Henneghan v. Skinner et al

Filing 20

MEMORANDUM OPINION re: 13 Motion to Dismiss and Motion for Summary Judgment. (see Order for details) Signed by District Judge Leonie M. Brinkema on 3/19/10. (copy mailed per LMB chambers)(tfitz, )

IN THE

UNITED

STATES DISTRICT

COURT

FOR THE

EASTERN DISTRICT

OF VIRGINIA

Alexandria Division

GERALD

HENNEGHAN

Plaintiff,
v.

1:O9CV8O4
SKINNER, Chief of )

(LMB/IDD)

JOHN J.

Police,

Manassas
et

City Police

)
)

Department,

al.

)
Defendants. )
MEMORANDUM OPINION

On February of

12,

2010,

the defendant,

John J.

Skinner,

Chief

Police Manassas

City Police Department

{"Police Department") [13],

filed a Motion to Dismiss and Motion for Summary Judgment

which included the as

full Roseboro warning to Civil Rule 7(K).

the pro se plaintiff

required by Local

By failing to respond to
the facts alleged

the motion,

plaintiff has not

contested any of

in that motion.
before oral the Court,

Accordingly,
the

on the basis

of

the written record
granted without

defendant's motion will be

argument.

Plaintiff, count

Gerald Henneghan

(Henneghan), Skinner,

filed a twelvePolice,

complaint against John J.

the Chief of

Manassas

City Police Department

("Skinner")

and Henry's Wrecker

Service Company of Fairfax County
that the defendants' conduct

("Henry's Wrecker")
the

alleging

in connection with

ticketing and

subsequent various

towing,

storing,

and sale of his

1984

BMW violated

federal

rights and was done with discriminatory and

retaliatory intent based on his race,

gender,

and origin.

Henneghan seeks Skinner fails, court's as

$1 million in damages per count. a dismissal of this law, action because Henneghan for this of his

seeks

a matter of

to allege a proper basis In paragraph 4

subject matter

jurisdiction.

complaint Henneghan invokes

the

court's

jurisdiction under 28

U.S.C.

§

1331,

which sets out the requirements

for diversityif the

jurisdiction.

Diversity jurisdiction does not exist the same

plaintiff and any defendant are residents of

state.

Because plaintiff and both defendants there is no basis

are Virginia residents, The plaintiff also

for diversity jurisdiction.

appears to claim federal question jurisdiction by referring to the Civil Rights Act of 1964. Although the complaint includes in

the description of

the parties a statement that

"plaintiff at all

times during the course of his employment by the defendants performed his job duties in an acceptable manner," this lawsuit

is clearly not about employment discrimination,

as there is not a

single allegation of an employment relationship between plaintiff
and either the Police Department or Henry's Wrecker.

Reading the complaint generously because the plaintiff is
pro se, could be the only other basis for federal question jurisdiction treated

an equal protection claim

(that he was

differently than similarly situated persons because of his race)

or that his Fourth Amendment rights were violated when the police
department determined that his BMW was abandoned and seized it by

ordering that

it be

towed.

Specifically,

Henneghan alleges
2

that

the Police Department

discriminated against him and treated him disparately when on August 13, 2007, it issued a traffic citation to his 1984 BMW for
tow the

expired registration and later called Henry's Wrecker to
BMW after Henneghan failed to move it from the public

roadway.

On October 1,

2007,

Henneghan filed for bankruptcy protection,

a

part of which involved his He complains
threatened to

effort

to obtain a release of

the BMW.

that Henry's Wrecker refused to release
retitle that it and sell

the car and

it at public auction. subject white

Henneghan alleges

the wrecking company did not

customers

to

similar treatment and that

this

conduct was sex, place of

discriminatory and disparate based on his
origin, As and retaliation for filing Skinner correctly argues,

race,

for bankruptcy. claims against city officials

such as

the Chief of

Police

in his

official

capacity are

treated

as claims against
Dept. of

the city itself.
830 F.2d 547,

Giancola v.
550

State of W.Va.
1987).
Services,

Public Works,
v.

(4th Cir.
of

Because under Monell

New York City Dept.

Social

436

U.S.

658,

663

n.7

(1978),

a city cannot be held

liable

for

alleged violations of civil rights by its employees under
respondeat superior,
it enacted a policy,

the

City of Manassas

could only be

liable

if

practice,

or custom that violated

plaintiff's rights.
Henneghan,
therefore,

Such activity has not been alleged by
factual allegations
federal

nor do
this

the

support such a claim,

Court has no

question subject matter

jurisdiction over any of Accordingly,

the claims

against

the

Chief of

Police.

defendant Skinner's Motion to Dismiss will be
3

granted.

Even if

the Court had subject matter jurisdiction,

the

defendant's Motion for Summary Judgment would be granted on the basis of the uncontested facts defendant has consist of the affidavits presented. and exhibits Those

uncontested facts

submitted by the defendant, Findlay,
avers

including an affidavit of John who

a Police Department officer since December 2006,
7, 2007, he saw a 1984 a public BMW 318i

that on August 9254

car parked

in front of Manassas,

George Street,

street

in the City of that

displaying Virginia license plates

and tags

expired on June 30,

2007.

He issued a traffic citation and
later, on August 13, 2007,
parked in

placed it on the car.
Findlay saw the same

Six days
car,

with the same expired tags,

the

same

spot.

Following department procedure he ran the license

plate number through his VCIN system to learn the name and
address have the of the registered owner. He then prepared a tow sheet that he did not know the the to

car towed.

Findlay explains

owner of

the car and that from the

the only information he had about data base. In

owner came

state motor vehicle

particular,
the

Findlay did not know the race or any details
the ticket, and was unaware of

about

owner when he wrote

any past

dealings plaintiff may have had with the Police Department. Findlay described the process explaining that the city maintains companies. To qualify for the list
tow trucks,

for choosing a towing service, a list of different towing

a company must maintain a
lot space, and submit

minimum number of

have adequate
4

to an annual

inspection.

Defendant Henry's Wrecker was

one of

seven towing companies on that

list at that

time.

The

Public

Safety Community Center keeps a list of the authorized companies.
Once one
so

is dispatched,
the

its name goes

to the bottom of
equal chances

the

list

that all

towing companies get

to respond to

towing orders.

Attached to Findlay's affidavit is a copy of the traffic
citation,
if the

which includes a warning that
not moved within

towing would be requested
It also lists the

car was

four days.

fine for not having a current
tow sheet Findlay
attached. and lists It

state registration as
on August
for the

$25.00.
also

The

filled out
the

13,

2007,

is

lists

reason

tow order as Gerald,

"abandoned" 9588 Green

the registered owner as Henneghan,

Road,

Midland,

VA 22728.

Lt. affidavit

William Hutchinson of

the Police Department

submitted an

in which he explained how plaintiff was 2007, that his car had been towed.
explains that

sent notice on which

August 27,

That notice,

is attached to the affidavit, towed the car at

Henry's

Wrecker had

the police department's

direction and was

storing it.
might be

The

letter also advises Henneghan that

storage
the

fees
towing

accruing and provided contact

information for

company and police department.

Obviously Henneghan did not respond to the
because attached to Hutchison's affidavit is a

traffic citation
copy of a sent to

Notification of Delinquent plaintiff on August 27,

Parking Violation, indicating
5

which was

2007,

that

his penalty had

doubled to $50.00,

and that failure to pay the ticket within five The final notice, sent

days could result in collection action.
on September 19, 2007, is also attached.

Hutchinson averred that the addresses on all these notices
was the address listed in the state's motor vehicle registration records. Lastly, he avers that in the year 2007, the Police

Department issued 1,258 tickets for vehicles with expired license

plates or tags,
August 2007.
tow requests

and that 128 of these tickets were issued in

He could not supply statistics as to the number of
issued.

The evidence unequivocally establishes that neither
Henneghan's race, gender, nor national origin played any role in

the police department's conduct.

As the defendant correctly

points out,

under Virginia law it is unlawful to operate a motor

vehicle on a Virginia public roadway if the vehicle is not
lawfully registered and validly displaying license plates which

show current registration.

Va.

Code §§ 46.2-600,

4 6.2-712.

Police have the right to declare a motor vehicle "abandoned" if it remains on a public roadway illegally for more than 48 hours.
Va. Code § 4 6.2-1200.

Therefore,
defendant,

the record lacks a scintilla of evidence that the
in any respect violated any of plaintiff's

Skinner,

federally protected rights,

and summary judgment would have been

granted in defendant's favor if the Court had subject matter
jurisdiction.

Whether a federal court has subject matter jurisdiction "may
6

be raised at any time by either party or sua sponte by the court." Plyer v. the Moore, 129 F.3d 728, 731 n.6 (4th Cir. 1997).

Accordingly,

Court has also evaluated whether it has subject
the claims against the remaining

matter jurisdiction over

defendant,

Henry's Wrecker.

For the same

reasons discussed

above,

the Court finds that there
defendant because

is no diversity jurisdiction

over this

the wrecking company and plaintiff

are both citizens of Virginia.

Moreover,
on the part of
to tow or store

Henneghan has not alleged any independent action
the
the

towing company in connection with the decision
car. To the contrary, the co-defendant's

evidence

establishes

that the decision to

tow the car was made by

the police department simply due to it being

and that this defendant became the next company in line
there

involved issued a
a towing or

to be

towing order. scintilla of

On these uncontested facts, evidence that defendant

is not

Henry's

Wrecker's

storing the BMW were motivated by a discriminatory or retaliatory
intent. Accordingly, there is no subject matter jurisdiction sua

over those claims,
sponte.

which will be dismissed by the Court

Plaintiff's

claim regarding his bankruptcy

is difficult

to

decipher,

but read broadly it appears

to allege stay.

that Henry's the public
the

Wrecker somehow violated the automatic
record of plaintiff's

However,
shows that

bankruptcy proceeding

bankruptcy court

has

already addressed that

issue,

finding

that

the defendant's

auction of

the BMW violated the
7

stay and ordered

Henry's Wrecker to pay Henneghan $600.00. Wrecker Service, 2008). Adv. Proc. No.

Henneghan v. (E.D.Va.

Henry's

07-1147(RGM)

June 18,

To the extent Henneghan is trying to relitigate Henry's

Wrecker's sale of the car,

that issue has been fully adjudicated,

and Henneghan is foreclosed from reopening the claim under the
doctrine of res iudicata. Further, Henneghan's Chapter 13

bankruptcy petition was dismissed,

not discharged,

after he

failed to fulfill payment obligations under the bankruptcy

payment plan. a discharge,

Accordingly,

he did not receive the protection of

and has therefore not alleged any basis on which to

claim defendant Henry's Wrecker has violated any of his rights
concerning the bankruptcy proceedings. In re: Gerald Henneahan.

1:07-12788 (RGM)

{June 27,

2008),

appeal dismissed.

Hennecrhan v.

O'Donnell,

No.

1:08cvl034(TSE/IDD)

{E.D.Va.

October 31,

2008).

For all these reasons,

the Court will dismiss all claims
Skinner and Henry's

pending against both defendants John J.

Wrecker Service Company of Fairfax County.

An Order dismissing the complaint will be issued with this
Memorandum Opinion.

Entered this

/?

day of March,

2010.

Alexandria,

Virginia

Leonie M. Brinkema

United States District