Chunn v. Amtrak

17‐3617‐cv
Chunn v. Amtrak
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2018
No. 17‐3617‐cv
C HRISTOPHER CHUNN
Plaintiff‐Appellant,
v.
A MTRAK, P.O. COLEMAN, P.O. L OONEY ,
Defendants‐Appellees,
D RUG E NFORCEMENT A DMINISTRATION AGENCY , C OLON, S UPERVISING JOHN D OE ,
A GENT , DEA O FFICER A LEX C OLON, S PECIAL A GENT JOHN H ANNON,
Defendants.
S UBMITTED O N: JANUARY 24, 2019
D ECIDED: F EBRUARY 21, 2019
Before: K EARSE , JACOBS , S ACK, Circuit Judges.
Appellant Christopher Chunn, pro se, appeals the judgment of the United
States District Court for the Southern District of New York (Crotty, J.; Pitman,
M.J.) granting summary judgment in favor of Amtrak with respect to his 42
U.S.C. § 1983 and state‐law conversion claims. Amtrak transferred to the DEA
cash that Amtrak police seized from Chunn incident to his arrest. Chunn
contended that Amtrak’s transfer of his property without first offering him an
opportunity to contest the transfer violated his due process rights and amounted
to conversion under New York law. Because due process is afforded by the

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required post‐deprivation procedures and because Chunn was not unlawfully
deprived of his property, we affirm.
C HRISTOPHER CHUNN, pro se, Coxsackie,
NY, for the Plaintiff‐Appellant.
W ILLAIM G. B ALLAINE, TINA S. B HATT,
THERESA A. F RAME, Landman Corsi Ballaine
& Ford P.C., New York, NY, for the
Defendants‐Appellees.
D ENNIS JACOBS , Circuit Judge:
Appellant Christopher Chunn, pro se, appeals the judgment of the United
States District Court for the Southern District of New York (Crotty, J.; Pitman,
M.J.) granting summary judgment in favor of Amtrak, dismissing his claims
under 42 U.S.C. § 1983 and the state law of conversion.1 Incident to Chunn’s
arrest in the waiting area at New York’s Pennsylvania Station, Amtrak police
seized $10,400, which the Amtrak police then transferred to the Drug
Enforcement Agency (“DEA”). Chunn contends that Amtrak’s transfer of his
property without first affording him an opportunity to contest the transfer
violated his due process rights and amounted to conversion under New York
law. We recount only the facts that bear upon our disposition.
BACKGROUND
Chunn was sleeping in the Amtrak waiting area in Pennsylvania Station
when he was roused by Amtrak Police Officer Jerry Coleman. An altercation
ensued and Chunn was arrested for disorderly conduct, trespassing, and
resisting arrest. During a search incident to this arrest, Amtrak officers
discovered $10,400 cash in Chunn’s pocket. The officers confiscated the cash,
and upon investigation by Amtrak’s Criminal Investigation Division and an
Amtrak officer assigned to the Amtrak‐DEA joint task force, the DEA decided to
1 Chunn has not argued on appeal that the district court erred in granting summary
judgment to Amtrak Police Officers Coleman and Looney. Accordingly, his arguments
concerning these defendants are abandoned. See LoSacco v. City of Middletown, 71
F.3d 88, 92–93 (2d Cir. 1995).

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seize the money for possible forfeiture as proceeds of drug sales. Amtrak
transferred the cash to the DEA and gave Chunn a receipt.
Chunn sued Amtrak, Amtrak officers, the DEA, and DEA agents alleging a
violation of due process and conversion. Chunn agreed to dismiss his claims
against the DEA and its agents. The district court granted summary judgment in
favor of the Amtrak defendants and denied Chunn’s motion to amend his
complaint to add as a defendant the Amtrak officer responsible for turning over
Chunn’s property to the DEA.
This appeal followed.
DISCUSSION
We review orders granting summary judgment de novo and focus on
whether the district court correctly concluded that there was no genuine dispute
as to any material fact and that the moving party was entitled to judgment as a
matter of law. Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013).
We review the denial of a motion to amend on the basis of futility de novo.
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
I.
Assuming without deciding that Amtrak is subject to suit under § 1983, we
conclude that the district court properly granted Amtrak summary judgment on
the due process claim. Due process requires that an individual be given “notice
and an opportunity to be heard” prior to the state’s permanent deprivation of his
property interest. Dusenbery v. United States, 534 U.S. 161, 167 (2002) (internal
quotation marks omitted). “Due process is flexible and calls for such procedural
protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S.
319, 334 (1976) (brackets and quotation marks omitted). “[D]ue process
ordinarily requires an opportunity for some kind of a hearing prior to the
deprivation of a significant property interest.” Hodel v. Va. Surface Mining &
Reclamation Ass’n, Inc., 452 U.S. 264, 299 (1981) (internal quotation marks
omitted) (emphasis added). The deprivation of money here was significant, and
no pre‐deprivation hearing was afforded when the cash was transferred.
However, it is generally “sufficient, where only property rights are concerned,
that there is at some stage an opportunity for a hearing and a judicial
determination.” Id. at 303 (internal quotation marks omitted).

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Compliance with the post‐seizure notice and hearing requirements of 21
U.S.C. § 881 and 18 U.S.C. §§ 981‐87 satisfies the due process obligations of a
federal agency that adopts the seizure of property by a state or local law
enforcement agency. See, e.g., Dusenbery, 534 U.S. at 172–73 (notice by mail
pursuant to § 881 is constitutionally sufficient). We hold that these procedures
also satisfy the requirements of due process owed by the state agency that makes
the transfer. See Madewell v. Downs, 68 F.3d 1030, 1040 (8th Cir. 1995).
The Eighth Circuit’s reasoning in Madewell is persuasive. Chunn argues
that the state officers transferred his money to the DEA without showing that it
was connected to a drug transaction. In similar circumstances, the Eighth Circuit
“decline[d] to add such a requirement, because that is precisely the
determination that must be made in the proceedings pursuant to 21 U.S.C. § 881
before federal forfeiture may be accomplished, and § 881 establishes the process
due the claimant in making that determination.” Id. at 1045. Likewise, due
process does not require other pre‐seizure proceedings to determine whether
property is subject to forfeiture, such as an opportunity to be heard. Here, the
post‐seizure proceedings mandated by 21 U.S.C. § 881 and 18 U.S.C. § 981
provided Chunn with due process.
II.
“[O]ne who comes lawfully into possession of property cannot be charged
with conversion thereof until after a demand and refusal,” MacDonnell v.
Buffalo Loan, Tr. & Safe Deposit Co., 193 N.Y. 92, 101 (1908), except “in a case
where the lawful custodian of property commits an overt and positive act of
conversion by an unlawful . . . disposition of the same.” Id. Chunn has not
challenged the lawfulness of his arrest, or of Amtrak’s initial seizure of his
property incident to his arrest; and Chunn made no demand on Amtrak for
return of the money before Amtrak turned it over to the DEA.
While “[n]o demand [is] necessary” to constitute conversion when a
defendant unlawfully disposes of the property, id., Amtrak’s transfer of Chunn’s
cash to the DEA was lawful. New York law does not impose procedural
requirements on a state agency transferring to federal authorities property that
has been seized incident to arrest. Cf. N.Y. Crim. Proc. Law § 690.55(1) (turnover
order from a state court required prior to transferring property seized pursuant
to a search warrant). And the DEA was authorized to seize the property

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pursuant to 18 U.S.C. § 981. See 18 U.S.C. § 981(b)(2)(C). Because neither agency
was ever wrongfully in possession of Chunn’s property and state law did not
limit Amtrak’s authority to transfer it, Amtrak’s actions were not “unlawful,”
and summary judgment was proper. See Leveraged Leasing Admin. Corp. v.
Pacificorp. Capital, Inc., 87 F.3d 44, 50 (2d Cir. 1996).
III.
Leave to amend may be denied if the proposed amendment would be
futile. Tocker v. Phillip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006).
Amendment is futile if it fails “to cure prior deficiencies.” Panther Partners, Inc.
v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012).
Chunn moved to amend his complaint to add as a defendant Sergeant
Patterson, the Amtrak officer responsible for turning over Chunn’s property to
the DEA. This claim turns on the same transfer as Chunn’s claim against
Amtrak, and fails for the same reasons. Accordingly, the amendment would
have been futile.
CONCLUSION
The judgment of the district court is AFFIRMED.

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