Peruta v. Hartford Parking Authority et al
ORDER granting 52 Motion for Summary Judgment which the Court construes as a motion for judgment on the pleadings. See attached memorandum of decision. All of Plaintiff's claims as alleged in the Amended Complaint are hereby dismissed. The Clerk is directed to enter judgment in favor of Defendant and close the case. Signed by Judge Vanessa L. Bryant on 8/24/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDWARD A. PERUTA, on behalf of himself :
and other persons similarly situated,
CITY OF HARTFORD,
CIVIL ACTION NO.
August 24, 2012
MEMORANDUM OF DECISION GRANTING DEFENDANT CITY OF HARTFORD’S
MOTION FOR SUMMARY JUDGMENT [Dkt. # 52]
The Plaintiff, Edward A. Peruta, brings this action for an injunction on
behalf of himself and other persons similarly situated to enjoin the operation of
the Pay and Display Parking Meter System (hereinafter the “P&D System”) in
Hartford, Connecticut, and to prohibit and restrain the Defendant, the City of
Hartford (hereinafter “the City”), from issuing parking citations and collecting
fines and penalties for failure to deposit funds in parking pay stations installed by
the City as part of the P&D System. The Plaintiff also seeks compensatory and
punitive damages. The Plaintiff alleges that the P&D System violates his rights
under the Fourth, Fifth, and Fourteenth Amendments and Article VI, Section II of
the United States Constitution as enforced by 42 .U.S.C. § 1983, claiming
deprivation of his rights to substantive (Count 1) and procedural due process
(Count 2) in connection with his right to travel, violations of the Supremacy
Clause (Count 3), false arrest and malicious prosecution (Court 5). In addition,
the Plaintiff asserts a state law claim for violation of the Connecticut Unfair Trade
Practices Act, Conn. Gen. Stat. §§ 42-110b et seq. (“CUTPA”) (Count 4). Before
the Court is the City’s Motion for Summary Judgment as to all of Plaintiff’s claims
as stated in Plaintiff’s Amended Complaint. For the reasons stated below, the
Court construes the Motion for Summary judgment as a Motion for Judgment on
the Pleadings. The Court agrees with the City of Hartford that Plaintiff cannot
state a claim for which relief can be granted, and for that reason, Plaintiff’s
present action as to all claims is accordingly DISMISSED and the Court GRANTS
Defendant’s dispositive motion.
Before setting forth the factual background, the Court notes that in support
of its Motion for Summary Judgment, the City of Hartford submitted a Local Rule
56(a)1 Statement with a total of two numbered paragraphs, both of which cited
solely to the unverified Amended Complaint which fails to satisfy the
requirements under Local Rule 56(a)3. [Dkt. # 52-2]. Local Rule 56(a)3 requires
that “[e]ach statement of material fact by a movant in a Local Rule 56(a)1
Statement . . . must be followed by a specific citation to (1) the affidavit of a
witness competent to testify as to the facts at trial and/or (2) evidence that would
be admissible at trial.” Local Rule 56(a)3. The unverified Amended Complaint is
not an affidavit or evidence that would be admissible at trial and is therefore
insufficient to support a motion for summary judgment. Further, the City’s
arguments on its motion for summary judgment are based on the Amended
Complaint’s allegations and therefore the Court construes the City’s Motion for
Summary Judgment as a Motion for Judgment on the Pleadings. The following
facts are provided as alleged by Plaintiff in the Amended Complaint. [Dkt. # 32].
The City of Hartford is a Connecticut municipality as defined under General
Statutes §§ 7-148(a), 7-202, having the power to establish regulations for on-street
parking. [Id. at ¶ 9]. The Municipal Code of the City of Hartford (“Municipal
Code”) defines a “parking meter” as “a mechanism having a visible time
indicator, a coin-receiving and a coin-actuating mechanism, all enclosed and
mounted on top of a post.” Municipal Code, § 22-1. [Dkt. # 32, Amended
Complaint at ¶ 1]. In 2008, the Hartford Parking Authority (“HPA”) implemented
the replacement of coin operated parking meters with a “Pay and Display Parking
Meter System” (“P&D System”) which accepts multiple forms of payment through
parking pay stations serving multiple parking spaces. [Id. at ¶ 2].
Plaintiff alleges that the City, the HPA acting in the City’s name and in
accordance with the City’s delegation of statutory power to the HPA, and Central
Parking System of Connecticut, Inc. (“Central Parking”), under authority
delegated by the HPA in the City’s name and in accordance with the City’s
delegation of statutory power to the HPA, by and through three individual Parking
Controllers employed by the City and twelve individual Parking Enforcement
Officers employed by Central Parking, in the implementation, maintenance, and
operation of the P&D System, exceeded applicable statutory powers to enforce
parking regulations, as codified in ordinances passed by the Hartford Court of
Common Council (“City Council”), and failed to meet the national uniform
standards for traffic control devices, as supplemented by state standards, for
providing notice of traffic laws and regulations.” [Id. at ¶ 3].
Plaintiff Edward A. Peruta conducts business in the City of Hartford and
purports to bring this action on behalf of himself as “representative of the class
of persons receiving notice that a vehicle owned or operated by Plaintiff or such
members of the class has been parked unlawfully in a single parking space
subject to the P&D System.” [Id. at ¶ 4].
The regulation of the City’s on-street parking is codified in the Municipal
Code at Chapter 22, “Motor Vehicles and Parking.”[Id. at ¶ 10]. Section 22-61 of
the Municipal Code authorizes the City’s traffic authority to regulate on-street
parking. It specifically authorizes the authority to install parking meters,
designate parking meter zones, fix the zone parking fees and times, designate the
hours during which the use of parking meters shall be required. [Id. at ¶ 11].
The Hartford City Council has the sole authority to amend the parking
regulations including amending the Municipal Code, § 22-26(a). The City Council
passed an ordinance on May 26, 2009, approving an increase in on-street parking
fines and penalties. [Id. at ¶ 12].
The HPA assumed responsibility for enforcement of the City’s parking
regulations on or about February 15, 2006, specifically the assumption of all
parking-related duties of the traffic engineer as delineated in Chapter 22 of the
Municipal Code, including the authority to use parking meters to regulate and
control on-street parking. [Id. at ¶ 13]. The HPA exercises all powers in the name
of the City in accordance with Conn. Gen. Stat. § 7-204. [Id. at ¶ 14].
In 2005, the HPA published a Request for Proposals (RFP) to privatize the
management and operation of on-street parking in the City through
implementation of a Comprehensive and Integrated On-Street Parking and
Citation Management System (“On-Street Parking System”). [Id. at ¶ 18]. Central
Parking System of Connecticut, Inc. is a Tennessee corporation engaged in the
business of parking management authorized to do business in Connecticut with
its principal place of business located in Knoxville, Tennessee. [Id. at ¶ 17]. The
HPA, acting in the name of the City, awarded Central Parking a five-year contract
to implement, operate, and maintain the On-Street Parking System (“Contract”).
[Id. at ¶¶ 19-20]. The Parking Enforcement Officers employed by Central Parking
and the Parking Controllers employed by the City of Hartford implemented the
P&D System at all times alleged under the Amended Complaint, under the
authority of Municipal Code, §§ 22-25(a), 22-26, by attaching to a vehicle alleged
as parked in violation of a City ordinance or regulation a notice to the owner or
operator thereof stating that such vehicle has been parked unlawfully and
assessing fines and penalties. [Id. at ¶ 22-27].
Plaintiff alleges that “[t]raffic control devices are defined as all signs,
signals, markings, and other devices used to regulate, warn, or guide traffic,
placed on, over, or adjacent to a street, highway, pedestrian facility, or bikeway
by authority of a public agency having jurisdiction,” and that the “purpose of
traffic control devices, as well as the principles for their use, is to promote
highway safety and efficiency by providing for the orderly movement of all road
users on streets and highways throughout the United States.” [Id. at ¶¶ 28-29].
Plaintiff alleges that “[t]raffic control devices notify road users of regulations and
provide warning and guidance needed for the reasonably safe, uniform, and
efficient operation of all elements of the traffic stream.” [Id. at ¶ 30]. Plaintiff
further alleges that “[r]egulatory signs provide notice of traffic laws or
regulations, including laws and regulations regarding parking,” and that “[s]igns
that regulate the parking of vehicles are regulatory and must contain legible
reference to applicable regulations and conform to the standards of shape, color,
and location for regulatory traffic control device signs.” [Id. at ¶¶ 31-32].
Plaintiff alleges that the U.S. Secretary of Transportation decrees that
traffic control devices on all streets and highways be in “substantial
conformance” with the Manual on Uniform Traffic Control Devices (“MUTCD”),
which is approved by the Federal Highway Administration (“FHWA”) as the
“national standard” for the design and application of all traffic control devices.
[Id. at ¶¶ 33-34]. Plaintiff alleges that the Connecticut State Traffic Commission
(STC) supplements MUTCD with sections 14-298-500 through 14-298-554,
inclusive, of the Regulations of Connecticut State Agencies. [Id. at ¶¶ 35-36].
Plaintiff further notes that the City of Hartford regulates and collects revenues
from parking meters and enforces rules regarding meters and on-street parking
throughout the City under the authority of Municipal code § 10-1 and Conn. Gen.
Stat. § 7-207a, and as provided in Chapter 22 of the Municipal code. [Id. at ¶¶ 3738].
Plaintiff also alleges that Section 2B-40 of MUTCD
requires that parking signs state applicable regulations and conform to the
national uniform standards of shape, color, dimensions, legends,
illumination or reflectorization, and location, including:
(a) Where only limited time parking or parking in a particular manner
are permitted, the signs, designated “Permissive Parking Signs,”
shall have a green legend and border on a white background.
(b) The shape for regulatory parking signs shall be rectangle,
ordinarily with the longer dimension vertical with a minimum
standard size of twelve inches by eighteen inches.
(c) Regulatory signs shall be reflectorized or illuminated to show the
same shape and color both by day and night.
(d) A regulatory sign normally is placed where its mandate or
prohibition applies or begins with clearance from the pavement to
the bottom of the sign shall be at least seven (7) feet.
(e) A regulatory sign is mounted approximately at right angles to the
direction of, and facing, the traffic it is intended to serve.
[Id. at ¶ 39].
In July 2010 the City of Hartford discussed a meter audit that identified
inconsistencies with signage placement and clarity and the location of P&D
System meters. [Id. at ¶ 40]. The City of Hartford determined as a result of the
meter audit to continue working with the City’s Department of Public Works to
address and implement necessary improvements to inconsistencies in signage
placement and clarity and the location of P&D System meters. [Id. at ¶ 41].
Plaintiff found a notice attached to his vehicle on September 28, 2009, in
the vicinity of 505 Hudson Street, Hartford, alleging that his failure to deposit
funds in a parking pay station erected by the City of Hartford as part of the P&D
System constituted unlawful parking. [Id. at ¶ 42]. The area where Plaintiff parked
contained no regulatory parking signs. [Id. at 43]. Plaintiff alleges he received no
notice that permissive parking regulations applied to the area where he parked.
[Id. at 44].
Plaintiff alleges he reasonably believed at the time when he parked in the
vicinity of 505 Hudson Street, Hartford, on September 28, 2009, that the absence
and/or removal of the mechanisms having visible time indicators, coin-receiving
and a coin-actuating mechanisms, all enclosed and mounted on top of posts,
otherwise defined as “parking meters” in the Municipal Code, indicated that
parking in that area was unrestricted and unconditional. [Id. at ¶ 45]. In fact, the
coin-receiving and coin-actuating mechanisms had been chopped off of their
posts. [Id. at 46]. Plaintiff’s parking citation was dismissed following a hearing
held before a hearing officer on October 28, 2009. [Id. at 47].
Plaintiff alleges that the P&D System in place at 505 Hudson Street on
September 28, 2009, at the location where Plaintiff parked, and throughout the
City of Hartford, did not meet the notice standards set forth in MUTCD and the
Municipal Code, including the standards set forth in subparagraphs 39(a) through
39(e), above. [Id. at ¶ 48-49]. Plaintiff filed this action in the Connecticut Superior
Court on November 4, 2009 and the Defendant removed the action to federal court
on November 30, 2009.
The standard for judgment on the pleadings is essentially the same as the
standard applied to a motion to dismiss under the Federal Rules of Civil
Procedure. See Johnson v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2009). “The Court
must accept as true all of the factual allegations in the complaint—which is
deemed to include any written instrument attached to the complaint as an exhibit,
any materials incorporated into it by reference, and any other documents that are
integral to it, and must draw all reasonable inferences from those factual
allegations in the plaintiff's favor.” Derisme v. Hunt Leibert Jacobson, P, No.10cv-244(MRK), 2010 WL 4683916, at *1 (D. Conn. Nov. 10, 2010). The Complaint
must contain “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A claim to relief is plausible
on its face “when the plaintiff pleads fact[s] ... that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009).
Right to Travel
Plaintiff, in Count 1 of his Amended Complaint, alleges that “[t]he City of
Hartford’s unlawful conduct in issuing parking citations to persons without
adequate notice of the conduct prohibited, when federal and state statutes
provide specific, detailed and mandatory directives for the provision of such
notice, has deprived such persons at the time of the citation and so long as the
lack of notice remains, of the right to travel freely to, from, and within the City of
Hartford without fear of citation.” [Dkt. # 32 at ¶ 54]. The Court finds that the
alleged “inadequate notice/signage” and issuance of a parking ticket does not
impermissibly burden the fundamental right to travel in a constitutional sense as
The Supreme Court has long recognized a fundamental right to interstate
travel. United States v. Guest, 383 U.S. 745, 757 (1966) (“The constitutional right
to travel from one State to another . . . occupies a position fundamental to the
concept of our Federal Union.”). “[T]his right to travel has a long history of
recognition as a right to personal mobility, a right derived from several provisions
of the Constitution.” Ronald D. Rotunda & John E. Nowak, Treatise on
Constitutional Law § 15.7 (2007). It is true that “[t]he word ‘travel’ is not found in
the text of the Constitution. Yet the ‘constitutional right to travel from one State to
another’ is firmly embedded in our jurisprudence.” Saenz v. Roe, 526 U.S. 489,
498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). “Although
the Supreme Court has suggested that ‘[t]he textual source of the constitutional
right to travel, or, more precisely, the right of free interstate migration, ... has
proved elusive,’ it has protected that right by invoking both the Privileges and
Immunities Clause of the Fourteenth Amendment and the Equal Protection
Clause.” Selevan v. New York Thruway Authority, 584 F.3d 82, 99 (2d Cir. 2009)
(quoting Att’y Gen. N.Y. v. Soto-Lopez, 476 U.S. 898, 902 (1986)). The Supreme
Court has recognized that “[t]he right of ‘free ingress and regress to and from’
neighboring States, which was expressly mentioned in the text of the Articles of
Confederation, may simply have been ‘conceived from the beginning to be a
necessary concomitant of the stronger Union the Constitution created.’” Saenz,
526 U.S. at 501 (quoting Guest, 383 U.S. at 758). In any event, the right to travel
has been “firmly established and repeatedly recognized.” Guest, 383 U.S. at 757.
The right to travel “embraces at least three different components. It
protects the right of a citizen of one State to enter and to leave another State, the
right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State, and, for those travelers who elect to
become permanent residents, the right to be treated like other citizens of that
State.” Saenz, 526 U.S. at 500. “A state law implicates the right to travel when it
actually deters such travel, when impeding travel is its primary objective, or when
it uses ‘any classification which serves to penalize the exercise of that right.’”
Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986). The
Supreme Court’s right to travel cases have principally involved classification
according to durational residency requirements. See, e.g., Saenz, 526 U.S. 489
(durational residency requirements violate right to travel); Soto-Lopez, 476 U.S.
898 (New York's restriction of its civil service preference to veterans who entered
armed forces while residing in New York violated constitutionally protected right
to travel); Shapiro v. Thompson, 394 U.S. 618 (1969) (holding unconstitutional a
state or District of Columbia statutory provision denying welfare assistance to
residents of state or district who have not resided within their jurisdictions for at
least one year immediately preceding their applications for such assistance). See
also Guest, 383 U.S. 745 (allegation of conspiracy to prevent blacks from using
highway facilities); Edwards v. California, 314 U.S. 160 (1941) (invalidating a state
law that impeded the free interstate passage of the indigent); Crandall v. State of
Nevada, 73 U.S. 35 (1867) (invalidating a Nevada tax on every person leaving the
State by common carrier).
Although the Supreme Court has long recognized a fundamental right to
interstate travel, it has never explicitly held that constitutional protection extends
to intrastate travel. However the Second Circuit has recognized that the
constitutional right to travel includes intrastate, as well as interstate, travel. “It
would be meaningless to describe the right to travel between states as a
fundamental precept of personal liberty and not to acknowledge a correlative
constitutional right to travel within a state.” King v. New Rochelle Mun. Hous.
Auth., 442 F.2d 646, 648 (2d Cir. 1971) (five-year residency requirement for
admission to public municipal housing violates Equal Protection Clause). See
also Ramos v. Town of Vernon, 353 F.3d 171, 176 (2d Cir. 2003) (recognizing the
“constitutional right to free movement within [a] [t]own” and noting that “[t]he
right to intrastate travel, or what we sometimes will refer to as the right to free
movement, has been recognized in this Circuit.”); Spencer v. Casavilla, 903 F.2d
171, 174 (2d Cir.1990) (observing that this Circuit “has held that the Constitution .
. . protects the right to travel freely within a single state”); Williams v. Town of
Greenburgh, 535 F.3d 71, 75-76 (2d Cir. 2008) (“These precedents stand for the
proposition that individuals possess a fundamental right to travel within a state.
While the parameters of that right have not been sharply defined by our Court, it
is clear that the right protects movement between places and has no bearing on
access to a particular place.”) (emphasis in the original).
The right to travel, like many constitutional rights, is not absolute. Not
every restriction on one’s movement or ability to travel will impermissibly burden
the right to travel in a constitutional sense. When determining whether a
fundamental right has been infringed, Courts look to whether there has been a
direct and substantial interference with that right. See Erwin Chemerinsky,
Constitutional Law: Principles and Policies 816 (4th ed. 2011) (citing Zablocki v.
Redhail, 434 U.S. 374 (1978)). The Supreme Court has explained that the “nature
of our Federal Union and our constitutional concepts of personal liberty unite to
require that all citizens be free to travel throughout the length and breadth of our
land uninhibited by statutes, rules, or regulations which unreasonably burden or
restrict this movement.” Shapiro, 394 U.S. at 629 (emphasis added). Courts
have therefore consistently limited the constitutional right to travel to situations
where something more than a mere minor restriction on one’s ability to travel is
It is well established that “travelers do not have a constitutional right to
the most convenient form of travel,” Town of Southold v. Town of E. Hampton,
477 F.3d 38, 54 (2d Cir. 2007), and “minor restrictions on travel simply do not
amount to the denial of a fundamental right.” Selevan v. New York Thruway Auth.,
584 F.3d 82, 101 (2d Cir. 2009) (quoting Town of Southold, 477 F.3d at 54). See
also Kansas v. United States, 16 F.3d 436, 442 (D.C.Cir.1994) (explaining that
“something more than a negligible or minimal impact on the right to travel is
required before strict scrutiny is applied”); Cramer v. Skinner, 931 F.2d 1020, 1031
(5th Cir.1991) (“Minor restrictions on travel simply do not amount to the denial of
a fundamental right that can be upheld only if the Government has a compelling
justification”); City of Houston v. F.A.A., 679 F.2d 1184, 1198 (5th Cir.1982) (noting
that passengers do not possess “a constitutional right to the most convenient
form of travel”); Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir.1999) (stating that
“burdens on a single mode of transportation do not implicate the right to
interstate travel” and that “minor burdens impacting interstate travel, such as toll
roads, do not constitute a violation [of the right to travel]”).
Courts have routinely held that reasonable fees or taxes on travel,
including parking, do not impermissibly burden the constitutional right to travel.
See, e.g., Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405
U.S. 707, 714 (1972) (finding that a charge of one dollar levied by a state and
municipality on persons enplaning a scheduled commercial airliner to help defray
costs of airport facility did not violate right to travel. “The principle that burdens
on the right to travel are constitutional only if shown to be necessary to promote
a compelling state interest has no application in this context. The facility
provided at public expense aids rather than hinders the right to travel. A
permissible charge to help defray the cost of the facility is therefore not a burden
in the constitutional sense.”); Joseph v. Hyman, 659 F.3d 215, 219 (2d Cir. 2011)
(Manhattan's differential parking tax scheme did not implicate the fundamental
right to travel. “[T]he rights asserted [here] can hardly be seen as fundamental in
the relevant sense. The exemption burdens but one mode of travel, and not that
drastically.”); Lauran v. U.S. Forest Serv., 141 F. App'x 515, 520 (9th Cir. 2005) (“A
five-dollar vehicle parking fee, charged for recreational use of the National Forest,
does not constitute a barrier to intrastate or interstate travel.”); Lai v. New York
City Gov't, 991 F. Supp. 362, 366 (S.D.N.Y. 1998) aff'd, 163 F.3d 729 (2d Cir. 1998)
(finding no violation of right to travel in action where New Jersey resident who
held disabled parking permit was ticketed for parking at an expired meter as it
cannot be said that “by failing to allow plaintiff to park in ‘no parking’ or metered
zones, the City had erected an actual barrier to interstate travel . . . [and] [t]hus
though plaintiff's ability to travel is limited by her physical condition and the
shortage of on-street parking spaces in New York City, her right to travel has not
been abridged by the City's parking regulations.”).
Courts have typically considered parking to be a privilege and not a
fundamental right in its own respect. See, e.g., Dist. of Columbia v. Smith, 93
F.2d 650, 651 (D.C. Cir. 1937) (“The power to regulate the use of streets and
highways by restrictions on the parking of vehicles is one universally recognized,
and its reasonable exercise is consistently upheld.”); Gardner v. City of
Brunswick, 197 Ga. 167, 172, 28 S.E.2d 135, 138-39 (1943) (“while the public has
an absolute right to the use of the streets for their primary purpose, which is for
travel, the use of the streets for the purpose of parking automobiles is a privilege,
and not a right; and the privilege must be accepted with such reasonable burdens
as the city may place as conditions to the exercise of the privilege. . . . Much
should be left to the city's discretion.”); Gillam v. Landrieu, 455 F.Supp. 1030 (E.D.
La.1978) (“A vehicle owner who . . . parks overtime at a meter is not effectuating
a constitutionally protected right.”); Dep't of Highways v. Capone, 298 So. 2d 94,
97 (La. Ct. App. 1974) (“We believe it elementary that no person, be he property
owner or not, has the absolute, inalienable and unqualified right to utilize a public
street for parking purposes. To the contrary, parking on public thoroughfares is a
privilege enjoyed by the public at large, subject, of course, to reasonable
regulation under proper exercise of the police power.”); Yegen v. City of
Bismarck, 291 N.W.2d 422, 425 (N.D. 1980) (“No person has the absolute,
unqualified right to utilize a public street for parking purposes. Parking on public
thoroughfares is not a right, but a privilege to be enjoyed by the public at large
subject to reasonable regulations under the police power.”); Hickey v. Riley, 177
Or. 321, 162 P.2d 371, 375 (“Parking is not a right, but a privilege, and, as such, is
subject to reasonable regulation under the police power.”); Hickey v. Riley, 177
Or. 321, 332-33, 162 P.2d 371, 375-76 (1945) (“The use of parking meters has been
generally approved by the courts. . . . The imposition of a parking fee for
regulatory purposes has likewise been approved generally.”); Galvis v. State,
Dept. of Transp., 140 Wash. App. 693, 706-07, 167 P.3d 584, 590 (2007) (noting the
“well-established authority that parking on the public right of way is a privilege,
revocable by the State at any time”); Sandona v. City of Cle Elum, 37 Wash.2d
831, 840, 226 P.2d 889 (1951) (parking on the street is a privilege, not a right);
Kimmel v. City of Spokane, 7 Wash.2d 372, 376, 109 P.2d 1069 (1941) (“[T]he
power of the state . . . to regulate the parking of cars on the streets and highways
can not [sic] be doubted.”)
In the present case, it cannot be said that Plaintiff was deprived of his
constitutional right to travel considering that “minor restrictions on travel simply
do not amount to the denial of a fundamental right.” Selevan, 584 F.3d at 101.
Here, Plaintiff parked without paying the required fee at the P&D system which
resulted in the issuance of parking ticket requiring the payment of a higher fee to
park. The parking ticket was simply a monetary differential cost to park. There
were no corollary penalties such as license revocation, impoundment of
Plaintiff’s vehicle, or criminal notations on Plaintiff’s driving record. The
requirement that Plaintiff pay a higher fee to park as a result of the parking ticket,
irrespective of whether Plaintiff had notice or not of the P&D system, is by all
reasonable inferences, a minor restriction on Plaintiff’s right to travel, at most.
See Selevan v. New York Thruway Auth., 584 F.3d 82, 101 (2d Cir. 2009); Town of
Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007).
Further, the issuance of the parking ticket can be seen to be a type of
differential parking tax scheme which the Second Circuit has already held does
not infringe on the constitutional right to travel. The Second Circuit found that a
challenge to Manhattan’s differential parking tax scheme asserted rights that
“can hardly be seen as fundamental in the relevant sense” as the tax “exemption
burdens but one mode of travel, and not that drastically.” Joseph, 659 F.3d at
219. The Second Circuit further noted that there is “no authority that the right to
park one’s vehicle at a particular rate relative to others is sufficiently fundamental
to trigger protection under the Privileges and Immunities Clause.” Id. Likewise,
the City’s issuance of a parking ticket in the present case is effectively a
differential fee or tax to park which burdens at most a single mode of travel, but
not that drastically as to amount to the denial a fundamental right in a
Even assuming that Plaintiff had no notice as he contends of the then-new
P&D system, the issuance of the parking ticket without said notice still does not
amount to a denial of a fundamental right as the ticket is still nothing more than a
minor restriction on travel. It is worth noting here the general principle that
ignorance of the law is no excuse, which is deeply embedded in our
jurisprudence. Cheek v. United States, 498 U.S. 192, 199, (1991) (“The general rule
that ignorance of the law or a mistake of law is no defense . . . is deeply rooted in
the American legal system.”); Lambert v. People of the State of California, 355
U.S. 225, 228, (1957) (“The rule that ignorance of the law will not excuse is deep in
our law, as is the principle that of all the powers of local government, the police
power is one of the least limitable.”) (internal quotations and citations omitted).
Essentially, Plaintiff’s claim is that the lack of notice/signage deprived him of his
ability to pay the lower parking rate at the meter rather than the higher parking
fine. If he had adequate notice of the required parking fee in that particular spot
either through adequate signage or the Municipal Code, Plaintiff’s argument
implies, then he would have had the opportunity to pay the parking meter rate
instead of receive a ticket and have to pay a higher rate in the form of a fine.
However, the Plaintiff has not cited nor has the Court found any authority that
payment of a ticket in itself infringes on a constitutional right. Here Plaintiff’s
notice arguments are essentially an argument that he had a constitutional right to
park his vehicle at a particular rate. However as the Second Circuit held, there is
simply “no authority that the right to park one’s vehicle at a particular rate
relative to others” is constitutionally protected. Joseph, 659 F.3d at 219. Paying
to park is one of the everyday nominal costs of doing business in or living in the
City of Hartford and other cities across the country and is at most a minor
restriction on travel.
The Court also notes that if it followed Plaintiff’s logic to its natural
conclusion, the court would find constitutional violations in innumerable
circumstances, for example, where a tree blocks a parking sign because the city
did not trim the tree in a timely manner or where the state fails to post speed limit
signs every twenty feet on the highway. Such a result is unworkable and would
illogically distort the fundamental right to travel into an unrecognizable shell of
its current formulation. “If every infringement on interstate travel violates the
traveler's fundamental constitutional rights, any governmental act that limits the
ability to travel interstate, such as placing a traffic light before an interstate
bridge, would raise a constitutional issue.” Town of Southold v. Town of E.
Hampton, 477 F.3d 38, 54 (2d Cir. 2007). Notice or no notice, the alleged “burden”
imposed on Plaintiff in this case does not rise to the level that would implicate the
fundamental right to travel.
Substantive Due Process (Count 1)
The United States Supreme Court has held that “[n]o State shall . . . deprive
any person of life, liberty, or property, without due process of law,” U.S. Const.,
amend. XIV, § 1, in order to “guarante[e] more than fair process,” Washington v.
Glucksberg, 521 U.S. 702, 719 (1997). The Court has further held the Due Process
Clause “to cover a substantive sphere as well,” County of Sacramento v. Lewis,
523 U.S. 833, 840 (1998), “barring certain government actions regardless of the
fairness of the procedures used to implement them,” Daniels v. Williams, 474 U.S.
327, 331, (1986); see also Zinermon v. Burch, 494 U.S. 113, 125, (1990) (noting that
substantive due process violations are actionable under § 1983).
Substantive due process embodies society's desire to “prevent
government from abusing [its] power, or employing it as an instrument of
oppression.” (internal quotations omitted.) Collins v. Harker Heights, 503 U.S.
115, 126 (1992). However, the Court has “repeatedly emphasized that only the
most egregious official conduct can be said to be ‘arbitrary in the constitutional
sense,’” Id. at 129. Government conduct that violates substantive due process is
“conduct that shocks the conscience and violates the decencies of civilized
conduct.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting
Rochin v. California, 342 U.S. 165, 172-173 (1952). Conscious-shocking conduct
“do[es] more than offend some fastidious squeamishness or private
sentimentalism about combatting crime too energetically” and is “bound to
offend even hardened sensibilities.” Rouchin, 342 U.S. at 172.
Rouchin v. California established the “shocks the conscience” test in the
realm of substantive due process litigation, where the Court found that the forced
pumping of a suspect’s stomach was enough to offend due process because it
shocked the conscience and violated the decencies of civilized conduct. Rouchin,
342 U.S. at 172-73. Since then the Court has “repeatedly adhered” to the
benchmark set by Rouchin. Lewis, 523 U.S. at 847. See, e.g., Breithaupt v. Abram,
352 U.S. 432, 435, 77 S.Ct. 408, 410, 1 L.Ed.2d 448 (1957) (reiterating that conduct
that “‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not
comport with traditional ideas of fair play and decency” would violate substantive
due process); Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89
L.Ed.2d 251 (1986) (same); United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct.
2095, 2101, 95 L.Ed.2d 697 (1987) (“So-called ‘substantive due process' prevents
the government from engaging in conduct that ‘shocks the conscience,’ . . . or
interferes with rights ‘implicit in the concept of ordered liberty’ ”) (quoting Rochin
v. California, supra, at 172, and Palko v. Connecticut, 302 U.S. 319, 325–326
(1937)); Collins v. Harker Heights, supra, at 128, (holding that the substantive
component of the Due Process Clause is violated by executive action only when
it “can properly be characterized as arbitrary, or conscience shocking, in a
constitutional sense”); Daniels v. Williams, 474 U.S. 327, 331-32, 106 S. Ct. 662,
665, 88 L. Ed. 2d 662 (1986) (noting that “[h]istorically, this guarantee of due
process has been applied to deliberate decisions of government officials to
deprive a person of life, liberty, or property” and that “[t]o hold that injury caused
by such [lack of due care or negligent conduct] is a deprivation within the
meaning of the Fourteenth Amendment would trivialize the centuries-old principle
of due process of law); City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239,
244, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605 (1983) (finding that deliberate
indifference is egregious enough to state a substantive due process claim in the
context of deliberate indifference to the medical needs of pretrial detainees);
Lewis, 523 U.S. at 834 (“In the circumstances of a high-speed chase aimed at
apprehending a suspected offender, where unforeseen circumstances demand an
instant judgment on the part of an officer who feels the pulls of competing
obligations, only a purpose to cause harm unrelated to the legitimate object of
arrest will satisfy the shocks-the-conscience test. Such chases with no intent to
harm suspects physically or to worsen their legal plight do not give rise to
substantive due process liability. . . . [T]here is no reason to believe that [the
officer’s enforcement considerations] were tainted by an improper or malicious
motive.”); Chavez v. Martinez, 538 U.S. 760, 775 (2003) (officer’s interrogation of
suspect in hospital did not arise to level or conscious-shocking or egregious
where no evidence that officer acted purposely to harm suspect by intentionally
interfering with his medical treatment).
Notice or no notice of the P&D system, the City of Hartford’s conduct as
alleged by Peruta does not rise to the level of egregiousness that “shocks the
contemporary conscience.” It cannot be said that the City’s conduct, in giving
Plaintiff a parking ticket for failing to pay, even assuming the plaintiff did not have
actual or constructive notice that he had to pay for parking, was “arbitrary,”
“malicious,” or “brutal” in the constitutional sense, particularly where Plaintiff’s
ticket was ultimately dismissed and he did not have to pay a fine. Nor has Plaintiff
alleged there was any improper motive or purposeful harm. See, e.g., Franceschi
v. City of Seal Beach, No.92-5529, 1993 WL 340449, at *1 (9th Cir. 1993) (holding
that a “traffic citation without arrest is not the type of police behavior which
‘shocks the conscience.’”) (Citation omitted); Kelly, 375 F.Supp.2d at 209
(S.D.N.Y. 2005) (“Nothing about the issuance of a parking ticket implicates the
rarely-used doctrine of ‘substantive due process.’”) (Citation omitted). To find
that the conduct here alleged “shocks the conscience” would be a clear
departure from settled and carefully developed Supreme Court precedent in the
area of substantive due process, an avenue which this Court has no reason to
take in this case. “To hold that injury caused by such conduct is a deprivation
within the meaning of the Fourteenth Amendment would trivialize the centuriesold principle of due process of law.” Daniels v. Williams, 474 U.S. 327, 332 (1986).
Consequently, Plaintiff’s Substantive Due Process claim (Count 1) must also be
dismissed on this basis.
Count 2: Procedural Due Process
Assuming arguendo that Plaintiff’s constitutional right to travel was
implicated, Plaintiff fails to state a plausible claim for relief under procedural due
process. Plaintiff alleges in Count 2 a violation of his right to procedural due
process under Amendments Five and Fourteen of the U.S. Constitution as
enforced by 42 U.S.C. § 1983. [Dkt. # 32, at ¶¶ 58-68]. Plaintiff claims that the “lack
of adequate notice of the conduct prohibited denied Plaintiff . . . of a meaningful
opportunity for hearing.” [Id. at ¶ 64]. Plaintiff alleges that “[a]lthough the
Municipal Code provides opportunity for hearing to contest a parking citation, so
long as the P&D System remains, whether a person prevails at hearing or not, the
restraint imposed by the threat of receiving a parking citation remains with such
person.” [Id. at ¶ 65]. Furthermore, alleges the Plaintiff, “[t]he egregious and
shocking nature of the City of Hartford’s conduct is such that no opportunity for
hearing is adequate to redress a parking citation that is unlawfully issued.” [Id. at
¶ 66]. The Court finds that Plaintiff has not plausibly pled a claim of a violation of
procedural due process rights for which relief can be granted.
Procedural due process “imposes constraints on governmental decisions
which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of
the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v.
Eldridge, 424 U.S. 319, 332 (1976). “In procedural due process claims, the
deprivation by state action of a constitutionally protected interest in ‘life, liberty,
or property’ is not in itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.” Zinermon v. Burch,
494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) (emphasis in
original). Due Process is a “flexible concept” that “varies with the particular
situation.” Id. at 127. The Supreme Court has articulated a test to determine what
procedural protections the Constitution requires in a particular case:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). In
applying this test, the Court usually has held that the Constitution requires a
hearing before the State deprives a person of liberty or property. See, e.g.,
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985) (“[T]he root
requirement of the Due Process Clause [is] that an individual be given an
opportunity for a hearing before he is deprived of any significant property
interest.”) (emphasis in original). Indeed, “[a]n essential principle of due process
is that a deprivation of life, liberty, or property ‘be preceded by notice and
opportunity for hearing appropriate to the nature of the case. Id. (quoting Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). “[T]he formality
and procedural requisites for the hearing can vary, depending upon the
importance of the interests involved and the nature of the subsequent
proceedings.” Id. at 545.
“In order to sustain an action for deprivation of property without due
process of law, a plaintiff must ‘first identify a property right, second show that
the state has deprived him of that right, and third show that the deprivation was
effected without due process.’” Local 342, Long Island Pub. Serv. Employees,
UMD, ILA, AFL-CIO v. Town Bd. of Town of Huntington, 31 F.3d 1191, 1194 (2d Cir.
1994) (quoting Mehta v. Surles, 905 F.2d 595, 598 (2d Cir.1990)). See also Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S. Ct. 977, 989, 143 L. Ed. 2d
130 (1999). “[T]he availability of adequate pre-deprivation and post-deprivation
remedies under state law will defeat a § 1983 action brought against state actors.”
Rackley v. City of New York, 186 F. Supp. 2d 466, 481 (S.D.N.Y. 2002).
In the present case Plaintiff has identified no property interest that has
been deprived. He does not allege seizure of any of his property, including his
money or automobile, as a result of his receipt of a parking ticket. Plaintiff
alleges that the City has deprived him of his fundamental right to travel but, as
discussed above, the Court has concluded that there was no constitutionally
impermissible burden on Plaintiff’s right to travel.
Even assuming arguendo that Plaintiff was deprived of some property or
liberty interest or even his constitutional interest in travel, Plaintiff cannot
plausibly state a claim that such deprivation was effected without due process.
Plaintiff cites to no authority and the Court has not found any that procedural due
process requires more than the process Plaintiff allegedly received. The Plaintiff
cites no authority to support Plaintiff’s argument that procedure due process
required the City to use a particular type of signage regarding the P&D system.
On the contrary, Plaintiff admits that he exercised his right to a hearing and
ultimately prevailed. [Dkt. # 32, Amended Complaint, at ¶ 47]. Because Plaintiff
prevailed at the hearing and did not have to pay a fine, he cannot plausibly argue
that he was deprived of due process. See Kelly v. Rice, 375 F.Supp.2d 203, 209
(S.D.N.Y. 2005) (holding that plaintiff did not allege facts showing violation of
procedural due process in connection with the issuance of a parking ticket as
“plaintiff got all the process she was due. She got a ticket; she fought the ticket in
traffic court; she won and the summons was dismissed.”). Rackley, 186 F. Supp.
2d at 480-85 (finding that plaintiff’s procedural due process rights were not
violated when car was seized by city where plaintiff had notice of remedies,
ability to challenge tickets, and exercised right to pursue some possible remedies
while failing to pursue other possible remedies). Here as was the case in Kelly,
Plaintiff got a parking ticket, he fought the ticket, he won and the fine was
dismissed. Accordingly, Plaintiff’s procedural due process claim must be
dismissed on this basis.
Count 3: Supremacy Clause
Plaintiff alleges in Count 3 a § 1983 claim for a violation of the Supremacy
Clause, Article VI, § 2 of the U.S. Constitution. Plaintiff alleges that MUTCD
“creates a federal right to travel freely and be subject to the same notice of
prohibited conduct throughout the United States” and that “[t]he violation of
Plaintiff’s civil right to travel freely and receive equal notice of prohibited conduct
was precipitated by the official policy, custom, and usage by the City of Hartford.”
[Dkt. # 32, at ¶¶ 71-72]. First, the Court finds that Plaintiff’s claim fails because he
has not identified a conflict between federal and state law, which is required for a
valid Supremacy Clause claim. Further, Plaintiff’s claim appears to be predicated
upon an alleged conflict between MUTCD and the City’s actions in not providing
appropriate parking signage in accordance with MUTCD. This claim also fails
because MUTCD is a form of guidance and a “standard” toward which states and
municipalities should “substantially conform” rather than a strictly binding
The Supremacy Clause establishes that the U.S. Constitution, U.S. treaties,
and laws made pursuant to the U.S. Constitution “shall be the supreme law of the
land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.” U.S. Const.,
Art. VI, cl. 2. “It is a familiar and well-established principle that the Supremacy
Clause invalidates state laws that ‘interfere with, or are contrary to,’ federal law.
Hillsborough County, Fla. v. Automated Med. Laboratories, Inc., 471 U.S. 707, 71213 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211 (1824) (Marshall, C.J.)
(internal citations omitted). Federal law may supersede state law through express
congressional pre-emption or an inferred congressional intent to pre-empt in the
absence of express language “where the scheme of federal regulation is
sufficiently comprehensive to make reasonable the inference that Congress left
no room for supplementary state regulation.” Id. at 713 (internal quotations
omitted). See also Jones v. Rath Packing Co., 430 U.S. 519, 525, (1977); Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Hines v. Davidowitz, 312 U.S. 52
“Even where Congress has not completely displaced state regulation in a
specific area, state law is nullified to the extent that it actually conflicts with
federal law. Such a conflict arises when “compliance with both federal and state
regulations is a physical impossibility,” or when state law “stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of
Congress.” Hillsborough County, 471 U.S. at 713 (1985) (citing Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963); Hines v. Davidowitz,
supra, 312 U.S., at 67). See generally Capital Cities Cable, Inc. v. Crisp, 467 U.S.
691, 698-699 (1984). “[S]tate laws can be pre-empted by federal regulations as
well as by federal statutes.” Hillsborough County, 471 U.S. at 713. “[F]or the
purposes of the Supremacy Clause, the constitutionality of local ordinances is
analyzed in the same way as that of statewide laws.” Id.
In order to assert a claim under the Supremacy Clause, Plaintiff must first
identify a conflict between state and federal law. In the present case, despite
claiming that “[t]his case indisputably involves conflict-preemption,” Plaintiff has
not identified such a conflict. Plaintiff has failed to identify any state or local law
or regulation which conflicts with a federal act. Plaintiff instead appears to imply
that the actions of the City of Hartford in failing to provide proper notice of its
new P&D System violate MUDCT. Consequently, Plaintiff has not plausibly stated
a federal-state law conflict; at most, Plaintiff has asserted that the City has
violated MUTCD by failing to post appropriate signage, which is not a proper
basis for a Supremacy Clause claim. See Springfield Hosp. v. Hoffman, 09-CV00254-CR, 2010 WL 3322716 (D. Vt. Apr. 9, 2010) (plaintiff’s assertion that it was
not state legislation but officials’ actions that failed to comply with federal law
was not a valid claim under the Supremacy Clause, “which requires, as a
condition precedent to its application, a state-federal law conflict”). See also
Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 884, 120 S. Ct. 1913, 1927, 146 L.
Ed. 2d 914 (2000) (“[C]onflict pre-emption . . . turns on the identification of actual
conflict. . . .”); Livadas v. Bradshaw, 512 U.S. 107, 120 (1994) (stating that the
“Supremacy Clause requires” courts to “decide if a state rule conflicts with or
otherwise stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of the federal law.”). Here Plaintiff has failed to identify
the “actual conflict” between state and federal law which is a necessary condition
precedent to establishing a Supremacy Clause claim.
Moreover, even assuming that the Plaintiff did identify a local law that
allegedly conflicts with a federal regulation, there is no violation here because
MUTCD is not a federal law. It is merely advisory, designed to provide guidance
to states and municipalities and is not binding. Plaintiff alleges that MUTCD and
in particular section 2B.40 of MUTCD “creates a federal right to travel freely and
be subject to the same notice of prohibited conduct throughout the United
States.” [Dkt. # 32, at ¶¶ 71-72]. MUTCD is a document issued by the Federal
Highway Administration (“FHWA”) of the United States Department of
Transportation that has been incorporated by reference into the Code of Federal
Regulations. 23 C.F.R. § 655.601. The purpose of MUTCD is to encourage rather
than to impose uniformity in traffic control devices across the nation and to
improve the safety and efficiency of the surface transportation system. (MUTCD,
2003 ed. Rev. 2, at I-I, § 1A.01).
MUTCD as approved by the FHWA is the “national standard for all traffic
control devices installed on any street, highway, or bicycle trail open to public
travel in accordance with 23 U.S.C. 109(d) and 402(a).” 23 C.F.R. § 655.603(a).
State or other federal agency MUTCDs must be in “substantial conformance” with
the national MUTCD. 23 C.F.R. § 655.603(b)(1). States and other federal agencies,
however, “are encouraged to adopt the National MUTCD in its entirety as their
official Manual on Uniform Traffic Control Devices.” 23 C.F.R. § 655.603(b)(2)
The text of MUTCD indicates that it is primarily a form of guidance rather
than a binding document. Section 1A.02, titled “Principles of Traffic Control
Devices” provides that “This Manual contains the basic principles that govern the
design and use of traffic control devices for all streets and highways open to
public travel” and notes that importance of giving these principles “primary
consideration in the selection and application of each device.” (emphasis added).
MUTCD’s introductory sections demonstrate further that the purpose and intent
of the document is to provide standards of guidance for states and municipalities
to follow, rather than mandatory, binding rules. For example, Section 1A.04, titled
“Placement and Operation of Traffic Control Devices” provides as follows:
Placement of a traffic control device should be within the road user’s view
so that adequate visibility is provided. To aid in conveying the proper
meaning, the traffic control device should be appropriately positioned with
respect to the location, object, or situation to which it applies. The location
and legibility of the traffic control device should be such that a road user
has adequate time to make the proper response in both day and night
Traffic control devices should be placed and operated in a uniform and
MUTCD, § 1A.04 (emphasis added).
Plaintiff relies on section 2B of MUTCD in support of his Supremacy Clause
claim which provides “standards” for regulatory signs. Section 2B.39 entitled
“Parking, Standing and Stopping Signs” expressly states that “Signs governing
the parking, stopping, and standing of vehicles cover a wide variety of
regulations, and only general guidance can be provided here.” §2B.39 (emphasis
added). Although Section 2B.40 regarding the “design of parking, standing, and
stopping signs” which Plaintiff relies on uses the term “shall” as opposed to
“should,”1 Section 2B.39 makes clear that Section 2B.40 is merely general
guidance and is not meant to be controlling or binding. It is therefore clear
based on the express terms, structure, and context of MUDCT that it poses
nothing more than a form of guidance for states and local municipalities to follow
in the design and placement of regulatory, including parking, signs. See also
Wasserman v. City of New York, 802 F. Supp. 849, 855 (E.D.N.Y. 1992) aff'd, 60
F.3d 811 (2d Cir. 1995) (finding no liability on city for placement of signs allegedly
in violation of MUTCD because suggested advance posting distances were
Section 2B.40 provides that the “the legend on parking signs shall state
applicable regulations. Parking signs shall conform to the standards of shape,
color, and location. Where parking is prohibited at all times or at specific times,
the basic design for parking signs shall have a red legend and border on a white
background (Parking Prohibition signs). Where only limited-time parking or
parking in a particular manner are permitted, the signs shall have a green legend
and border on a white background (Permissive Parking signs).” MUTCD, § 2B.40.
“guides”). MUTCD should therefore be viewed more as an aspirational guide, like
uniform building codes. Since MUTCD is not controlling or binding, it cannot
support a plausible Supremacy Clause claim. Accordingly, Plaintiff’s Supremacy
Clause claim (Count 3) must be dismissed because Plaintiff has not plausibly
stated a claim for which relief can be granted.
Lastly, to the extent that Plaintiff is really alleging that the City violated
MUDTC and assuming MUDTC was binding, Plaintiff would not have a private
right of action to bring such a challenge directly. “[T]he fact that a federal statute
has been violated and some person harmed does not automatically give rise to a
private cause of action in favor of that person.” Cannon v. Univ. of Chicago, 441
U.S. 677, 688 (1979). The task in determining whether a private right of action
exists is limited solely to determining whether Congress intended to create a
private right of action. Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979).
Courts often rely on several factors to determine legislative intent, including
whether the plaintiff is part of the class of persons "for whose especial benefit"
the statute was enacted, whether the legislative history suggests that Congress
intended to create a cause of action, whether granting an implied cause of action
would support the underlying remedial scheme set down in the statute, and
whether the cause of action is one traditionally relegated to state law in an area of
state concern so that it would be inappropriate to infer a cause of action based
solely on federal law. Touche Ross, 442 U.S. at 576 (quoting Cort v. Ash, 422 U.S.
66, 78 (1975). “The ultimate question," however, "is one of legislative intent, not
one of whether this Court thinks that it can improve upon the statutory scheme
that Congress enacted into law.” Id. at 578. A court must “begin [its] search for
Congress's intent with the text and structure” of the statute, id. at 288, 121 S.Ct.
1511, and cannot ordinarily conclude that Congress intended to create a right of
action when none was explicitly provided. Olmsted v. Pruco Life Ins. Co. of New
Jersey, 283 F.3d 429, 432 (2d Cir. 2002) (quoting Sandoval, 532 U.S. at 288).
Statutes that focus on the person regulated rather than the individuals protected
create “no implication of an intent to confer rights on a particular class of
persons.” Sandoval, 532 U.S. at 289 (quoting California v. Sierra Club, 451 U.S.
287, 294 (1981)). When a statute “focuses neither on the individuals protected nor
even on the funding recipients being regulated, but on the agencies that will do
the regulating . . . there [is] far less reason to infer a private remedy in favor of
individual persons.” Id. (internal quotations and citations omitted).
Here there is no indication that Congress intended to create a private right
of action to challenge a violation of MUTCD which is incorporated into 23 C.F.R. §
655.603. The authority for 23 C.F.R. § 655.603 is provided in 23 U.S.C. § 402(a).2
Section 402(a) is part of the Highway Safety Act, 23 U.S.C. §§ 401 et seq., passed
in 1966 for the principal purpose of “enhance[ing] the personal safety of the
motoring public.” Miller v. United States, 710 F.2d 656, 667 (10th Cir. 1983).
Section 402(a) provides, in pertinent part, that “[e]ach State shall have a
highway safety program approved by the Secretary, designed to reduce traffic
accidents and deaths, injuries, and property damage resulting therefrom. Such
programs shall be in accordance with uniform guidelines promulgated by the
Secretary. Such uniform guidelines shall be expressed in terms of performance
criteria. In addition, such uniform guidelines shall include programs . . . to
improve law enforcement services in motor vehicle accident prevention, traffic
supervision, and post-accident procedures.”
However, such a purpose does not compel a leap to the conclusion that
Congress intended to create a private right of action. Id. Rather, the “pervading
legislative purpose disclosed by the historical materials was to encourage
research, development and application of safety measures by a financial
incentive system to be executed through the state highway departments.” Miller,
710 F.2d at 667. Other courts have likewise concluded that there is no private
right of action under the Highway Safety Act 23 U.S.C. §§ 402. See, e.g., Miller,
710 F.2d at 667-68 (holding that no private cause of action can be maintained
under the Highway Safety Act); Morris v. United States, 585 F. Supp. 1543, 154748 (W.D. Mo. 1984) (plaintiffs could not maintain private cause of action under
Highway Safety Act for alleged violation of MUTCD); Daye v. Com. of Pa., 344 F.
Supp. 1337 (E.D. Pa. 1972) aff'd, 483 F.2d 294 (3d Cir. 1973), cert. denied, Meyers
v. Pennsylvania, 416 U.S. 946, 94 S. Ct. 1956, 40 L. Ed. 2d 298 (1974) (no private
cause of action under Section 402(a) of Highway Safety Act and regulations
promulgated thereunder); Cox v. State, 110 Misc. 2d 924, 443 N.Y.S.2d 141 (N.Y.
Ct. Cl. 1981) (same). This Court concurs and here holds that there is no private
right of action for an alleged violation of MUTCD as incorporated into 23 C.F.R. §§
600 et seq. Accordingly, to the extent that Plaintiff’s alleges a violation of the
MUTCD, such claim is DISMISSED as no private right action exists.
Count 4: CUTPA
Plaintiff alleges in Count 4 of his Amended Complaint that the City has
violated the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. §§ 42-110b
et seq. (“CUTPA”), because the City’s conduct “offends basic principles of
fairness.” [Dkt. # 32 at ¶ 79]. Plaintiff claims that the City is “stealing” because it
is “collecting money in a manner it is not authorized to do so by law.” [Dkt. # 59
at 6]. However, Plaintiff’s CUTPA claim fails as CUTPA does not apply as the
alleged conduct by the City does not fall within the definitions of “trade” or
“commerce” as provided in CUTPA.
Conn. Gen. Stat. § 42-110c (CUTPA) provides in relevant part as follows:
“exceptions: (a) Nothing in this chapter shall apply to: (1) Transactions or actions
otherwise permitted under law as administered by any regulatory board or officer
acting under statutory authority of the state or of the United States...” On the
basis of this statutory exemption, trial courts in Connecticut have concluded that
CUTPA will likely not apply to the majority of conduct by a political subdivision of
the state. Capital Prop. Associates v. Capital City Econ. Dev. Auth.,
X07CV044001293, 2006 WL 302073 (Conn. Super. Ct. Jan. 18, 2006) (“Most trial
courts have held that CUTPA is inapplicable to the actions of a governmental
entity, as a matter of law, even if that conduct, performed by a private person,
might be considered to have commercial overtones.”) (collecting cases).
In Connelly v. Housing Authority, 213 Conn. 354 (1990) the Connecticut
Supreme Court established the standard for determining whether governmental
conduct is actionable under CUTPA and counseled courts to consider four
factors. The first factor is whether “the action of the defendant [agency] a
creature of statute, are expressly authorized and pervasively regulated” by the
state and the federal government. Id. at 361. The second is whether federal
regulations or state law “provide carefully balanced procedural and substantive
remedies.” Id. at 362. The third is whether those regulatory remedies “carefully
balance the rights and obligations” of the agency and the claimant which “would
be upset by holding that a CUTPA remedy, lacking the procedural prerequisites
and specifically tailored” nature applied in addition to those regulatory remedies.
Id. at 363. The fourth factor is whether there has been any instance in which the
Federal Trade Commission Act has been applied to the conduct in question. Id.
at 362. The court’s decision in Connelly did not state whether all four factors had
to be met in order for municipal action to be exempt from CUTPA.
Applying all four of the factors discussed in Connelly, this Court holds that
the conduct of which the Plaintiff complains is exempt from liability. First, the
City of Hartford and the HPA are creatures of state and local legislative action.
The City of Hartford is a Connecticut municipality as defined under General
Statutes §§ 7-148 and 7-202, having the power to regulate traffic, public highways
and public property. It has the specific authority to establish regulations for onstreet parking. Conn. Gen. Stat. § 7-148(c)(7)(b) authorizes the City to regulate
traffic. Specifically, it authorizes the city to regulate, not inconsistent with the
general statutes, traffic, the operation of vehicles on streets and highways, offstreet parking and on-street residential neighborhood parking areas. The City is
also authorized to regulate the use of streets, sidewalks, highways, public places
and grounds for public and private purposes. Conn. Gen. Stat. §7-148(b)(7)(H)(xi).
The City also has the power to regulate its property. Conn. Gen. Stat. §7148(b)(7)(H)(xvi).
The City has the authority to establish a parking authority. Conn Gen Stat .
§7-203. The HPA was established by the City of Hartford pursuant to this
authority. Hartford Municipal Code Chapter 22. As a municipal parking authority,
the HPA is authorized by state law to enforce parking regulations in accordance
with the terms of such ordinance. Conn. Gen. Stat. § 7-204. “The power to
regulate the use of streets and highways by restrictions on the parking of
vehicles is one universally recognized, and its reasonable exercise is
consistently upheld.” Cassidy v. City of Waterbury, 130 Conn. 237, 239 (1943).
The power is in the legislature. It may be delegated by it to its municipal
subdivisions. Id. The power to regulate the use of the streets is a delegation of
the police power of the state government, and whatever reasonably tends to
make regulation effective is a proper exercise of that power. Id.
Indeed, Plaintiff alleges in his amended complaint that the City is a
municipality as defined under Connecticut General Statutes §§ 7-148(a), 7-202,
having the power to establish regulations for on-street parking. [Dkt. # 32,
Amended Complaint at ¶ 9]. Plaintiff further alleges that the Municipal Code at its
Chapter 22, Motor Vehicles and Parking authorizes the City’s traffic authority to
regulate on-street parking including the authority to install parking meters,
designate parking meter zones, fix the zone parking fees and times, designate the
hours during which the use of parking meters shall be required. Id. at ¶¶10-11.
Second, these municipal regulations provide carefully balance procedural
and substantive remedies as evinced by the fact that Plaintiff was afforded,
accessed and prevailed in a due process proceeding which resulted in a
rescission of the parking penalty. See Hartford Municipal Code 22-25 (providing
that an operator of a vehicle which received a parking citation “may contest the
violation by appearing at the citation hearing.”). Third, the regulatory remedies
demonstrably and thus carefully balanced the rights and obligations of the City
and HPA against those of the Plaintiff again evinced by the fact that the Plaintiff
prevailed in his due process proceeding. The imposition of a private right of
action under CUTPA would undoubtedly upset this timely, efficient and effective
remedy, creating delay and complexity with no apparent benefit. Fourth, the
plaintiff cites and this Court has found no instance in which the Federal Trade
Commission Act has been applied to the imposition of a parking fee. Thus
applying all four Connelly factors, this Court holds that the City and HPA are
exempted from liability under CUTPA for the issuance of a parking fine.
Even applying a traditional CUTPA analysis, the City has no liability under
CUTPA because the issuance of a parking ticket is the exercise of police power
as stated above and is not the conduct of a trade of business. A private cause of
action under CUTPA arises only if the alleged unfair or deceptive practices “were
the conduct of ‘trade’ or ‘commerce.’” Jackson v. R.G. Whipple, Inc., 225 Conn.
705, 726 n.15 (1993). Trade and commerce is defined “as the advertising, the sale
or rent or lease, the offering for sale or rent or lease, or the distribution of any
services and any property, tangible or intangible, real, personal or mixed, and any
other article, commodity, or thing of value in this state.” Conn. Gen. Stat. § 42110a. Consequently, not every transaction which might otherwise be called trade
or commerce triggers CUTPA. Id. Here, it is clear that the alleged conduct by the
City of Hartford and HPA neither falls within the definition of trade and commerce
under CUTPA, nor has Plaintiff’s alleged harm derived from a consumer,
competitor, or other type of business relationship. “[I]t strains credulity to
conclude that CUTPA is so formless as to provide redress to any person, for any
ascertainable harm, caused by any person in the conduct of any “trade” or
“commerce.” Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 725-27 (1993). See
also id., at 725-27 n.15. Indeed, the plain language of CUTPA dispels any question
as to whether the City’s issuance of a parking citation constitutes “trade” or
“commerce.” The City did not advertise, sell, offer to sell, or distribute any
services, property, or anything of value. It issued a parking ticket to a vehicle
owner who the City deemed had illegally parked his car.
Moreover, “a CUTPA violation may not arise out of conduct that is merely
incidental to the performance of one's trade or commerce.” Cornerstone Realty,
Inc. v. Dresser Rand Co., 993 F. Supp. 107, 112-13 (D. Conn. 1998) (collecting
cases). See also Brandewiede v. Emery Worldwide, 890 F.Supp. 79, 81
(D.Conn.1994) (no viable claim under CUTPA for conduct in leasing aircraft where
leasing aircraft was incidental to defendant's primary business of providing
overnight freight service); Arawana Mills Co. v. United Technologies Corp., 795 F.
Supp. 1238, 1253 (D. Conn. 1992) (“defendant's act of leasing property from
plaintiff is incidental to the conduct of its true business on the Property, the
repair and servicing of aircraft engines”) (emphasis added). In the present case,
even assuming that the regulation of parking is trade or commerce, it is clear that
the distribution of parking tickets to illegally parked cars is no more than “merely
incidental to the performance of” the City’s regulation of parking. For all these
reasons, Plaintiff’s CUTPA claim must be dismissed as a matter of law.
Count 5: Malicious Prosecution/False Arrest
Finally, Plaintiff claims false arrest and malicious prosecution in Count 5 of
his Amended Complaint. Plaintiff claims that the City, “in unlawfully prosecuting
Plaintiff . . . without probable cause, committed acts so egregious, so outrageous,
as to constitute malicious conduct.” [Dkt. # 32 at ¶ 88]. Because it is clear that
there was no restriction of physical liberty amounting to false arrest, and that no
malice was involved in the City’s alleged conduct, this claim must also be
“In analyzing claims alleging the constitutional tort of false arrest, [the
Second Circuit] ha[s] generally looked to the law of the state in which the arrest
occurred.‟” Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007) (quoting
Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). In Connecticut, “[f]alse
imprisonment, or false arrest, is the unlawful restraint by one person of the
physical liberty of another.” Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973
(1982). “[T]he applicable law for these two causes of action is identical.” Outlaw
v. City of Meriden, 43 Conn. App. 387, 392, 682 A.2d 1112 (1996). “To prevail on a
claim of false imprisonment, the plaintiff must prove that his physical liberty has
been restrained by the defendant and that the restraint was against his will, that
is, that he did not consent to the restraint or acquiesce in it willingly.” Berry v.
Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992). The restraint must be
accomplished “through the exercise of force.” Id. at 821. Here, Plaintiff has not
pled a claim that is plausible on its face that Plaintiff’s “physical liberty has been
restrained” by Defendant, against Plaintiff’s will. Outlaw, 43 Conn. App. At 392.
Rather, Plaintiff was free to go after receiving his ticket and after the hearing.
Furthermore, his ticket was dismissed. Therefore, Plaintiff has not suffered any
“restraint” or deprivation. Nor has Plaintiff even claimed that his alleged restraint
was accomplished “through the exercise of force.” Berry, 223 Conn. at 820. Thus,
Plaintiff’s false arrest claim cannot be maintained.
Moreover, courts have repeatedly held that the issuance of a traffic ticket
or court summons alone does not constitute a seizure under the Fourth
Amendment for the purposes of establishing a false arrest or malicious
prosecution claim. “[T]he issuance of a pre-arraignment, non-felony summons
requiring a later court appearance, without further restrictions, does not
constitute a Fourth Amendment seizure.” Burg v. Gosselin, 591 F.3d 95, 98 (2d
Cir. 2010). See also id., at 100 (“Plaintiff cannot claim issuance of the traffic ticket
effected a ‘seizure’ because upon appearing to answer the charges in the ticket,
he would have been afforded a trial. On the date he was issued the parking ticket,
he was ‘free to leave.’ As a result, plaintiff has no § 1983 claim against [the police
officer] for issuance of the ticket. (quoting DePiero v. City of Macedonia, 180 F.3d
770, 789 (6th Cir.1999)); Martinez v. Carr, 479 F.3d 1292, 1299 (10th Cir.2007)
(“[T]he mere issuance of a citation requiring presence at future legal proceedings
does not qualify as a constitutional ‘seizure’....”); Mangino v. Inc. Vill. of
Patchogue, 739 F. Supp. 2d 205, 228 (E.D.N.Y. 2010) on reconsideration in part,
814 F. Supp. 2d 242 (E.D.N.Y. 2011) (“No court has held that a summons alone
constitutes a seizure, and we conclude that a summons alone does not equal a
seizure for Fourth Amendment purposes. To hold otherwise would transform
every traffic ticket and jury summons into a potential Section 1983 claim.”
(quoting Bielanski v. Cnty. of Kane, 550 F.3d 632, 642 (7th Cir.2008)); Wang v. City
of N.Y., Nos. 05 Civ. 4679(AKH), 05 Civ. 5943(AKH), 2008 WL 2600663, at *4
(S.D.N.Y. June 26, 2008) (“In order to show that the tort of malicious prosecution
is also a § 1983, or constitutional violation, plaintiff must show some postarraignment deprivation of liberty. . . . [A] pre-arraignment summons does not
constitute a seizure when evaluating a malicious prosecution claims.” (internal
citations omitted)). Consequently, Plaintiff cannot maintain a Section 1983 claim
for violation of his Fourth Amendment rights as the issuance of a parking ticket
does not constitute a seizure within the meaning of the Fourth Amendment.
Additionally, to prevail on a § 1983 claim against a state actor for malicious
prosecution, a plaintiff must show a violation of his rights under the Fourth
Amendment, and establish the elements of a malicious prosecution claim under
state law. Fulton v. Robinson, 289 F.3d 188 (2d Cir. 2002). In Lopes v. Farmer, 286
Conn. 384 (2008), the Connecticut Supreme Court specified the elements for a
state law claim of malicious prosecution, as follows: “(1) defendant initiated or
procured the institution of criminal proceedings against the plaintiff; (2) the
criminal proceedings have terminated in favor of the plaintiff; (3) the defendant
acted without probable cause; and (4) the defendant acted with malice, primarily
for a purpose other than that of bringing an offender to justice.” Lopes, 286 Conn.
at 389-90. Here, Plaintiff has not pled that “the defendant acted with malice,
primarily for a purpose other than that of bringing an offender to justice.” Lopes,
286 Conn. at 389. By all reasonable inferences, the City merely issued a parking
ticket to a car that appeared to be parked illegally. Further conclusive is the fact
that the City dismissed Plaintiff’s ticket after the hearing, and Plaintiff did not pay
any fine as a result of this incident. Such conduct is not malicious by any stretch
of the imagination. Accordingly, Plaintiff’s False Arrest/Malicious Prosecution
claim must be dismissed.
Based upon the above reasoning, the Defendant City of Hartford’s [Dkt. #
52] motion for summary judgment, which the Court construes as a motion for
judgment on the pleadings for reasons stated above, is GRANTED as to all
claims. All of Plaintiff’s claims as alleged in the Amended Complaint [Dkt. # 32]
are hereby dismissed. The Clerk is directed to enter judgment in favor of
Defendant and close the case.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: August 24, 2012
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