Larry Krueger v. City of Eastpointe, Mich.

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 13, 2021
• Docket: 20-1385
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0463n.06

Case No. 20-1385

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

TRISHA SHANDOR, Personal Representative of the ) FILED ) Oct 13, 2021 Estate of Larry Moore Krueger, ) DEBORAH S. HUNT, Clerk ) Plaintiff - Appellant, ) ) v. ON APPEAL FROM THE ) UNITED STATES DISTRICT CITY OF EASTPOINTE, MICHIGAN; LIEUTENANT ) COURT FOR THE EASTERN CHILDS; OTHER UNNAMED EPD OFFICERS; ) DISTRICT OF MICHIGAN ) JOSEPH MADONIA, ) ) Defendants - Appellees. )

BEFORE: GIBBONS, WHITE, and THAPAR, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Larry Moore Krueger’s grandson was arrested

for driving Krueger’s 2001 Dodge Neon while intoxicated, and the Eastpointe Police impounded

the car. Instead of paying the towing and storage fees to reclaim the Neon, Krueger sued the

Eastpointe Police and individual officers, alleging violations of his federal constitutional rights

and state tort law. The district court granted the defendants’ motion for summary judgment, and

Krueger appealed. We affirm.

I.

Early in the morning on June 7, 2018, Douglas Slayton was pulled over for reckless driving

after an Eastpointe police officer observed him speeding and swerving between lanes. At the time,

Slayton was driving a 2001 Dodge Neon owned by his grandfather, Larry Moore Krueger. Slayton Case No. 20-1385, Shandor v. City of Eastpointe, Mich., et al.

had permission to drive the Neon to and from work, which is what he was doing the night he was

pulled over.

During the traffic stop, officers noted that Slayton “smell[ed] of intoxicants” and had

“bloodshot/droopy eyes.” DE 21-3, Police Report, Page ID 132. Officers searched Slayton’s

driver’s license and learned that he had three current suspensions and one outstanding warrant.

Slayton also failed several field sobriety tests and had a blood alcohol level of .258, over three

times the legal limit in Michigan. Slayton was arrested for driving while intoxicated and driving

with a suspended license. Officers called a towing company to take the Neon and conducted an

inventory search, where they found marijuana and cocaine. Slayton was subsequently charged

with possession of cocaine, possession of marijuana, operating a vehicle while intoxicated, and

driving with a suspended license.

Shortly after his arrest, Slayton signed a Notice of Seizure and Intent to Forfeit the Neon.

The notice stated that the City of Eastpointe intended to have the Neon forfeited pursuant to Mich.

Comp. Laws § 333.7521, which provides for the forfeiture of property used to transport controlled

substances. The Notice of Seizure stated that “[i]f you wish to claim an interest in the [Neon], you

must file a written claim with the Eastpointe Police Department.” DE 21-6, Notice, Page ID 139.

During his deposition, Slayton acknowledged that his signature appeared on the Notice of Seizure

but claimed that he was too intoxicated at the time to remember signing or receiving the form.

Approximately two days after Slayton was arrested, he called his mother, Trisha Shandor,

to let her know that he was in jail and that the Neon had been impounded. Shandor then told her

father, Krueger. After Krueger learned that the Neon had been seized, he went to the police station

to inquire about the vehicle and was told that it was impounded and he could not have it back yet.

Krueger hired a lawyer to “[t]ake care of it all.” DE 23-3, Krueger Deposition, Page ID 261. His

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attorney called the police department and was advised that he could file a claim and petition for

the release of the car pursuant to Mich. Comp. Laws § 333.7523. At some later date, Krueger

received a letter from the police informing him that the Neon had been seized. The letter was

initially sent to the wrong address because Krueger had not updated his contact information on the

Neon’s title registration after moving several years earlier.

Krueger’s counsel filed a motion “to determine title and/or for temporary/preliminary

injunction/stay barring sale/conveyance” of the Neon in the Michigan state court that was handling

Slayton’s criminal case at the time. DE 23-12, Motion, Page ID 308. The motion requested that

Krueger be immediately awarded possession of the vehicle. The Michigan district court denied

Krueger’s motion for lack of jurisdiction, informing him that only Michigan circuit courts could

hear claims related to seized property. Slayton’s case was later bound over to the Michigan circuit

court, but Krueger did not refile his motion in that court. The government never filed a motion to

forfeit the Neon, and the vehicle remains impounded at a storage lot “awaiting release to Krueger

upon payment of the accumulated storage costs and fees.” CA6 R. 29, Appellees’ Br., at 12.

According to Krueger, storage fees for the Neon are at least $6,676.

On February 28, 2019, Krueger filed his complaint in federal court under 42 U.S.C. § 1983

against the City of Eastpointe, Eastpointe police officer Joseph Madonia, Lieutenant Neil Childs,

and other unnamed officers involved with the impoundment of the Neon. Krueger alleged four

claims: unreasonable search and seizure in violation of the Fourth Amendment, violation of due

process based on the Fifth and Fourteenth Amendments, excessive fines in bad faith in violation

of Eighth Amendment, and conversion in violation of Michigan state law. The parties each filed

motions for summary judgment, and the district court denied Krueger’s motion and granted

defendants’ motion on all four claims. Krueger timely appealed.

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In February 2021, Krueger’s attorney notified this court that Krueger had passed away and

moved to continue oral argument until Krueger’s personal representative could be substituted as a

party. Krueger’s attorney subsequently moved for substitution of Shandor, Krueger’s personal

representative. The court granted Krueger’s motion. We now decide the appeal on the briefs.

II.

“We review a district court’s grant of summary judgment de novo.” Jackson v. City of

Cleveland, 925 F.3d 793, 806 (6th Cir. 2019) (quoting Adair v. Charter Cnty. of Wayne, 452 F.3d

482, 486 (6th Cir. 2006)). Summary judgment is appropriate only when there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986); see also Fed. R. Civ. P. 56(a). The court must view facts

in the record, and reasonable inferences that can be drawn from those facts, in the light most

favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). “A genuine issue of material fact exists when there are ‘disputes over facts that

might affect the outcome of the suit under the governing law.’” V & M Star Steel v. Centimark

Corp., 678 F.3d 459, 465 (6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). Summary judgment is not proper “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

III.

We affirm the district court’s grant of summary judgment. Krueger failed to articulate any

federal constitutional violations or violations of state law.

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A.

Krueger claimed that the search and seizure of the Neon violated the Fourth Amendment.

The district court granted defendants’ motion for summary judgment on this claim after concluding

that the Eastpointe police had a lawful basis for seizing and searching the Neon.

After Slayton’s arrest, the police lawfully towed and impounded the Neon.1 An officer has

discretion to impound a vehicle when “that discretion is exercised according to standard criteria

and on the basis of something other than suspicion of evidence of criminal activity.” United States

v. Kimes, 246 F.3d 800, 805 (6th Cir. 2001) (quoting Colorado v. Bertine, 479 U.S. 367, 375–76

(1987)). When there is no one else readily available to accept possession, the police have the

discretionary authority “to impound the vehicle in the absence of any licensed driver to attend to

it.” United States v. Harvey, 16 F.3d 109, 112 (6th Cir. 1994); see also South Dakota v. Opperman,

428 U.S. 364, 369 (1976) (“The authority of police to seize and remove from the streets vehicles

impeding traffic or threatening public safety and convenience is beyond challenge.”).

The police had the discretion to impound the Neon. Slayton was arrested between 3 a.m.

and 4 a.m., and there was no one else present who could have taken possession of the vehicle.

Krueger presented no evidence that the police impounded the Neon based on a suspicion of

criminal activity. Instead, Krueger appeared to argue that the police should have searched the

vehicle’s title information and contacted the owner. But Krueger failed to explain what difference

a title search would have made; Krueger conceded that the vehicle’s title listed the incorrect

address, admitted that he was asleep when Slayton was arrested, and acknowledged that he did not

drive at the time based on his doctor’s recommendation. The police acted within their discretion

to impound the Neon after Slayton’s arrest.

1 Krueger did not challenge the officer’s initial stop and arrest of Slayton.

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Even assuming that Krueger has standing to challenge the search of the car, see United

States v. Blanco, 844 F.2d 344, 349 (6th Cir. 1988), once the police took custody of the Neon, they

were permitted to conduct a valid inventory search. See United States v. Smith, 510 F.3d 641,

650–51 (6th Cir. 2007). There was no Fourth Amendment violation.

B.

Krueger appears to allege that the defendants violated his procedural and substantive due

process rights. However, Krueger waived the right to appeal any potential substantive due process

claim by failing to articulate a developed argument. See McPherson v. Kelsey, 125 F.3d 989, 995–

96 (6th Cir. 1997).

To succeed on a procedural due process claim, “a plaintiff must establish a constitutionally

protected liberty or property interest and show that such an interest was deprived without

appropriate process.” Midkiff v. Adams Cnty. Reg’l Water Dist., 409 F.3d 758, 762 (6th Cir. 2005).

Assuming that Krueger had a protected property interest in the Neon, which the defendants do not

contest, the only question before the panel is whether Krueger was afforded appropriate process.

Procedural due process requires that the plaintiff “be given notice of the case against him

and [an] opportunity to meet it.” Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015)

(quoting Mathews v. Elridge, 424 U.S. 319, 348–49 (1976) (alteration in original)). “[T]he notice

must be ‘reasonably calculated, under all of the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections,’ and ‘must afford

a reasonable time for those interested to make their appearance.’” Id. at 560 (quoting Mullane v.

Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). While due process does not require

that the plaintiff receive actual notice, Jones v. Flowers, 547 U.S. 220, 226 (2006), the notice

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requirement of due process is satisfied if the plaintiff receives actual notice, United Student Aid

Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010).

The City of Eastpointe provided sufficient notice of the seizure of the Neon because the

Eastpointe Police Department’s methods were reasonably calculated to inform interested parties

of the seizure of the Neon. After Slayton’s arrest, the police gave him a Notice of Seizure and

Intent to Forfeit, which explained how someone could claim an interest in the vehicle. The police

also attempted to contact Krueger directly by sending a letter to the address listed on the Neon’s

title registration. Krueger is mistaken that due process requires the state to ensure that he received

a copy of the Notice of Seizure and Intent to Forfeit. Due process does not require a specific set

of procedures, only that the procedures undertaken be reasonably calculated to notify persons of

the deprivation of their protected interest. See Espinosa, 559 U.S. at 272. Giving notice to the

person driving the vehicle when it was towed and sending a letter to the address listed on the

vehicle’s title information meet this requirement.

Additionally, Krueger had actual notice from multiple sources that the Neon had been

impounded. Krueger knew the Neon was impounded “early in June of 2018” when Shandor told

him that Slayton had been arrested and the Neon towed. DE 23-3, Krueger Dep., Page ID 260.

Krueger also ultimately received the letter originally sent to his old address informing him of the

seizure. Finally, Krueger himself went to the Eastpointe police station to inquire about the Neon

and was told that it had been impounded. Krueger’s actual notice that the Neon was impounded

is a separate, independent basis to deny his procedural due process claim. See Espinosa, 559 U.S.

at 272.

Krueger also appears to argue that he lacked an opportunity to be heard. The precise due-

process requirements for a hearing vary depending on the “importance of the interests at stake and

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the nature of the subsequent proceedings.” Morrison v. Warren, 375 F.3d 468, 475 (6th Cir. 2004)

(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985)). At a minimum, a person

must have “an opportunity to be heard at a meaningful time and in a meaningful manner,”

including being able “to view and contest the evidence” against them. Id. To prevail under § 1983,

the plaintiff must prove “the inadequacy of state or administrative processes and remedies to

redress her due process violations.” Jefferson v. Jefferson Cnty. Pub. Sch. Sys., 360 F.3d 583, 588

(6th Cir. 2004).

Krueger did not demonstrate that defendants violated his due process right to a hearing or

that the available state process was inadequate to redress his grievances. Krueger never filed a

motion with the Michigan state circuit court, which has exclusive jurisdiction over potential

forfeiture proceedings. See Mich. Comp. Laws § 333.7511(1) (establishing the circuit court’s

jurisdiction).2 Krueger also did not explain how the Michigan circuit court proceedings would

deprive him of a meaningful opportunity to be heard.

Krueger repeatedly claimed that he is protected by the “innocent owner defense.” While

somewhat unclear, it appears Krueger was referring to Mich. Comp. Laws § 333.7521, which states

that “[a] conveyance is not subject to forfeiture by reason of any act or omission established by

the owner of that conveyance to have been committed or omitted without the owner’s knowledge

or consent.” Mich. Comp. Laws § 333.7521(d)(ii). Innocent ownership, however, is an

affirmative defense in a civil forfeiture proceeding, see In re Forfeiture of 2000 GMC Denali

2 In his response to defendants’ motion for summary judgment, Krueger admitted that he did not file a motion seeking return of the Neon in Michigan circuit court. DE 28, Mot. for Summ. J., Page ID 340; DE 29, Pl.’s Resp. to Mot. Summ. J., Page ID 409. Krueger argues that his lawyer attempted to file a motion in circuit court, but that an assistant court clerk refused to file the motion. CA6 R. 25, Appellant’s Br. at 26–27. Krueger, however, has not suggested that any of the defendants were involved in his failure to file a motion seeking return of the Neon in circuit court.

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& Contents, 892 N.W.2d 388, 400 (Mich. Ct. App. 2016), and is inapplicable here because no

forfeiture was pursued.

C.

Next, Krueger alleged that requiring him to pay towing and storage fees to retake

possession of the Neon is an excessive fine in violation of the Eighth Amendment. The purpose

of the Excessive Fines Clause is to “limit[] the government’s power to extract payments,

whether in cash or in kind, ‘as punishment for some offense.’” Austin v. United States, 509 U.S.

602, 609–10 (1993) (quoting Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492

U.S. 257, 265 (1989) (emphasis in Austin)); see also Timbs v. Indiana, 139 S. Ct. 682, 687 (2019)

(holding that the Excessive Fines Clause applies to the states through incorporation under the

Fourteenth Amendment). If one of the goals of a fine is to punish, then the fine is subject to the

scrutiny of the Excessive Fines Clause. Austin, 509 U.S. at 610. “A punitive forfeiture violates

the Excessive Fines Clause if it is grossly disproportionate to the gravity of a defendant’s offense.”

Ross v. Duggan, 402 F.3d 575, 588–89 (6th Cir. 2004) (quoting United States v. Bajakajian, 524

U.S. 321, 334 (1998)).

Krueger’s Eighth Amendment claim fails for the simple reason that the towing and storage

fees the Neon has accrued are not punishment for an offense. Krueger was not charged with any

offense. The towing and storage fees are remedial, not punitive. See Bajakajian, 524 U.S. at 329

(concluding that a fine is remedial when it compensates the government for a loss). The City of

Eastpointe is asking for compensation for the fees it has incurred storing the Neon on Krueger’s

behalf for over two years. Krueger argued that the towing and storage fees “are definitely punitive

because they have been allowed to grow in direct consequence of the Defendants’ failure to fairly,

correctly, and promptly pursue, ascertain and recognize Krueger’s existence and address,” CA6

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R. 25, Appellant Br., at 29, but this argument is misguided. The storage fees have accrued because

Krueger failed to promptly pay after learning that the Neon had been impounded, not because the

defendants failed to contact him. Because the fees do not serve a punitive purpose, the Eighth

Amendment does not apply.

D.

Krueger also argued that the impounding of the Neon was an unconstitutional taking.

Krueger raised this argument for the first time in his response to defendants’ motion for summary

judgment before the district court and repeats the argument on appeal. Because Krueger failed to

raise this argument in his initial pleadings, we will not consider it now. See Tucker v. Union of

Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005).

E.

Krueger’s last substantive claim is for conversion under Michigan law. To prove

conversion, the plaintiff must show that “the defendant employed the converted property for some

purpose personal to the defendant’s interests.” Aroma Wines & Equip., Inc. v. Columbian Distrib.

Servs., Inc., 871 N.W.2d 136, 148 (Mich. 2015). The plaintiff must show that the defendant took

the plaintiff’s property for his “own use.” Id. While the Michigan Supreme Court has interpreted

“own use” broadly to mean “some purpose personal to the defendant’s interests, even if that

purpose is not the object’s ordinarily intended purpose,” id., Krueger presented no evidence that

either the City of Eastpointe or any of the individual defendants have employed the Neon for a

personal purpose since the vehicle was impounded. It is undisputed that the Neon has been sitting

in a storage lot.3

3 In his appellate brief, Krueger claimed that the Neon has been moved “to some unknown place or maybe sold,” CA6 R. 25, Appellant Br., at 18, but there is no evidence to support that claim.

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Without pointing to any evidence in the record, Krueger claimed that the defendants were

keeping the Neon as leverage to force him “to pay the towing, forfeiture fee and yard charges, all

charges which are solely attributable to Slayton (sic) conduct and nothing done by or involving

the innocent owner sleeping Krueger.” CA6 R. 25, Appellant Br., at 18–19. The defendants,

however, were not asking Krueger to pay the storage fees for their own benefit; they were simply

seeking compensation for costs the state accrued on Krueger’s behalf by storing the Neon for years.

Thus, this case is distinguishable from cases where courts have found the defendant used the

plaintiff’s property as a bargaining tool. See, e.g., Tyson v. Sterling Rental, Inc., No. 13-cv-13490,

2017 WL 11368343, at *4 (E.D. Mich. Apr. 10, 2017). Accordingly, Krueger’s conversion claim

fails.

IV.

We affirm the district court’s order granting defendants’ motion for summary judgment.

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