991 F.2d 1049 (2nd Cir. 1993), 469, White Plains Towing Corp. v. Patterson

Docket Nº:469, 566, Dockets 92-7617, 92-7663.
Citation:991 F.2d 1049
Party Name:WHITE PLAINS TOWING CORP. d/b/a Don's Towing and Don Cherico, Plaintiffs-Appellees-Cross-Appellants, v. James G. PATTERSON, Defendant, Harold J. Wright and E.P. Streider, Defendants-Appellants-Cross-Appellees.
Case Date:April 21, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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991 F.2d 1049 (2nd Cir. 1993)

WHITE PLAINS TOWING CORP. d/b/a Don's Towing and Don

Cherico, Plaintiffs-Appellees-Cross-Appellants,


James G. PATTERSON, Defendant,

Harold J. Wright and E.P. Streider,


Nos. 469, 566, Dockets 92-7617, 92-7663.

United States Court of Appeals, Second Circuit

April 21, 1993

Argued Nov. 17, 1992.

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Alan E. Wolin, Hicksville, NY (Lecci, Wolin & Wolin, on the brief), for plaintiffs-appellees-cross-appellants.

Alex Caspari, Asst. Atty. Gen. of the State of N.Y., New York City (Robert Abrams, Atty. Gen., Frederic L. Lieberman, Asst. Atty. Gen., on the brief), for defendants-appellants-cross-appellees.

Before: LUMBARD, FEINBERG, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Harold J. Wright and E.P. Streider ("defendants"), who at the pertinent times were New York State Police ("State Police") officers, appeal from a judgment entered in the United States District Court for the Southern District of New York following a one-day bench trial before Charles L. Brieant, then-Chief Judge, awarding plaintiffs White Plains Towing Corp. ("WP Towing") and its president Don Cherico (collectively "Cherico") $1 in nominal damages and $22,700 in attorney's fees on their claims under 42 U.S.C. § 1983 (1988) that defendants caused the State Police to discontinue a service relationship with WP Towing, in violation of plaintiffs' rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution. On appeal, defendants contend principally (1) that the district court erred in ruling that plaintiffs' First Amendment and due process rights were violated, and (2) that defendants were, in any event, entitled to dismissal of the due process claims on the ground of qualified immunity. Plaintiffs cross-appeal, contending principally that the district court erred in refusing to award more than nominal damages. For the reasons below, we conclude that plaintiffs' First Amendment claims and certain of their due process claims lacked merit and that defendants were entitled to dismissal of the remaining due process claims on the ground of qualified immunity. Accordingly, we reverse the judgment of the district court.


Troop K of the State Police is responsible for securing the safety of members of the motoring public on highways within its jurisdiction. Interstate Route I-287 in Westchester County, New York, commonly known as the Cross-Westchester Expressway ("I-287" or "Expressway"), is within the jurisdiction of the State Police Station in Hawthorne, New York. Wright was a State Police lieutenant; Streider was a sergeant; both were assigned to the Hawthorne Station. Cherico was in the business

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of providing towing services. The present controversy arises from the 1985 decision of Wright and Streider to terminate Troop K's highway towing assignments to Cherico. Many of the facts are undisputed.

  1. The Events

    For the purpose of assisting motorists with disabled vehicles, Troop K divided the 11-mile-long I-287 into three zones and assigned each zone to one towing company that would, when summoned, provide service. These assignments gave the towing company the exclusive right to towing referrals in its own zone to the extent that, unless a disabled motorist requested otherwise, the State Police dispatched the towing company assigned to that zone to render aid. The parties stipulated that "the tower/wrecker dispatch system administered by Troop K for I-287 ... is not specifically authorized by, or codified in any statute or in any regulation of the State Police"; that "participation in the Troop K tower/wrecker dispatch system is not contractual in nature; and that assignments are not made or awarded based on bid; and that tow operators are not specifically licensed or issued permits by the State Police to operate or to provide services under the Troop K tower/wrecker dispatch system." (Stipulation dated May 30, 1991 ("Stipulation"), pp 9, 13.)

    Troop K first assigned one zone of I-287 to Cherico for a two-day period in 1984. Some months later in 1984, Cherico was again assigned a section of I-287, which it serviced for the next 9-12 months. During the latter period, plaintiffs orally and in writing made repeated demands to defendants for a larger share of the towing assignments on I-287 and another highway. In addition, on or about April 19, 1985, plaintiffs lodged a formal complaint with the State Police against Wright and Streider, alleging that those defendants had impugned Cherico's reputation by stating that he was a " 'thief', 'no good' and associated with organized crime.... [P]laintiffs' complaint resulted in a formal State Police investigation; ... thereafter, Mr. Cherico withdrew his complaint." (Stipulation p 21.)

    In July 1985, by letter dated July 26, Wright informed Cherico that his I-287 assignment would be terminated on July 31, 1985. The letter stated that Troop K would not summon Cherico for a towing job unless the motorist specifically requested him.

    Wright informed his supervisor of this action in a brief communication enclosing a memorandum prepared by Streider (the "Streider Memorandum" or "Memorandum") detailing reasons for the termination. The Streider Memorandum identified the towing companies to which the three I-287 zones were then assigned and stated that the towing operators other than Cherico had not made any complaints, "nor have they been complained about by motorists. However, DON CHERICO is another matter." The Memorandum set forth the following chronology of specific incidents involving plaintiffs: (a) in October 1984, Troop K received a complaint from an insurance company that Cherico had billed nearly $15,500 for tow work on a tractor trailer, and that he had refused to release the truck's cargo in order to force payment of his charges; (b) in January 1985, a motorist complained that despite a sign on Cherico's truck stating that storage charges were $5 a day, Cherico charged the motorist $10 a day; (c) on April 18, 1985, Cherico made a personnel complaint against Wright and Streider, alleging that they had stated that he was connected with organized crime; "[o]n April 22, 1985, the complainant appeared at Troop K Headquarters to retract his complaint and the matter was closed as unfounded"; (d) in June 1985, one Walter R. May wrote a letter of complaint against one of the towing companies assigned to another part of the Expressway; another State Police sergeant conducted an investigation and discovered that the complaint was unfounded; May then admitted that he had lodged the unfounded charge at the request of Cherico; and (e) on July 18, 1985, troopers found a van with no license plates abandoned on I-287 in one of the zones not served by Cherico; the tow operator assigned to that

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    zone said he had seen the van being towed two days earlier by a WP Towing truck driven by Cherico's son; further investigation turned up a scrap metal dealer who gave deposition testimony that on July 18, Cherico's son tried to sell the van to him, but he declined it as worthless; Cherico's son thereupon towed it away.

    After detailing these incidents, the Streider Memorandum concluded as follows:

    Since Mr. CHERICO was permitted by the State Police to use his tow trucks on I-287, he has been nothing but a source of annoyance and embarrassment to the New York State Police. His constant complainant [sic] that he doesn't get enough work has been discussed with him over and over again. He has caused needless time expenditure by SP Hawthorne station supervisory personnel, Zone 4 supervisory personnel, Troop supervisory personnel and personnel at Division Headquarters. Many fruitless hours have been spent in investigations, interviews, and report writing, reading and reviewing. Mr. CHERICO is a potential source of embarrassment as he does not possess the proper driver's license to operate some of his equipment. Attempts by members to find Mr. CHERICO in such an unlicensed situation have thus far proved fruitless, as he utilizes other drivers.

    It is not within the best interests of the Division of State Police to have a person of Mr. CHERICO's ilk providing services to the users of an interstate highway patrolled solely by the State Police. His services are therefore being terminated effective close of business July 31, 1985.

    Wright, in his July 26, 1985 letter to Cherico, did not offer plaintiffs a formal opportunity to contest the decision. Cherico testified that officers to whom he complained said they had been instructed not to call Cherico because his brother had been arrested for attempted murder and his family was tied to organized crime. Plaintiffs filed complaints with the State Police and the Office of the Governor. These efforts to gain reassignment were unsuccessful, and in 1986 plaintiffs commenced the present action under 42 U.S.C. § 1983.

  2. The Pretrial Proceedings

    The original complaint alleged principally that Wright and Streider, along with other defendants against whom the action was subsequently dismissed by stipulation or order, had (a) conspired to deprive plaintiffs of towing business on I-287, and (b) "made scurilous [sic ], defamatory and false accusations against [Cherico's] character and his family's character." The complaint asserted that defendants' actions violated plaintiffs' rights under the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Constitution. An amended complaint added allegations that defendants had terminated the assignment to Cherico because of plaintiffs' complaints and demands for more towing assignments, and it asserted that the termination therefore deprived plaintiffs of their First Amendment rights "to free speech and to...

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