United States District Court, E.D. New York
January 23, 2004.
WALTER N. IWACHIW, Plaintiff, -against- THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, NEW YORK STATE, NEW YORK CITY, NYC PARKING VIOLATIONS BUREAU, NYC DEPARTMENT OF FINANCE, NYC MAYOR'S OFFICE ON DISABILITIES, MARSHAL CATHERINE STRINGER, NYC MARSHAL, MARTINEZ 131-10 AUTO CORP D/B/A J&J AUTO REPAIR, QUEENS, DIANA MARTINEZ, DIAMOND TOWING, GOVERNOR PATAKI, MAYOR BLOOMBERG, KEMPER INSURANCE COMPANIES, KEMPER AUTO & HOME INSURANCE COMPANY, KEMPER INDEPENDENCE INSURANCE COMPANY, LUMBERMANS MUTUAL CASUALTY COMPANY, AMERICAN MOTORISTS INSURANCE COMPANY, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
This action arises out of claims by the pro se plaintiff Walter N.
Iwachiw ("Iwachiw" or the "plaintiff") against the defendants the City of
New York City Parking Violations Bureau (the "PVB"), the New York City
Department of Finance (the "DOF"), the New York City Mayor's Office on
Disabilities (the "Mayor's Office"), Mayor Michael Bloomberg
(collectively, the "City Defendants"), New York State, the New York State
Department of Motor Vehicles (the "DMV"), Governor Pataki (collectively,
the "State Defendants"), the Kemper Insurance Companies ("Kemper"),
Kemper Auto & Home Insurance Company, Kemper Independence Insurance
Company, Lumbermans Mutual Casualty Company, American Motorists Insurance
Company (collectively, the "Insurance Companies"), Marshal Catherine
Stringer ("Stringer"), Diana Martinez ("Martinez"), Diamond Towing, Inc.
("Diamond Towing"), and Martinez 131-10 Auto Corp. d/b/a/ J&J Auto
Repair ("J&J Auto"). Presently before the Court are motions by the
City Defendants and the State Defendants to dismiss the respective causes
of action against them pursuant to Federal Rule of Civil Procedure
("Fed. R. Civ. P.") 12(b)(6).
A. Factual Background
The following facts are taken from the amended complaint which the
Court takes to be true for the purpose of this motion.
Iwachiw claims that on November 3, 2001 the DMV improperly suspended
his driver's license and registration. These suspensions were allegedly
caused by the DMV's negligence in (1) failing to maintain its computer
network and database; (2) blaming Kemper for the "problems in the
plaintiff['s] records that resulted in the suspension"; and (3) failing
to "supervise, train and resolve problems" between Kemper and the DMV.
Am. Compl. ¶ 21. Kemper was also "negligent" because it
"fail[ed] to properly supervise the interface between the [DMV] and
[DMV] [sic]." Am. Compl. ¶ 22.
On or about June 25, 2002, the plaintiff's 1980 Ford van (the "Van")
was "taken by the operations" of Diamond Towing, Martinez, J&J
Storage, the PVB, and New York City. Am. Compl. ¶ 14. Iwachiw claims
that he was prevented from recovering the Van because his license and
registration were improperly suspended and because the DMV refused to
temporarily lift these suspensions. As a result, Iwachiw accumulated more
than $2,000 in storage and towing fees. He also claims that the Van was
damaged and its contents were stolen. In addition, on or about August 28,
2002, Martinez "intentionally struck [Iwachiw] with a chain link gate"
and denied him access to his personal property. Am Compl. ¶ 16.
On or about September 3, 2002, the PVB and the DOF issued a "sales
hold" which prevented the sale of the Van at a public auction. The
purpose of the sales hold was to allow Iwachiw "time to perfect [the]
Appeal and deal with [the] alleged investigation into [the] tow." Am.
Compl. ¶ 23. On September 19, 2002, the PVB refused to renew the
sales hold. Subsequently, on or about November 14, 2002, the Van sold for
$200 at a public action allegedly "before due process was completed
. . . to intentionally destroy evidence of damage of the [Van] and in
retaliation for whistle blowing." Am. Compl. ¶ 17.
B. Procedural Background
On September 19, 2002, the plaintiff commenced this action in the
United States District Court for the Southern District of New York by
Order to Show Cause seeking a temporary restraining order and a
preliminary injunction. The accompanying verified complaint alleged
"violations of the Constitution, Americans with Disability Act, civil
rights, due process, equal protection under the law and voter rights with
respect to N.Y.S. registered voters." This case was subsequently
transferred to this Court.
By Order dated January 10, 2003, this Court sua sponte dismissed the
complaint for failure to comply with Federal Rules of Civil Procedure
("Fed.R. Civ. P.") 8 and 10. The plaintiff was granted leave to file an
Amended Complaint within thirty days of the date of the Order.
Thereafter on February 10, 2003 the plaintiff filed an amended
complaint alleging that the State Defendants were negligent in (1)
failing to maintain its computer network and database; (2) blaming Kemper
for the "problems in the plaintiff['s] records that resulted in the
suspension"; and (3) failing to "supervise, train and resolve problems"
between Kemper and the DMV. Am. Compl. ¶ 21. The amended complaint
also alleges that the City Defendants violated his right to "due process"
by towing and selling his van and are liable for the allegedly negligent
acts of its subcontractors. Am. Compl. ¶ 17.
Iwachiw also claims that (1) this is an Article 78 proceeding to
alleged "improper finding" of the NYC Parking Violations
Bureau/Department of Finance in Parking Violations Summons No.
3453447750; (2) because he is "disabled," the seizure of his vehicle
prevented him from traveling to and from "medical appointments, family
appointments and political actions such as petition gathering," Am.
Compl. ¶ 19; and (3) "organized crime" which allegedly controls the
State and local government, "did interfere with and directed enforcement
against the plaintiff as retaliation for political actions, to interfere
in the political aspirations of the plaintiff and retaliate for the
whistleblowing of the plaintiff." Am. Comp. p. 10.
Presently before the Court are two separate motions to dismiss the
complaint for failure to state a claim, filed by the New York City
Defendants and the New York State defendants, respectively.
A. The Standard
1. Rule 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim under
Rule 12(b)(6), the Court should dismiss the complaint only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his complaint which would entitle him to relief. King v. Simpson,
189 F.3d 284, 287 (2d Cir. 1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d
Cir. 1996). The court must accept as true all of the factual allegations
set out in the complaint, draw inferences from those allegations in the
most favorable to the plaintiff, and construe the complaint liberally.
See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (citing
Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d
Cir. 1999)). The issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support the
claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.
In addition, the Court must liberally interpret the complaint of a pro
se plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594
(1972); Williams v. Smith, 781 F.2d 319, 322 (2d Cir. 1986).
Nevertheless, pro se status "does not exempt a party from compliance with
relevant rules of procedural and substantive law." Traguth v. Zuck,
710 F.2d 90, 92 (2d Cir. 1983) (citations omitted).
In support of their motion, the City Defendants submit a "declaration"
by Assistant Corporation Counsel Michelle Goldberg-Cahn and documents
which are not found in the pleadings. The Court may not consider this
material in a Rule 12(b)(6) motion, see Tarshis, 211 F.3d at 39,
and declines to convert their motion to one for summary judgment in order
to consider the material. See Fonte v. Bd. of Managers of Cont'l
Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (stating that a court
has the choice of converting a Rule 12(b)(6) motion to one for summary
judgment in order to consider material outside the pleadings but must
afford all parties an opportunity to submit supporting material).
B. Claims Against the State Defendants
As stated above, Iwachiw alleges that the State Defendants were
negligent in (1) failing to maintain its computer network and database;
(2) blaming Kemper for the "problems in the plaintiff['s] records that
resulted in the suspension"; and (3) failing to "supervise, train and
resolve problems" between Kemper and the DMV. Am. Compl. ¶ 21.
The Court finds that Iwachiw fails to assert a viable cause of action
against the State Defendants. First, negligence is not a valid basis for
liability under 42 U.S.C. § 1983. Daniels v. Williams, 474 U.S. 327,
328 (1986) ("[T]he Due Process clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to
life, liberty, or property." (emphasis in original)). Second, "[b]ecause
the State of New York [is] protected by the doctrine of sovereign
immunity, the DMV, as an arm of the state, also is entitled to sovereign
immunity." Mullin v. P & R Educational Services, Inc., et al.,
942 F. Supp. 110, 113 (E.D.N.Y. 1996); see also Trotman v. Palisades
Interstate Park Comission, 557 F.2d 35, 39-40 (2d Cir. 1977). Third,
there is no allegation of any personal involvement by Governor Pataki as
the only mention of his name is in the caption of the amended complaint.
See Dove v. Fordham Univ., 56 F. Supp.2d 330, 335 (S.D.N.Y. 1999)
("[W]here the complaint names a defendant in the caption but contains no
allegations indicating exactly how the defendant violated the law or
injured the plaintiff, a motion to dismiss the complaint in regard to
that defendant should be granted) (citations omitted).
Accordingly, the motion to dismiss the claims against the State
Defendants is granted.
C. Claims against the City Defendants
1. Due Process
The plaintiff claims that the City Defendants and its independent
contractors violated his "due process" rights. Causes of action based on
alleged violations of "due process" 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); see also Rackley
v. City of New York, 186 F. Supp.2d 466, 479 (S.D.N.Y. 2002). Because
Iwachiw fails to specify if his substantive or procedural due process
rights were allegedly violated, the Court will analyze both.
a. Substantive Due Process
"Substantive due process protects against government action that is
arbitrary, conscience shocking, or oppressive in a constitutional sense,
but not against a government action that is "`incorrect or ill' advised'"
T.S. Haulers, Inc. v. Town of Riverhead, 190 F. Supp.2d 455, 460
(E.D.N.Y. 2002) (quoting Kaluczky v. City of White Plains, 57 F.3d 202,
211 (2d Cir. 1995)). Thus to prevail on this claim, the plaintiff must
demonstrate that the defendants "so grossly abused their authority that
they deprived him of a constitutionally protected property interest.
Rackley, 186 F. Supp.2d. at 479. Such abuse occurs only where the
government action challenged is so "outrageous and arbitrary that it
shocks the conscious." Id.
While it is clear that the plaintiff's property interest was implicated
by the seizure of his Van, see Rackley, 186 F. Supp.2d at 480, the
plaintiff has failed to demonstrate that the defendants deprived him of
his Van through actions that "shock the conscience" because of their
arbitrary or outrageous conduct. See id. at 479. Furthermore, Iwachiw
failed to allege that the seizure and the subsequent sale of his Van,
served no legitimate state interest See id. at 480 (dismissing the
plaintiff's substantive due process claim because he failed to produce
evidence showing that the scheme challenged served no legitimate state
interest). Accordingly, Iwachiw's substantive due process claim must be
b. Procedural Due Process
"In order to establish a procedural due process violation, a plaintiff
must prove that he or she was deprived of `an opportunity . . . granted
at a meaningful time and in a meaningful manner' for [a] hearing
appropriate to the nature of the case.'" Brady v. Town of Colchester,
863 F.2d 205, 211 (2d Cir. 1988) (citation omitted). Here, the plaintiff
claims that his Van was "taken" and subsequently sold at a public sale.
Am. Compl. ¶ 14. Throughout his amended complaint the plaintiff
conclusorily alleges that his due process rights were violated, however,
he fails to provide "simple,
concise, and direct" allegations as to why there was allegedly a
violation of procedural due process. See Fed.R.Civ.P. 8(a)(2).
In any event, the pre-deprivation and post-deprivation remedies that
were available to Iwachiw are sufficient to defeat his procedural due
process claim. Rackley, 186 F. Supp.2d at 481(concluding that the
plaintiff's procedural due process rights were not violated because New
York City's administrative parking violations system, together with the
judicial system of the State of New York, provided the plaintiff with
adequate pre-deprivation remedies, adequate post-deprivation remedies,
and sufficient notice that such remedies were available.). Here, prior to
the seizure of his Van, Iwachiw had the ability to appeal any
administrative determination 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. See Rackley, 186 F. Supp.2d at 482; see also Liotta v. Rent
Guidelines Board, 547 F. Supp. 800, 802 (S.D.N.Y. 1982) ("[I]n
considering whether [the] defendants have failed to afford [the]
plaintiffs due process . . . the Court evaluates the entire procedure,
including the adequacy and availability of remedies under state law).
Accordingly, the plaintiff's procedural due process claim against the
City Defendants is dismissed.
2. Liability for the Acts of its Subcontractors
The plaintiff alleges that the City Defendants "are liable for actions
carried out by the defendants New York City employees . . . and for the
actions of it's [sic] subcontractors." Am. Compl. ¶ 25. In
particular, the plaintiff alleges that the City of New York and PVB
are responsible for the allegedly negligent actions of Diamond Towing,
J&J Auto and for the intentional actions of Martinez.
Not only is negligence not actionable under Section 1983, see Daniels
v. Williams, 474 U.S. 327, 328 (1986), but the New York City, as a
principal, would "not [be] liable for the wrongs of an independent
contractor or nonservant agent." County of Sullivan v. State of New
York, 517 N.Y.S.2d 671, 674, 135 Misc.2d 810 (Ct. Claims 1987); see also
Rosenberg v. Equitable Life Assur. Soc. of United States, 79 N.Y.2d 663,
668, 584 N.Y.S.2d 765, 767 (1992).
Accordingly, the claim that the City Defendants are liable for the acts
of J & J Auto, Diamond Towing and Stringer is without merit.
D. Miscellaneous Causes of Action
As stated above, the plaintiff alleges a litany of miscellaneous causes
of action namely that (1) this is an Article 78 proceeding to overturn
the alleged "improper finding" of the NYC Parking Violations Bureau /
Department of Finance in Parking Violations Summons No. 3453447750; (2)
because he is "disabled," the seizure of his vehicle prevented him from
traveling to and from "medical appointments, family appointments and
political actions such as petition gathering." Am. Compl. ¶ 19; and
(3) "organized crime" which allegedly controls the State and local
government, "did interfere with and directed enforcement against the
plaintiff as retaliation for political actions, to interfere in the
political aspirations of the plaintiff and retaliate for the
whistleblowing of the plaintiff." Am. Compl. ¶ 10.
The Court finds that these allegations relating to this miscellaneous
causes of action are "confused, ambiguous, vague [and] otherwise
unintelligible that its true substance, if any, is well disguised."
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (stating that "the
principal function of pleadings under the Federal Rules is to give the
adverse party fair notice of the claim asserted so as to enable him to
answer and prepare for trial." (citations omitted)); see also
Fed.R.Civ.P. 8(a)(2) (requiring that a complaint contain "a short and
plain statement of the claim showing that the
pleader is entitled to relief. . . ."). Therefore, to the extent that
these causes of action purport to invoke federal law, these causes of
action are dismissed pursuant to Rule 8.
E. New York State Law Causes of Action
Having dismissed all of the plaintiff's federal claims, the Court
declines to exercise supplemental jurisdiction over any claims brought
against the City Defendants pursuant to New York State and New York City
law. See Arroyo v. City of New York, et al., No. 99 Civ. 1458, 2003 WL
22211500, at * 3 (Sept. 25, 2003) (citing United Mine Workers v. Gibbs,
383 U.S. 715, 726, 86 S.Ct. 1130 (1966)).
Furthermore, the amended complaint alleges that Diamond Towing,
Martinez, J&J Auto and Stringer negligently caused damage to the Van
during its towing and storage; Martinez "intentionally struck [Iwachiw]
with a chain link gate" and denied him access to his personal property,
Am Compl. ¶ 16; and that Kemper "was negligent and failed to properly
supervise the interface between the [DMV] and [DMV] [sic]." The Court
declines to exercise supplemental jurisdiction over these claims, as
well. See Arroyo v. City of New York, et al., No. 99 Civ. 1458, 2003 WL
22211500, at * 3 Davidson, 474 U.S. at 347-48.
E. As to the New York City Mayor's Office on Disabilities, Kemper
Auto & Home Insurance Company, Kemper Independence Insurance Company,
Lumbermans Mutual Casualty Company and American Motorists Insurance
Although the New York City Mayor's Office on Disabilities, Kemper Auto
Home Insurance Company, Kemper Independence Insurance Company, Lumbermans
Mutual Casualty Company and American Motorists Insurance Company are
named as defendants in this action, the amended complaint does not allege
any wrongdoing on their part. Accordingly, the Court sua sponte dismisses
the complaint against these defendants. See Dove v. Fordham Univ.,
56 F. Supp.2d 330, 335 (S.D.N.Y. 1999).
F. Leave to Amend
Having already granted the plaintiff leave to amend his complaint, the
Court declines to grant the plaintiff another opportunity to amend his
complaint. The Court also notes that Iwachiw is a frequent litigator and
since 1999, has filed more than 15 actions in the federal and New York
G. Enjoining of Future Filings
In light of the fact that the plaintiff has filed more than 15 actions
in the federal and New York State courts, including more than 10
currently pending in the Eastern District of New York, the Court hereby
notifies the plaintiff that the Court is contemplating the issuance of an
Order enjoining the plaintiff from bringing any future proceedings in the
Eastern District of New York without prior permission of the Court and
also enjoining the plaintiff from filing any papers in connection with
any other case pending in the Eastern District of New York, unless such
papers are in response those submitted by his adversary. See Matter
of Hartford Textile Corp., 613 F.2d 388, 390 (2d Cir. 1979) (holding
that a district court may not enjoin, sua sponte, further
filings of frivolous or vexatious claims without providing express notice
and a hearing); see also Board of Managers of 2900 Ocean Avenue
Condominium v. Bronkovic, 83 F.3d 44, 45 (2d Cir. 1996) (A district court
is required to provide notice or an opportunity to be heard prior to
enjoining the filing of claims.)
Based on the foregoing, it is hereby
ORDERED, that the complaint is dismissed in its entirety with prejudice
for failure to state claims in which he is entitled to relief; and it is
ORDERED that the plaintiff, Walter N. Iwachiw, appear before United
States District Judge Arthur D. Spatt, Long Island Federal Courthouse,
1020 Federal Plaza, County of Suffolk and State of New York, on February
11, 2004, at 9:00 a.m., to show why (1) an order should not be issued
enjoining him from bringing any future proceedings in the Eastern
District of New York without prior permission of the Court and (2) why an
order should not be issued enjoining him from filing any papers in
connection with any other case pending in the Eastern District of New
York, unless prior to any such submission: (A) he files a one-page
written application to the Court for permission to file papers in this
case; (B) in that one-page written application, he explains why he seeks
permission to file such papers; (C) the Court grants his application in a
written order; and (D) he submits a copy of the Court's order granting
him permission to file papers with the papers he has been allowed to
file, unless such
papers are in response those submitted by his adversary; and it is
ORDERED, that the Clerk of the Court is directed to serve a copy of
this Order on the plaintiff, Walter N. Iwachiw, by regular first class
mail and by certified mail, return receipt requested at the address
Iwachiw indicated on the complaint: 48-35 41st Street, Sunnyside, N.Y.
11104; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
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