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Duffy v. Mange

United States District Court, D. Delaware

February 11, 2014

MICHAEL DUFFY, Plaintiff,
v.
M. MANGE, KENT COUNTY DELAWARE, P. BROOKS BANTA and KENT LEVY COURT INC., Defendants.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Plaintiff Michael Duffy ("Duffy" or "plaintiff'), who proceeds pro se, [1] filed this lawsuit on January 4, 2011, alleging violations of the Takings Clause of the Fifth Amendment.[2] (D.I. 1) Plaintiff subsequently amended the complaint to add a claim under the Fourth Amendment search and seizure clause. (D.I. 44) Presently before the court are the following motions: the motion for summary judgment of defendants Kent County Levy Court, Commissioner P. Brooks Banta, and Michael J. Petit de Mange (collectively, "defendants") (D.I. 53), and plaintiffs motion to strike (D.I. 60) and motion to compel discovery (D.I. 63). For the reasons set forth below, I recommend that the court deny plaintiffs motions and grant defendant's motion for summary judgment.

BACKGROUND[3]

On February 10, 2001, plaintiff purchased property located at 3028 Kitts Hummock Road, Kent County, Delaware, for a sum of $500.00. (D.I. 54, Ex. Cat Duffy 1213-15) However, plaintiff did not record a deed or bill of sale for the property. ( Id. at Duffy 1200-02) In May 2008, a storm damaged plaintiff's property. Following the storm, inspectors from the Division of lnspections and Enforcement of the Kent County Department of Planning Services inspected a number of parcels in the communities affected by the storm, including plaintiff's property. ( Id. at¶ 2) One of the structures on plaintiff's property was condemned as unsafe in May 2008. ( ld. at Duffy 1188)

By letter dated June 16, 2008, the Department of Planning Services notified the record owners of the property that the property was condemned, and gave the record owners ninety days to comply with the condemnation order. ( Id. at Duffy 1184-86) After the letter was returned as undeliverable, defendants posted the notice on the structures located at the property. ( Id. at Duffy 1182-83) Plaintiff contacted defendants on June 24, 2008 with a series of questions about the procedure. ( ld. at Duffy 1177-80) On June 30, 2008, defendants attempted to explain the process to plaintiff and provide him with written information, but plaintiff declined to accept the information offered to him. ( Id. at Duffy 1175)

Plaintiff identified himself as disabled and requested assistance under the ADA on September 9, 2008. ( Id. at Duffy 1162) Defendants informed plaintiff that he would be granted an extension of time for correction of violations at the property if he recorded a deed or bill of sale by the deadline of October 3, 2008. ( Id. at Duffy 1156, 1149) The deed transferring legal ownership of the property to plaintiff was recorded on October 3, 2008. ( Id. at Duffy 1129-42)

On October 2, 2008, an inspection of the property was made at plaintiffs request. ( Id. at Duffy 1108) The inspection revealed that an accessory structure on the property was also unsafe, and the building was condemned. ( Id. ) Plaintiff was given ninety calendar days to comply with the condemnation order. ( Id. at Duffy 1109)

Beginning in October 2008, a volunteer architect assisted plaintiff in navigating the demolition and rebuilding process. ( Id. at Duffy 1113, 1093 ¶ 3, 1006-09, 987-95) On October 23, 2008, defendants met with plaintiff to explain the demolition and rehabilitation process. ( Id. at Duffy 1030-35) Defendants outlined the steps needed to apply for a demolition permit or a temporary shelter permit and also discussed what would be needed to request an extension of the demolition deadline. ( Id. ) Defendants also offered to assign a staff member to help plaintiff navigate the process in response to his ADA accommodation request. ( Id. at Duffy 1093-94) Plaintiff was advised that if he took no action within ninety days of the condemnation order, defendants would proceed with the demolition and place a lien on the property to cover the cost. ( Id. )

Also in October 2008, plaintiff submitted a request for a dumpster. ( Id. at Duffy 1143) The request was denied because defendants do not provide county-funded dumpsters for individual property owners. ( Id. at Duffy 1093) Defendants had provided two dumpsters in September 2008 for a planned community flood clean up weekend, but defendants do not provide county-funded dumpsters to individual property owners. ( Id. at¶ 9) Plaintiff has presented no evidence indicating that county-funded dumpsters were provided to individual homeowners.

Plaintiff continued to communicate with defendants via email during November 2008. ( Id. at Duffy 1021-25) Defendants reiterated that they would assist plaintiff with the permitting process, but an extension of the demolition deadline would not be granted unless significant progress toward rehabilitation or demolition was shown. ( Id. at Duffy 1021) Plaintiff was notified that he had until February 7, 2009 to comply with the condemnation notice. ( Id. )

nuary 13, 2009, plaintiff initiated a civil action against defendant in the Court of Chancery, requesting injunctive relief to preclude defendant from demolishing the structures. On January 20, 2009, plaintiffs architect recommended demolishing and rebuilding the structures, and asked defendants how to apply for a demolition permit. ( Id. at Duffy 988-95) Defendants determined that plaintiff had taken some steps towards compliance with the condemnation order and suspended the February 7, 2009 compliance deadline. ( Id. at Duffy 987)

Plaintiff made no further progress towards obtaining a demolition permit until defendants issued another notice of intent to demolish the structures as of June 23, 2009. Plaintiff applied for and was granted a demolition permit on July 6, 2009, which gave him thirty days to complete demolition. ( Id. at Duffy 856-57) During the demolition period, volunteers from plaintiff's church[4] demolished the front structure and a portion of the rear structure, but did not complete demolition of the rear structure. ( Id. at¶ 18) When contacted by defendants, the volunteers indicated that they did not plan to complete the demolition.

Defendants provided notice of intent to proceed with the remaining demolition in the ongoing Court of Chancery litigation, and caused the remaining structure to be demolished in early December 2009 after soliciting bids from contractors. ( Id. at Duffy 758) The demolition cost $1, 400, and that amount has become a lien on the property. ( Id. at Duffy 756) Plaintiff did not ...


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