Hart v. the City of Detroit

Full title: Wintonia HART, Plaintiff, v. THE CITY OF DETROIT, et al., Defendants

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Feb 23, 2001

No. 99-CV-73018 (E.D. Mich. Feb. 23, 2001)

Opinion

No. 99-CV-73018

February 23, 2001

MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Hon. Avern Cohn, United States District Judge

I. Introduction

This is a challenge to a state forfeiture action. Plaintiff Wintonia Hart (Hart) filed suit against defendants, the City of Detroit, Lieutenant Claudia Barden, Assistant Wayne County Prosecuting Attorney Nancy Alberts (Alberts), and Sergeant Jo Branch (Branch) presenting the following claims: (1) violation of procedural due process under 42 U.S.C. § 1983, 1985, and 1988, (2) violation of substantive due process under §§ 1983, 1985, and 1988, (3) violation of Michigan's forfeiture statute, and (4) conspiracy to violate civil rights under §§ 1983, 1985, and 1988. Branch is now the sole defendant.¹

1 The City of Detroit and Lieutenant Claudia Barden were dismissed with prejudice by stipulation. See Order Dismissing Parties, filed January 22, 2001. Nancy Alberts was initially dismissed without prejudice, see Order dismissing Defendant Nancy Alberts, filed August 11, 1999, but the parties later stipulated to a dismissal with prejudice.See Stipulation and Order to Dismiss, with Prejudice, Defendant, Nancy Alberts, filed February 15, 2001. Prior to being dismissed with prejudice, Alberts filed motion for summary judgment, which Branch has incorporated into her motion.

Before the Court is Branch's motion for summary judgment on the grounds that (1) Hart lacks standing, (2) Hart has failed to allege facts to support recovery on a due process claim, (3) Branch is entitled to qualified immunity on Hart's federal claims, (4) Hart's claims are barred by the public duty doctrine, and (5) Branch is immune from Hart's state law claims. For the reasons that follow, the motion is GRANTED and this case is DISMISSED.²

2 The Court ordinarily would grant oral argument on defendant's motion. However, in this case, the Court finds that oral argument is not necessary. See E.D. Mich. LR 7.1(e)(2).

II. Background

The material facts as gleaned from the parties' papers follow.³

On October 31, 1998, Narcotics Enforcement Officers executed a search warrant for narcotics, narcotics paraphernalia, and narcotics proceeds at 4832 and 4826 Delta in the City of Detroit, which apparently are attached dwelling. Inside one of the dwellings, officers found and seized $8,500.00 in cash — in $1000.00 bundles and located in a shoe-box sized box, 250 grams of marijuana — in bulk and packaged for distribution, a Rolex watch, and a loaded semi-automatic weapon, all of which was found inside a bedroom closet. Officers also found and seized a digital grams scale. Hart was present during the search and told police that the items in the closet belonged to her brother, Carlton Hart. Before leaving the dwelling, police served Hart with a Notification of Seizure and Intent to Forfeit (Notice), indicating the police department's intent to seize and forfeit the cash and the Rolex. The Notice states in part:

If you desire to challenge the forfeiture of this property, you MUST do all of the following within twenty (20) days of receiving this notice:

1. FILE A CLAIM WITH THE DETROIT POLICE FORFEITURE SECTION, 2110 PARK, SUITE 450, DETROIT, MI 4821, (313) 596-2630, DESCRIBING YOUR INTEREST IN THE PROPERTY, and

2. POST A BOND THAT IS 10% OF THE VALUE OF THE PROPERTY CLAIMED (SAID BOND WILL BE BO LESS THAN $250.00 AND NO GREATER THAN $5,000.00)

3. POSTA SURETY

Failure to file a claim and post BOND and SURETIES within TWENTY (20) DAYS will result in your DEFAULT and your property will be declared forfeited to the Detroit Police Department.

See Branch's Ex. A at p. 3. Hart acknowledged receipt of the Notice signing it.

According to police records, on November 4, 1998, Hart's mother, Marjorie Hart went to the forfeiture unit of the Detroit police station and spoke with Forfeiture Unit Officer G. Kennedy. When asked why she was there, she stated "To get my money and my husband's watch." When asked to explain why her daughter (Wintonia) Hart told police that these items belonged to her brother Carlton Hart, Marjorie Hart replied "She [Hart] said she didn't say that, but the money they took was in my chester [sic] drawer." When asked "what was the money for that they took?" Marjorie Hart replied "I was going to buy the house next door." See Branch's Ex. A at p. 9-10 — Witness Statement report from Detroit Police Department. That day, Officer Kennedy served Marjorie Hart with a Notice of Seizure and Intent to Forfeit for the cash and the Rolex, which Marjorie Hart signed. See Branch's Ex. A at p. 15.

Hart's papers, however, relate a different version of the events. First, Hart testified at deposition that she and her mother went to the police station the day after the seizure and that her mother was going to post a bond on both the cash and the watch. She also testified that only her mother went inside the station; Hart stayed in the car. She also testified that she never asked her mother what had happened inside, but gave her mother "the paper with [her] name on it." Hart further testified that she did not know that the police gave her mother a forfeiture notice or that her mother had told the police the cash belonged to her, not Hart. See Branch's Ex. E — dep. of Hart at p. 62-65. She also admitted that she never spoke to anyone in the police station about filing a claim, and never spoke to Branch. See Branch's Ex. F — dep. of Hart at p. 29, 30, 32.

As to the ownership of the cash, Hart's deposition testimony, while not entirely clear or consistent, reveals that Hart's parents apparently gave Hart the cash a few days before the police search as a gift to help fix up the house. See Branch's Ex. E — Dep. of Hart at p. 23. At one point she testified that her parents actually handed her the box with the cash inside which she later put in her parent's bedroom, see dep. of Hart at p. 30, 35, 36, but later testified that her parents put the cash in their bedroom. See Branch's Ex. E — dep. of Hart at p. 37. At another deposition, Hart testified that she never had physical possession of the cash, that her mother had told her that she was giving Hart the cash, but put it in her bedroom, that Hart herself never touched or counted the cash. See Branch's Ex. F — Dep. of Hart at p. 20. And at least one point in her deposition, Hart testified that the cash was her mother's. See Branch's Ex. F — dep. of Hart at p. 40.

Second, Hart submitted an affidavit and the affidavit of her mother, Marjorie Hart, in opposition to Branch's motion. These affidavits tell another story regarding both Hart's attempts to file a claim for the cash and the ownership of the cash. Both Hart and her mother's affidavits state, for the first time, that Hart, her mother, and their former attorney (Wright Blake) went to the police station on at least two occasions, before Hart's 20 days expired, in order for Hart to file a claim for the cash and her mother to file a claim for the watch. On both occasions, Branch refused to accept the bond because the watch had not yet been appraised. After the watch was appraised, on or about November 23, 1998, Mr. Blake told Hart and her mother that they had until November 30, 1998 to file a claim. Hart filed her claim on November 30, 1998 under the direction of her new attorney, who is representing Hart in this case.

Hart also attaches excerpts from the deposition of Branch, which reveal yet another version of the events. Branch testified that Marjorie Hart went to the police station on November 4, 1998 to post a bond on the cash and the watch. There is no mention that Hart was with her at the station. Branch also testified that she did not receive a claim from Hart regarding the cash until December 7, 1998. A further review of Branch's testimony reveals that Marjorie Hart told Branch that she and her husband, Winton Hart, wanted to file a claim for the cash and the watch together, and Branch told Marjorie Hart that they could come in together to post a bond. On November 19, 1998, Marjorie Hart and her attorney, Mr. Blake, returned to the police station where Branch told them that the watch had not been appraised, that Marjorie Hart could not file a claim on the watch if it was Winton Hart's, and that Branch would notify Mr. Blake when the appraisal was complete. Marjorie Hart did not file a claim for the cash at that time. Hart was not with them. The appraisal was completed on November 23, 1998, and Branch contacted Mr. Blake that day, who said he would bring Marjorie Hart and Winton Hart to the police station to file claims on November 30, 1998.

From papers submitted by Branch, specifically a letter dated November 27, 1998, Hart claimed an interest in the cash seized on during the search on October 31, 1998 and authorized her attorney to accept service of all documents on her behalf. See Branch's Ex. A at p. 4. Hart later filed a 10% bond for the cash. Defendant Branch was the officer who accepted the bond; the bond receipt is dated December 7, 1998. See Branch's Ex. A at p. 14 — Bond receipt.

On January 21, 1999, Alberts wrote Branch stating that the cash was administratively forfeited and that Hart's bond must be returned, explaining:

. . . Wintonia Hart was served with a forfeiture notice on October 31, 1998, which means that she had to file a claim on or before November 21, 1998. Her claim in this case is dated November 27 and you received her bond on December 7, 1998. The $8,500.00 claimed is administratively forfeited. Please return the bond to her. You may send a copy of this letter if you wish.

See Branchs Ex. A at p. 13 — Albert's letter.

Alberts explained the same to Hart's attorney in a letter dated May 13, 1999. See Branch's Ex. A at p. 8. The only difference in Albert's letter to Hart's attorney and Albert's letter to Branch is that Albert's letter to Hart's attorney states that Hart attempted to post a bond on November 31, 1998 and that Branch accepted the bond money on November 31, 1998, not December 7, 1998. In a later correspondence between Hart's attorney and Alberts, Alberts and Hart's attorney agreed that Hart's claim and bond were received by the Detroit Police Department on November 30, 1999. See Hart's Ex. 3 — Letter from Alberts to Hart's attorney.

The bond money was returned to Hart via a check from the City of Detroit dated March 31, 1999.

On February 10, 2000, Hart filed this action to recover the $8,500.00 seized, making the claims set forth above.⁴

4 On or about January 6, 1999, Hart's father, Winston Hart, filed suit in Wayne County Circuit Court seeking damages relative to the seizure of the Rolex watch and asserting state law claims of conversion and trespass. Winston Hart is represented by the same attorney as Hart.

III. Summary Judgment

Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a trier of fact or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The Court "must view the evidence in the light most favorable to the non-moving party." Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).

IV. Analysis

Branch says that Hart lacks standing to make any claims regarding the $8,500.00 cash because she does not have an ownership interest in it. Hart disagrees, arguing that the cash was a gift from her parents and that she has a viable interest in it.

As Branch correctly states: "It is axiomatic that the claimant must possess a vested interest in the subject property." Branch's brief at p. 8. The Michigan forfeiture statute, like its federal counterpart, broadly defines "owner" to include "one who has `a possessory interest in the res with its attendant characteristics of dominion and control.'" In re Forfeiture of $11.800 in United State Currency, 174 Mich. App. 727, 729 (1989) (quoting United States v. One 1945 Douglas C-54 (DC-4) Aircraft, 604 F.2d 27, 29-30 (8th Cir. 1979)). As such, Michigan courts have found standing to challenge a forfeiture "where the person has no certificate of legal title, but has a recognizable interest." Id.

Here, a review of the parties' papers, particularly Hart's deposition, reveals that Hart never had the requisite control over the cash to establish standing. Indeed, on examination by her own attorney, Hart admitted that she did not possess the cash, but only knew she would have control of it at some point in time. See Branch's Ex. F — dep. of Hart at p. 40-41. Hart admitted that the cash was her mother's, not hers. See Branch's Ex. F — dep. of Hart at p. 40. Hart testified she never touched or counted the cash, and her statements that she at one time handled the box containing the cash were equivocal and later contradicted. Moreover, Hart's mother told the police that the cash was hers, not Hart's. Under these facts, Hart lacks standing to contest the administrative forfeiture of the cash.

Moreover, even if Hart had a viable interest in the cash to establish standing, it is clear that she did not file a claim within 20 days of receiving the Notice. Hart never went inside the police station to file a claim. At most, she gave her Notice to her mother, who went inside and told police she was there to file a claim for the cash herself, not for Hart. That Hart's affidavit, and the affidavit of her mother appear to relate a different version of the events surrounding filing a claim is deeply disturbing. It is well established that a party cannot file an affidavit contradicting prior deposition testimony in order to defeat summary judgment. United States ex rel Compton v. Midwest Specialties, Inc., 142 F.3d 296, 302-03 (6th Cir. 1998) ("a party cannot avoid summary judgment through the introduction of self-serving affidavits that contradict prior sworn testimony.") Hart and her mother's affidavits attempt to do just that. Moreover, while Hart's counsel argues that Branch refused to allow Hart to post a bond because the watch had not been appraised, which is the gravamen of Hart's allegations against Branch, Hart admitted at deposition that these allegations in her complaint relate to her mother, not her. See Branch's Ex. F — dep. of Hart at p. 34. Thus, at no time did Branch prevent Hart from filing a claim and posting a bond within 20 days of her Notice.

In fact, from the papers submitted by Branch, Hart did not attempt to file a claim until November 31, 1998, at the earliest. The bond receipt is dated December 7, 1998. Even if Branch mistakenly accepted the bond on November 31, 1998, it is undisputed that Hart did not file a claim within 20 days. Alberts, once she became aware of the error, directed Branch to return the bond money to Hart, which she did.

The confusion in this case stems not from any fault on the part of Branch, but rather on Hart's counsel's attempts to obfuscate the events regarding the cash as to Hart and her mother by attributing facts relating to Marjorie Hart and/or Winton Hart to Hart herself.

Given the Court's determination that Hart never had a viable interest in the cash, and that even if she did, she did not file a claim within 20 days, the Court need not address Branch's other arguments in support of summary judgment. Suffice it to say, however, that there is no evidence that Branch violated Hart's rights; indeed, Hart admits she never met or spoke to Branch. At most, Branch made a mistake in accepting Hart's bond after 20 days because the cash had already been administratively forfeited, and Branch rectified her mistake by returning the bond money as directed by Alberts.

SO ORDERED.