DRAPER v. OFFICER SWEENEY

Filing 37

MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO DISMISS IS GRANTED, AND THE PLAINTIFF'S AMENDED COMPLAINT IS HEREBY DISMISSED WITH PREJUDICE. SIGNED BY HONORABLE LOUIS H. POLLAK ON 7/27/11. 7/29/11 ENTERED AND COPIES MAILED TO DRAPER, E-MAILED.(fdc)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARC DRAPER,
No. 10-1080

Plaintiff,
v.
DARBY TOWNSHIP POLICE
DEPARTMENT, et al.,
Defendants.

July 27 , 2011
MEMORANDUM ORDER
On March 31, 2010, plaintiff Marc Draper filed a pro se complaint against
numerous defendants alleging that his vehicle was impounded in violation of the
Pennsylvania Vehicle Code and the Due Process Clause of the Fourteenth Amendment.
On March 7, 2011, this court dismissed Draper’s complaint in its entirety, and granted
Draper leave to file an amended complaint against Officer Sweeney. See Draper v.
Darby Twp. Police Dep’t, — F. Supp. 2d —, 2011 WL 830292, at *6 (E.D. Pa. Mar. 7,
2011). Draper filed an amended complaint on April 6, 2011, and thereafter Officer
Sweeney filed a motion to dismiss. For the following reasons, Sweeney’s motion to
dismiss will be granted, and Draper’s amended complaint will be dismissed with

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prejudice.
I.

Background
According to the amended complaint, on September 8, 2009, Officer Sweeney

“towed or ordered the towing” of Draper’s Plymouth Neon, which was parked in a private
parking lot accessible to the public located next to a mall in Sharon Hill, Pennsylvania.
Am. Compl. 3. Draper subsequently received a letter, dated September 9, 2009, and
signed by Officer Sweeney, which stated that his vehicle was towed because it “ha[d]
been found abandoned.” See Compl. 7. Draper received a second letter, dated September
29, 2009, from the Pennsylvania Department of Transportation (“DOT”), stating that the
vehicle would be “disposed of” if Draper did not claim it within thirty days. See Compl.
8. Draper alleges that Sweeney’s actions (1) constituted a due process violation, (2)
violated the Fourth Amendment’s prohibition on unreasonable seizures, and (3) violated
provisions of Pennsylvania law governing the towing of vehicles.1 Am. Compl. 3–4.
Each of these arguments is addressed below.
II.

Discussion
To survive a motion to dismiss brought under Rule 12(b)(6), a complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell

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Draper also asserts that Officer Sweeney impersonated an attorney and/or an
officer of the court. The court finds these conclusory assertions, which are unsupported
by any well-pled factual allegations, to be frivolous.
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Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.; see also Fowler v. UPMC
Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). At the same time, however,
“[c]omplaints filed pro se . . . must be liberally construed.” Merritt v. Fogel, 349 F.
App’x 742, 745 (3d Cir. 2009) (citing Erickson v. Pardus, 551 U.S. 89, 93–96 (2007)).
First, Draper argues that he received no notice before his car was towed, in
violation of his Fourteenth Amendment right to Due Process and 75 Pa. Cons. Stat.
§ 3352.2 Am. Compl. 4 ¶¶ 7, 9. This very claim was rejected in this court’s March 7,
2011, opinion dismissing Draper’s first complaint. See Draper, 2011 WL 830292, at *5
(explaining that Draper’s claim was barred on qualified immunity grounds and that
Draper was not entitled to notice under 75 Pa. Cons. Stat. § 3352 because his car was not
parked on a highway). Draper has alleged no new facts that alter the court’s earlier
analysis, and his Due Process claim must therefore fail for the reasons stated in this
court’s previous analysis.
Draper also argues that, under the Fourteenth Amendment’s Due Process Clause,
he should have been afforded a hearing after his car was towed but before his car was

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Draper denies that he is alleging a Fourteenth Amendment violation, and instead
insists that he is making a Fourth Amendment due process violation. See Docket No. 36,
at 13 (Objections to Motion to Dismiss). Because the Fourth Amendment does not
contain a due process provision, the court construes this pro se allegation as a Fourteenth
Amendment due process claim.
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finally declared abandoned. Am. Compl. 4 ¶ 6. Under Pennsylvania law, a vehicle owner
must be notified of his right to a hearing before his vehicle is finally declared abandoned.
75 Pa. Cons. Stat. § 7305(b)(5); Barshinger v. Buffington, 2004 WL 3607974, at *10 n.4
(M.D. Pa. June 10, 2004). The letter which Draper received from the DOT, dated
September 29, 2009, did not disclose Draper’s right to such a hearing. See Docket No. 4,
at 8. However, even if this omission rises to the level of a due process violation, Draper
provides no evidence that this failure was attributable to Officer Sweeney, as opposed to
the DOT, which authored the deficient letter. See id. (letter sent by the DOT’s Bureau of
Motor Vehicles, Abandoned Vehicle Unit). Thus, the court cannot “draw the reasonable
inference that [Officer Sweeney] is liable for the misconduct alleged,” and Draper’s due
process claim must fail. Iqbal, 129 S. Ct. at 1949.
Second, Draper argues that his Fourth Amendment right to be free of unreasonable
seizure was violated when Sweeney ordered that Draper’s car be towed from a private lot
without first obtaining a warrant.3 Am. Compl. 3 ¶ 5. Under Pennsylvania law, a vehicle
shall be presumed to be abandoned if it has “remained on private property without the
consent of the owner or person in control of the property for more than 24 hours.” 75 Pa.
Cons. Stat. § 102. Pennsylvania law requires police officers or other personnel
designated by a municipality (a) to “process all vehicles presumed to be abandoned” and

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The court construes the complaint to allege only an unreasonable seizure of his
car because Draper made no factual allegations that his car was actually searched.
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(b) to issue an abandoned vehicle information report authorizing a licensed salvor to
“remove, possess and further process the abandoned vehicle.” Id. § 7303.1.
Draper’s amended complaint does not state, and the record does not indicate, when
exactly Draper initially parked his car in the lot.4 However, Draper’s objections to the
motion to dismiss state that “arrangements were made for removal of [the] vehicle as
soon as possible” and that “excluding the [h]oliday, Labor Day, [T]uesday after the
[h]oliday was the soonest [arrangements] could be made.” See Docket No. 36, at 15. The
court interprets Draper’s statement as a concession that his vehicle was parked on the
private lot for at least all of Labor Day and part of the following day, and thus for more
than twenty-four hours. Accordingly, Officer Sweeney’s action of ordering the towing of
Draper’s vehicle as abandoned complied with Pennsylvania law.5
As a result, even if Officer Sweeney’s conduct amounted to a violation of the
Fourth Amendment—an issue the court does not reach—Officer Sweeney is entitled to
qualified immunity. Draper has not cited, and this court has not located, any precedent
that would support the proposition that Sweeney’s actions, which were consistent with
Pennsylvania law, “‘violate[d] clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231
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This omission is notable in light of the fact that this court’s prior opinion granting
Draper leave to amend instructed him to “describe in greater detail the factual
circumstances surrounding the towing of his vehicle.” Draper, 2011 WL 830292, at *6.
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As noted in this court’s prior opinion, Draper has not alleged that he parked in the
lot with permission.
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(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A reasonable person in
Officer Sweeney’s position would not have known that his actions, taken in compliance
with the pertinent Pennsylvania statutes, contravened the Fourth Amendment. Sweeney is
therefore not subject to suit for this alleged Fourth Amendment violation.
Third, Draper alleges various violations of the Pennsylvania Vehicle Code.
Because the court will dismiss Draper’s federal claims for the reasons explained above,
the court declines to exercise supplemental jurisdiction over these state law claims. See
28 U.S.C. § 1367(c)(3); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir.
1999).
III.

Conclusion
For the preceding reasons, it is hereby ORDERED that the defendant’s motion to

dismiss is GRANTED, and the plaintiff’s amended complain is hereby DISMISSED
with prejudice.

BY THE COURT:
/s/ Louis H. Pollak
Pollak, J.

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