Police Department in 1988 when plaintiff surrendered his property, and in 1990, when criminal proceedings against him terminated." (Def.'s Mem. Supp. Summ. J. at 9.)
Under Judge Lasker's order, a demand for property will be timely, if it is made on the Police Property Clerk within ninety days after the termination of criminal proceedings. (70 Civ. 3851 (MEL), P 2(e).) The order requires that the procedures for demanding the return of property be attached to the voucher for seized property provided to the arrested person or written on the back of that voucher in bold letters. (P 2(d).) However, failure to produce the voucher will not preclude a lawful claim for the property or money. (P 6.)
Williams does not dispute that he was given a Police Property Clerk voucher for the money that was actually seized from him. He refused to sign the voucher because he claimed that the amount of money was incorrectly listed. (Williams' 4/5/96 Aff. at P 7). Hence, the New York City Police Department attempted to give the plaintiff the voucher containing notice of the procedures required under McClendon and the plaintiff declined. This is not a case like Butler where the plaintiff alleged that he never received a voucher. In Butler, the court found that the procedures--as followed in that case--deprived the plaintiff of an adequate state remedy for the deprivation of his property because the plaintiff was not provided with notice of the procedures to be followed. As Judge Glasser noted in Leyh v. Property Clerk Of the City of New York Police Department, 774 F. Supp. 742, 746 (E.D.N.Y. 1991), it is significant that the plaintiff in Butler had not been issued a voucher by the Property Clerk and had no notice of the procedures through which to demand his property. As Judge Glasser explained, "The Second Circuit did not, however, invalidate the procedures set forth by Judge Lasker in his McClendon order... it merely found that failure to follow these procedures (by failure to issue a voucher to the claimant) coupled with the obsolete provisions of the Administrative Code, constituted a constitutional violation." Leyh, 774 F. Supp. at 746. In Leyh, the plaintiff contended that she was deprived of her property--an automobile--without due process of law. There, as in this case, the plaintiff did not dispute that she was issued a voucher for her property nor did she dispute that the Property Clerk had followed the McClendon procedures in its handling of the matter; hence Judge Glasser found her position to be fundamentally different from that of the plaintiff in Butler. The material facts of this case are similar to Leyh. Just as in Leyh, there is no constitutional defect in the McClendon procedures. See Leyh, 774 F. Supp. at 746.
Plaintiff's criminal proceedings terminated on July 17, 1990, when he entered a guilty plea to the charge of criminal possession of a weapon. Williams had until October 17, 1990 to demand return of the money from the New York City Police Department by following the McClendon procedures. Williams' failure to keep the voucher would not have precluded his lawful claim for the money, if a timely demand had been made. Although the plaintiff contends that he did make a demand for the return of the money by his application for return of the United States currency during the criminal proceeding, that motion did not satisfy the application procedures prescribed by McClendon. In order to satisfy the McClendon requirements, the demand had to be made on the Police Department Property Clerk within ninety days after the termination of criminal proceedings. There is no evidence that Williams made such a timely demand.
There is no evidence that Williams was deprived of his property without due process of law and no showing that the procedures required by McClendon were not followed by the Police Department Property Clerk's Office. Accordingly, Williams has failed to offer any evidence to show that he was deprived of property without due process of law.
The defendant's final argument is that the plaintiff has failed to offer any evidence that his alleged constitutional violation resulted from an identified policy, custom, or practice of the City of New York. Williams has sued only the New York City Police Department. As an agency of the City of New York, the Police Department is not a suable entity. East Coast Novelty Company v. City of New York, 781 F. Supp. 999 (S.D.N.Y. 1992). As Judge Sweet explained, "The New York City Charter provides: All actions and proceedings for the violation of any law shall be brought in the name of City of New York and not in that of any agency, except where otherwise provided by law. N.Y. City Charter § 396." East Coast Novelty Company, 781 F. Supp. at 1010.
Even construing the complaint as an action against the City of New York, the plaintiff must establish that he was unconstitutionally treated and that the constitutional violation resulted from an identified policy, custom, or practice of the municipality. See Monell, 436 U.S. at 694. In Monell, the Supreme Court held that "the language of § 1983 compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691.
Williams has failed to present evidence of a constitutional violation in his case, and that failure would preclude municipal liability. In any event, Williams has failed to present any evidence that any alleged constitutional violation was the result of an official policy, custom, or practice of the City of New York. The procedures that the New York City Police Department followed pursuant to Judge Lasker's order, in response to the Court of Appeals opinion in McClendon were constitutional. "The actual procedures followed by the City with regard to the disposition of seized items are constitutionally valid." Butler, 896 F.2d at 699. Therefore, there is no evidence of an unconstitutional policy, custom, or practice that would subject the municipal defendant to liability.
For the reasons stated above, the defendant's motion for summary judgment is granted. The Clerk is directed to enter judgment dismissing this case.
Dated: New York, New York
June 7, 1996
John G. Koeltl
United States District Judge