The opinion of the court was delivered by: GREENE
HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE
The instant action presents both constitutional and common law claims against the District of Columbia and Officer James Stolburg arising out of defendants' seizure and destruction of plaintiff's car. Plaintiff has moved for summary judgment against the District of Columbia on the issue of liability arguing that the destruction of the car without a post-seizure notice or hearing violated his due process rights.
The action arises under 42 U.S.C. § 1983, and in opposition to plaintiff's motion, the District asserts that it is not a "person" within the meaning of section 1983 and that, therefore, it cannot be held liable under that statute. The argument is grounded in the Supreme Court's recent decision in Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989,) holding that states are not "persons" within the meaning of the Act.
The District's effort to apply Will to this action is unavailing.
In a post- Will decision, the Court of Appeals for this Circuit concluded that the District of Columbia may be liable under section 1983 because it is a municipality and municipalities are "persons" under the statute. Dorman v. District of Columbia, 281 U.S. App. D.C. 146, 888 F.2d 159, 162 (D.C. Cir. 1989). Indeed, a long line of cases supports this view. E.g. Parker v. District of Columbia, 271 U.S. App. D.C. 15, 850 F.2d 708 (1989); Morgan v. District of Columbia, 263 U.S. App. D.C. 69, 824 F.2d 1049 (D.C. Cir. 1987); Carter v. District of Columbia, 254 U.S. App. D.C. 71, 795 F.2d 116 (D.C. Cir. 1986).
The Supreme Court went out of its way in Will to make clear that the decision had no application to municipalities:
States are protected by the Eleventh Amendment while municipalities are not, and we consequently limited our holding in Monell 'to local government units which are not considered part of the state for Eleventh Amendment purposes.' Conversely, our holding here doe not cast any doubt on Monell and applied only to States or governmental entities that are considered 'arms of the State' for Eleventh Amendment purposes.
Id. 109 S. Ct. at 2311. Since the Eleventh Amendment does not apply to the District, Committee of Blind Vendors v. District of Columbia, 695 F. Supp. 1234, 1241 n. 6 (D.D.C. 1988), the same reasoning and result apply here.
Next, the District of Columbia argues that it cannot be liable under Monell v. New York City Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). This argument is frivolous. Monell expressly provides that a government may be liable under section 1983 for its official policies or customs. Id. at 694-95. The District's own filing makes clear that its official policies and practices may provide for the destruction of seized vehicles without post-seizure notice or hearing. Def. Mem. at 5-7. Indeed, it is difficult to imagine a situation in which it could be any clearer that the injury, in any, resulted from an official practice or policy.
Defendants' final argument is that its failure to provide for a post-seizure hearing does not violate due process.
When, as here, a District official determines a car to be "junk," the official places a sticker on the car warning the owner that he has 72 hours to move the vehicle. If the car is not moved, it is towed away and destroyed. D.C. Mun. Regs. Title 18, § 1105.1(b).
It appears from the regulations that the District provides no opportunity for the owner to challenge the city's determination that the car is junk or that it was illegally parked.
However, defendants' filings suggest that the District maintains an informal procedure whereby owners may challenge determinations regarding the status of their automobiles. See Def. Mem. at 8 (owner may inform Department of Public Works about the situation; car may not be classified as junk if owner can be reasonably notified).
In order to clarify whether such a procedure actually exists and, if so, whether it satisfies the requirements of due process, it is this 3rd day of May 1990
ORDERED That a hearing and oral argument be held at 4:30 p.m. on June 11, on whether the District provides an opportunity for car owners to challenge determinations as to the status of their automobiles, and, if so, whether ...