L.K. v. Gregg, CX-87-949

• Decision Date: 20 October 1987
• Docket Number: No. CX-87-949,CX-87-949
• Citation: 413 N.W.2d 833
• Parties: L.K., et al., Respondents, v. William GREGG, in his capacity as Commissioner of Veterans Affairs, et al., Appellants.
• Court: Minnesota Court of Appeals

Page 833

413 N.W.2d 833

L.K., et al., Respondents, v. William GREGG, in his capacity as Commissioner of Veterans

Affairs, et al., Appellants.

No. CX-87-949.

Court of Appeals of Minnesota.

Oct. 20, 1987.

Review Granted Dec. 23, 1987.

Syllabus by the Court

1. The pleading was insufficient to notify the state that it was defending a claim under 42 U.S.C. § 1983.

2. Attorney's fees cannot be awarded for an alleged property rights deprivation when no actual deprivation has occurred if the claim is a state statutory procedural due process claim.

3. A violation of state law does not necessarily give rise to a claim for attorney's fees under 42 U.S.C. § 1988.

M. Francesca Chervenak, Kathleen Davis, Minneapolis,for respondents.

Hubert H. Humphrey, III, Atty. Gen., Merwin Peterson, Spec. Asst. Atty. Gen., St. Paul, for appellants.

Heard, considered and decided by SEDGWICK, P.J., and PARKER and HUSPENI, JJ.

OPINION

PARKER, Judge.

Appellants are William Gregg, Commissioner of Veterans Affairs, and the administrator of the Minnesota Veterans Home (Home). Respondents are veterans who reside or have resided at the Home. They filed this action in August 1984, challenging the discharge policies and practices of the Home. The trial court denied the residents class certification and denied a temporary injunction, but granted a temporary restraining order preventing the Home from discharging them. The residents moved the trial court for a partial summary judgment. The trial court denied that motion, granted summary judgment to the Home, and dismissed all of the residents' claims.

The residents appealed that decision, and in January 1986 this court reversed the trial court's denial of summary judgment and its dismissal of the residents' other claims. L.K. v. Gregg, 380 N.W.2d 145 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Mar. 14, 1986) (Gregg I).

The residents then moved the trial court for an entry of judgment in their favor and for an award of attorney's fees under 42 U.S.C. § 1988. The trial court issued an order granting those motions and attorney's fees were awarded in the amount of $28,925.65. The Commissioner appeals the award of attorney's fees. We reverse.

FACTS

In August 1984 the Commissioner determined that a shortage of space and increasing demand for nursing home care would require the conversion of one building in the Home from domiciliary to nursing care. This decision required transfer to the Hastings facility or discharge of some of its residents.

On August 10, 1984, the Home administrator sent some of those residents letters indicating that they would be discharged/transferred September 12, 1984. The Home had created a staff committee of Home employees, who then determined the best candidates to be transferred/discharged. The staff looked for residents who had substantially achieved their goals and were ready to move to independent living, had no present medical problems, were not using Home facilities such as Alchoholics Anonymous (AA), and were simply using the Home as a convenient residence. Also included were those with incomes who refused to pay maintenance charges.

The first letter sent to the identified residents gave 30 days' notice and offered assistance in making alternative living arrangements. A representative of the Minnesota Department of Health informed the Home administrator that the letter did not conform with the Patient's Bill of Rights, Minn. Stat. § 144.651, subd. 29 (1984). A new letter was issued that also informed them they could receive a hearing before a committee if desired.

Four of those residents then filed suit in district court, challenging the Home's transfer/discharge attempts. On September 28, 1984, they brought a motion seeking a temporary restraining order and a temporary injunction to prevent their discharges/transfers from the Home and also sought class-action certification to represent all Home residents. The residents alleged they could not be discharged/transferred from the Home without the due process guaranteed them by the fourteenth amendment of the U.S. Constitution and that the Home could not discharge them without complying with the rulemaking procedures in Minn.Stat. ch. 14 (1984). The Home agreed to hold the transfer/discharges in abeyance until the request for a temporary injunction could be heard. On October 2, 1984, a second trial court denied class certification and ruled against a temporary injunction, but granted the temporary restraining order to allow the residents time to have hearings before an independent review panel.

The Home did not resist the motion for the temporary order. By this time, all of the original four plaintiffs had left the Home or had plans to leave. Subsequently, however, plaintiffs who had not yet left the Home brought a motion to amend the complaint and to add new plaintiffs. On November 12, 1984, a third trial court issued an order allowing the complaint to be amended and adding new plaintiffs.

The Home had notified all the original plaintiffs that they could receive a hearing before the independent review panel. None of the original four asked for a hearing and none of those four are at the Home any longer. All of the plaintiffs added by the court's order requested and received a hearing on their discharges/transfers in October 1984, except one who left the Home. None of those plaintiffs appealed from the decisions in the hearings.

In April 1985 a fourth trial court entered judgment for the Home based on the residents' failure to appeal from the hearings. The residents appealed to this court on the issue of jurisdiction and sought to have the Home rules declared invalid by means of a declaratory judgment. In oral argument before this court the Home admitted that rules were needed and said it was the Commissioner's intent to promulgate them. This court refused to issue a declaratory judgment and deemed that issue premature, noting:

[B]oth parties agree that the Commissioner has failed to promulgate rules relative to the discharge or transfer of home residents. We cannot review what does not exist.

Gregg I, 380 N.W.2d at 149.

This court addressed the issue of the Commissioner's duty simply "to avoid a multiplicity of suits and endless litigation," id. at 149, and determined that the residents were entitled to a contested-case hearing under the Administrative Procedure Act (APA). See id. at 150-51. It also held that the trial court correctly denied class-action certification and that the Court of Appeals did not have jurisdiction to consider the validity of the Home rules; rather, the district court had original jurisdiction. Id. at 152.

On remand the district court enjoined the appellants from transfer or discharge of residents (1) until the rules were promulgated under the APA, or (2) without contested-case hearings. It also awarded attorney's fees for work performed by counsel, Legal Aid Society of Minneapolis, in the amount of $28,925.65, pursuant to 42 U.S.C. § 1988, the Civil Rights Attorney's Fees Award Act. The Commissioner appeals that award.

ISSUES

1. Was the pleading sufficient to notify the state that it was defending a section 1983 claim?

2. Can attorney's fees be awarded for alleged property rights deprivation if no actual deprivation occurred?

3. Does a violation of state law give rise to a section 1988 claim for attorney's fees?

DISCUSSION

I

The residents claim that, as prevailing parties in a civil rights case, they should be awarded attorney's fees. The Civil Rights Attorney's Fees Act of 1976 (42 U.S.C. § 1988) provides for the award of attorney's fees to prevailing parties in civil rights cases:

In any action or proceeding to enforce a provision of section[ ] * * * 1983 * * * of this title * * * the court, in its discretion, may allow the prevailing party * * * a reasonable attorney's fee as part of the costs.

The issue is whether, by pleading a violation of the fourteenth amendment, the residents have alleged a constitutional violation sufficient to support a section 1983 cause of action; 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

On the basis of a state statutory procedural due process claim, the residents are attempting to obtain attorney's fees. The threshold question is whether their pleading was sufficient to notify the state that it was defending a section 1983 claim. The answer is found by examining what is not in the underlying case. First, the residents' complaint makes no mention of section 1983.

If a party fails to plead and prove a section 1983 action, its demand for attorney's fees must be dismissed. See Ball v. School District of the City of Grand Rapids, 641 F.Supp. 1, 2-4 (W.D.Mich.1986). In Ball the plaintiffs did not prove or attempt to prove a section 1983 action, although section 1983 was cited. Id. at 2-3. Here the residents neither cited section 1983 (which in itself is not fatal) nor attempted to prove that the hearings they received did not meet federal constitutional due process.

In Ball, after discussing the plaintiffs' failure to plead a section 1983 action, the court said:

More telling than the face of the complaint, however, was the conduct of the parties, and especially of the plaintiffs, throughout the course of the litigation. During trial, this case was presented as a straightfoward establishment clause action under the Declaratory Judgment Act. I recall no discussion of § 1983 law whatsoever. The final opinion of this court made no mention of § 1983 and awarded no relief thereunder. Likewise, the opinions of the...