Alexandre v. Cortes

• Decision Date: 26 March 1998
• Docket Number: Docket 96-2820.,No. 306.,306.
• Citation: 140 F.3d 406
• Parties: Marcelin ALEXANDRE, Plaintiff-Appellant, v. Robert CORTES, shield # 1420, City of New York, and New York City Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

140 F.3d 406

Marcelin ALEXANDRE, Plaintiff-Appellant, v. Robert CORTES, shield # 1420, City of New York, and New York City Police Department, Defendants-Appellees.

No. 306.

Docket 96-2820.

United States Court of Appeals, Second Circuit.

Submitted September 22, 1997.

Decided March 26, 1998.

Marcelin Alexandre, pro se, Dannemora, NY, for Plaintiff-Appellant.

Mordecai Newman, Assistant Corporation Counsel, Appeals Division, New York City (Paul A. Crotty, Corporation Counsel of the City of New York), for Defendants-Appellees.

Before OAKES, MESKILL, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

In this action, brought pursuant to 42 U.S.C. § 1983, plaintiff Marcelin Alexandre alleges, among other things, that he was deprived of an automobile and some jewelry without due process of law because these items (which were seized by defendant Robert Cortes, a detective with the New York City Police Department), were not returned to him and he was not notified of the procedures for recovering them. Alexandre further alleges that the City of New York and the New York City Police Department (collectively, the "City") improperly selected, trained, and supervised Cortes. He therefore seeks compensatory and punitive damages. The United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge) granted summary judgment in favor of defendants and dismissed the complaint, principally on the ground that Alexandre had adequate state law remedies for the deprivations, and therefore that no federal cause of action for a violation of due process could lie.

Alexandre appeals that ruling, arguing that the post-deprivation remedies available to him were insufficient to satisfy the requirements of due process. We agree that the state law remedies were inadequate with respect to the automobile, and therefore reverse in part. We also conclude that the deprivation of the jewelry may, perhaps, be actionable under § 1983, but that Alexandre's claims concerning these items must be reconsidered by the district court in the light of the 1991 amendments to the Rules of the City of New York. We, therefore, vacate and remand on these claims.

Background

For purposes of this appeal, the following facts must be taken as true. In August 1991, Detective Cortes arrested Alexandre as a suspect in a robbery. At the time of the arrest, Alexandre was getting into a 1982 Porsche automobile, which Cortes seized.¹ Cortes also confiscated some gold jewelry that Alexandre had in his possession. Later, after Alexandre was taken to the New York City Police Department's 70th Precinct, he was provided with the police department property clerk's ("property clerk" or "clerk") invoices for both the vehicle and the jewelry. Alexandre was subsequently charged with second degree murder, robbery in the first and second degrees, and a variety of lesser offenses. He was convicted in September 1992, and was sentenced on October 22, 1992; he is currently serving his sentence at the Clinton Correctional Facility, a New York State prison.

At the time of Alexandre's arrest, title to the Porsche automobile was held by I & B Business Corporation ("I & B"). Alexandre and his wife were in the process of buying the car pursuant to a purchase agreement with I & B, and had already paid a substantial portion of its purchase price.² Upon payment of the balance, they were to receive title from I & B.

Rather than release the car to Alexandre's wife (the car's co-owner), as she requested, Cortes contacted I & B (the holder of title to the vehicle). On September 3, 1991, Isaal Gerstein, Vice President of I & B, appeared at the 70th Precinct and presented Cortes with the purchase agreement that Alexandre and his wife had executed for the Porsche, along with a notarized letter from Gerstein, on I & B letterhead, stating that because Alexandre and his wife had failed to make all of the required payments under the purchase agreement, I & B would "take possession of the vehicle and all monies [previously paid on the note] will be forfeited."³

Gerstein then immediately resold the Porsche to Cortes. Cortes kept it for two months and then conveyed it to an unnamed third party.⁴

The jewelry, by contrast, remained in the custody of the police property clerk until September 16, 1992, when Cortes signed out the envelope containing it, and noted on the property clerk's invoice that it was to be delivered to the Brooklyn District Attorney's Office.

Defense counsel at Alexandre's sentencing (in late October 1992) asked the court about the disposition of the jewelry. The court directed counsel to contact the district attorney prosecuting the case and request the return of the items. The record indicates that counsel, Alexandre, and Alexandre's wife all made repeated attempts to secure the return of these items from the district attorney — but to no avail.

On November 29, 1993, Alexandre received a letter from the law secretary to Administrative Judge Ronald J. Aiello of the New York Supreme Court (in response to a letter Alexandre had sent to that court concerning the district attorney's failure to release the jewelry). The secretary's letter explained that the district attorney had returned one of the pieces of jewelry to its original owner, and had sent the rest back to the property clerk. In December 1993, Alexandre sent a letter to the property clerk requesting information on the procedures for obtaining release of these remaining items. Although it does not appear from the record that Alexandre received a response to that letter, the defendants concede that,

somewhere between the vouchered jewelry being released from the Brooklyn Property Clerk's Division to Defendant Cortes, who brought it to the Brooklyn District Attorney's Office[,] and plaintiff's attempt to retrieve such property, it was misplaced, lost, or perhaps even stolen. In any event, it was never returned to its proper repository in the Property Clerk's Division.

Accordingly, in June 1994, Alexandre filed this suit, in which he alleged that the defendants, acting under color of state law, deprived him of the car and jewelry when they (1) seized those items and improperly failed to return them, and (2) did not adequately inform him of the procedures he must follow to secure their release.

The district court, in its Memorandum and Order granting defendants' motion for summary judgment, suggested that Alexandre did not have a property interest in the Porsche because I & B held title (subject to payment of the balance owed under the purchase agreement). The court then held that even if Alexandre did have a property interest in the car, no § 1983 action could lie under Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), for the loss of either the car or the jewelry because Alexandre had adequate post-deprivation remedies under state law, see id. at 531, 104 S.Ct. at 3202-03. The court also found that Alexandre's allegations against the City were "not sufficiently definite to state a claim" because they did not "establish a causal connection between any dereliction of the City and a denial of Alexandre's rights." On those grounds, the court granted summary judgment in favor of all defendants.

Construing his pro se complaint liberally, as we must, see, e.g., Elliott v. Bronson, 872 F.2d 20, 21 (2d Cir. 1989) (per curiam), Alexandre principally raises two arguments on appeal. First, because the unconstitutional deprivations of his property resulted from established City procedures and not from a random or unauthorized act, the existence of post-deprivation remedies under state law does not foreclose his due process claim. Second, assuming that these established City procedures permit claimants to recover seized property in a way that satisfies due process, the description of the procedures in New York City Administrative Code § 14-140 was misleading and did not provide Alexandre with constitutionally adequate notice.

Discussion

This case is only the most recent in a string of due process challenges to the procedures employed by the property clerk in New York City. As early as 1972, we held in McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972), that § 435-4.0 of the New York City Administrative Code — which governed the disposition of property being held by the property clerk — was unconstitutional in two respects:⁵ First, prisoners whose property was being held by the clerk did not receive any meaningful notice of the procedures for recovering it; and, second, § 435-4.0 improperly placed the burden of proof on the prisoner to "establish that he ha[d] a lawful title or property right in such property or money and lawfully obtained possession thereof and that such property or money was held and used in a lawful manner," N.Y.C. Admin. Code § 435-4.0(f) (Supp.1971) (subsequently renumbered as N.Y.C. Admin. Code § 14-140(f)). This arrangement impermissibly permitted the imposition of criminal sanctions in the absence of unlawful conduct. See McClendon, 460 F.2d at 114-16.⁶

On remand in McClendon, Judge Morris E. Lasker of the United States District Court for the Southern District of New York issued an order that established constitutional procedures for the disposition of property held by the clerk, and set forth the method by which notice of those procedures would be given to arrestees from whom such property was seized. See Butler v. Castro, 896 F.2d 698, 700-02 & n. 1 (2d Cir.1990) (describing history of McClendon on remand and reprinting Judge Lasker's order). As we explained in Butler.

Under Judge Lasker's order, a voucher must be given to an arrestee for noncontraband property seized. The voucher must also give notice of the procedures to be followed to recover such property. A claimant must make a demand upon the property clerk for his property or money within 90 days of the earlier of (i) the termination of the criminal proceeding, or (ii) the issuance by the ...