realtors who had, over a number of years, been paying bribes for permits. On September 3, 1985, it became clear that Finsel would not cooperate in the investigation.
Cogen visited the Coles' property on September 25, and observed that a foundation had been constructed. He notified Reinhardt of the property's condition on the same day. On September 27, 1985, Reinhardt called the Coles and informed them that he had reason to believe there might be problems with their sewage permit. He followed up this conversation with a confirming letter in which he requested their cooperation in allowing representatives from the Department of Environmental Resources to inspect the property and dig a seven foot hole to determine what sort of sewage disposal system should be installed. Nonetheless, it is clear that the Defendant was no more specific with the Coles than mentioning that there "might be problems with the permit" and specifically did not advise them that their permit had been amended illegally. After sending the letter, Defendant Reinhardt never contacted the Coles again to warn or advise them of the illegality of their permit. The Coles completed construction of a home based on the illegal permit.
Reinhardt maintains that he did not previously notify the Coles of possible problems with their sewage permit for several reasons. He indicates that his first reason was that no construction was taking place on the property. Second, he contends that he did not want to jeopardize of prosecuting the realtors by disclosing potential irregularities in their permits prematurely. Finally, Reinhardt states that he did not know the Coles' permit was invalid until the test performed by the Department of Environmental Resources showed that the condition of the property was not as reflected in the permit.
On the above facts, Plaintiffs aver that Defendant Reinhardt's failure to warn Plaintiffs that their property was unsuitable for the type of sewage disposal system set forth on the reissued permit caused them to expend large sums of money to construct a dwelling on their property. Plaintiffs aver that Defendant Reinhardt, therefore, denied the Plaintiffs of the use and enjoyment of their property and otherwise induced them to expend money, thereby depriving them of that property and money without due process of law in violation of the Constitution of the United States of America. Defendant Reinhardt has moved to dismiss, or in the alternative for summary judgment, by asserting that the Coles have failed to state a cause of action upon which relief can be granted; and, that he is entitled to prosecutorial and/or qualified immunity from suit.
The Court will first consider whether Defendant Reinhardt violated Plaintiffs' federally protected rights since the Supreme Court has stated that the immunity issue should not be reached unless it is first determined that Plaintiffs' federally protected rights have been violated. Martinez v. California, 444 U.S. 277, 284, 62 L. Ed. 2d 481, 100 S. Ct. 553 reh'g denied, 445 U.S. 920, 63 L. Ed. 2d 606, 100 S. Ct. 1285 (1980), quoting from Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979) (the "first inquiry in any Section 1983 suit . . . is whether the Plaintiff has been deprived of a right" secured by the Constitution of the United States).
Section 1983 authorizes a court to grant judicial relief when an individual's federally protected rights are violated by a state or local official. Thus, a party who asserts a claim for relief under § 1983 must satisfy two elements: (1) "the plaintiff must allege that some person has deprived him of a federal right," and (2) "he must allege that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980).
In arguing that the Plaintiffs' have failed to state a cause of action, Defendant Reinhardt maintains that at most the allegations assert a negligent failure to warn, which does not rise to the level of a constitutional violation. In support of his argument, Defendant points out that at the time he became involved in the case, the bribe for the sewage permit had already been paid, and because no construction had taken place on the property at that point, the threat to Coles' interest were not imminent at the time he began to work on the case. Defendant further points out that when he did receive information that construction activity was underway, he acted promptly to inform the Coles of a potential problem with their permit, despite the fact that he was unsure whether or not the land could support the system provided for in the permit. Defendant argues that at most his conduct speaks in terms of negligence and does not approach the sort of abuse of government power that the Due Process Clause prohibits.
Plaintiffs attempt to refute Defendant Reinhardt's argument as follows:
Defendant Reinhardt's first line of defense in regard to this action is that he committed no more than a simple act of negligence and he cites on his behalf the decision in Daniels vs. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Daniels was a case where an inmate brought suit under 42 U.S.C. § 1983 against certain prison officials because he slipped on a pillow negligently left on a stairway by a Sheriff's deputy. The differences between the facts and the decision in Daniels, and those in the instant case, are striking. Defendant Reinhardt did not negligently refuse to reveal to the Coles that their permit had been issued based on an illegal bribe. Defendant Reinhardt intentionally withheld such information from the Coles.