Barrett v. Harwood

• Decision Date: 01 August 1998
• Docket Number: Docket No. 97-9411
• Citation: 189 F.3d 297
• Parties: (2nd Cir. 1999) JOHN BARRETT and LYNNE BARRETT, Plaintiffs-Appellants, v. MARY HARWOOD; SCOTT SMITH; JOHN DURANT; JAMES PHILLIPS and THE VILLAGE OF MALONE, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 297

189 F.3d 297 (2nd Cir. 1999)

JOHN BARRETT and LYNNE BARRETT, Plaintiffs-Appellants, v. MARY HARWOOD; SCOTT SMITH; JOHN DURANT; JAMES PHILLIPS and THE VILLAGE OF MALONE, Defendants-Appellees.

Docket No. 97-9411

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued Sep. 2, 1998

Decided Aug. 25, 1999

Plaintiffs John and Lynne Barrett appeal from a judgment entered October 28, 1997 in the United States District Court for the Northern District of New York (McAvoy, C.J.), granting the motions for summary judgment of defendants the Village of Malone, Police Chief James Phillips, Officer John Durant, and Scott Smith, denying the Barretts' motion for partial summary judgment, and dismissing their 42 U.S.C. §1983 complaint against all defendants.

Affirmed.

Judge Parker concurs in a separate opinion.

MARK A. SCHNEIDER, Law Office of Alley & Schneider, Plattsburgh, New York, for Plaintiffs-Appellants.

RICHARD F. HUNTER, Fischer, Bessette & Muldowney, LLP, Malone, New York, for Defendants-Appellees John Durant, James Phillips and The Village of Malone.

Mary Harwood, Constable, N.Y., submitted letter brief as pro se Defendant-Appellee.

Before: NEWMAN, CARDAMONE, and PARKER, Circuit Judges

CARDAMONE, Circuit Judge:

This litigation was precipitated by the repossession of plaintiffs' truck by a tow truck operator who was acting at the behest of the seller of the vehicle. Complicating the issues surrounding this event was the presence of a Village Police officer dispatched to the scene to prevent a breach of the peace; his presence raises a question of state action.

The episode giving rise to this appeal occurred on November 8, 1996, in Malone, New York, a small upstate village. The incident involved John Barrett, an over-the-road trucker, his wife, his ex-wife, a tow truck operator, and a village police officer. Plaintiffs sued the town and its officer, the seller, and the repossessor in federal district court for violating their civil rights, and plaintiffs now appeal from the grant of summary judgment in favor of the defendants and the dismissal of their complaint.

BACKGROUND

A. Repossession of Truck

Plaintiffs John and Lynne Barrett purchased the 1982 Kenworth truck in June 1995 from defendant Mary Harwood, John Barrett's ex-wife. The total purchase price was $11,000, to be paid in monthly installments of $300 before the tenth of each month. The Barretts took immediate possession of the truck, which they used as the tractor in their business of long distance hauling by tractor trailer. Barrett obtained the original certificate of title, although it remained in Harwood's name.

A year and a half later, Harwood retained defendant Scott Smith, who operated a garage in Malone and did repossessions, to repossess the truck, because allegedly - as she told Smith - the Barretts' payments were overdue and they had forged her name on a registration form to obtain license plates from another state. The Barretts denied being in arrears or forging Harwood's signature.

Smith prepared to repossess the truck by verifying with the New York State Department of Motor Vehicles that Harwood was its title owner and, anticipating that John Barrett would resist repossession, by contacting the Village of Malone Police Department to request that a police officer be dispatched to the scene where Smith planned to repossess the vehicle. Sergeant Ritchie of the Police Department told Smith that an officer was not presently available, but that he would send one if available. Sergeant Ritchie subsequently ordered Officer Durant to the scene, informing him that a breach of peace was anticipated.

At 3:00 p.m. on November 8, while the Barretts were seated in the restaurant across the street, Officer Durant arrived at the lot where the truck was parked. The parties dispute whether the repossession was underway before Officer Durant arrived, but it is undisputed that Officer Durant did not physically assist that process. By the time John Barrett exited the restaurant and walked to the parking lot, the tow truck operator had at least begun to connect the truck to his wrecker. When Barrett asked Officer Durant what was going on, the officer advised him that Smith was repossessing his truck. Barrett objected, stating they "weren't taking the truck" and adding that his wife had proof of timely payments. He left the parking lot to get his wife, Lynne.

When they returned, Harwood had arrived; it was she who had told Smith that the truck was in the parking lot across from the restaurant. Lynne Barrett produced for Officer Durant the purchase agreement and the signed receipts and, according to the officer's deposition, he examined the documents. The officer then informed Mrs. Barrett that the incident was a civil matter in which the police could not get involved and recommended they get a lawyer.

At this point, inflammatory words were exchanged between Barrett and Harwood, prompting Officer Durant to direct them to quiet down. Barrett then struck Smith, though the parties dispute the forcefulness of the contact. Officer Durant said that Barrett "slapped" or "backhanded" Smith, and Smith testified that he received a forceful blow. John Barrett characterized the contact as merely a touch, like part of a gesture, saying he had known Smith all his life and that Smith was laughing at him. Once contact was made, Officer Durant came forward and warned Barrett: "If you start any trouble here, you'll be going in the back seat of my car. Do you understand me, mister?" Barrett asserts that he understood this statement to mean the officer would arrest him if he took any further measures to resist repossession of his truck.

The Barretts accordingly handed Smith the keys to the truck, stating in an affidavit filed later that the officer's threat of arrest was the sole reason they gave up the keys. After keeping the truck in his possession for a period of time, Smith purchased it from Harwood for $3,500, obtaining a duplicate certificate of title from her.

B. Procedural History

On January 7, 1997 the Barretts filed a 42 U.S.C. §1983 action asserting their constitutional right to due process was violated by the unlawful repossession of their truck and seeking damages and equitable relief. Named as defendants were Harwood, the seller, Smith, the repossessor who effected the repossession, Officer Durant, and Village of Malone Police Chief Phillips. An amended complaint filed later added the Village of Malone as a defendant. The complaint also raised state law causes of action against Harwood and Smith. Officer Durant, Chief Phillips, the Village of Malone (Malone defendants) and Smith answered the amended complaint. When Harwood failed to answer, plaintiffs moved for a default judgment against her.

The Barretts moved for a temporary restraining order and a preliminary injunction to obtain their truck from Harwood and Smith, which the district court denied. In denying the motion, the trial court determined that the Barretts had failed to establish a likelihood of success on the merits because it found no state action present. On July 25, 1997 the Malone defendants moved for summary judgment, the Barretts cross-moved for partial summary judgment, and Smith cross-moved for summary judgment. At a hearing on September 8, 1997 the district court orally granted the defendants' motions and denied the Barretts' cross-motion. It concluded that, even if state action existed, Officer Durant was protected by qualified immunity and that the Village and Chief Phillips could not be liable to plaintiffs because plaintiffs had failed to show the alleged constitutional violation had resulted from a municipal custom or policy. The court also held that because adequate post-deprivation remedies were available, the Village's policies did not violate due process.

With respect to the private parties, the district court ruled that the Barretts failed to show Smith was acting under color of state law when he repossessed the truck. It denied the motion for a default judgment against Harwood after concluding that there was no jurisdiction under §1983 against her as a private actor. The judgment so providing was entered on October 28, 1997. It is from this judgment that the Barretts appeal. We affirm.

DISCUSSION

Pertinent to the discussion of due process that follows is the New York law on self-help repossession. On default of payment, under the New York Uniform Commercial Code, a secured party has the right to take possession of its collateral. "In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action." N.Y. U.C.C. Law §9-503 (McKinney 1990). Hence, where repossession cannot be accomplished without a breach of the peace, a retaking must be effected by legal process. See Mauro v. General Motors Acceptance Corp., 164 Misc. 2d 871, 875-76 (N.Y. Sup. Ct. 1995) (noting that construction of §9-503 is strict).

The Barretts contend that Officer Durant's involvement in the repossession converted the private repossession into state action. They assert that even assuming Harwood had a right to repossess the truck under §9-503, the right to do so without using judicial process ended when they objected to the repossession, thereby disturbing the peace. They maintain that after the breach occurred, Officer Durant had a duty to advise Smith to cease repossessing their truck and to proceed through legal action. According to appellants, Officer Durant aided in the unlawful repossession through his conduct and threat of arrest. Thus, the Barretts declare that these defendants acting under color of state law violated their constitutional right to due process.

The district court's order granting summary judgment in favor of all the defendants is reviewed de novo, keeping in mind the New York law regarding self-help repossession. That relief is appropriate only if, in resolving all...