Tate v. District of Columbia ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Christine A. Tate, :
:
Plaintiff, : Civil Action No.: 02-2216 (RMU)
: Document No.: 71
v. :
:
:
District of Columbia, :
:
Defendant. :
MEMORANDUM OPINION
Granting the Defendant’s Motion for Summary Judgment
I. INTRODUCTION
In this civil action brought pro se, the plaintiff sues the District of Columbia for alleged
constitutional violations and common law torts resulting from the impoundment and sale of her
car. The District of Columbia moves for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure [Dkt. No. 71]. Upon consideration of the parties’ submissions and the
entire record, the court will grant the defendant’s motion for summary judgment.
II. BACKGROUND
The plaintiff owned a 1998 Volkswagen Beetle, which she registered with the District’s
Department of Motor Vehicles (“DMV”) on August 3, 1998. Def.’s Mot. for Summ. J., Ex. A
(“Claytor Decl.”)1 ¶ 5. The plaintiff was issued a $100 parking ticket on January 10, 2002, and a
$50 ticket for failing to properly display her front tag on January 29, 2002. Id. ¶¶ 6-7. Each fine
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Claytor is DMV’s Chief Hearing Examiner. Her declaration, amply supported by
exhibits, is based on her “review [of] vehicle registrations, hearing records and ticket summary
sheets which contain information on the status of tickets as well as fees assessed to booted and
towed vehicles.” Claytor Decl. ¶ 3.
doubled when the plaintiff failed to respond to the respective notices of infraction. Id. On
March 12, 2002, based on at least two unpaid parking tickets, the Department of Public Works
(“DPW”) placed a boot on the plaintiff’s car. Id. ¶ 8. On March 14, 2002, the plaintiff appeared
before a hearing examiner, who found her liable for the $50 ticket. Id. ¶ 9. On March 15, 2002,
the plaintiff again appeared before a hearing examiner, who found her liable for the $100 parking
ticket but waived the penalty based on the plaintiff’s “credible” testimony that she was unaware
of the ticket. Id. ¶ 10. The hearing examiner upheld the placing of the boot on the plaintiff’s car
based on DMV’s records showing that the plaintiff had accumulated five unpaid parking tickets.
Id. ¶¶ 8, 10.
On March 26, 2002, DPW towed the plaintiff’s car to its Addison Road Impound Lot; on
April 9, 2002, DPW towed the car to its Abandoned and Junk Vehicle Division’s Blue Plains
Impound Lot. Id. ¶ 11. On April 19, 2002, the plaintiff visited the Blue Plains lot and removed a
suitcase from her car. Def.’s Mot. for Summ. J., Ex. 3 (“Jones Decl.”)2 ¶ 9 & Ex. D. On May
29, 2002, the plaintiff appeared before a hearing examiner for a ticket purportedly issued on
November 19, 2001, but the hearing examiner dismissed the ticket “as a warning” because it had
not been timely recorded by DMV. Claytor Decl. ¶ 12. The examiner nonetheless upheld the
fees for the boot, tow and storage based on the plaintiff’s “two delinquent tickets remaining.” Id.
& Ex. J. On June 4, 2002, the District sold the plaintiff’s car and personal effects therein at a
public auction for $4,000. Jones Decl. ¶ 11 & Ex. E.
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As Program Manager for DPW, Jones is “responsible for the operation of the
Abandoned Vehicle Program, Budget, adherence to Policies, procedures and work processes.”
Jones Decl. ¶ 3.
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The plaintiff claims that the District conducted an unreasonable seizure in violation of the
Fourth Amendment, denied her due process and equal protection of the laws in violation of the
Fifth Amendment and took her property without just compensation in violation of the Fifth
Amendment. She also accuses the defendant under the common law of conversion, promissory
estoppel, negligent misrepresentation, unjust enrichment and intentional and reckless infliction of
emotional distress. Am. Compl. [Dkt. No. 43].
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are “material,” a court must look to the substantive
law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine issue” is one whose resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the
nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S.
at 255. A nonmoving party must establish more than “the mere existence of a scintilla of
evidence” in support of its position, id. at 252, and may not rely solely on allegations or
conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray,
9 F.3d 150, 154 (D.C. Cir. 1993). “The object of [Rule 56(e)] is not to replace conclusory
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allegations of the complaint or answer with conclusory allegations of an affidavit,” Lujan v.
National Wildlife Federation, 497 U.S. 871, 888 (1990), but to identify a genuine issue of
material fact. The nonmoving party must present specific facts that would enable a reasonable
jury to find in its favor. Greene, 164 F.3d at 675. If the nonmoving party’s evidence “is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249-50 (internal citations omitted). “The removal of a factual question from the jury is
most likely when a plaintiff's claim is supported solely by the plaintiff's own self-serving
testimony, unsupported by corroborating evidence, and undermined [] by other credible
evidence[.]” Johnson v. Washington Metropolitan Area Transit Authority, 883 F.2d 125, 128
(D.C. Cir. 1989) (citations omitted).
To prevail on a motion for summary judgment, the moving party must show that the
nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving
party, a moving party may succeed on summary judgment. Id.
B. The Plaintiff Fails to Establish a Fourth Amendment Violation
The Fourth Amendment protects “against unreasonable . . . seizures.” U.S. Const.
amend. IV. Unreasonableness is determined by the facts and circumstances of the particular
case. United States v. Proctor, 489 F.3d 1348, 1352 (D.C. Cir. 2007) (citations omitted). Under
the applicable District of Columbia law, the Metropolitan Police Department, the United States
Park Police or an employee of the District of Columbia Department of Transportation could
direct the “towing” or removal of “[a]ny unattended motor vehicle found parked at any time upon
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any public highway of the District of Columbia against which there are 2 or more outstanding or
otherwise unsettled traffic violation notices or notices of infraction or against which there have
been issued 2 or more warrants[.]” D.C. Code § 50-2201.03(d)(1) (2001). Although the plaintiff
disputes the defendant’s claim that she had five unresolved tickets at the time her car was seized
on March 12, 2002, Pl.’s Opp’n at 3, 10, she does not dispute that she had two unresolved
parking tickets, see generally id. Under these circumstances, no reasonable jury could find that
the District’s impoundment of the car was an unreasonable seizure under the Fourth Amendment.
See South Dakota v. Opperman, 428 U.S. 364, 369 (1976) (approving as part of “community
caretaking functions” the government’s removal and impounding of cars “which violate parking
ordinances and which thereby jeopardize both the public safety and the efficient movement of
vehicular traffic”) (footnote omitted).
Presumably based on the Fourth Amendment’s reasonableness test, the plaintiff seeks a
declaration that D.C. Code § 50-2201.03(d)(1) is unconstitutional because it authorized the
District to take “actions [that] were extreme and severely disproportionate to the need presented,
[i.e.,] the collection of fines and penalties for two outstanding parking tickets.” Am. Compl. ¶
61. She also seeks a declaration that D.C. Code § 50-2623 is unconstitutional because it
“authorized [the District] to sell Plaintiff’s car on June 4, 2002 and to retain the proceeds[.]”3 Id.
¶ 64. The parking regulations, however, were created out of “public necessity” to address an
increasing “serious traffic congestion on the highways of the District” by “the greatly increased
use by the public of motor vehicles” and to promote “the free circulation . . . necessary to the
3
Section 50-2623 authorized the Abandoned and Junk Vehicle Division to sell an
abandoned vehicle, defined in relevant part as “any motor vehicle. . . [t]hat has remained
unclaimed for 45 days after proper notice.” D.C. Code § 50-2602(6)(E).
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health, safety, and general welfare of the public.” D.C. Code § 50-2601. The Council
specifically found “that the parking of motor vehicles on the highways of the District has
contributed to this congestion to such an extent as to interfere seriously with the primary use of
such highways for the movement of traffic[.]” Id. Because “‘[t]he authority of police to seize
and remove from the streets vehicles impeding traffic or threatening public safety and
convenience is beyond [Fourth Amendment] challenge,’” Proctor, 489 F.3d at 1353 (quoting
Opperman, 428 U.S. at 369), the plaintiff has provided no basis for granting a declaratory
judgment.
C. The Plaintiff’s Claim Under the Fifth Amendment’s Takings Clause Fails as a Matter of
Law
The Constitution prohibits the government from taking “private property . . . for public
use, without just compensation.” U.S. Const. amend. V. Plaintiff challenges the District’s
retention of the proceeds from the sale of her car and other property that she claims “far exceeded
the value of any outstanding tickets, fees or penalties that Plaintiff owed the District[.]” Am.
Compl. ¶ 44. District of Columbia law, however, required the proceeds from the sale of a
vehicle to be applied first to “the expenses of the auction and the cost of towing and storing [and
any remainder] deposited in the Fund to be used by the Abandoned and Junk Vehicle Division to
carry out its duties.” D.C. Code § 50-2623. More to the point, “[t]he government [is] not []
required to compensate an owner for property which it has already lawfully acquired under the
exercise of governmental authority other than the power of eminent domain,” Bennis v.
Michigan, 516 U.S. 442, 452 (1996) (citations omitted), and “[p]roperty seized and retained
pursuant to the police power is not taken for a ‘public use’ in the context of the Takings Clause.”
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AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008). The defendant is
entitled to judgment on this claim.
D. The Plaintiff Fails to Establish an Equal Protection Violation
To succeed on a claim that the defendant has violated her Fifth Amendment right to equal
protection, the plaintiff must show that “she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted); accord Plyler v. Doe, 457
U.S. 202, 216 (1982) (“[T]he Equal Protection Clause directs that all persons similarly
circumstanced shall be treated alike.”) (internal quotation marks and citation omitted).4 But
“some forms of state action . . . by their nature involve [such] discretionary decisionmaking
based on a vast array of subjective, individualized assessments” that they simply are not
amenable to an equal protection challenge in the absence of a claim based on such suspect
classifications as race or gender. Engquist v. Or. Dep’t of Agric., ___ U.S. ___, 128 S. Ct. 2146,
2154 (2008). For example, “allowing an equal protection claim on the ground that a [speeding]
ticket was given to one person and not others, even if for no discernible or articulable reason,
would be incompatible with the discretion inherent in the challenged action.” Id.The plaintiff baldly claims that she “was singled out for harsh treatment . . . because,
among other things, she filed a complaint about the [MPD], wrote letters to District Officials and
[] threatened to sue Defendant and pushed for prosecution of crimes that were committed against
4
Because the Fourteenth Amendment's equal protection clause applies only to laws
enacted by state governments, the Supreme Court has found the Fifth Amendment's due process
clause to encompass equal protection claims against the District of Columbia. Bolling v. Sharpe,
347 U.S. 497, 498-500 (1954).
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her.” Pl.’s Opp’n at 18. Not only does the plaintiff not identify the individuals to whom she
claims to be similarly situated but she does not support her allegations of retaliation with any
evidence or counter the defendant’s evidence that the DPW, not the MPD, booted, towed and
sold her car at a regularly scheduled public auction along with more than 100 other vehicles,
Jones Decl. ¶¶ 4-14, pursuant to a rationally based law. See supra at 5-6. The defendant is
entitled to judgment on the plaintiff’s equal protection claim.
E. The Plaintiff Fails to Establish a Due Process Violation
“The fundamental requirement of due process is [notice and] the opportunity to be heard
‘at a meaningful time and in a meaningful manner,’” before the government deprives an
individual of property. Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)); U.S. v. E-Gold, Ltd, 521 F.3d 411, 415-16 (D.C. Cir. 2008).
“The hearing required by the Due Process Clause must be ‘meaningful,’ and ‘appropriate to the
nature of the case.’” Bell v. Burson, 402 U.S. 535, 542 (1971) (citations omitted). The outcome
must reflect “consideration of an element essential to the decision.” Id. Due process, however,
“is a flexible concept that varies with the particular situation.” Zinermon v. Burch, 494 U.S. 113,
127 (1990).
The plaintiff admits that she received “actual notice” of the impoundment and pending
sale of her car in late May 2002 and “immediately requested a hearing[.]”5 Pl.’s Opp’n at 9. The
plaintiff appeared for a hearing on May 29, 2002, at the District’s Traffic and Adjudication
5
The defendant surmises that the plaintiff “would have been informed of [the auction]
date when she visited the Lot” on April 19, 2002, but it has not provided any documentation of
such notice. Jones Decl. ¶ 9. The plaintiff disputes that she was so informed. Pl.’s Opp’n at 9.
While arguably the plaintiff’s own exhibit indicating that the car was subject to auction, Pl.’s Ex.
C to First Set of Requests for Admissions [Dkt. No. 73-2], suggests perhaps inquiry notice, this
disputed fact is a credibility question beyond the province of summary judgment.
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Division, for a ticket purportedly issued on November 19, 2001. Claytor Decl. ¶ 12; Am. Compl.
¶ 14. But the plaintiff asserts that the “the primary reason for the May 29, 2002 hearing,” was “to
stop the sale of her car for at most two [] outstanding parking tickets plus fees.” Pl.’s Opp’n at
10. Although the November 19, 2001 ticket was dismissed because it had not been timely
recorded, Claytor Decl. ¶ 12; Am. Compl. ¶ 14, the hearing examiner determined that the
plaintiff had two unresolved tickets. Def.’s Mot. for Summ. J., Ex. I. The hearing examiner
therefore upheld the boot, tow and storage fees and the transfer of the car to the Blue Plains
abandoned car lot because the plaintiff had not claimed the car within 15 days after it was towed
to the impoundment lot on Addison Road. Id., Ex. J.
The plaintiff’s due process claim is premised on her allegation that “she was informed
[that] she had until June 7, 2002, to pick up the car.” Am. Compl. at 16; Pl.’s Opp’n at 9. The
plaintiff has not substantiated her claim beyond her own recollection but even if true, the alleged
misrepresentation does not rise to the level of a constitutional violation because the undisputed
evidence shows that prior to the sale of the car on June 4, 2002, the plaintiff received procedural
due process on three separate occasions during the more than two months that the car sat at the
impoundment lot. See Brandon v. D.C. Bd. of Parole, 823 F.2d 644, 650 (D.C. Cir. 1987)
(declining to “‘federalize’- indeed, ‘constitutionalize’- every deviation from state procedures”).
Even if the car was sold in less than the statutory requirement of 45 days after receipt of proper
notice, see supra nn.3, 5, violations of “state procedural requirements must be enforced in state
courts under state law.” Brandon, 823 F.2d at 650 (D.C. Cir. 1987) (citations omitted). The
defendant is entitled to judgment on the due process claim.
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F. The Plaintiff Has Conceded the Defendant’s Arguments Against the Common Law
Claims
By Order of April 25, 2008 [Dkt. No. 72], the court advised the plaintiff about responding
to the defendant’s dispositive motion and the possible consequence of dismissal if she did not.
The plaintiff has not addressed in her opposition brief the defendant’s valid arguments against
her common law claims, see Def.’s Mem. of P. & A. at 24-33, and therefore has conceded them.
See Cureton v. U.S. Marshal Serv., 322 F. Supp. 2d 23, 27 (D.D.C. 2004) (Urbina, J.) (“When a
plaintiff files a response to a motion to dismiss but fails to address certain arguments made by the
defendant, the court may treat those arguments as conceded, even when the result is dismissal of
the case.”) (citations omitted); M.K. v. Tenet, 99 F. Supp. 2d 12, 28 & n.24 (D.D.C. 2000)
(Urbina, J.) (treating defendants’ unopposed argument as conceded and dismissing the applicable
claims under Local Civil Rule 7.1(b) (now LCvR 7(b)). See also In re Miller, 2004 WL 963819,
at *1 (D.C. Cir. May 4, 2004) (In managing its docket, “the court may choose to . . . resolve the
motion for summary judgment on the merits without an opposition . . . or [] treat summary
judgment as conceded.”).
IV. CONCLUSION
For the foregoing reasons, the court determines that no triable issue is presented on the
plaintiff’s claims and concludes that the defendant is entitled to judgment as a matter of law. An
order consistent with this memorandum opinion is separately and contemporaneously issued this
27th day of February 2009.
RICARDO M. URBINA
United States District Judge
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