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Sourovelis v. City of Philadelphia

United States District Court, E.D. Pennsylvania

February 23, 2017

CHRISTOS SOUROVELIS, et al., Plaintiffs,
v.
CITY OF PHILADELPHIA, et al., Defendants.

          MEMORANDUM

          EDUARDO C. ROBRENO, J.

         Table of Contents

         I. INTRODUCTION ............................................ 2

         II. BACKGROUND .............................................. 4

         III. PROCEDURAL HISTORY ...................................... 7

         IV. PROPOSED CLASS ......................................... 11

         V. LEGAL STANDARD ......................................... 11

         VI. DISCUSSION ............................................ 13

         A. Rule 23(a) ........................................ 13

         1. Numerosity ................................... 14

         2. Commonality .................................. 15

         3. Typicality ................................... 18

         4. Adequacy of Representation ................... 21

         B. Rule 23(b)(2) ..................................... 23

         1. Requests for Declaratory Relief and an Injunction Enjoining the Allegedly Unconstitutional Policy and Practice ......... 26

         2. Request for an Entry of Judgment Requiring the Return of Property ....................... 28

         a. Restitution Claims Under Rule 23(b)(2).. 30

         b. Individualized Monetary Damages ......... 36

         VII. CONCLUSION ............................................. 47

         I. INTRODUCTION

         Named Plaintiffs Christos Sourovelis, Doila Welch, Norys Hernandez, and Nassir Geiger (“Plaintiffs”), on behalf of themselves and all others similarly situated under Federal Rule of Civil Procedure 23(b)(2), bring this putative class action pursuant to 42 U.S.C. § 1983 against the City of Philadelphia, Mayor James F. Kenney, and Police Commissioner Richard Ross, Jr. (collectively, the “City Defendants”); the Philadelphia District Attorney's Office (the “D.A.'s Office”) and District Attorney Seth R. Williams (together, the “D.A. Defendants”); and Sheila A. Woods-Skipper, Jacqueline F. Allen, Joseph H. Evers, and Charles A. Mapp (the “First Judicial District Defendants”) (all together, “Defendants”) to enjoin and declare unconstitutional the City of Philadelphia's civil forfeiture policies and practices. Plaintiffs' Second Amended Complaint asserts seven claims, all of which allege that Defendants' policies and practices violate the Due Process Clause of the Fourteenth Amendment. The parties have settled two of Plaintiffs' seven claims.

         In the instant motion, Plaintiffs seek to certify a Rule 23(b)(2) class on their fifth claim for relief (“Count Five”). In Count Five, Plaintiffs claim that the City and D.A. Defendants[1] have a policy and practice of retaining forfeited property and its proceeds for use in funding the D.A.'s Office and the Philadelphia Police Department, including paying the salaries of the prosecutors who manage the civil forfeiture program, thereby providing the D.A.'s Office and the Philadelphia Police Department with a direct financial stake in the outcome of civil forfeiture proceedings. Plaintiffs allege that this arrangement creates a conflict of interest, injects impermissible bias into the civil forfeiture process, and violates Plaintiffs' rights to the fair and impartial administration of justice under the Due Process Clause of the Fourteenth Amendment.

         For the reasons that follow, the Court will grant in part and deny in part Plaintiffs' motion to certify a Rule 23(b)(2) class with respect to Count Five. The Court will certify a Rule 23(b)(2) class with respect to Plaintiffs' requests for (1) a declaratory judgment declaring unconstitutional the City and D. A. Defendants' policy and practice of retaining forfeited property and its proceeds for use by the D.A.'s Office and the Police Department; and (2) an injunction enjoining that policy and practice. However, the Court will decline to certify a Rule 23(b)(2) class with respect to Plaintiffs' request for an injunction ordering the return of forfeited property on the basis of the alleged constitutional violations.

         II. BACKGROUND

         Civil forfeiture statutes permit states and the federal government to file actions, under certain circumstances, to obtain ownership of private real and personal property that is related to certain categories of criminal activity. In Pennsylvania, the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. Ann. §§ 6801 and 6802 (the “CSFA”), provides that certain real and personal property that is connected to a violation of Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa. Cons. Stat. Ann. §§ 780-101 to 780-144, is subject to forfeiture by the Commonwealth of Pennsylvania. 42 Pa. Cons. Stat. Ann. § 6801. The CSFA sets forth the property that is subject to forfeiture by the Commonwealth, see id., and provides a procedure for the forfeiture proceedings, which must be filed in the court of common pleas of the judicial district where the property is located, see Id. § 6802.

         Plaintiffs' claims in this action relate to property forfeited through civil forfeiture proceedings brought by the D.A.'s Office in the Court of Common Pleas of Philadelphia County. The majority of the property, Plaintiffs allege, was forfeited pursuant to the CSFA. Second Am. Compl. (“SAC”) ¶ 41, ECF No. 157. According to Plaintiffs, Philadelphia's civil forfeiture program is one of the largest municipal forfeiture programs in the country, and “unprecedented in scale.” Id. at 14, ¶ 54. Plaintiffs allege that the D.A.'s Office forfeited over $90 million worth of property from 1987 to 2012 through civil forfeiture proceedings, Id. ¶ 53, yielding an average of $5.6 million in forfeiture revenue each year, Id. ¶ 54. Forfeiture data Plaintiffs obtained from the Pennsylvania Office of the Attorney General indicates that the D.A.'s Office collected over $72.6 million in forfeiture revenue from fiscal years 2002 through 2014. Id. ¶ 57. Plaintiffs allege that this amount constitutes nearly one-fifth of the general budget of the D.A.'s Office as appropriated by the City of Philadelphia. Id. ¶ 60.

         Plaintiffs allege that the City and D.A. Defendants seize large quantities of personal property for forfeiture, including cash, cell phones, clothing, jewelry, prescription medication, and licensed firearms. Id. ¶ 81. Plaintiffs claim that the majority of the cash seized involves small amounts of money. Id. ¶ 73. For example, in 2010, Philadelphia filed 8, 284 currency forfeiture petitions, with an average of $550 at issue in each case. Id. ¶ 74. Plaintiffs also allege that the City and D.A. Defendants file civil forfeiture petitions on 300 to 500 real properties (mostly private residences) each year. Id. ¶ 83. Approximately 100 of these real properties are forfeited and sold at auction annually; and a significant majority of the remaining cases settle under threat of civil forfeiture. Id.

         Plaintiffs' Second Amended Complaint alleges that a number of Defendants' civil forfeiture policies and practices are unconstitutional. With respect to Count Five, specifically, Plaintiffs allege that the City and D.A. Defendants retain the proceeds of civil forfeiture proceedings, which provide the Defendants with a direct financial incentive in the outcome of the proceedings. Id. ¶¶ 339-43. According to Plaintiffs, the D.A.'s Office and Philadelphia Police Department have a written agreement to share proceeds obtained from forfeiture proceedings, Id. ¶¶ 67, 342, and use a large portion of the forfeiture revenue to pay salaries, Id. ¶¶ 62, 64. Plaintiffs obtained data from the Pennsylvania Office of the Attorney General indicating that the D.A.'s Office spent over $28.5 million of its forfeiture revenue on salaries from fiscal years 2002 through 2014, including the salaries of the prosecutors who administer Philadelphia's civil forfeiture program. Id. ¶¶ 62-64. Plaintiffs claim that the City and D.A. Defendants' direct financial stake in civil forfeiture proceedings brings irrelevant and impermissible factors into the investigative and prosecutorial decision-making process, which in turn creates a conflict of interest, actual bias, potential for bias, and/or appearance of bias that violates Plaintiffs' rights to the fair and impartial administration of justice guaranteed by the Due Process Clause of the Fourteenth Amendment. Id. ¶¶ 339, 344.

         III. PROCEDURAL HISTORY

         Plaintiffs initiated this action on August 11, 2014, ECF No. 1, and amended their complaint on November 17, 2014, ECF No. 40. Plaintiffs filed a Second Amended Complaint on September 15, 2016. ECF No. 157. Plaintiffs Sourovelis, Welch, and Hernandez are the owners of real property against which the D.A. Defendants commenced, under the CSFA, forfeiture that were pending in the Court of Common Pleas of Philadelphia County at the time the First Amended Complaint was filed. SAC ¶¶ 9-17. Plaintiff Geiger is the owner of personal property against which the D.A. Defendants commenced a civil forfeiture proceeding. Id. ¶¶ 18-22. Plaintiffs' Second Amended Complaint asserts the following seven claims:

(1) the City and D.A. Defendants' policy and practice of failing to provide notice or a hearing before seizing real property violates the Due Process Clause of the Fourteenth Amendment (Count One);
(2) the City and D.A. Defendants' policy and practice of requiring real property owners to waive their constitutional and statutory rights in order to obtain access to their property or have the forfeiture petition withdrawn violates the Due Process Clause of the Fourteenth Amendment (Count Two);
(3) Defendants' policy and practice of failing to provide a prompt, post-deprivation hearing violates the Due Process Clause of the Fourteenth Amendment (Count Three);
(4) Defendants' policy and practice of repeatedly “relisting” forfeiture proceedings violates the Due Process Clause of the Fourteenth Amendment (Count Four);
(5) the City and D.A. Defendants' retention of forfeited property and its proceeds violates the Due Process Clause of the Fourteenth Amendment (Count Five);
(6) Defendants' policy and practice of prosecutors controlling forfeiture hearings violates the Due Process Clause of the Fourteenth Amendment (Count Six);
(7) Defendants' administration of civil forfeiture and related proceedings, including notices to property owners, the timing of filings, and access to court hearings, violates the Due Process Clause of the Fourteenth Amendment (Count Seven).

Id. ¶¶ 290-360.

         Plaintiffs initially sought class certification of Counts One through Six under Rule 23(b)(2) of the Federal Rules of Civil Procedure in a motion filed on August 11, 2014.[2] ECF No. 3. The Court denied the motion without prejudice on June 17, 2015, after the parties represented at a hearing that they were in the process of potentially stipulating to class certification, at least as to Count Five. ECF No. 82. The Court later indicated that any subsequent ...


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