Norman v. The City of New York

1

SHOMARI E. NORMAN, Plaintiff, v. THE CITY OF NEW YORK et al., Defendants.

No. 20-CV-5560-LTS

United States District Court, S.D. New York

August 12, 2022

MEMORANDUM ORDER

LAURA TAYLOR SWAIN Chief United States District Judge

Pro se plaintiff Shomari E. Norman (“Plaintiff”) brings this action against Defendants the City of New York (the “City”), New York Police Department Commissioner Dermot Shea (“Commissioner Shea”), and Leith Chrysler Jeep,^[1] pursuant to 42 U.S.C. section 1983 (“Section 1983”) and state tort law, alleging that his vehicle was wrongfully seized in March 2018 and that his credit was damaged by the repossession. Two of the remaining defendants-the City and Commissioner Shea (“the City Defendants”)-have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 (docket entry no. 70), and in response Plaintiff has filed several pleadings denominated as motions,^[2] opposing Defendants' summary judgment motion and seeking various forms of relief.

The Court has jurisdiction of this action pursuant to 28 U.S.C sections 1331 and 1367. The Court has considered the parties' submissions carefully and, for the following reasons, the City Defendants' motion for summary judgment is granted in its entirety. Further, because Plaintiff has not complied with a prior court order and has not taken steps in this action to pursue his claims against defendant Leith Chrysler Jeep, his remaining claims against Leith Chrysler Jeep are dismissed without prejudice for failure to prosecute.

Background

Unless otherwise indicated, the following facts are undisputed.^[3] On March 5, 2018, at approximately 9:27 a.m., Plaintiff called 911 from a location in the Bronx to report that his black jeep^[4] was being towed without his permission. (Docket entry no. 73 (“Def. 56.1 St.”) ¶ 1.) At approximately 9:35 a.m., a tow truck driver placed a separate 911 call to report that, as he was attempting to tow a black jeep, the driver was refusing to exit the vehicle. (Id. ¶ 2.) Soon thereafter, several New York Police Department (“NYPD”) officers arrived on the scene. The officers began speaking with the tow truck driver, who “showed [the officers] something on his clipboard” apparently authorizing the tow, and the officers then ordered Plaintiff “to release his vehicle to the towing company.” (Id. ¶ 3; Plaintiff Deposition Transcript (“Pl. Depo. Tr.”) docket entry no. 71-2, at 58-60.) Plaintiff complied, and the jeep was towed away. The jeep was subsequently transported to North Carolina and received by the Leith Chrysler Jeep Dealership (“the Dealership”) in Raleigh, North Carolina. (Def. 56.1 St. ¶ 4; Pl. Depo. Tr. at 43-44 69-70.)

It is not entirely clear from the record whether the towing of the Jeep was initiated by the City, by the Dealership, or by some other third party. Plaintiff testified that, at the time of the towing, title to the jeep was held by the Dealership pursuant to a contract under which Plaintiff was buying the vehicle under an installment payment plan. (Pl. Depo. Tr. at 44-49.) According to Plaintiff, he “was only 1 payment behind” on his monthly payments to the Dealership at the time of the incident, and the Dealership “never notified [him]” of any default or repossession. (Docket entry no. 2 (“Compl.”) ¶ 3.) After the jeep was transported to North Carolina and received by the Dealership, the Dealership “sold it to someone else.” (Compl ¶¶ 34; Pl. Depo. Tr. at 69.)

Plaintiff also testified that, when he approached the jeep on the morning of the towing incident, he noticed that there was a boot on the tire and a “yellow paper posted on [his] car,” which he understood to indicate that he had “24 hours to pay” his parking tickets or his car would be towed. (Pl. Depo. Tr. at 39-41.) Plaintiff stated that he then called the New York City Parking Ticket Division, and was informed that he owed $986 in outstanding parking tickets. (Id. at 40.) Shortly after this phone call, the tow truck arrived, and the driver of the tow truck informed Plaintiff “that NYPD gave him orders to tow [the] vehicle.” (Id. at 41-42.)

The NYPD did not create a police report documenting this towing incident, and there are no records pertaining to Plaintiff's vehicle in any NYPD database. (Def. 56.1 St ¶ 56.) Plaintiff made various attempts to locate the vehicle (such as by contacting the NYPD, the towing company, and the Dealership, and by filing a claim with his insurance company), but was ultimately unsuccessful in recovering the vehicle or in receiving compensation for the allegedly unlawful towing. (Pl. Depo. Tr. at 56-70, 86-87.) Plaintiff filed a Notice of Claim with the City regarding this incident on June 9, 2020 (approximately two years after the incident occurred). (Docket entry no. 71-3.)

Plaintiff commenced this action in July 2020, alleging a number of constitutional, statutory, and common law violations in connection with the towing of his vehicle; as well as alleging that the NYPD failed to appear at a hearing noticed in another proceeding; and that the Dealership failed to provide him any notice of default and made false reports to credit bureaus following the tow. Specifically, Plaintiff brings claims citing: (1) 18 U.S.C. § 3146 (“failure to appear in Court”); (2) 41 U.S.C. § 4712(g)(1) (“Abuse of Power”); (3) 25 C.F.R § 11.448(2)(b) (“Abuse of Office”); (4)^[5] U.S. Code § 2302 (“Prohibited Personnel Practice”); (5) 18 U.S.C. § 241 (“Conspiracy against Rights”); (6) 18 U.S. Code § 1961 (“Unlawful Debt”); (7) 18 U.S. Code § 2384 (“Seditious Conspiracy”); (8) Slander of Credit; (9) Libel; (10) Conspiracy to Obstruct Justice; (11) Intentional Infliction of Emotional Distress (“IIED”); and (12) the due process clause of the Fourteenth Amendment to the Constitution of the United States. (Compl. ¶¶ 4-13; docket entry no. 3; docket entry no. 27)5 Plaintiff seeks “relief of $50 million dollars for slander of credit, life endangerment, stolen property, and . . . fraud by [abuse of] office,” and requests that the Court “have the FBI [] investigate this case.” (Compl. ¶ 14.)

Discussion

The motion of the City Defendants is brought pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. Under Rule 56(a), summary judgment is appropriate when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden of demonstrating the absence of a material issue of fact, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), and the Court must be able to find that, “after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party.” Marvel Entm't, Inc. v. Kellytoy (USA), Inc., 769 F.Supp.2d 520, 523 (S.D.N.Y. 2011) (quoting Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)). “It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotation omitted). “Nevertheless, the application of this different [pro se] standard does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Pierre v. City of New York, 531 F.Supp.3d 620, 624-25 (E.D.N.Y. 2021) (quoting Jorgenson v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)).

Constitutional Deprivation of Property Claims

Plaintiff claims that the City Defendants unlawfully deprived him of his property, in violation of his Fourteenth Amendment due process rights. The City Defendants assert that (1) Plaintiff's claim fails as against both Defendants because he possessed an adequate post- deprivation remedy under state law, and (2) Plaintiff's claim against Commissioner Shea fails because the Commissioner was not personally involved in the incident.

Post-Deprivation Remedy

The Court construes Plaintiff's constitutional deprivation of property claims as claims under 42 U.S.C. section 1983 (“Section 1983”). Section 1983 provides “a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or the laws of the United States.” Sykes v. James, 13 F.3d 515 519 (2d Cir. 1993). In order to prove a Section 1983 claim, a plaintiff must establish that he has been deprived of his civil rights by “a state actor.” Fisk v. Letterman, 401 F.Supp.2d 362, 367-68 (S.D.N.Y. 2005). Plaintiff has adequately shown the involvement of a state actor by alleging that NYPD officers played a role in the towing of his vehicle.

To maintain a Section 1983 claim based on an alleged unconstitutional deprivation of property under the Fourteenth Amendment, a plaintiff must show that (1) he possessed a property interest; and (2) he was deprived of that interest without adequate due process. See Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). There is no dispute here that Plaintiff was deprived of a property interest in his vehicle; the question thus turns to what process was due to Plaintiff. “The type of process due depends in part on whether the alleged violation was caused by ‘established state procedures' or by ‘random, unauthorized acts by state employees.'” Ford Motor Credit Co. v. N.Y. City Police Dep't, 394 F.Supp.2d 600, 610 (S.D.N.Y. 2005) (citation omitted). If the deprivation is the result of “random, unauthorized” acts by state employees, the Due Process clause is not violated when the state provides the plaintiff with a meaningful post-deprivation remedy in the state courts. Kraebel v. N.Y.C. Dep't of Hous. Pres. & Dev., 959 F.2d 395, 404 (2d Cir. 1992).

Where there...