PAUL G. GARDEPHE, District Judge.
In this Section 1983 action against the City of New York and New York City Police Officer Jacqueli L. Harper, Plaintiff Menachem Ezagui alleges that defendants violated his due process rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution in connection with seizing and retaining as "arrest evidence" his vehicle and the personal property contained within it. (Cmplt. ¶ 1) Plaintiff contends that Defendants failed to provide him with proper notice and the opportunity to be heard regarding the seizure and retention of his vehicle and personal property, in violation of federal constitutional law and the procedural safeguards laid out in Krimstock v. Kelly, 506 F.Supp.2d 249 (S.D.N.Y.2007).
On October 29, 2009, Defendants moved to dismiss the Complaint pursuant to Fed. R.Civ.P. 12(c). (Docket No. 20) On November 26, 2009, Plaintiff filed his opposition and a cross-motion for summary judgment. (Docket No. 11) For the reasons stated below, Defendants' motion to dismiss is granted as to the City of New York but otherwise denied, and Plaintiff's cross-motion for summary judgment is granted as to Defendant Harper's liability but otherwise denied.
The following facts are not in dispute: Plaintiff is the sole owner of a 2002 GMC Envoy, VIN # 1GKDT13S422467896. (Cmplt. ¶ 7; Pltf. Rule 56.1 Stat. ¶ 1, Ex. A)
Plaintiff was not notified at the time of the seizure that his vehicle was being confiscated by the NYPD, nor did the authorities inform Plaintiff how to challenge the retention of his vehicle and the personal property it contained.
On February 18, 2009, Plaintiff's recently retained counsel made a written demand on the Kings County District Attorney's Office for the return of Plaintiff's vehicle and personal property.
On March 4, 2009, Plaintiff moved for an order to vacate or amend Justice Murphy's retention order. (Cmplt. ¶ 14; Pltf. Rule 56.1 Stat. ¶ 17; Pltf. Ex. J) On June 5, 2009, Justice Murphy issued a second retention order finding that the "People have made a sufficient showing . . . that the vehicle and its contents are needed as evidence for the continuing investigation and possible trial in this case."
Plaintiff's vehicle and personal property continue to be held by the NYPD property clerk, more than two years after they were seized. (Cmplt. ¶ 16; Def. Rule 56.1 Stat. ¶ 20)
The Fourteenth Amendment to the United States Constitution guarantees that no person shall be deprived "of life, liberty or property, without due process of law." U.S. Const. amend. XIV § 1. "The touchstone of due process, of course, is `the requirement that a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.'" Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir.2009) (quoting Mathews v. Eldridge, 424 U.S. 319, 348-49, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). "It is equally fundamental that the right to notice and an opportunity to be heard `must be granted at a meaningful time and in a meaningful manner.'" Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). "Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party." Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). These requirements are not fixed, however, as "due process is flexible and calls for such procedural protections as the particular situation demands." Eldridge, 424 U.S. at 334, 96 S.Ct. 893.
"To determine whether a plaintiff was deprived of property without due process of law in violation of the Fourteenth Amendment," courts (1) "identify the property interest involved," and (2) "determine whether the plaintiff received constitutionally adequate process in the course of the deprivation." O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir.2005) (citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 212 (2d Cir.2003)). Courts analyze procedural due process claims under the three-factor balancing test prescribed in Eldridge, 424 U.S. at
The "City of New York has authorized its police department to seize any motor vehicle that is `suspected of having been used as a means of committing crime or employed in aid or furtherance of crime,' N.Y. City Admin. Code § 14-140(b), as the first step toward obtaining title to the vehicle through civil forfeiture." Ford Motor Credit Co. v. N.Y. City Police Dep't, 503 F.3d 186, 188 (2d Cir.2007) (quoting Krimstock v. Kelly, 306 F.3d 40, 44 (2d Cir.2002)). Through a series of decisions in Krimstock v. Kelly, courts in this Circuit have articulated specific requirements related to the process due the owner of a vehicle seized pursuant to an ongoing criminal investigation.
Krimstock involved a Section 1983 challenge to the constitutionality of New York City's forfeiture statute, N.Y. City Admin. Code § 14-140. See Krimstock v. Kelly, 464 F.3d 246, 248 (2d Cir.2006). The scope of the Krimstock litigation, however, expanded to include the NYPD's retention of a vehicle for purposes of arrest or trial evidence. Krimstock, 464 F.3d at 249. Krimstock involved "no challenge to an underlying criminal proceeding or the procedural rights due the criminal defendant. Rather, it involve[d] the deprivation of property pending a criminal proceeding[, including the property of] an innocent owner who is not party to the criminal proceeding." Id. at 254. The Second Circuit held that "[t]he balance of factors relevant under the Mathews v. Eldridge [424 U.S. 319, 96. S.Ct. 893, 47 L.Ed.2d 18 (1976)] test weighs in favor of having review by a neutral factfinder of a prosecutor's decision to retain a vehicle as potential evidence—although no adversarial hearing is required." Id. at 255. In so holding, the Court noted that "given the importance of a vehicle to an individual's ability to work and conduct the affairs of life . . ., and the serious harm thus resulting from the undue retention of a vehicle by the government, some immediate judicial review of the retention is required." Id. The Circuit remanded the case to the district court for a determination of what procedures should apply in connection with the required judicial review.
On remand, Judge Baer laid out the procedures by which a district attorney may seek retention of a vehicle seized as evidence in connection with an ongoing criminal proceeding. Critical to those procedures is the provision of notice to the vehicle's owner of the owner's right to challenge the seizure, and an opportunity to be heard on this issue:
Krimstock v. Kelly, 99 Civ. 12041(HB), 2007 U.S. Dist. LEXIS 82612 (S.D.N.Y. October 1, 2007) (emphasis added).
Judge Baer ruled that district attorneys may seek retention orders ex parte, but a prosecutor's decision to retain a vehicle as evidence must be subject to the review of a "neutral-fact finder." Krimstock v. Kelly, 506 F.Supp.2d 249, 254 (S.D.N.Y.2007). The application for a retention order "must affirm that there are reasons for the retention, what they are, and that they relate to the contested issue in the underlying criminal proceeding," and "[s]econdly, . . . the [prosecutor] must affirm that no other means besides impoundment (such as more time-limited
If an ex parte application for a retention order is granted by a judge, the owner or claimant of a vehicle is entitled to a post-deprivation opportunity to move to vacate or amend the order. Id. at 256. Judge Baer noted that procedural due process "`at a minimum'" requires "`that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it.'" Id. at 255 (quoting United States v. Abuhamra, 389 F.3d 309, 322 (2d Cir.2004) (internal citations omitted)). "[A]n ex parte order is a temporary expedient." Id. The district court went on to hold that claimants must
Id. at 256.
The procedures set forth in Judge Baer's October 2007 order apply both to vehicles seized as "instrumentalities of crimes"—concerning which the prosecutor will seek forfeiture—and to vehicles, such as Plaintiff's, that are being retained as evidence of a crime:
Krimstock v. Kelly, 2007 U.S. Dist. LEXIS 82612, at **8-9.
The City contends that Plaintiff's claims against it must be dismissed because he has failed to make out a claim for municipal liability. (Def. MTD Br. at 1-2) Because Plaintiff fails to allege facts from which the City could be found liable under Section 1983, his claims against the City must be dismissed.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim for relief that is plausible on its face.'"
To state a Section 1983 claim against the City, Plaintiff must plead facts making it plausible to believe that "(1) an official policy or custom . . . (2) cause[d] the plaintiff to be subjected to (3) a denial of a constitutional right." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995); see also Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (declaring that § 1983 "imposes liability on a government that, under color of some official policy, `causes' an employee to violate another's constitutional rights"). Here, the Complaint does not cite any "official policy or custom" that caused the alleged violation of Plaintiff's constitutional rights. Zahra, 48 F.3d at 685.
While Plaintiff argues that the district court's decision in Krimstock, 506 F.Supp.2d at 256, contains allusions to NYPD officers' repeated failures to issue required forms of notice prior to seizing property (See Pltf. Ex. E (Pltf. MTD Aff. at 6-7)), no allegations of this sort are made in the Complaint. That this issue may have been raised in other cases does not cure the facial inadequacy in Plaintiff's Complaint. It is well settled that the mere assertion that a municipality has a custom, policy or practice that led to the alleged unconstitutional deprivation is "generally insufficient to establish Monell liability." Perez v. City of New York, No. 97 Civ. 2915(FB), 2002 WL 398723, 2002 U.S. Dist. LEXIS 4297 (E.D.N.Y. Mar. 14, 2002) (citing Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993)). Here, however, the Complaint does not even contain that bare allegation, nor does it set forth any facts suggesting that a City policy or practice caused or contributed to the alleged deprivation of Plaintiff's constitutional rights.
Defendant Harper argues that Plaintiff's claims against her should be dismissed because (1) Plaintiff was not deprived of his property without due process; (2) Plaintiff cannot demonstrate that he suffered actual injury flowing from the alleged constitutional deprivation; and (3) she is entitled to qualified immunity. (Def. MTD Br. at 1-2) Defendant Harper further contends that any contrary ruling as to the due process issue would violate the Rooker-Feldman doctrine which, under certain circumstances, bars federal courts from hearing complaints about injuries caused by a state court judgment. Plaintiff contends that he is entitled to summary judgment on his claim that his "due process rights were violated when defendants confiscated his vehicle without notice or an opportunity to be heard." (Pltf. Br. at 1)
Although there has been no discovery in this matter, Defendants have not argued that discovery is necessary before this Court can resolve Plaintiff's motion for summary judgment. The Court concludes that Plaintiff's motion presents a strictly legal question, and that the material facts and circumstances underlying the motion are not in dispute.
For the reasons stated below, Plaintiff's motion for summary judgment will be granted. This Court concludes that (1) Plaintiff was deprived of property without due process; (2) he need not demonstrate actual injury to be entitled to summary judgment on liability as against Officer Harper; and (3) Officer Harper is not entitled to qualified immunity. The Court further concludes that this case does not implicate the Rooker-Feldman doctrine,
It is undisputed that in April 2008, when Plaintiff's vehicle was seized by Officer Harper, she did not give him notice of his right to a hearing to challenge the validity of the NYPD's retention of his vehicle or otherwise comply with the procedures set forth in Krimstock v. Kelly, 506 F.Supp.2d 249, 254 (S.D.N.Y.2007). Defendants contend, however, that "the issue of notice is now moot" (Def. Br. 14), because ten months after the seizure—when Plaintiff retained a lawyer to contest the retention—a state court judge approved the continued retention of Plaintiff's vehicle and personal property. Defendants, however, cite no law for the proposition that the state court judge's retention orders, and denial of Plaintiff's motion to vacate, grant absolution for the due process violation that occurred during the previous ten months. Accepting Defendants' argument would render irrelevant the procedural protections provided by Krimstock and provide significant disincentive for the police to give the required notice, because any delay in notice, no matter how long, could be excused by a state court judge's subsequent approval of the retention.
As noted above, the "touchstone" for conducting a due process review is considering whether "`a person in jeopardy of serious loss [has been given] notice of the case against him and opportunity to meet it.'" Spinelli, 579 F.3d at 169 (quoting Eldridge, 424 U.S. at 348-49, 96 S.Ct. 893). In determining whether such an individual has been accorded due process, the court must ask whether he or she was given notice of the right to challenge such a deprivation, and an opportunity to be heard, `"at a meaningful time and in a meaningful manner.'" Fuentes, 407 U.S. at 80, 92 S.Ct. 1983 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)).
As the Second Circuit recognized in the Krimstock line of cases, and as it has
While ordinarily the question of whether a delay amounts to a due process violation requires a careful balancing of the Eldridge factors, here that balance has already been struck. In Krimstock, 306 F.3d at 67, the Second Circuit ruled that
Id. (emphasis added).
Defendants do not deny the delay and make no effort to defend it. They simply argue that the delay in notice is "moot," because when Plaintiff was finally advised of his rights and challenged the retention, a state court rejected his arguments. Defendants then go on to argue that Plaintiff's action should be dismissed because he cannot establish actual injury and compensatory damages, given that "the alleged deprivation for which he seeks damages would . . . have occurred had proper, constitutionally sound procedures been observed." (Def. Br. 12)
Plaintiff is not required to demonstrate actual injury and compensatory damages in order to prevail on his Section 1983 claim, however. The Supreme Court rejected that argument long ago, in Carey v. Piphus, 435 U.S. 247, 260, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978):
Carey, 435 U.S. at 266-67, 98 S.Ct. 1042; see also Brody v. Village of Port Chester, 345 F.3d 103, 112 (2d Cir.2003) ("In a procedural due process challenge, the question before the court is whether the process affording the plaintiff an opportunity to participate in governmental decision-making before being deprived of his liberty or property was adequate, not whether the government's decision to deprive the plaintiff of such liberty or property was ultimately correct.") (citing Fuentes v. Shevin, 407 U.S. 67, 87, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ("The right to
In Carey, elementary and secondary school students claimed that they had been suspended from school without receiving procedural due process. The Supreme Court endorsed the Court of Appeals' holding that if the school board could prove on remand that the students would have been suspended even if a proper hearing had been held, then the students would not be entitled to compensatory damages. 435 U.S. at 260, 98 S.Ct. 1042. The Supreme Court went on to hold, however, "that if, upon remand, the District Court determines that respondents' suspensions were justified, respondents nevertheless will be entitled to recover nominal damages. . . ." Id. at 266-67, 98 S.Ct. 1042. Accordingly, assuming arguendo that Plaintiff cannot prove actual injury, such a finding provides no basis for granting Defendant Harper's motion to dismiss or denying Plaintiff's motion for summary judgment.
Defendant Harper violated Plaintiff's right to procedural due process when she seized his vehicle and failed to give him the notice required under Krimstock. Accordingly, her motion to dismiss will be denied, and Plaintiff's motion for summary judgment will be granted as to Defendant Harper's liability.
Qualified immunity protects government officials "from liability for civil damages as a result of their performance of discretionary functions, and serves to protect government officials from the burdens of costly, but insubstantial, lawsuits." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The defense shields government officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. 2727.
Defendants are entitled to dismissal on qualified immunity grounds where the rights allegedly violated were not clearly established at the time of the alleged constitutional deprivation, Islam v. Fischer, No. 07 Civ. 3225(PKC), 2008 WL 110244, at *5-6 (S.D.N.Y. Jan. 9, 2008), or there is no plausible factual dispute as to "`whether . . . a reasonable police officer should have known he acted unlawfully. . . .'" Id. (quoting Lennon, 66 F.3d at 421). Where a complaint's allegations are such that "reasonable officials in defendants' positions could disagree as to whether defendants' . . . actions against plaintiff were unlawful," the defendant is entitled to judgment as a matter of law on the issue of qualified immunity. Id. at *4 (citing Lennon, 66 F.3d at 421).
Here, the rights at issue are clearly established.
In light of these decisions, it was not objectively reasonable for a police officer to believe that it was lawful to seize and retain Plaintiff's vehicle without informing him of that seizure and of his right to contest the continued retention of his vehicle.
Defendants argue that because "plaintiff was heard by a state court judge regarding the seizure and retention of the vehicle," and because "[t]he state court judge undoubtedly reviewed both plaintiff's submissions and those of the Kings County District Attorney" before granting the District Attorney's application for continued retention, the Rooker-Feldman doctrine applies, and Plaintiff's only remedy is to "move for reconsideration before the state court judge and present any additional arguments he had as to why the prosecution's retention of his property was unreasonable." (Def. Reply Br. at 8-9) The Rooker-Feldman doctrine is not applicable here.
The Rooker-Feldman doctrine bars a losing party in state court "from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). The doctrine "recognizes that 28 U.S.C. § 1331 is a grant of original jurisdiction, and does not authorize district courts to exercise appellate jurisdiction over state-court judgments, which Congress has reserved to [the Supreme] Court, see [28 U.S.C] § 1257(a)." Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 644 n. 3, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). The doctrine occupies "narrow ground," Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005), and is "confined to . . . cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil, 544 U.S. at 283-84, 125 S.Ct. 1517.
"[T]he applicability of the Rooker-Feldman doctrine turns not on the similarity between a party's state-court and federal-court claims (which is, generally
Here, Plaintiff does not complain of an injury caused by a state court judgment; instead, he complains of an injury caused by Defendants' failure to give him notice of his due process rights related to the seizure and retention of his vehicle. This alleged deprivation occurred long before February 18, 2009, when Justice Murphy first became involved. Plaintiff's claim against Defendant Harper for failing to give him proper notice of the April 2008 seizure and retention of his vehicle is entirely distinct from Judge Murphy's later orders approving the District Attorney's application for continued retention. Accordingly, the Rooker-Feldman doctrine is not applicable and does not bar Plaintiff's claims.
This Court has concluded that Plaintiff is entitled to summary judgment as to liability with respect to his claims against Defendant Harper. Defendants correctly contend, however, that actual injury—not just a showing that Defendant Harper violated Plaintiff's constitutional rights—is required for an award of compensatory damages. See Kassim v. City of Schenectady, 415 F.3d 246, 250 (2d Cir.2005) (citing Carey v. Piphus, 435 U.S. 247, 254-64, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (discussing the need to demonstrate actual injury to justify damages exceeding a nominal award); Patterson v. City of Utica, 370 F.3d 322, 337 (2d Cir.2004) (noting that a plaintiff "may . . . be entitled to collect compensatory damages, if he can prove that he suffered actual injury as a result of the denial of due process"); McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir.1983) ("It is well established that to collect compensatory damages in an action brought pursuant to 42 U.S.C. § 1983, a plaintiff must prove more than a mere violation of his constitutional rights. He must also demonstrate that the constitutional deprivation caused him some actual injury.")).
Plaintiff has submitted an affidavit stating that he "used the [seized] vehicle on a daily basis to commute to and from work, as well as to perform deliveries for [his] job," and that "[w]ithout the vehicle, [he has] been unable to work as it was a required condition of [his] employment." (Pltf. Ex. E ¶ 5) Krimstock I recognizes that "[t]he particular importance of motor vehicles derives from their use as a mode of transportation and, for some, the means
Plaintiff's affidavit indicates that he suffered actual injury as a result of being deprived of access to his vehicle since April 2008. Whether Plaintiff can recover compensatory damages for this injury—in light of the state court's orders approving retention of Plaintiff's vehicle—is unclear. The Court requires additional briefing and argument concerning this issue, and will set a schedule for such by separate order.
For the reasons stated above, Defendants' motion to dismiss is GRANTED as to the City of New York and DENIED as to Defendant Harper. Plaintiff's cross-motion for summary judgment is DENIED as to the City of New York and GRANTED as to liability with respect to Defendant Harper. Damages will be decided after additional briefing and argument. The Clerk is directed to terminate all pending motions. (Docket Nos. 11 & 20)
SO ORDERED.
