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United States District Court, Southern District of New York

February 26, 2002


The opinion of the court was delivered by: Sprizzo, District Judge.


Plaintiff Luther Rackley ("plaintiff" or "Mr. Rackley") brings the above-captioned action against the City of New York ("the City") and individual City employees (collectively, "the City Defendants"), and New York City Marshal George Airday ("defendant Airday").*fn1 Plaintiff alleges that he is entitled to relief because the procedures the City uses to enter judgments for unpaid parking tickets and subsequently to seize street-parked cars pursuant to such judgments ("the Seizure Process" or "the Process") — as implemented by both the New York City Parking Violations Bureau ("the PVB") and defendant Airday — infringes on plaintiffs rights under the Fourth and Fourteenth Amendments of the United States Constitution. The City Defendants and defendant Airday each move for summary judgment pursuant to Fed. R. Civ. Pr. 56.*fn2 Plaintiff also cross-moves for summary judgment. For the reasons set forth below, the Court grants defendants' motions and denies plaintiffs motion.


The evidence before the Court on the instant motions demonstrates, at a minimum, that during the time period relevant to the instant action Mr. Rackley violated New York City's parking rules and regulations on multiple occasions. Mr. Rackley, also, it seems, did not always timely pay the fines that resulted from such violations.*fn3 as a result, the City of New York issued warnings of default judgments and, ultimately, multiple default judgments against Mr. Rackley for his alleged failure to pay the fines and penalties to which the City claimed entitlement. Finally, defendants twice seized plaintiffs car — on July 21, 1998 and October 21, 1998 — to satisfy the judgments they claim he then owed. See Affirmation of Michael S. Gruen dated April 30, 2001 ("Gruen Affirmation I.") at ¶¶ 48-78. The instant dispute addresses the propriety of defendants' actions in both issuing the above-described default judgments and then seizing plaintiffs car.

Not surprisingly, plaintiff takes issue with defendants' actions. In particular, he complains that his car was not "tow eligible" on the occasions the City seized it. Plaintiff contends that, at the time of each seizure, the proper judgment amount attributable to his vehicle was below the $230 "tow eligible" threshold required for defendant Airday to seize plaintiffs car.*fn4 Plaintiff says this threshold was not met because defendants committed errors during the Seizure Process.*fn5 By plaintiffs account, these alleged errors both resulted from and are evidence of the constitutional infirmities of the Seizure Process — a process which plaintiff also argues is in violation of several provisions of New York State law. Plaintiffs federal claim, made pursuant to 42 U.S.C. § 1983, is that the Seizure Process violates both his Fourth Amendment right against unreasonable searches and seizures*fn6 and his Fourteenth Amendment due process rights.

Defendants respond that the Seizure Process does not violate plaintiffs rights under either the Fourth or Fourteenth Amendments. Specifically, defendants assert that the challenged procedures comport with the applicable New York State laws and are constitutionally reasonable under the Fourth Amendment. Defendants further argue that plaintiff has failed to present competent evidence to support his contention that the outstanding judgments against him totaled less than the "tow eligible" amount on either of the dates his car was seized. Moreover, defendants contend that even if they had committed errors while implementing the Seizure Process, plaintiff has failed to establish a deprivation of property without due process. Finally, regarding plaintiffs claims against individual City employees and defendant Airday, defendants assert that plaintiff has not demonstrated — as he must — that any of these individuals: (1) were personally involved in authorizing the unconstitutional seizure of plaintiffs car; (2) violated clearly established constitutional rights; or (3) violated clearly established constitutional rights while acting in an objectively unreasonable way with respect to their knowledge that such actions were unconstitutional.


A court may grant summary judgment only if it determines that there are no genuine issues of material fact based on a review of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits. See Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

When ruling on a summary judgment motion, a court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If no genuine issue as to any material fact exists, the moving party is entitled to summary judgment as a matter of law. See Celotex, 477 U.S. at 323.

A. Plaintiffs Fourth Amendment Claim

Plaintiff relies primarily on his rights under the Fourth Amendment in support of his complaint. The Court will therefore address plaintiffs Fourth Amendment arguments first. What plaintiff claims, in essence, is that defendants acted in derogation of his rights by seizing his car without a valid warrant. In making this accusation, plaintiff argues initially that a warrant was absolutely necessary to seize his car. Accepting this premise as correct, he then argues that the Seizure Process is unconstitutional under the Fourth Amendment by challenging, inter alia: (1) the form of the PVB executions defendants use to identify cars for seizure; (2) the lack of procedural safeguards in the Seizure Process; and (3) defendants' noncompliance with New York law.*fn7 According to plaintiff, the defects he identifies in the Seizure Process — individually and combined — make it unconstitutional. In short, plaintiff believes that defendants' actions against him and his car constituted unreasonable seizures. The Court disagrees.

The Fourth Amendment's prohibition against unreasonable searches and seizures applies to the states — and to municipalities and municipal subdivisions acting under color of state law — through the Fourteenth Amendment. See, e.g., Soldal v. Cooks County, Illinois, 506 U.S. 56, 61 (1992). Moreover, the Fourth Amendment's protections extend to both civil and criminal proceedings. See id. at 67-68. Additionally, a property seizure (the type of action challenged by plaintiff) "occurs when there is some meaningful interference with an individual's possessory interests in [his] property." Id. at 61 (internal quotations omitted). In the instant case, it is undisputed that seizures occurred when defendants twice towed plaintiffs car. The parties disagree, however, regarding whether such seizures were reasonable under the Fourth Amendment.

As the Soldal Court emphasized, "reasonableness is still the ultimate standard under the Fourth Amendment." Id. at 71. For the following reasons, the Court finds that, as a matter of law, defendants' seizures of plaintiffs car were reasonable and that no warrant was required before defendant Airday twice removed plaintiffs vehicle from the City's streets. In Florida v. White, 526 U.S. 559 (1999), the Supreme Court addressed a challenge to a warrantless seizure of a car by Florida police. The police had seized the car, pursuant to a Florida contraband statute, while it was parked in respondent's employer's parking lot. See White, 526 U.S. at 566. In the course of reversing the Florida Supreme Court and finding the seizure constitutional, Justice Thomas addressed issues of original intent under the Fourth Amendment and discussed the existing, relevant Supreme Court search and seizure jurisprudence. His majority opinion noted the long-standing "special considerations [under the Fourth Amendment] in the context of movable items" such as cars, and then went on to declare:

In addition to [the aforementioned special considerations] our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. . . . [W]e have drawn upon the established distinction between a warrantless seizure in an open area and such a seizure on private premises.

White, 526 U.S. at 565-66 (citation and internal quotations omitted). The Court then addressed another seminal case in this area, G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977), noting:

There we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. We concluded that they did not, reasoning that "[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy."

White, 526 U.S. at 566 (citation omitted) (alteration in original).

From these precedents, the White Court concluded there was no invasion of privacy because the Florida police seized the car at issue from a public place; the Court therefore found that, in accordance with its existing jurisprudence and relevant constitutional principles, there was no Fourth Amendment violation. See id. The principles reaffirmed in White apply with equal force to the situation currently before this Court. Cf. Soldal, 506 U.S. at 71 (observing, hypothetically, that if officers had made a warrantless seizure pursuant to a court order, "a showing of unreasonableness . . . would be a laborious task indeed"); see also G.M. Leasing, 429 U.S. at 352 n. 18 (noting that a warrant is not necessary to seize a street-parked car in satisfaction of a United States tax lien, not only due to the lack of a privacy invasion, but also because "a tax assessment is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor's property to satisfy the debt" (internal quotations omitted)).*fn8

Moreover, contrary to plaintiffs argument, these principles apply outside both the federal income tax and Florida contraband seizure contexts. In Schneider v. County of San Diego, the United States Court of Appeals for the Ninth Circuit ("the Ninth Circuit") upheld the warrantless seizure by the County of San Diego of a number of vehicles parked in an open field — and in plain view of a local highway — on appellant's property. See 28 F.3d 89, 90-92 (9th Cir. 1994). Defendants determined that the vehicles were parked in violation of relevant zoning laws and subsequently entered an abatement order demanding their removal. See id. at 90-91. Following a hearing denying plaintiffs challenge to the abatement order,*fn9 defendants seized the vehicles — without a warrant — due to plaintiffs continuing failure to abide by the disputed order. See id. at 91. The Ninth Circuit found that the County had acted within the limits of the Constitution by seizing without a warrant, noting:

Unlike the seizures in G.M. Leasing, the seizures [in Schneider] were not "in satisfaction of a claim of the United States." But they were authorized pursuant to the police power of the State of California. Because the warrantless seizures . . . did not impinge on any legitimate privacy interest, the abatement hearing was sufficient to establish the validity and reasonableness of the seizure. No warrant was required.

Schneider, 28 F.3d at 92 (citations omitted); see also United States v. Pappas, 600 F.2d 300, 304 (1st Cir. 1979) (stating that "G.M. Leasing. . . is not so out of line with the automobile exception as now conceived to suggest it be limited to its facts or tax levy context"). This Court finds therefore that plaintiffs claim presents a situation analogous to those addressed by existing Fourth Amendment warrantless seizure jurisprudence. Specifically, the Court finds that a warrant was not needed to seize plaintiffs car because defendants: (1) impinged on no privacy interest when they removed plaintiffs car from the City's streets; and (2) acted pursuant to PVB default judgments entered pursuant to a neutral*fn10 administrative process established under the legislative authority of the State of New York — which process also provided extensive notice to plaintiff regarding his right to contest both the parking tickets and default judgments entered against him.*fn11 See also Payton v. New York, 445 U.S. 573, 586-87 (1980) (emphasizing that "objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity."); accord Texas v. Brown, 460 U.S. 730, 738 (1983).

Even assuming, arguendo, that there was such a warrant requirement on the facts presented in this case, the Court disagrees with plaintiffs suggestion that the execution forms used by defendants did not constitute proper warrants. According to plaintiff, his "primary argument" in opposition to defendants' motion — and in support of his own motion — is that these execution forms are constitutionally infirm. See Transcript of June 11, 2001 Oral Argument at 25. The Court finds this argument unpersuasive.

It is undisputed that the Fourth Amendment demands that warrants "particularly describ[e] . . . the persons or things to be seized."*fn12 U.S. Const. amend. IV; accord U.S. v. Bianco, 998 F.2d 1112, 1115 (2d Cir. 1993); People v. Bennett, 653 N.Y.S.2d 835, 837 (Sup. Ct., Bronx County. 1996). This command derives from the founders wish to prohibit the government from conducting "general searches." See, e.g., United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000), cert. denied sub.nom. Jie Hu v. United States, 122 S.Ct. 44 (Oct. 1, 2001). These "so-called general searches. . . . — which have been variously described as `wide-ranging exploratory searches,' and `indiscriminate rummaging[s],' — are especially pernicious, and have long been deemed to violate fundamental rights." Id. (alteration in original) (citations omitted). Although the Fourth Amendment is designed to "prevent[] the seizure of one thing under a warrant describing another [so that] nothing is left to the discretion of the officer executing the warrant," see Marron v. United States, 275 U.S. 192, 196 (1927), courts repeatedly underscore that, when considering a challenge to the particularity of a warrant they will

tolerate a greater degree of ambiguity where law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant.

United States v. Young, 745 F.2d 733, 759 (2d Cir. 1984) (collecting cases). Accordingly, and as the United States Court of Appeals for the Second Circuit ("the Second Circuit") recently emphasized, a government entity can avoid the egregious abuses envisioned by the drafters of the Fourth Amendment by issuing warrants that are "`sufficiently specific to permit the rational exercise of judgment [by the executing officers] in selecting what items to seize.'" Shi Yan Liu, 239 F.3d at 140 (alteration in original) (quoting United States v. LaChance, 788 F.2d 856, 874 (2d Cir. 1986)).

Additionally, ambiguities in the language of a warrant can be cured through the incorporation of a supporting affidavit that more specifically describes the search to be conducted or the item to be seized. See, e.g., United States v. Bianco, 998 F.2d 1112, 1115-17 (2d Cir. 1993); United States v. Haydel, 649 F.2d 1152, 1156-58 (5th Cir. 1981).*fn13 Not surprisingly, therefore, courts stress that the Fourth Amendment does not require: "hypertechnical accuracy and completeness of description . . . but rather, from the standpoint of common sense [demands only] that the descriptions in the warrant and its supporting affidavits be sufficiently definite to enable the searcher to identify the . . . things that the Magistrate has previously determined should be . . . seized." People v. Nieves, 369 N.Y.S.2d 50, 57 (N.Y. 1975); accord Bennett, 653 N.Y.S.2d at 837 ("warrants must be evaluated with common sense"); see also, e.g., United States v. Johnson, 541 F.2d 1311, 1314 (8th Cir. 1976) ("[T]he degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved."). Thus, the ultimate determination of "[w]hether a . . . warrant is sufficiently particular `necessarily depends upon the facts and circumstances of each case.'" Bennett, 653 N.Y.S.2d at 267 (quoting Nieves, 369 N.Y.S.2d at 58); see also Ker v. California, 374 U.S. 23, 33 (1963) (stating that there "is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances [because] standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application" (internal citations and quotations omitted)). But perhaps the most crucial thing to consider before resolving the particularity question is the "core purpose" of the Constitution's warrant requirement: the protection of "the right of privacy from arbitrary police intrusion,"*fn14 Bennett, 653 N.Y.S.2d at 837. Virtually all of the cases plaintiff relies on to support his claim involve challenges to search warrants issued in connection with a criminal investigation and with the purpose of allowing the police to discover whether there was evidence of criminal activity inside a person's home or automobile. See, e.g., Marron, 275 U.S. at 193-95; Marks v. Clarke, 102 F.3d 1012, 1030-31 (9th Cir. 1996); see also Plaintiff's Memo. I. at 3-5. These cases often emphasize, therefore — and again, not surprisingly — that a criminal "defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy." United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002). Similarly. cases addressing the Fourth Amendment implications of government actions taken pursuant to administrative schemes focus on intrusions on "the sanctity of [a person's] home." Camara v. Municipal Ct. City & County San Francisco, 387 U.S. 523, 531 (1967); see also United States v. Reed, 572 F.2d 412, 422-23 (2d Cir. 1978) (discussing in the context of a challenge to a criminal search the acute constitutional concerns that arise when searches occur in a person's home); United States v. Bin Laden, 126 F. Supp.2d 264, 284-85 (S.D.N.Y. 2001) (same). In this case, plaintiffs particularity challenge arises in a context that, at a minimum, does not implicate the core privacy concerns embodied in the warrant requirement.

Moreover, contrary to plaintiffs contention, the circumstances of his case compel a finding that the executions issued to and used by defendant Airday were sufficiently particular to satisfy the warrant requirement — assuming arguendo that such requirement applies at all. Even if plaintiff is correct that defendants, and the City Defendants in particular, failed to comply with New York's civil practice rules or legislative schemes, such failures themselves do not ipso facto compel a finding that the challenged executions were unconstitutional under the Fourth Amendment, especially where, as here, the executions issued to defendant Airday were sufficiently particular in view of their reference to and dependence on the incorporation of judgment debtor information listed on a computer database maintained by the PVB ("the Computer Database" or "the Database").

Plaintiff mistakenly believes that the executions lack the requisite particularity simply because their reference to information on the parking violations database may not conform with the letter of the New York C.P.L.R. However, as the courts have repeatedly affirmed, procedures are a means and not an end in themselves. See, e.g., Stone v. Powell, 428 U.S. 465, 491 n. 30 (1976); People v. McGrath, 412 N.Y.S.2d 801, 804 (N.Y. 1978); Lewis v. Miller, 444 N.Y.S.2d 849, 851 (Rochester City Ct. 1981). Here, the means chosen are not so defective as to render the statutory scheme constitutionally infirm.

The execution*fn15 form itself authorizes the City marshals to take specific action for a defined — and short — period of time. Specifically, a City attorney specially designated to enforce parking violations judgments ("the Special Counsel") signs — on behalf of the New York City Department of Finance (Parking Violations) before which the relevant administrative proceedings occurred and from whom the judgments issued — an execution that both references and is applicable to all parking violations judgments in effect for that week. The Special Counsel issues each execution pursuant to the authority granted to the "Civil Court of the City of New York, Office of the Special Clerk for Parking Violations" by New York State and New York City law.*fn16 See Roth Declaration I. at Exh. K., pp. 000251-52, 000255-56 (copies of executions in effect during the two (2) weeks in 1998 during which defendant Airday towed plaintiffs vehicle ("the 1998 Executions")). The caption in these executions lists the "City of New York Department of Finance (Parking Violations)" as the "Judgment-Creditor" and indicates that such judgment creditors are in an adversarial relationship with "Various Judgment-Debtors Listed in the Parking Violations Computer Database"; there is also a handwritten entry in the caption indicating the week during which the execution is in force. See id.

The executions also state, clearly and unequivocally, that they are "To Be Used For Street Vehicle Seizures." Moreover, as the 1998 Executions used by defendant Airday demonstrate, the form also: (1) states that the City obtained the relevant judgments following administrative proceedings before the City's finance department in an action between that department and the judgment-debtors listed in that department's computer database; (2) indicates that New York VTL § 237(5) authorizes the enforcement of such judgment in the "same manner as the enforcement of money judgments entered in civil actions"; (3) explains that the judgment amounts "represent the total of penalties imposed for those violations set forth" on the Computer Database; and (4) "COMMAND[S] [the marshal] to satisfy the said judgments . . . out of the personal property of the above-described judgment debtors."*fn17 Id.

The Court finds that the executions defendant Airday used were — and the forms in general are — constitutional both because they functionally incorporate by reference the information listed on the Computer Database and because the circumstances surrounding their use show that defendants avoided any violation of the Fourth Amendment's dictates. It is of course undisputed that all of the City marshals are incapable of seizing a vehicle without referring to the above-described computerized list of judgment-debtors. In practice, a marshal uses a portable computer in his car to remotely obtain information regarding whether a particular street-parked vehicle is "tow eligible." Defendant Airday did exactly that when he twice seized plaintiffs car. See Roth Declaration I. at ¶¶ 37-38. The marshal may only seize a car, therefore, if he discovers, as defendant Airday did in this case, that a vehicle is registered to a judgment-debtor listed on the Computer Database with more than $230 in outstanding judgments.*fn18 Thus, the execution form, with its multiple references to the judgment-debtors listed in the Computer Database, renders the seizure by the marshal virtually routine and ministerial. Moreover, the City marshals may conform a copy of the execution at the time of a seizure by handwriting specific information about the debtor's vehicle and the judgment amount owed below the signature line of the Special Counsel; defendant Airday completed such copy each time he seized plaintiffs car.*fn19 See Roth Declaration I. at Exh. M.

To summarize the relevant facts, defendant Airday twice seized plaintiffs car: (1) after finding it on a public street; (2) after determining that it was "tow eligible" because the registered owner of the car — plaintiff — was a judgment-debtor with more than $230 in outstanding judgments listed on the Computer Database on that date;*fn20 and (3) having completed a conformed copy of the execution which combined the 1998 executions with the relevant Database information regarding the judgments pending against plaintiff. These facts and circumstances, taken together, demonstrate that the 1998 executions were "sufficiently definite to enable the searcher to identify the . . . things that the Magistrate has previously determined should be . . . seized." Bennett, 653 N.Y.S.2d at 266 (internal quotations omitted); see also Bianco, 998 F.2d at 1117 (noting the flexibility inherent in the incorporation by reference corollary to the warrant rule); Rollack, 90 F. Supp.2d at 283 (same); supra note 13.

In sum, there is no merit to plaintiffs argument that the methods the marshals use to seize vehicles in satisfaction of parking violations are equivalent to the "indiscriminate rummagings" prohibited by the Constitution or that the Seizure Process affords the City marshals, in particular, an impermissible amount of discretion because it allows them to take "raw data," like that contained on the Computer Database, "and translat[e] it into action." Plaintiffs Memo. I. at 7.*fn21 Indeed, to the extent the marshals have any discretion at all, it is significantly circumscribed by the tow eligibility limits and the elaborate administrative legal process that precedes both the entry of judgments and the seizure of vehicles. Put another way, defendants avoid the dangers envisioned by the drafters of the Constitution by taking as much discretion as possible away from the City marshals prior to issuing executions. These marshals do not, as plaintiff suggests, have the ability to pick and choose which cars to tow by assembling raw data. The evidence before the Court demonstrates what the Court has already described: the marshals simply check a car's license plate and determine whether — according to the PVB administrative officer with the legal authority to render judgments and enforce them as if entered by a civil court — the owner of that car is a judgment-debtor with more than $230 dollars in outstanding judgments. See Roth Declaration I. at ¶¶ 37-41; Gruen Affirmation I. at ¶ 53.

Finally, as a practical matter, if the Court accepted plaintiffs arguments regarding these forms, defendants would be left with at least two (2) equally unattractive and unnecessary ways to change their behavior: (1) they could either abandon the practice of sweeping the City streets in search of cars owned by people that have accumulated significant parking violations judgments; or (2) they could insist that each of the marshals make their daily rounds burdened with thousands of executions listing specific information about judgment-creditors whose vehicles may or may not ever be found that day. The Constitution does not compel such practices. In the final analysis, the Court finds that no rational juror could conclude that the form of execution defendants use lacks the particularity necessary to effectuate its purpose — i.e. the seizure of "street vehicles" owned by judgment-debtors like plaintiff, especially since plaintiff has presented no evidence from which a rational juror could conclude that the challenged seizures were unreasonable under the Fourth Amendment. See Soldal, 506 U.S. at 71; accord Coleman v. Watt, 40 F.3d 255, 263 (8th Cir. 1994) (holding that plaintiff had not made the requisite showing that it was unreasonable for the government defendant to impound his car as a part of its moving violations enforcement program); see also C.A.U.T.I.O.N., Ltd. v. City of New York, No. 93 Civ. 4718, 1994 WL 455553, at *8 (S.D.N.Y. 1994) (Wood, J.) (dismissing for lack of particularity in complaint — but granting plaintiffs opportunity to replead — a Fourth Amendment claim alleging defendant's improper seizure of commercial vehicles); Grant v. City of Chicago, 594 F. Supp. 1441, 1451 (N.D. Ill. 1984) (finding reasonable under the Fourth Amendment the City of Chicago's practice of "booting" and thereby immobilizing vehicles whose owners had a large number of unpaid parking violations).

This conclusion is further supported by the fact that New York's vehicle and traffic laws and the parking violations system plaintiff challenges serve several important and quite legitimate government interests. Chief among those interests is securing compliance with and deterring violations of parking regulations. Subsumed in this interest is the government's concern for safety — an interest served, for instance, by ensuring that motorists do not park in front of fire hydrants. Also included in the compliance and deterrence interest is a desire to "alleviat[e] congestion in the traffic-clogged streets of the City." C.A.U.T.I.O.N., Ltd v. City of New York, 898 F. Supp. 1065, 1067 (S.D.N.Y. 1995) (Kaplan, J.). Another government interest at play in this case — although it is not one defendants emphasize — is the collection of revenues. The undisputed evidence before the Court shows that the City collects many millions of dollars from the towing program. See, e.g., Gruen Affirmation I. at Exh. LL (copy of the City's revenue report for the 1994 fiscal year which indicates that the towing program collected almost $60 million dollars that fiscal year). The government therefore has numerous interests at play, all of which are related to the reality that "[p]arking space on the [City] streets . . . is among the scarcest of commodities." All Aire Conditioning, Inc. v. City of New York, 979 F. Supp. 1010, 1012 (S.D.N.Y 1997) (Kaplan, J.).

In sum, even giving plaintiff the benefit of every rational inference in his favor, he has proven only that defendants temporarily*fn22 deprived him of his car because they may have made various inadvertent*fn23 errors in calculating the amount of money he owed the City on the two (2) dates in question. However, the Court finds that the balance of interests tip decidedly in the government's favor and that plaintiffs Fourth Amendment claim must therefore be dismissed.

B. Plaintiffs Due Process Claims

Plaintiff also asserts that defendants violated his substantive and procedural due process rights — although the exact parameters of this assertion are unclear from his pleadings and motion papers. But, whatever their exact nature, these causes of action, like plaintiffs Fourth Amendment claim, are "based on the Fourteenth Amendment, as implemented by section 1983, and require[] the existence of a federally protectible property right and the denial of such a right in the absence of either procedural or substantive due process." Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999). The Court addresses each due process claim considering the relevant evidence in the light most favorable to plaintiff

1. Substantive Due Process

The Court finds that the record is barren of any pertinent evidence to support a claim that defendants deprived plaintiff of his substantive rights of due process.*fn24 To prevail on this claim, plaintiff must demonstrate that defendants so grossly abused their authority that they deprived him of a constitutionally protected property interest. See, e.g., Natale, 170 F.3d at 262. Courts often note that such gross abuse occurs only where the government action challenged is so "outrageous" and "arbitrary" that it "shocks the conscience" See e.g., id. (collecting Supreme Court cases, Second Circuit authority, and cases decided by other United States Circuit Courts of Appeals). As the Natale panel explained:

Substantive due process is an outer limit on the legitimacy of governmental action. It does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action. Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.

Id. at 263; accord Leeandy Dev. Corp. v. Town of Woodbury, 134 F. Supp.2d 537, 543 (S.D.N Y 2001). Quite evidently, therefore, plaintiff must satisfy a high burden of proof before he can prevail on a claim that defendants deprived him of substantive due process rights.

While there is no dispute that plaintiffs property and liberty interests were implicated by the seizure of his car, plaintiff has failed to demonstrate that the defendants deprived him of these rights through actions that shock the conscience because of their arbitrariness or outrageousness. Indeed, plaintiff presents no evidence showing that defendants treated him differently than any other parking regulation violator. It is clear, therefore, that defendants did not "`burden fundamental rights or single out suspect classifications'" when implementing the City's parking violations program. See All Aire, 979 F. Supp. at 1018 (quoting Beatie v. City of New York, 123 F.3d 707, 712 (2d Cir. 1997)). As Judge Kaplan aptly observed, "as long as the City officials responsible for the [parking violations] enforcement guidelines reasonably might have conceived that the policies would serve legitimate interests, those guidelines must be sustained." 979 F. Supp. at 1018. Since plaintiff has failed to produce evidence showing that the scheme challenged served no legitimate state interest, his substantive due process claim must be dismissed.

2. Procedural Due Process

Plaintiff makes two (2) distinct but related claims alleging a deprivation of his procedural rights of due process. First, as best the Court can discern from the relevant pleadings and motion papers, plaintiff makes a general claim attacking both the City's process for the entry of parking violations judgments and the subsequent implementation of the Seizure Process in the enforcement of those judgments. Second, plaintiff makes a discrete challenge to a PVB rule (hereinafter referred to as the "Seven Day Rule" or "the Rule") that allows defendants — after an administrative law judge ("ALJ") has already agreed to reduce a fine owed by a parking violator — to reinstate the full amount of that fine should the violator fail to pay the reduced amount within seven (7) days of the ALJ's decision.*fn25 The Court addresses each of these claims separately.

With respect to plaintiffs more general Due Process Clause claim, the Court finds that defendants provide parking violators — and in this case provided plaintiff — with more than sufficient process to satisfy the Constitution. The Court assumes, for the purposes of addressing this claim, that civil proceedings of the sort challenged here,*fn26 which involve the actual payment of fines and the seizure of personal property, implicate the procedural aspects of the Fourteenth Amendment's Due Process Clause. Cf. Good, 510 U.S. at 51-52 (1994) (finding that ex parte government seizure in connection with civil forfeiture proceeding implicated the due process clauses in both the Fifth and Fourteenth Amendments); see also C.A.U.T.I.O.N., Ltd., 898 F. Supp at 1073-74 (Kaplan, J.) (denying motion to dismiss but finding that procedural due process challenge was colorable due to "contention that City tows vehicles for alleged parking violations when . . . there is no basis for such charges"); C.A.U.T.I.O.N., Ltd., 1994 WL 455553, at *4-7 (Wood, J.) (allowing procedural due process claim to proceed and emphasizing that challenges to "civil seizures in support of debt are generally analyzed under the due process clause, rather than the Fourth Amendment"); Blum v. Koch, 716 F. Supp. 754, 757-64 (S.D.N.Y. 1989) (Cedarbaum, J.) (analyzing procedural due process challenge of out-of-state resident to City's parking violations process); DeYoung v. City of New York, 607 F. Supp. 1040, 1042-46 (S.D.N.Y. 1985) (Conner, J.) (granting summary judgment to City on procedural due process challenge to its parking violations seizure system). However, to avoid summary judgment on this claim, plaintiff must demonstrate that a rational juror could infer from the evidence presented that defendants violated his procedural rights of due process. The record before the Court contains no such evidence.*fn27

It is well-settled that "due process . . . require[s] notice and an opportunity to be heard prior to the deprivation of a property interest, in the absence of an extraordinary situation []that justifies postponing notice and opportunity for hearing." United States v. Premises & Real Prop. at 4492 South Livonia Rd., Livonia, N.Y., 889 F.2d 1258, 1263 (2d Cir. 1989) (internal quotations and citations omitted) (alteration in original). The Court assumes for the sake of disposing of this claim that such extraordinary circumstances do not exist in the instant case. Hence the question remains whether the procedures plaintiff challenges — namely, defendants' process for entering and enforcing parking violations judgments — afford him adequate notice and an opportunity to be heard.

Relevant Supreme Court and Second Circuit precedents establish that the availability of adequate pre-deprivation and post-deprivation remedies under state law will defeat a § 1983 action brought against state actors, see, e.g., Zinermon v. Burch, 494 U.S. 113, 127-28 (1990); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 299 (1981); Gudema v. Nassau County, 163 F.3d 717, 724 (2d Cir. 1998) — so long as the claimant had sufficient notice of such remedies, see Dusenberry v. United States, 122 S.Ct. 694, 699-700 (2002), i.e. such notice as is reasonably calculated to apprise a person of an action against him. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 319 (1950); Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir. 1988). There is no material factual dispute that the City's administrative parking violations system, together with the judicial system of the State of New York, provided plaintiff with adequate pre-deprivation remedies, adequate post-deprivation remedies, and sufficient notice that such remedies were available.*fn28

The record of the instant case compels this conclusion. For instance, it is uncontested that plaintiff had the ability under the City's administrative adjudication system — which he exercised on a limited basis — to contest the tickets both before and long after initial payment on them was due. See, e.g., Gruen Affirmation I. at ¶¶ 57, 74-75 (indicating that plaintiff made in-person challenges to various judgments and tickets issued against him following each of the 1998 seizures of his car); Declaration of Alan Roth dated July 30, 2001 ("Roth Declaration II.") at ¶¶ 18-21 (describing plaintiffs April 1998 hearing-by-mail challenges to certain tickets relevant to this action). Plaintiff could choose to contest his tickets through the mail, via the internet, or in person. See, e.g., Roth Declaration I. at Exhs. B (copies of parking tickets issued against plaintiff with explanation of ways to contest tickets), C (copy of Notice of Outstanding Summons sent to plaintiff that references, inter alia, availability of hearing to defend ticket); D (copy of Notice of Impending Default Judgment informing of same rights to defend against tickets indicated on Notice of Outstanding Summons). The City even allowed plaintiff to make an in-person challenge without an appointment by simply traveling to a PVB facility where plaintiff would receive a hearing that very day. See, e.g., id. at Exh. B; accord DeYoung, 607 F. Supp. at 1044-45. Prior to the seizures of his car, plaintiff also had the ability to appeal any administrative determination — whether it concerned a contested ticket or a default judgment — first to an administrative appeals board and then, if he was unsatisfied with the results of such appeal, he could then prosecute an Article 78 proceeding in an appropriate New York State court. Indeed, an Article 78 action in many instances in itself constitutes sufficient procedural due process under the Constitution, see e.g., Locurto v. Safir, 264 F.3d 154, 174-75 (2d Cir. 2001); C.A.U.T.I.O.N. Ltd., 898 F. Supp. at 1074-75, unless the factual situation is one in which procedural due process requires a pre-deprivation remedy. See, e.g, Hellenic Am. Neighborhood Assoc. Cmt. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996).

However, plaintiff does not even allege that the existing parking violations regime fails to provide adequate pre or post-deprivation remedies. Indeed, he could not colorably do so since plaintiff had the ability — and on a few occasions did — challenge the tickets entered against him before defendants seized his car. Concededly, he also could have instituted a pre-seizure Article 78 challenge to the relevant tickets and/or judgments. Having failed to do so plaintiff cannot now demonstrate that he was deprived of procedural due process.

The evidence also shows that defendants sent, via mail, multiple notices to plaintiff informing him: (1) that parking tickets issued to him were past due; (2) that default judgments were impending against him; and (3) that default judgments had been entered against him. See Roth Declaration I. Exhs. B, C, D, H; Kurland Declaration I, Exh. A, Deposition of Luther Rackley ("Rackley Depo.") at 103-19. Plaintiff admitting that he had received, but subsequently disposed of, various documents related to his parking violations);*fn29 Defendants Memo. I. at 4-5, 17-18. After reviewing these notices, the Court concludes that each of them adequately informed plaintiff of the various remedies available to him for contesting tickets and default judgments. In short, each and every notice sent to plaintiff — including the tickets themselves, the notices of outstanding summons, the notices of impending default judgment, and the final notices indicating that the City had already imposed a default judgment — adequately notified plaintiff that he had multiple avenues to dispute defendants' actions taken against him. See Roth Declaration I. at Exhs. B, C, D, H. Moreover, plaintiff used both the hearing-by-mail and in-person dispute mechanisms and was thus clearly aware of the available remedies.*fn30

Finally, the Court rejects as a matter of law plaintiffs discrete Fourteenth Amendment claim challenging the above-described Seven Day Rule. Plaintiff emphasizes first that the City ordinance authorizing the Rule is inconsistent with several relevant New York State enabling statutes. He argues that this inconsistency voids the City ordinance. Whether this is true — and the Court will assume it is for the purposes of deciding the instant motion*fn31 — is not determinative of the federal constitutional claim plaintiff presents. In other words, plaintiff must establish that defendants invoked the Seven Day Rule against him in a way that deprived him of a property right recognized under the United States Constitution without providing sufficient procedural rights of due process.*fn32

"The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in `property' or `liberty.' Only after finding the deprivation of a protected interest [does a court] look to see if the State's procedures comport with due process." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). Defendants did not, however, deprive plaintiff of any such interest. Giving plaintiff the benefit of every rational inference in his favor, the Court finds that, at best, defendants conditioned plaintiffs entitlement to lesser fines upon their timely payment. Because plaintiff failed to satisfy such a condition, he never had the protected rights he claims defendants violated. Cf id. at 60-61 (finding that plaintiff had no property right in medical benefits until he proved employer liability and the reasonableness of treatment sought); see also Texaco v. Short, 454 U.S. 516, 526 (1982) ("[T]he State has the power to condition the permanent retention of [a] property right on the performance of reasonable conditions that indicate a present intention to retain the interest.").

What plaintiff claims were "fully adjudicated rights," see Plaintiffs Memorandum of Law on Third Amended Complaint dated August 15, 2001 ("Plaintiffs Memo. II.") at 5, were instead determinations by an ALJ that plaintiff was guilty of certain parking violations but could satisfy his liabilities for such infractions by paying — within seven (7) days of such determination — less than the full amount of the fine then pending. Moreover, unlike many of the litigants in the cases he cites, plaintiff was not the beneficiary of a finding that his adversary was somehow liable to him or that he lacked liability altogether. See, e.g., generally Gilman v. Tucker, 128 N.Y. 190 (1891). In sum. the ALJ acted as a criminal court judge might in reducing the monetary penalty for a crime. The Court cannot accept that in so doing defendants granted plaintiff a vested property right to the reduced fine — whether or not he complied with the conditions required for its implementation. It follows that plaintiffs procedural due process challenge to the Seven Day Rule must be dismissed.*fn33

C. Plaintiffs Claims Against Individual City Defendants and Defendant Airday

Plaintiff argues that various individual City officials and defendant Airday knowingly or recklessly violated his constitutional rights. As an initial matter, because the Court finds insufficient all of plaintiffs claims under the Constitution, none of the defendants are liable to plaintiff But, again, assuming arguendo that plaintiffs constitutional claims are valid, the Court will address plaintiffs allegations against these individuals.

As already noted, City Defendants argue that plaintiff fails to meet the legal standard for overcoming the qualified immunity normally afforded to individual government employees acting in their official capacity. Defendant Airday contends separately that his status as a City marshal presents unique issues mandating a denial of the claims brought against him. The Court finds, however, that all of the individual defendants — including defendant Airday — are not liable to plaintiff

Plaintiffs claims must fail because he presents no evidence from which a rational juror could conclude that any of the individual defendants: (1) engaged in, authorized, condoned, or demonstrated deliberate indifference to unconstitutional actions against plaintiff; (2) acted in derogation of "`clearly established statutory or constitutional rights of which a reasonable person would have known,'" Poe v. Leonard, No. 00-9024, 2002 WL 237411, at *6 (2d Cir. Feb. 19, 2002) (quoting Harlowe v. Fitzgerald, 457 U.S. 800, 818 (1982)); and (3) took actions in their official capacity that manifested an objectively unreasonable belief that such actions were constitutional. See generally Wright v. Smith, 21 F.3d 496 (2d Cir. 1994); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060 (2d Cir. 1989). All that plaintiff alleges is that each of the individual defendants should have known that prosecuting their daily job duties somehow violated or facilitated the violation of plaintiffs rights. See, e.g., Plaintiffs Memo. I. at 14-27.

Specifically, plaintiff argues that none of the individual defendants could have reasonably believed "in light of clearly established law and the information [in their] posess[ion]" that their acts were constitutional. Wilson v. Layne, 506 U.S. 603, 615 (1999). Yet the City's parking violations procedures have survived in the same basic form for over twenty-five (25) years. In that time these procedures survived various challenges to their constitutionality. See, e.g., generally Jaouad v. City of New York, 39 F. Supp.2d 383 (S.D.N.Y. 1999) (Motley, J.); All Aire Conditioning, Inc. v. City of New York, 979 F. Supp. 1010 (S.D.N.Y 1997) (Kaplan, J.); Blum v. Koch, 716 F. Supp. 754 (S.D.N Y 1989) (Cedarbaum, J.); Keiley v. Hinkson, No. 74 Civ. 5075, at 3 (S.D.N.Y. 1975) (Conner, J.). Moreover, as set forth more fully supra at Part I.A., the Supreme Court, at least since G.M. Leasing in 1977, has clarified various points of constitutional law relevant to and supportive of the City's parking violations practices. This case authority not only supports the Court's dismissal of plaintiffs claims under the Constitution, but it also demonstrates that the individual defendants acted in an objectively reasonable way when they did their jobs each day. It follows that plaintiffs claims against the individual defendants — including those against defendant Airday*fn34 — are hereby dismissed.

D. Plaintiffs State Law Claims

Having denied plaintiffs federal causes of action — i.e. his constitutional claims — the Court declines to exercise its discretion to consider plaintiffs state law claims. See Carnegie Mellon v. Cohill, 484 U.S. 343, 350 (1988); accord In re Porges, 44 F.3d 159, 162 (2d Cir. 1995) (stating that Court is "not required to dismiss [plaintiffs] state claims [but] dismissal of such claims is the general rule"). The Court therefore dismisses these claims without prejudice to being renewed in an appropriate state court venue.*fn35


For the foregoing reasons the Court grants defendants Motions for Summary Judgment, denies plaintiffs Cross-Motions for Summary Judgment, and dismisses plaintiffs Third Amended Complaint. The Clerk of the Court is directed to close the above-captioned action.


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