On Appeal From the United States District Court For the District of Delaware, D.C. Civil No. 87-00297.
Gibbons, Chief Judge, Becker and Rosenn, Circuit Judges.
Edward R. BECKER, Circuit Judge.
This is an appeal from the district court's grant of summary judgment for the defendants in a civil rights suit brought by plaintiff-appellant Daniel W. Burt. Our review is plenary. Concluding that there is a genuine issue of material fact with respect to Burt's 42 U.S.C. § 1983 claim, we reverse as to that claim. However, we will affirm the grant of summary judgment as to Burt's pendent state claims (for false arrest and detention and intentional infliction of emotional distress) and his 42 U.S.C. § 1985 claim.
The following facts were developed through discovery and made part of the summary judgment record. Burt owns a construction company ("Burt Construction") that performs a good deal of concrete work in the City of Rehoboth Beach, Delaware ("City"). On July 3, 1986, the firm was laying a sidewalk there when an employee, Christopher Clark, opened a City fire hydrant, placed a meter on the hydrant, and used a garden hose to wash a concrete bump used in laying the sidewalk. At the time, Burt was not at the construction site, and Burt denies having authorized Clark to use the hydrant on that day. Defendant Howard Blizzard, Supervisor of the City Water Department, who was inspecting the sidewalk to make sure it had the required depth, saw Clark using the fire hydrant. Blizzard realized that Burt was not the one using the fire hydrant, as Blizzard had had previous dealings with Burt. He also had no evidence that Burt or anyone else in particular had directed Clark to use the hydrant.
After seeing Clark using the fire hydrant, Blizzard returned to the City offices and related the facts to defendant Gregory Ferrese, the City Manager. Ferrese told Blizzard that he had not given Burt Construction a permit to use the City's fire hydrant as required by municipal ordinance 15/16A.*fn1 After consultation, they agreed that Burt should be arrested for violating the ordinance. Blizzard met with Alderman O. T. Clark, who, on the basis of information supplied to him by Blizzard, signed a warrant for Burt's arrest. According to the arrest warrant, Burt had "unlawfully convert[ed] city water to his own use without permission from the City of Rehoboth Beach, Delaware in violation of Ordinance No. 15/16A." A-89. There is evidence in the record of personal animosity held by Blizzard against Burt.
Later that day, two City police officers approached Burt and told him that they had a warrant to arrest him. Over an hour later, Burt went to the Police Station. He waited a half-hour for Blizzard to arrive, at which time he was taken to the Alderman's Court where he was read the arrest warrant and posted a $50.00 bond. Burt was then fingerprinted and photographed. Before that day, Burt had no arrest record.
The case was transferred, pursuant to Burt's election, to the Court of Common Pleas of Sussex County. While the charge was pending in that court, the Delaware Department of Justice entered a nolle prosequi, dismissing the charge.
Burt thereupon filed this action alleging that he had been arrested illegally and without probable cause as the result of the actions of the defendants. In addition to federal civil rights claims, the complaint alleges state torts of (1) false arrest and detention and (2) intentional infliction of emotional distress.
Following discovery the district court granted summary judgment for the defendants. In a brief opinion, the court explained its grant of summary judgment as follows:
Regarding the civil rights claims under §§ 1983 and 1985, Burt has not stated deprivation of any constitutional or statutory right. . . . Burt and his employees were, in fact, violating the City Water Code. The minor police involvement that resulted was . . . a reasonable consequence of plaintiff's legal transgressions.
Plaintiff's tort law claims are also baseless. To state a claim for false arrest, Burt must allege, among other things, that he was restrained without legal justification. McLaughlin v. Bradlee, 599 F. Supp. 839 (D.D.C.), aff'd 803 F.2d 197 (D.C. Cir. 1984). . . . [L]egal justification existed . . . for the police's contact with Burt. Finally, Burt does not state a single element of the tort of intentional infliction of emotional distress, but for present purposes we need point out only the failure of one element. Emotional distress must be severe to rise to a level of a compensable tort. Candelora ...