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, 

, 162-63

(2d Cir. 2010).    Similarly, our review of a grant of summary

judgment is de novo.   Clubside, Inc. v. Valentin, 

,

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., 

, 141-43 (D. Del.), aff'd, 

(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, 

(1949) (holding city may constitutionally limit noise levels);

FCC v. Pacifica Foundation, 

(1978) (holding agency

may regulate offensive speech over radio waves); Griswold v.

Connecticut, 

(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, 

,
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, 

, 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., 

, 335 (1985); Poe v. Leonard,

, 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., 

, 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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