United States District Court, S.D. New York
October 12, 2004.
EARL HAYES, Plaintiff,
DETECTIVE THOMAS O'CONNOR and OFFICER MICHAEL BUNCE of Village of Monticello Police Department, and NYS POLICE OFFICERS MALER (Shield #3618) and LOSTRACIO (Shield # 2941), NEW YORK STATE POLICE DEPARTMENT, VILLAGE OF MOTICELLO POLICE DEPARTMENT, and VILLAGE OF MOTICELLO, Defendants.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
Earl Hayes brings this action pro se against the Village of
Monticello, its police department and two of its police officers
Detective O'Connor and Officer Bunce (collectively, "the
village defendants") as well as the New York State Police
Department and New York State Trooper Lostracco (collectively,
"the state defendants").*fn1 Hayes seeks monetary damages
for defendants' allegedly wrongful confiscation of approximately
$31,000*fn2 in cash from him. The state defendants have
moved to dismiss the complaint pursuant to Fed.R. Civ. P.
12(b)(6) and the village defendants have moved for summary
judgment pursuant to Fed.R. Civ. P. 56. In light of the parties' submission of materials outside the
complaint, this Court converted the state defendants' motion to
dismiss the complaint into a motion for summary judgment in an
order dated November 5, 2003. See, e.g., Sira v. Morton,
380 F.3d 57, 67-68 (2d Cir. 2004). Based on Hayes' statement that he
"anticipate[d] that [he] will be obtaining [proof] in the near
future" (Hayes Decl. dated October 16, 2003 ("Hayes Decl.
I")*fn3 ¶ 5), the Court granted Hayes an extension of time
until November 17, 2003 to submit any additional proof in support
of his opposition to the summary judgment motions. Hayes did
submit a declaration by Paul Bunton who accompanied Hayes in
the car on the date at issue as well as a certificate of
disposition and a misdemeanor complaint, both of which relate to
Hayes' prior arrest for unauthorized use of a motor vehicle.
Earl Hayes alleges a conspiracy between the New York State
Police and the Village of Monticello Police Department to take
his money and prevent him from recovering it. On June 6, 2001 at
around 12:30 a.m., Hayes was stopped by New York State Troopers
Lostracco and Maler in Sullivan County and received citations for
four traffic offenses: speeding, obstructed view, driving across
a marked hazardous zone in a construction area and changing lanes
without signaling. (McCaffrey Decl. Ex. A). Maler and Lostracco
"ran [Hayes'] license" and notified him that there existed an
outstanding warrant for his arrest in the Village of Monticello.
(Mem. Supp. State Defs.' Mot. Dismiss at 2). Although Hayes alleges that the troopers were
aware that no such warrant existed and used it as a pretext to
stop and search plaintiff's vehicle (Compl. at 4), he also
concedes that "they had probable cause to arrest Plaintiff based
on the information that they had received concerning the
purported `arrest warrant.'" (Hayes Decl. dated Oct. 16, 2003
("Hayes Decl. II") ¶ 7).
Lostracco and Maler searched Hayes at the time of the arrest
and confiscated the approximately $31,000 that they found on
him.*fn4 (Compl. at 1). Paul Bunton, who was traveling in
the car with Hayes, was permitted to take possession of all of
Hayes' personal property except for the cash. (Hayes Decl. I ¶ 3;
Hayes Decl. II ¶ 3). The troopers then took Hayes to the
Monticello Police Department and put him in a holding cell.
(Hayes Decl. I ¶¶ 3-4). That same morning, when the Monticello
police officers realized that in fact there was not an
outstanding arrest warrant for Hayes, they released him from
custody, but refused to return his money. (Hayes Decl. I ¶ 4).
Officer Bunce allegedly told Hayes that the money would be held
pending an investigation and threatened to arrest Hayes for
criminal trespass and disorderly conduct if Hayes did not leave
the stationhouse immediately. (Id.). Hayes' father, who had
come to the station to pick up his son, inquired about Hayes'
money and Bunce said that plaintiff should contact the police
later that day for further information. (Compl. at 1-2). Hayes
claims that Bunce knew at that time that he was without legal authority
to retain Hayes' money. (Hayes Decl. II ¶¶ 4-5).
Later that day, when Hayes called about the money, Officer
Bunce said that Detective O'Connor would be responsible for the
matter. (Compl. at 2). Hayes claims that O'Connor did not respond
to repeated phone calls and letters over a period of two to three
weeks. (Id. at 2). During that time, Hayes spoke to Bunce on a
number of occasions, but Bunce, according to Hayes, "willfully
failed to fulfill his duty" to return plaintiff's money. (Id.
Hayes alleges that when he finally reached O'Connor, two to
three weeks after the traffic stop, the detective told Hayes that
the money had been turned over to the Drug Enforcement
Administration ("DEA"). (Id. at 2). Hayes claims that O'Connor
refused to tell Hayes how to contact the DEA. Instead, O'Connor
said that he would take Hayes' contact information and supply it
to the DEA, which would contact Hayes in two to three weeks.
(Id.; Hayes Decl. II ¶ 5). Hayes asserts that he gave Officer
O'Connor his Bronx, New York address, as well as a home and
mobile phone number. (Compl. at 2). After five weeks, Hayes had
still not heard from the DEA, and so he called its New York City
Field Office. (Id.). An agent there told Hayes to write a
request to the Asset Forfeiture Section of the DEA. (Id.).
Hayes claims that O'Connor did not transfer the funds to the
DEA until June 21, 2001 two weeks after the arrest as
exhibited by the seizure date on the DEA's notice of seizure
letter. (Hankins Decl. Ex. 1). Hayes claims that Bunce and
O'Connor intended to keep the funds if Hayes failed to demand
their return, but when Hayes pursued the issue, O'Connor
deliberately provided the DEA with Hayes' former Hurleyville, New York address not his then current address to
frustrate Hayes' collection efforts. (Compl. at 2; Hayes Decl. II
¶ 4). Hayes also asserts that O'Connor perjured himself*fn5
and wrongfully turned the money over to the DEA without
justification. (Hayes Decl. I ¶ 5).
Hayes claims that Monticello police officers have engaged in
widespread violations of civil rights, including committing
perjury in sworn testimony, using excessive force and harassing
citizens. (Compl. at 3). He further alleges that the Village of
Monticello has participated in these violations by its awareness
of their existence and failure to take any action to address
institutional problems in the police department. (Id.).
A. Standard for Summary Judgment
Summary judgment may be granted "only when the moving party
demonstrates that `there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.
1995) (quoting Fed.R. Civ. P. 56(c)); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). The Court must "view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inferences in its favor, and may grant summary judgment only when
`no reasonable trier of fact could find in favor of the nonmoving
party.'" Allen, 64 F.3d at 79 (citation omitted) (quoting
Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir.
1989)). Because Hayes is proceeding pro se, this Court will hold his
pleadings to "less stringent standards than formal pleadings
drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519, 521,
92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam). His
submissions have been read liberally and interpreted "to raise
the strongest arguments that they suggest." Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994).
B. Plaintiff's Section 1983 Claims
The gravamen of plaintiff's complaint is that his rights were
violated when defendants took and refused to return his money.
The Court reads the complaint primarily as an attempt to recover
damages pursuant to 42 U.S.C. § 1983.*fn6 Defendants are
entitled to summary judgment on those claims because plaintiff
has failed to produce evidence to support his conclusory
1. New York State Police
The Eleventh Amendment to the U.S. Constitution provides
immunity to a state and its agencies from suits by its citizens
when none of the sovereign immunity doctrine's exceptions apply.
Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267-68,
117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997). Because there is
neither a waiver of immunity, consent by the state to this suit,
nor any applicable exception to sovereign immunity, the action
against the New York State Police is barred. See id.
Hayes might suggest that the Ex Parte Young, 209 U.S. 123,
28 S. Ct. 441, 52 L. Ed. 714, sovereign immunity exception, which
permits suits against state officials for injunctive relief to prevent ongoing violations of federal law,
applies because he is seeking the return of property seized from
him. See Idaho v. Coeur d' Alene Tribe, 521 U.S. at 281. Hayes
does not, however, claim an ongoing violation of federal law, nor
does he seek injunctive relief rather than damages. Moreover, he
has named the state agency itself as a defendant. Thus, the
Eleventh Amendment bars Hayes' claim against the New York State
2. The Individual State Defendant: Trooper Lostracco
Hayes does not indicate whether Lostracco is sued in his
official or individual capacity. Regardless, if Lostracco is
being sued in his official capacity, the Eleventh Amendment
shields him from suit. If he is sued in his individual capacity,
the doctrine of qualified immunity does the same.
a. Official Capacity
The Eleventh Amendment extends protection to state officers
sued for damages in their official capacities because "[l]awsuits
against state officials in their official capacities are not
lawsuits against these individuals but, rather, are lawsuits
against the official's office." A.A. v. Board of Educ.,
196 F. Supp. 2d 259, 265 (E.D.N.Y. 2002); see also Pennhurst State Sch.
and Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S. Ct. 900,
79 L. Ed. 2d 67 (1984); Muntaqim v. Coombe, 366 F.3d 102, 129 (2d
Cir. 2004). As such, a suit for damages against a state officer
in his official capacity is "no different from a suit against the
State itself." Will v. Michigan Dep't of State Police,
491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Accordingly,
Hayes' claim against Lostracco is barred by the Eleventh Amendment to the extent the
trooper is sued in his official capacity.
b. Individual Capacity
Government officials sued in their individual capacities do not
enjoy the protection of the Eleventh Amendment, see Hafer v.
Melo, 502 U.S. 21, 30-31, 112 S. Ct. 358, 116 L. Ed. 2d 301
(1991), but qualified immunity still insulates them from section
1983 damages liability "insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); see
also Ford v. Reynolds, 316 F.3d 351 (2d Cir. 2003). The extent
of the qualified immunity protection turns on the "objective
legal reasonableness" of the officers' actions "assessed in light
of the legal rules that were `clearly established' at the time."
Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034,
97 L. Ed. 2d 523 (1987); see also Weyant v. Okst, 101 F.3d 845,
858 (2d Cir. 1996). "In other words, if any reasonable trier of
fact could find that the defendants' actions were objectively
unreasonable, then the defendants are not entitled to summary
judgment." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
In Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001), the U.S. Supreme Court set out a framework
for qualified immunity analyses that begins with a determination
as to whether "[t]aken in the light most favorable to the party
asserting the injury, . . . the facts alleged show the officer's
conduct violated a constitutional right[.]" If the answer to that
question is "no," then no further inquiries with respect to qualified immunity are necessary. Id. If,
however, the answer is "yes," a court must "ask whether the right
was clearly established," which is an inquiry "undertaken in
light of the specific context of the case, not as a broad general
proposition." Id. "If the law did not put the officer on notice
that his conduct would be clearly unlawful, summary judgment
based on qualified immunity is appropriate." Id. at 202.
Plaintiff made a conclusory allegation in the complaint that
Lostracco knew the outstanding warrant to be invalid. (Compl. at
4). Yet there is no evidence in the record to support that
assertion. Indeed, plaintiff subsequently admitted in his
declaration that "[the state officers] had probable cause to
arrest Plaintiff based on the information that they received
concerning the purported `arrest warrant,'" but that "they did
not have legal authority to seize the money based on the
knowledge and information that they had at the moment of the
seizure." (Hayes Decl. II ¶ 7) (emphasis in original).
There is no indication that Lostracco acted unconstitutionally
in arresting Hayes, searching him or taking the cash to the
Village of Monticello police station, despite Hayes' bare
allegations to the contrary. See Martin v. New York State Dep't
of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). In fact, on
the record before this Court, no reasonable trier of fact could
find that Lostracco violated plaintiff's constitutional rights.
Hayes has conceded that the ultimate invalidity of the arrest
warrant did not deprive Lostracco of probable cause to arrest
Hayes. (Hayes Decl. II ¶ 7). The arrest did not amount to a
constitutional violation that requires further qualified immunity
analysis. See Saucier, 533 U.S. at 201. The search incident to
that lawful arrest complied with the requirements of the Fourth
Amendment. United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) ("It is well settled that
a search incident to a lawful arrest is a traditional exception
to the warrant requirement of the Fourth Amendment."). When
searching Hayes, Lostracco discovered the cash, which he seized.
The U.S. Court of Appeals for the Second Circuit has commented
that "when a person is arrested in a place other than his home,
the arresting officers may `impound the personal effects that are
with him at the time to ensure the safety of those
effects. . . .'" United States v. Perea, 986 F.2d 633, 643-44
(2d Cir. 1993) (quoting Cabbler v. Superintendent, Virginia
State Penitentiary, 528 F.2d 1142, 1146 (4th Cir. 1975)). As
neither the arrest, the search, nor the seizure violated the
Constitution, Lostracco is entitled to qualified immunity. See
Saucier, 533 U.S. at 201.*fn7
3. The Village of Monticello and the Village of Monticello
Although the Eleventh Amendment generally bars damages suits
against a state and its departments in federal court, it does not
similarly protect political subdivisions of the state and the
agencies of those subdivisions. See Moor v. County of Alameda,
411 U.S. 693, 717-21 (1973). Nevertheless, a municipality cannot
be held liable pursuant to section 1983 merely on a theory of
respondeat superior. Bd. of County Comm'rs of Bryan County v.
Brown, 520 U.S. 397, 400, 117 S. Ct. 1382, 1386,
137 L. Ed. 2d 626 (1997); Patterson v. County of Oneida, 375 F.3d 206, 226
(2d Cir. 2004); Dove v. Fordham Univ., 56 F. Supp. 2d 330, 336
(S.D.N.Y. 1999). Rather, a plaintiff must show that his injury
resulted from an agency policy or practice. Monell v. Department
of Social Services, 436 U.S. 658, 694 (1978). Such a policy or
practice need not necessarily be articulated as an official,
stated directive. Patterson, 375 F.3d at 226. It can be a
widespread pattern of behavior that becomes "a custom or usage
with the force of law" or a matter of "constructive acquiescence
of senior policy-making officials." Id. A policy may also be
demonstrated by a municipality's egregious failure to train its
officers so "`as to display a deliberate indifference to the
constitutional rights of those within its jurisdiction.'" Id.
(quoting Kern v. City of Rochester, 99 F.3d 38, 44 (2d Cir.
Hayes has attempted to meet his burden of demonstrating a
municipal policy of rights violation with vague, unsubstantiated,
and conclusory assertions, as follows:
The Village of Monticello Police Department is rife
with rogue officers. There has been an ongoing
pattern of misconduct and the Village of Monticello
in it's [sic] municipal capacity has done little or
nothing to fix the problem. Officers have used
excessive force on suspects and civilians alike.
Officers routinely harass individuals on the basis of
nothing more than a hunch. Officers frequently
violate the constitutional and civil rights of
citizens with impunity. Officers are permitted to
commit blatant and flagrant perjury in sworn
affidavits and testimony relating to criminal
(Compl. p. 3). These allegations alone are insufficient as a
matter of law to state a claim against the municipality pursuant
to section 1983. Statements that are either inadmissible hearsay
or that are made on information and belief cannot save a claim
from summary judgment. Patterson, 375 F.3d at 219. "Nor is a
genuine issue [of material fact] created by the presentation of
assertions that are conclusory." Id.; see also Woo v. City
of New York, 1996 U.S. Dist. LEXIS 11689, at *14-15 (S.D.N.Y.
August 12, 1996) ("Conclusory allegations . . . of a
municipality's pattern or policy of unconstitutional behavior are
insufficient to establish a Monell claim, absent the production
of evidence to back up such an allegation." (citations omitted)). The Monticello Police Department received plaintiff's money
from the state officers when he was transferred into its custody.
(Village Defs.' Mem. Supp. Mot. Summ. J. at 2). Officer Bunce
refused to remit the money to Hayes later that morning when he
was released. (Hayes Decl. I ¶ 4). Hayes has not offered any
evidence of a municipal policy to unlawfully retain property of
arrestees who are released without being charged and has not
alleged the inadequacy of state remedial procedures to recover
his property. See Parratt v. Taylor, 451 U.S. 527
101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981) (When a deprivation of
property results from "a random and unauthorized act by a state
employee," and "not the result of some established state
procedure," due process is satisfied by an adequate
post-deprivation state judicial remedy), overruled in part on
other grounds by Daniels v. Williams, 474 U.S. 327
106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Malapanis v. Regan,
2004 WL 2059001, at *5 (D. Conn. 2004). The record contains no
admissible evidence that the Village of Monticello or the
Monticello Police Department engaged in a pattern or practice of
4. The Individual Village Defendants: Officers O'Connor and
Hayes does not indicate whether O'Connor and Bunce are sued in
their official or individual capacities. Regardless, if sued in
their official capacities, the officers are granted summary
judgment on the same basis as the village, and if sued in their
individual capacities, the officers are granted summary judgment
pursuant to the doctrine of qualified immunity.
a. Official Capacity To the extent Hayes intends to sue O'Connor and Bunce in their
official capacities, the section 1983 claims against them are
construed identically to his section 1983 claim against the
municipality. See Hafer v. Melo, 502 U.S. 21, 25,
112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Patterson, 375 F.3d at 226.
Because Hayes has failed to plead adequately a municipal policy
of constitutional violation, his claim against the officers in
their official capacities fails.
b. Individual Capacity
Hayes alleges that the village police officers retained the
cash with the intent of stealing it after releasing him, and once
that intent had been frustrated, they purposefully sabotaged the
forfeiture proceedings by providing the DEA with the wrong
contact information for Hayes. The record does not, however,
include any evidence whatsoever of the officers' intent to steal
the money or to interfere with the DEA's forfeiture proceedings.
Although there is some factual question about when the officers
turned the money over to the DEA, it was within two weeks of the
seizure.*fn8 Even assuming that the officers waited two
weeks, that does not rise to the level of objective
unreasonableness that would abrogate their qualified immunity.
Although the Fourteenth Amendment applies to even "brief and
provisional deprivation of property pending judgment," Krimstock
v. Kelly, 306 F.3d 40, 51 (2d Cir. 2002), the officers did not
"violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. at 818. In Krimstock v. Kelly, 306 F.3d 40, the Second Circuit held
unconstitutional New York City's post-seizure, pre-judgment
procedure for retaining vehicles without a prompt hearing. That
case involved a section of the New York City Code and thus
implicated a municipal policy. Here, in the absence of any
demonstrated municipal policy, the Court measures the actions of
the officers by the standard of qualified immunity. At most, the
record could support a conclusion that the officers held the cash
for two weeks before transferring it to the DEA for civil
forfeiture proceedings. That alleged delay alone does not suffice
to overcome the officers' qualified immunity.*fn9 See
Anderson v. Creighton, 483 U.S. at 639.
C. Plaintiff's Pendant State Claims
To the extent that Hayes seeks to pursue the recovery of his
property by asserting claims under New York State law, those
claims are dismissed because of the failure of his federal
claims. See 28 U.S.C. § 1367(c)(3) (A district court may
decline "to exercise supplemental jurisdiction over a claim" when
the court "has dismissed all claims over which it has original
jurisdiction."). III. Conclusion
The motions of the state and village defendants for summary
judgment are granted on the grounds that there are no genuine
issues of material fact. The Clerk of the Court is directed to
enter judgment in defendants' favor.