REPORT AND RECOMMENDATION

PAUL E. DAVISON, Magistrate Judge.

TO: THE HONORABLE NELSON S. ROMAN UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Plaintiff Don Alan McLaughlin ("Plaintiff'), appearing pro se, brings this action against the City of White Plains and numerous other defendants, seeking redress pursuant to 42 U.S.C. § 1983 for civil rights violations alleged to have occulted in connection with a February 16, 2011 incident in which Plaintiff was arrested and his automobile was towed and impounded. On August 4, 2016, the Court entered a default judgment against Brendan's Auto Body ("Brendan's"), and Unknown Driver for Brendan's Auto Body ("Unknown Driver") (collectively, the "Defaulting Defendants"), Dkt. 121, and referred the matter to me for a damages inquest. Dkt. 122.

For the reasons set forth below, I respectfully recommend that the Court conclude that Plaintiffs allegations do not support a finding of liability as to either Brendan's or Unknown Driver. Accordingly, Plaintiffs request for a damage award against those defendants should be DENIED, and the Amended Complaint dismissed insofar as it asserts § 1983 claims against those defendants.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on February 1, 2013. Dkt. 2. Plaintiff filed an amended complaint on March 3, 2014. Dkt. 14. The docket reflects that defendant Brendan's was served with the amended complaint on June 23, 2014, and proof of service was filed with the court on July 1, 2014.1 Dkt. 31.

On May 10, 2016, your Honor entered an Order directing defendants Brendan's and Unknown Driver to appear and show cause why a default should not be entered against them. Dkt. 103. On August 4, 2016, after the defendants failed to appear for the show cause hearing, the Court entered a partial default judgment against Brendan's and Unknown Driver.2 Dkt. 121, The matter was referred to me for a damages inquest. Dkt. 122.

III. THE INQUEST

After discussion at a conference on February 8, 2017, Plaintiff elected to proceed by way of a written inquest submission, and was granted leave to make his submission by April 10, 2017. Plaintiff did not request an evidentiary healing.

On April 10, 2017, Plaintiff filed a motion, affidavit, memorandum of law ("P. Mem."), and accompanying exhibits for an order pursuant to Fed. R. Civ. P. 55 (b)(1). Dkts. 196-98.

On April 27, 2017, Plaintiff filed additional papers in reference to the inquest. Dkts. 202-03, In his submissions, Plaintiff equates the seizure of his automobile with the wrongful (human) imprisonment at issue in Trezevanl v. City of Tampa, 741 F.2d 336, 341 (11th Cir. 1994) (sustaining $25,000 compensatory award for 23-minute confinement of plaintiff), and, extrapolating from that anthropomorphic premise, seeks compensatory damages in excess of $4 million along with punitive damages of $3 million. Dkt. 203, ¶ 21. Defendants Brendan's and Unknown Driver have not responded.

IV. BACKGROUND

In his Amended Complaint,3 Plaintiff alleges the following facts: On February 16, 2011 at approximately 4:30 p.m., Plaintiff was traveling with a friend, Stacey Cumberbatch, within the City of White Plains, New York. Dkt. 14, ¶ 17. After turning onto Maple Avenue from Waller Avenue, Plaintiff observed emergency turret lights behind him and pulled over. Id. Police Officer Ditter A. Barron approached Plaintiffs vehicle and then requested that Plaintiff present his driver's license and registration. Id. ¶ 19. Soon thereafter, two additional police vehicles arrived at the scene, and Barron, along with Officer Antonio G. Cuervo and Officer Glen C. Hochman approached Plaintiffs vehicle and opened the driver side door. Id. ¶¶ 24-26. After repeated requests for identification, Plaintiff began searching through his wallet for identification. Id. ¶ 30. At that point, Barron, Cuervo, and Hochman forceably removed him from his vehicle and began kicking and beating him. Id. ¶¶ 31-34. They put him into the police car and searched his vehicle. Id. ¶¶ 36,

His vehicle was subsequently towed by a defendant Unknown Driver to Defendant Brendan's premises. Id. ¶ 36. On February 18, 2011, after he was released from custody, Plaintiff paid $25.00 (described by Plaintiff as "ransom") to a police officer to authorize the release of his vehicle from Brendan's. Id. ¶ 52. Later that day, Plaintiff paid $214.75 ("ransom") to Rosemary Walsh, Brendan's employee, to release his ("stolen") vehicle. Id. ¶ 53. Plaintiff alleges that all defendants acted "wantonly, recklessly, willfully and maliciously," and "in concert with additional state officers[.]" Id. ¶ 54,

V. LEGAL STANDARDS

A. Default

When a defendant defaults, the court must accept all well-pleaded allegations in the complaint as true, except those pertaining to the amount of damages. Fed. R. Civ. P. 8(b)(6); Finkel v. Romcmowicz, 577 F.3d 79, 83 n.6 (2d Cir. 2009). However, the Court "is also required to determine whether the [plaintiffs] allegations establish [the defendant's] liability as a matter of law." Id. at 84. This is because "even after [a] default, . . . it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law." In re Industrial Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. 2000) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688, at 63 (3d ed. 1988)). Thus, "a district court retains discretion under [Federal Rule of Civil Procedure] 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action . . . ." Id. (quoting Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).

After determining whether the plaintiff has stated a valid legal claim, the court must then determine whether the plaintiff has provided adequate support for its requested damages. See Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N. Y. 2008) (citing Credit LyonnaisSec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The court may determine the adequacy of the plaintiffs damages claim based on its submitted proofs. See, e.g., Garden City Boxing Club, Inc. v. Hernandez, No. 04 Civ. 2081, 2008 U.S. Dist. LEXIS 115454, at *5 (S.D.N.Y. Oct. 15, 2008); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). A plaintiff must therefore substantiate a claim with evidence to prove the extent of damages. Malletier v. Carducci Leather Fashions, Inc., 648 F. Supp. 2d. 501, 503 (S.D.N.Y. 2009). Proof of damages must be based upon admissible, authenticated evidence. House v. Kent Worldwide Machine Works, Inc., 359 Fed. App'x. 206, 207-08 (2d Cir. 2010) (summary order).

The court must conduct an inquiry sufficient to establish damages to a "reasonable certainty." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). If a plaintiff fails to demonstrate its damages to a reasonable certainty, the court should decline to award any damages, even though liability has been established through default. Lenard v. Design Studio, 889 F.Supp.2d 518, 526-528 (S.D.N.Y. 2012) (citing Griffiths v. Francillon, No. 10 Civ. 310, 2012 U.S. Dist. LEXIS 54681, at *2 (E.D.N.Y. Jan. 30, 2012) (recommending that no damages be awarded because motion papers alone were insufficient to support an award of damages), report and recommendation adopted, 2012 U.S. Dist. LEXIS 54683, at *3 (E.D.N.Y. Apr. 13, 2012)).

B. Section 1983 Liability

To establish a claim arising under Section 1983, a plaintiff must allege: "(1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting under the color of state law." Martin v. City of New York, No. 11 Civ. 600, 2012 U.S. Dist. LEXIS 56632, at *20 (S.D.N.Y. April 19, 2012) (citing 42 U.S.C. § 1983); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

IV. DISCUSSION

Plaintiff brings a single cause of action against the Defaulting Defendants, the tenth cause of action, in which he claims pursuant to 42 U.S.C. § 1983 that Defendant violated Plaintiffs Fourth amendment right to be free from unlawful seizure of his property and Plaintiffs Fifth and Fourteenth Amendment right to be free of the deprivation of property without due process of law. Dkt 14, ¶¶ 112-14.

A. Deprivation of rights

Plaintiffs allegation that the Defaulting Defendants participated in the unlawful seizure of his car is sufficient to establish the first element of Plaintiff's Fourth Amendment claim.

To prevail on his due process claim, the plaintiff must show that he "possessed a protected liberty or property interest, and that he was deprived of that interest without due process." McMenemy v. City of Rochester, 241 F.3d 279, 286 (2d Cir. 2001) (quoting Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998) (internal quotations omitted)). A property seizure "occurs when there is some meaningful interference with an individual's possessory interests in [his] property." Soldal v. Cook County, Illinois, 506 U.S. 56, 61 (1992).

Here, Plaintiff alleges a property right to his vehicle and that he was deprived of that right. Dkt. 14, ¶¶ 112-114. Reading Plaintiffs allegations liberally, I find Plaintiff adequately alleges that he suffered a deprivation of his right to his property. Accordingly, I respectfully recommend that the Court find that Plaintiff adequately pleads this element of his claim. I turn next to the second element of a 42 U.S.C. § 1983 claim.

B. Under Color of State Law

The Defaulting Defendants are a private towing company, and its employee driver, hired by the City of White Plains to tow Plaintiffs vehicle. Plaintiff argues that these defendants were acting under color of state law because (i) they conspired with state actors and are therefore state actors, Dkt. 198 at 9-10; (ii) the White Plains Police Department has a significant measure of control over them, Dkt. 198 at 10-12, and (iii) they performed a function that is the exclusive prerogative of the state (the White Plains Police Department). Dkt. 198 at 12-13.

In order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law. Ciambriello v. County of Nassau, 292 F.3d 307, 323-324 (2d Cir. 2002) (citations omitted). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes `state action.'" Id. A private entity's activity can be considered "state action" in three situations; (1) the entity acts using the coercive power of the state or is controlled by the state (the "compulsion test"); (2) the entity willfully participates in joint activity with the state or its functions are entwined with state policies (the "joint action" or "close nexus" test); or (3) the state has delegated a public function to the entity (the "public function" test). Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (citing Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)). The fundamental question under each test is whether the private entity's challenged actions are "fairly attributable" to the state. Id. (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). Whether conduct may be fairly attributable to the State is necessarily fact-specific, as "no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient." Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (citation omitted).

Here, Plaintiff alleges that the Defaulting Defendants, a private entity and a private citizen, acted jointly with state actors or conspired with state actors to deprive Plaintiff of his constitutional rights. However, Plaintiffs allegations about Defendant's "state action" are limited to the following: the state defendants "acted in concert when defendants John Doe, Driver for [Defendant] Brendan's Auto Body and [Defendant] Brendan's Auto Body, deprived [Plaintiff] McLaughlin of the rights secured to him by the Constitution . . . These officers did knowingly and willfully search McLaughlin's person and property without a valid or lawful warrant violating clearly established law and acted in concert with [] John Doe, Driver for [Defendant] Brendan's Auto Body and [Defendant] Brendan's Auto Body, in seizing of [Plaintiff] McLaughlin's private conveyance." Dkt. 14, ¶ 113. Plaintiff provides a single allegation in his Amended Complaint that could be read to support his theories: "On 2-18-11, plaintiff paid ransom of $25.00 to Police Officer JOHN DOE, on behalf of the DEPARTMENT OF PUBLIC SAFETY, CITY OF WHITE PLAINS, N.Y. to "authorize" the release of his stolen automobile from Brendan's Auto Body. . ." Dkt. 14, ¶ 52.

Although private entities may be held liable under Section 1983 "if there is a sufficiently `close nexus between the State and the challenged action,'" Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood A cad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L. Ed. 2d 807 (2001)), a "merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Without more, the facts as alleged in the Second Amended Complaint do not establish the second element of a 42 U.S.C. § 1983 claim.4 Accordingly, I respectfully recommend that the Court find that the Amended Complaint fails to establish the Defaulting Defendants' liability under 42 U.S.C. § 1983 as a matter of law and that there is no basis to award damages notwithstanding any default.5

V. CONCLUSION

For the foregoing reasons, I respectfully recommend that the Court deny Plaintiffs request for damages, and dismiss his § 1983 claims against the Defaulting Defendants.

NOTICE

Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed. R. Civ. P. 6(d), or a total of seventeen (17) working days, from the date hereof to file written objections to this Report and Recommendation. Fed. R. Civ. P. 6(a). Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Nelson S. Roman, United States District Judge, at the Hon. Charles L, Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas St., White Plains, NY 10601-4150, and to the chambers of the undersigned at the same address.

Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.

Requests for extensions of time to file objections must be made to Judge Roman. A copy of the foregoing Report and Recommendation has been sent to the following: