Powell v. Waterbury City Police Department

09-0463-cv
Powell v. Waterbury Police Dep’t.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 16th day of December, two thousand nine.

PRESENT:
AMALYA L. KEARSE,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.

___________________________________________

Clifton Powell,

Plaintiff-Appellant,

v. 09-0463-cv

Waterbury City Police Deptartment,

Defendant,

D’Amato, Off’cr, I/O,

Defendant-Appellee.*
___________________________________________

*
The Clerk of the Court is directed to amend the official
caption as set forth above.
FOR APPELLANT: Clifton Powell, pro se, Waterbury, CT.

FOR APPELLEE: Cheryl E. Johnson, Law Office of Cheryl E.
Johnson, Waterbury, CT.

Appeal from the United States District Court for the

District of Connecticut (Chatigny, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order and judgment of the district court are

AFFIRMED.

Plaintiff-Appellant Clifton Powell, pro se, appeals from the

order of the United States District Court for the District of

Connecticut (Chatigny, J.), denying his cross-motion for summary

judgment, and its judgment, pursuant to a jury verdict, in favor

of the Appellee. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.

I. Summary Judgment

We decline to review the district court’s order denying

Appellant’s cross-motion for summary judgment. See Jacques v.

DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir. 2004) (“[T]he

post-trial appeal of a denial of summary judgment will not

ordinarily lie because the district court’s judgment on the

verdict after a full trial on the merits supersedes the earlier

summary judgment proceedings.”) (internal quotation marks and

alterations omitted).

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II. Jury Verdict

As an initial matter, we note that Appellant is responsible

for providing the necessary transcripts to this Court, see Fed.

R. App. P. 10(b), and this Court has the authority to dismiss an

appeal when the failure to provide the transcripts prevents

meaningful appellate review, see Wrighten v. Glowski, 232 F.3d

119, 120 (2d Cir. 2000) (per curiam). However, dismissal is not

mandatory, and we may consider issues on appeal if appellate

review is possible without the use of transcripts. See Savard v.

Marine Contracting Inc., 471 F.2d 536, 543 (2d Cir. 1972).

Here, the partial transcripts before this Court are

sufficient to permit review of Appellant’s claims that the jury

charge was improper and that the evidence was insufficient to

support the verdict. However, we find those claims to be without

merit. Where, as here, a party does not object to a jury

instruction, we “will reverse where a plainly erroneous

instruction misapplies the law as to a core issue in the case

resulting in the substantial prejudice of the party challenging

the instruction on appeal.” Latsis v. Chandris, Inc., 20 F.3d

45, 50 (2d Cir. 1994). Appellant has not shown any

misapplication of law; moreover, the district court’s

characterization of Appellant’s theory of the case was consistent

with the one Appellant claims his attorney advanced.

In reviewing the sufficiency of the evidence in support of a

jury verdict, we examine the evidence in the light most favorable
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to the party in whose favor the jury decided, drawing all

reasonable inferences in the winning party’s favor. See

Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir. 2005). “In so

doing, we cannot weigh conflicting evidence, determine the

credibility of witnesses, or substitute our judgment for that of

the jury.” Id. at 292. We “will overturn a verdict only if

there is such a complete absence of evidence supporting the

verdict that the jury’s findings could only have been the result

of sheer surmise and conjecture, or such an overwhelming amount

of evidence in favor of the [appellant] that reasonable and fair

minded men could not arrive at a verdict against [the

appellant].” Id. (internal quotation marks omitted).

Although Appellant suggests that his rights were violated

because, inter alia, Appellee entered onto Appellant’s private

property, Appellee testified that in fact the vehicle was parked

at least in part on public property, blocking the sidewalk and

forcing pedestrians to walk in the street and risk being struck

by vehicles rounding the corner. Appellee also testified that

the vehicle itself posed an additional safety hazard because of

jagged glass in the window frame. We find that Appellee’s trial

testimony was sufficient evidence to support the jury’s finding

that Appellee did not violate Appellant’s due process rights

because Appellee: (1) was entitled to take the vehicle into

custody immediately as a safety hazard pursuant to Connecticut

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General Statutes § 14-150(b); (2) determined in good faith

pursuant to § 14-150(d), that, based on his experience and

training, the vehicle appeared abandoned, was worth less than

$500, and was unusable based in part on the condition in which he

found it; (3) made the determination of abandonment on September

27, 2004, causing title to immediately vest in the municipality

when the vehicle was taken into custody;** (4) was not personally

involved in providing the notice of the vehicle’s disposition

required by § 14-150(d); and (5) had no reason to know of

Appellant’s asserted ownership interest in the vehicle. The

credibility of Appellee’s testimony was an issue for the jury and

its assessment cannot be second-guessed by this Court. See

Gronowski, 424 F.3d at 292.

We do not consider Appellant’s claims, raised for the first

time on appeal, regarding infringements on his privacy, “criminal

destruction,” negligence, and malpractice. See Singleton v.

Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . .

that a federal appellate court does not consider an issue not

passed upon below.”).

For the reasons stated above, the judgment of the district

**
Insofar as Appellant argues with respect to the denial of
summary judgment that the documentation of the abandonment
determination should have been filed prior to towing the vehicle,
that argument, even liberally construed as challenging the
sufficiency of the trial evidence, is unavailing because such a
filing is not a statutory requirement under § 14-150(d).

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court is AFFIRMED. The pending motion for an order that this

civil case be acknowledged is DENIED as moot.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

By:___________________________