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:___________________________
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