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United States District Court, S.D. New York

October 12, 2004.

EARL HAYES, Plaintiff,

The opinion of the court was delivered by: SIDNEY STEIN, District Judge


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.

I. Background

  A. Facts

  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. at 3).

  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.).

  II. Discussion

  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 allegations.

  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 Police Department.

  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 Police Department

  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. 1996)).

  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 proceedings.
(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, 541-45, 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, 331-32, 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 unconstitutional action.

  4. The Individual Village Defendants: Officers O'Connor and Bunce

  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.


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