Having concluded that Parratt does not require dismissal of Count I at the pleading stage, the question remains whether Count I states a claim upon which relief may be granted. The defendants claim that it does not because it fails to allege that the underlying proceedings, the alleged parking violations, were terminated in plaintiffs' favor.
Prior to Albright, the Second Circuit held that the elements of the constitutional tort analogous to malicious prosecution would be borrowed from the state law cause of action. See Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 39 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 89 L. Ed. 2d 337, 106 S. Ct. 1227 (1986). It has continued to do so. Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994); see Singer v. Fulton County Sheriff, 63 F.3d 110, 1995 U.S. App. LEXIS 21569, 1995 WL 470283, *5-*7 (2d Cir. 1995). In consequence, the Court looks to New York law to determine the sufficiency of this claim.
In order to state a malicious prosecution claim under New York law, the plaintiff must allege that (1) the defendant commenced a criminal proceeding
against the defendant, (2) the proceeding was terminated in plaintiff's favor, (3) the defendant lacked probable cause to believe plaintiff guilty of the crime charged, and (4) the defendant acted with malice. E.g., Cook 41 F.3d at 79. This complaint does not specifically allege that parking violation charges were terminated in favor of these plaintiffs and, in consequence, fails to allege an essential element of the tort. Count I therefore must be dismissed. Plaintiffs, however, have cross-moved for leave to amend to allege favorable terminations, and that motion should be granted unless defendants' other attacks on Count I would require dismissal even if this claim were so amended.
Defendants' other contentions relating to Count I revolve about the fact that the issuance of the parking tickets is only the first step in a process that does not deprive plaintiffs of anything until after a hearing.
They contend first that the availability of PVB hearings and other State remedies not only precludes a procedural due process claim under Parratt, but also requires dismissal because the hearing and other remedies are all the process that plaintiffs are due. But a claim sounding in malicious prosecution does not focus solely on the deprivation of liberty or property that occurs in the event of conviction. The focus is on the harm of being subjected to wrongful legal process in the first instance, PROSSER § 119, at 870, and may include the time lost and inconvenience caused by defending the action. Albright, 114 S. Ct. at 818 (Kennedy, J., concurring). Hence, the lack of any deprivation prior to a hearing does not defeat plaintiffs' malicious prosecution claim.
Defendants next argue that the essence of the complaint is a claim of bias on the part of parking violations personnel and that complaints of bias must be pleaded with a specificity lacking here. They cite Fariello v. Rodriguez, 148 F.R.D. 670, 683 (E.D.N.Y.), aff'd, 22 F.3d 1090 (2d Cir. 1994), and New York State Inspection, Security and Law Enforcement Employees v. New York State Public Employee Relations Board 629 F. Supp. 33, 30 (N.D.N.Y. 1984). Even assuming that those decisions may be reconciled with FED. R. Civ. P. 8 and 9(b) and the Leatherman decision, however, they would not require dismissal here. In light of Cook and other such cases, all that is necessary to Count I is the allegation of facts supporting each of the elements of a claim for malicious prosecution. Save for the deficiency with respect to favorable termination, this complaint does so.
Accordingly, Count I of the complaint is dismissed. Plaintiffs' cross-motion to amend to allege favorable termination, however, is granted.
The complaint asserts that (a) vehicles are towed for no apparent reason despite compliance with all applicable laws (PP 31(b), 41), and (b) parking enforcement personnel do not comply with City rules requiring the release of vehicles in certain circumstances after they are hooked to tow trucks but before they are removed to the pound (P 36a). Their brief argues, in addition, that the PVB's record keeping is atrocious, which results in the towing of vehicles based on the alleged failure to pay prior fines when in fact the prior fines have been paid.
(See Pl. Br. 19, 21) In these latter circumstances, plaintiffs appear to argue, they are entitled to a hearing before a vehicle is towed for alleged nonpayment of prior fines. (See id. 21-22)
The claim of arbitrary towing of plaintiffs' vehicles is not coextensive with the claim that the City issues parking tickets without any colorable justification, as the former involves a deprivation of the use of the vehicle without any hearing at all. The issuance of parking tickets, on the other hand, results in no deprivation without a hearing in the PVB. Nevertheless, the analysis is similar.
Plaintiffs argue that the seizure of their vehicles without any colorable basis for doing so is the sort of arbitrary governmental action that runs afoul of the substantive component of the due process clause. (Pl. Br. 8-9) But Albright is fatal to this argument. Unreasonable seizures by State actors are a subject of the Fourth Amendment, which is made applicable to the States by the Fourteenth Amendment. Just as substantive due process cannot ground a malicious prosecution claim because that subject is dealt with more specifically by other constitutional guarantees, so substantive due process cannot form the basis for an unreasonable seizure claim. See Singer, 63 F.3d 110, 1995 U.S. App. LEXIS 21569, 1995 WL 470283, * 6.
To the extent the arbitrary towing grievance rests on a claimed denial of procedural due process, the Court again must consider the impact of Zinermon and Parratt. While the Court assumes that a requirement of hearings prior to the towing of illegally parked vehicles would be entirely unworkable lest the City's traffic grind to a complete halt, and in excess of the requirements of the Constitution,
that is not the end of the matter. The complaint alleges that the practice complained of exists at the instance, or at least with the knowing acquiescence, of high City officials. It suggests that appropriate training and guidance would eliminate or substantially reduce such occurrences. In consequence, Zinermon is satisfied, if indeed it must be.
Hence, the contention that the City tows vehicles for alleged parking violations when in fact there is no basis for such charges states a claim upon which relief may be granted.
The plaintiffs' contention that vehicles often are towed on the ground that fines for prior parking violations have not been paid, when in truth the supposedly outstanding tickets either have been satisfied, dismissed or remain pending, presents essentially the same questions save with respect to the feasibility of and need for a predeprivation hearing. It is important to recognize that where the ostensible reason for towing the vehicle is an unpaid fine, the vehicle is parked legally at the time it is towed. There is no immediate need to remove it in the interest of decreasing traffic congestion. Further, the Due Process Clause may well require notice and some opportunity to be heard before one is deprived of the use of one's vehicle for alleged nonpayment of a prior fine particularly if, as plaintiffs allege, the PVB's record keeping is so deficient that vehicles frequently are towed on this basis despite the lack of any unpaid judgments. See Dixon v. Love, 431 U.S. at 112-15; Wilson v. City of New Orleans, 479 So. 2d 891, 899-902 (La. 1985); cf. Blum v. Koch, 716 F. Supp. 754 (S.D.N.Y. 1989). In view, however, of the fact that the complaint alleges enough to satisfy Zinermon with respect to this claim for the reasons discussed above, the Court need not determine this question, at least at this point in the litigation.
Plaintiffs' other grievance with respect to towing relates to the City's response to the predicament of the motorist who returns to his or her vehicle just after it has been hooked to a tow truck but before it has been towed to the pound. Section 4-08(9)(ix) of the regulations provides in relevant part:
"When a vehicle has been hooked to a tow truck in preparation for removal . . . but the owner or other person lawfully entitled to possession of such vehicle appears and requests the release of such vehicle before the tow truck is in motion, such vehicle shall be unhooked and released, provided, however, that the person to whom such vehicle is released must execute a binding agreement consenting to pay the vehicle release penalty [$ 75] . . . within thirty days from the date of such agreement and, in the event of non-payment, to the imposition of additional penalties . . . " NYC RULES § 4-08(9)(ix) (emphasis added).
It is plaintiffs' position that tow truck personnel routinely refuse to release vehicles as required by this regulation and, as with all their other complaints, that these refusals take place pursuant to instructions or a policy designed to maximize City revenues.
The plaintiffs' vehicles are property within the meaning of the Due Process Clause. Frier v. City of Vandalia, Ill., 770 F.2d 699, 700 (7th Cir. 1985); see Blum, 716 F. Supp. at 757. The government therefore may not deprive plaintiffs of their use, even temporarily, except to the extent consistent with the Constitution. E.g., Fuentes v. Shevin, 407 U.S. 67, 84-85, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972). While courts must guard against the temptation to expand the limits of substantive due process, it is no stretch to say that the City's allegedly deliberate failure to comply with its own regulations, if proved, would be the sort of arbitrary governmental action proscribed by the Due Process Clause. See, e.g., Collins v. City of Harker Heights, Texas, 503 U.S. 115, 112 S. Ct. 1061, 1068-70 n.10, 117 L. Ed. 2d 261 (1992). In consequence, this claim too withstands challenge.
The gravamen of Count III of the complaint is the charge that the adjudicative process before the PVB hearing examiners is fundamentally unfair. The examiners are said routinely to sustain tickets in the face of overwhelming evidence favoring the respondent, systematically to refuse requests to subpoena the enforcement officers who issued tickets in question, and to ignore the requirement of substantial credible evidence in order to convict.
If this were the entirety of Count III, it would be insufficient. The determinations by PVB hearing examiners are expressly made reviewable in the State courts in Article 78 proceedings. The Second Circuit has held that the availability of Article 78 review of administrative determinations requires dismissal under Parratt of claims of procedural due process deprivations before administrative decision makers. E.g., Campo v. New York City Employees' Retirement System, 843 F.2d 96, 100-03 (2d Cir.), cert. denied, 488 U.S. 889, 102 L. Ed. 2d 211, 109 S. Ct. 220 (1988); see also Blum, 716 F. Supp. at 762. Indeed, it appears that Article 78 relief in fact has been granted in the State courts in appropriate cases. E.g., Matter of Heisler v. Atlas, 69 Misc. 2d 911, 331 N.Y.S.2d 131 (Sup. Ct. N.Y. Co. 1972). But Count III goes beyond alleging that hearing examiners make random and unauthorized errors in individual cases. Rather, paragraph 34 of the complaint, which is incorporated by reference in Count III, alleges that "these deprivations result from defendants' instructions to . . . hearing examiners . . . that summonses contribute substantial revenues to the City of New York and defendants' pressure for these individuals to misuse their power for the purpose of raising revenue." (See also cpt PP 61-63) Nor is the assertion utterly bereft of all support although, to be sure, it is not supported by evidentiary detail.
As noted above, the Commissioner of Finance, the chief revenue collecting official of the City, appoints and, since 1994, has occupied the office of the director of the PVB. The PVB director appoints the hearing examiners. Thus, those responsible for adjudicating charges of parking violations are appointees, directly or indirectly, of the official charged with collecting City revenues. While plaintiffs do not allege that this institutional structure independently violates their right to a neutral decision maker, but see Ward v. Village of Monroeville, 409 U.S. 57, 61-62, 34 L. Ed. 2d 267, 93 S. Ct. 80 (1972), Wilson v. City of New Orleans, 479 So. 2d at 901-02, this fact lends at least some circumstantial support to plaintiffs' allegation by suggesting that the hearing examiners may have reason to be receptive to pressures of the sort plaintiffs allege that defendants have brought to bear.
In these circumstances, the Court will not dismiss Count III under Parratt. It cannot be said at this early stage that plaintiffs will be unable to establish facts sufficient to bring this claim within Zinermon.
Plaintiffs' contention, in Count IV, that they frequently are prevented from appealing within the PVB because the Bureau requires submission of a canceled check or other proof of payment of the fine at issue as a precondition to entertaining an appeal lends itself to much the same analysis. If indeed the Bureau has raised a hurdle to appellate review inconsistent with procedural due process, the plaintiffs have a remedy under Article 78. The assertion that the hurdle is the product of a deliberate decision, or of knowing acquiescence, by senior officials motivated by a desire to foreclose appeals to increase revenue, however, brings the claim within Zinermon.12
The complaint's final count alleges in substance that plaintiffs are denied due process because the PVB does not comply with New York State and City statutory requirements that it maintain "complete and accurate records relating to all charges and dispositions." This allegedly results in a variety of misfortunes befalling plaintiffs and their vehicles as enforcement personnel act on the mistaken premise that prior tickets have gone unpaid. This record keeping deficiency is said to be required, promoted, endorsed and/or condoned by the defendants and to be "designed to achieve a purpose other than that authorized by law." (Cpt PP 61-63)
It is not for the Court in ruling on a motion to dismiss pursuant to Rule 12(b)(6) to judge the credibility of the plaintiffs' allegations. Plaintiffs and their counsel, as officers of the Court, have asserted in substance that the PVB deliberately fails to keep accurate records because that enables it to increase revenues by, among other things, imposing multiple fines for the same offense and charging interest and penalties for nonpayment of fines that, in fact, have been paid. The Court therefore is obliged to accept the truth of that assertion for purposes of this motion. Assuming its truth, the Court holds that the claim that additional sanctions are imposed on plaintiffs in these circumstances comes within Zinermon and states a claim upon which relief may be granted.
Finally, defendants argue that the complaint does not allege the personal involvement of the four defendants sued in their individual capacities and therefore should be dismissed as to them. An officer must have been personally involved in the alleged misconduct to be liable under Section 1983. Monell, 436 U.S. at 691-95; Al-Jundi v. Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). Personal involvement exists if the officer promulgated an unconstitutional policy that foreseeably resulted in the alleged deprivation, or learned of a violation but failed to remedy the problem. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
Plaintiffs allege that these defendants were responsible either for promulgating the alleged policies or for deliberately permitting subordinates to pursue them. Personal involvement thus has been alleged.
The complaint, insofar as it is brought on behalf of plaintiff CAUTION, is dismissed in its entirety for lack of standing. Count I is dismissed for failure to state a claim upon which relief may be granted, but defendants' motion to dismiss is denied in all other respects. The motion for leave to amend the complaint is granted to the extent, and only to the extent, that plaintiffs may (1) amend Count I to allege the favorable termination of proceedings that are the subject of their malicious prosecution claim, (2) add any other members of CAUTION as parties plaintiff, and (3) drop any of the assertions previously made. Any such amended complaint shall be filed with the Clerk of the Court no later than thirty days following the date of this order. The parties are directed to appear in Courtroom 12D on October 16, 1995 at 2:00 p.m. for a pretrial conference.
Date: September 14, 1995.
Lewis A. Kaplan
United States District Judge