Barnett v. Carberry , 420 F. App'x 67 ( 2011 )

10-1342-cv
Barnett v. Carberry
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 20th day of April, two thousand eleven.
PRESENT: AMALYA L. KEARSE,
ROGER J. MINER,
DENNY CHIN,
Circuit Judges.
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JUDY PRESCOTT BARNETT,
Plaintiff-Appellant,
-v.- 10-1342-cv
ROBERT E. CARBERRY, S. DEREK PHELPS,
CONNECTICUT LIGHT & POWER COMPANY,
NORTHEAST UTILITIES, NORTHEAST UTILITIES
SERVICE COMPANY, UNITED ILLUMINATING
COMPANY, CONNECTICUT SITING COUNCIL,
Defendants-Appellees.*
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FOR PLAINTIFF-APPELLANT: WHITNEY NORTH SEYMOUR, JR., Law
Office of Whitney North Seymour,
Jr., New York, New York (Gabriel
North Seymour, Gabriel North
Seymour P.C., Falls Village,
Connecticut, on the brief).
*
The Clerk of Court is directed to amend the caption
accordingly.
FOR DEFENDANTS-APPELLEES: JONATHAN M. FREIMAN, Wiggin and
Dana LLP, New Haven, Connecticut
(Anthony M. Fitzgerald, Sherwin M.
Yoder, Carmody & Torrance LLP, New
Haven, Connecticut, on the brief),
for United Illuminating Company,
Robert E. Carberry, Connecticut
Light & Power Company, Northeast
Utilities, Northeast Utilities
Service Company).
ROBERT L. MARCONI, Assistant
Attorney General, New Britain,
Connecticut, for Connecticut Siting
Council, S. Derek Phelps.
Appeal from a judgment of the United States District
Court for the District of Connecticut (Covello, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
In 2008, plaintiff-appellant Judy Prescott Barnett
brought a § 1983 civil rights action against a state licensing
agency, several private utilities companies, and their employees
(collectively, "defendants"), alleging that they exposed her home
to unusually high levels of electromagnetic fields ("EMFs") in
violation of her property and privacy rights and her rights to
due process and equal protection of law. She also alleged
pendent state claims, including breach of contract and tort
claims. Barnett claims that she and her husband suffer from
significant health problems that they suspect were caused by EMF
emissions from a power line located 40 feet away from their home.
They also allege that their home is now unmarketable. Barnett
appeals from two decisions of the district court: the first,
entered March 30, 2009, dismissed inter alia her claims under the
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First, Fourth, and Ninth Amendments, and the second, entered
March 16, 2010, granted summary judgment to defendants as to all
remaining federal claims and declined to exercise supplemental
jurisdiction over her remaining state law claims.
We review questions of law arising from the grant of a
motion to dismiss de novo. Kuck v. Danaher, 600 F.3d 159, 162-63
(2d Cir. 2010). Similarly, our review of a grant of summary
judgment is de novo. Clubside, Inc. v. Valentin, 468 F.3d 144,
152 (2d Cir. 2006). On appeal, Barnett emphasizes that she does
not ask this Court to declare that there is a constitutional
right to a healthful environment. See MacNamara v. Cnty. Council
of Sussex Cnty., 738 F. Supp. 134, 141-43 (D. Del.), aff'd, 922
F.2d 832 (3d Cir. 1990) (unpublished table decision). Rather,
she asks that we recognize that the constitutional right to be
"safe and secure in one's home" includes the right to be free
from an "unreasonable" level of EMFs under the First, Fourth,
Fifth, Ninth, and Fourteenth Amendments. Appellant's Br. at 31-
32. We have reviewed the relevant case law and conclude that no
case establishes a constitutional or common-law privacy or
property right to be free from an unreasonable levels of EMFs.1
Barnett first contends that defendants' acts deprived
her of her First Amendment and other constitutional rights to
privacy and property, or at least some "parallel" common-law
right. Appellant's Br. at 28. But our precedent is inapplicable
1
Because plaintiff's constitutional claims fail, this
Court presumes, without deciding, that the private utility
company defendants engaged in state action.
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to the controversy at bar. The cases upon which Barnett relies
all involve challenges to allegedly heavy-handed conduct by a
governmental party, see, e.g., Kovacs v. Cooper, 336 U.S. 77
(1949) (holding city may constitutionally limit noise levels);
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (holding agency
may regulate offensive speech over radio waves); Griswold v.
Connecticut, 381 U.S. 479 (1965) (holding state law
unconstitutionally criminalized use of contraceptives), but her
privacy argument asserts, at best, that the government and
utilities "failed" to protect her home from EMF emissions. To
the extent that Barnett alternatively challenges defendants for
permitting her home to be "intruded upon" by unreasonably high
levels of EMFs, Appellant's Br. at 37, she conceded at argument
that no legislature or administrative agency has even determined
what levels of EMFs would be "unreasonably high." Indeed, that
is a scientific policy question better decided by the legislature
than the courts. Cf. City of New Orleans v. Dukes, 427 U.S. 297,
303 (1976) (stating that the judiciary may not "sit as a
superlegislature to judge the wisdom or desirability of
legislative polic[ies]" in areas that do not implicate
fundamental rights or suspect classifications); Cellular Phone
Taskforce v. FCC, 205 F.3d 82, 91 (2d Cir. 2000) (characterizing
argument that agency should increase safety margin as "a policy
question, not a legal one").
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Barnett's Fourth and Ninth Amendment privacy arguments
are similarly unavailing. The Fourth Amendment safeguards
privacy and personal security only against searches or seizures,
and not conduct outside of a governmental investigation of a
violation of criminal law or other statutory or regulatory law.
New Jersey v. T.L.O., 469 U.S. 325, 335 (1985); Poe v. Leonard,
282 F.3d 123, 136 (2d Cir. 2002). Nor does the Ninth Amendment
provide "an independent source of individual rights; rather, it
provides a rule of construction that we apply in certain cases."
Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007) (internal
quotation marks omitted). Accordingly, the district court did
not err in dismissing Barnett's claims and in granting
defendants' motion for summary judgment.
We have considered Barnett's remaining arguments and
the record on appeal, and for the above reasons and substantially
the reasons set forth in the district court's decisions, we
conclude that they are without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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