Ouzts v. Maryland Nat. Ins. Co.

Decision Date29 October 1974
Docket NumberNo. 26062,26062
Citation505 F.2d 547
PartiesGrady Carroll OUZTS, Plaintiff-Appellant, v. MARYLAND NATIONAL INSURANCE COMPANY et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Phill Silver, Hollywood, Cal., for plaintiff-appellant.

Keith Edwards (argued), of Parraguirre, Rose, ,9ico & Norwood, Las Vegas, Nev., for defendants appellees.

Michael B. Weisz (argued), Legal Aid Society of San Diego, San Diego, Cal., and Richard A. Weisz (argued), Legal Aid Foundation of Long Beach, Long Beach, Cal., for amicus curiae in support of appellant.

Noble K. Gregory (argued), of Pillsbury, Madison & Sutro, San Francisco, Cal., George R. Richter, Jr., of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal. (argued), for amicus curiae in support of appellees.

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

OPINION

TRASK, Circuit Judge:

This case as a decision of a panel of the court is reported at 470 F.2d 790 (9th Cir. 1972). Following that decision, en banc proceedings were initiated resulting in a determination to rehear the case en banc. Additional briefs were filed by counsel of record and by amici curiae on the issue of state action, and the case was orally reargued. 1 We reaffirm.

The attention accorded the case thus far merits a more complete statement of the facts than heretofore given. In October, 1965, Grady Carroll Ouzts (Ouzts) was arrested in Las Vegas, Nevada, and charged with obtaining money under false pretenses. The Justice Court for the Township of Las Vegas set bail at $2,500.

On November 1, 1965, Defendant William Embry, doing business as 'Bill Embry Bail Bonds' (Embry) had Ouzts sign an 'Application and Agreement for Appearance Bond or Recognizance' (Agreement) in favor of defendant Maryland National Insurance Company (Maryland National) for which Embry was agent. The defendants, Darrow Peterson and Iola Peterson (the Petersons), executed the agreement as indemnitors.

The Agreement stated that in consideration of Maryland National's approval of the application and execution of a bail bond, during Ouzts' release on bail 'any agent of Maryland National Insurance Company shall have control and jurisdiction of him during the period for which the bond is executed and has the right to surrender the defendant at any time that they may desire as provided herein, and as provided by law.' The Petersons, as indemnitors, agreed to aid Maryland National in surrendering Ouzts to the court should the surety deem such action advisable.

Pursuant to this documentation, a bail bond in the required amount was executed by Maryland National on behalf of Ouzts, it was approved by the court, and Ouzts was released from custody. Subsequently, in violation of the terms of the bond agreement, Ouzts left the jurisdiction and was located by telephone in South Carolina. At that time he told Embry that he had no intention of returning to Nevada. Eventually, Ouzts went to Long Beach, California, where the events which culminated in this action took place. Meanwhile, Embry was successful in obtaining a continuance of the hearing on the criminal proceedings in Las Vegas. A preliminary hearing had originally been set for May 9, 1966, and was continued until January 9, 1967.

Ouzts alleged that on November 3, 1966, the Petersons came to his home and attempted to take him into custody. He resisted, the Long Beach police were called and the matter was settled when Ouzts voluntarily surrendered to the police for incarceration pending further court proceedings. On the next day Darrow Peterson applied for and obtained a fugitive warrant for the arrest of Ouzts under California Penal Code section 847.5. Bail was set by the Long Beach Municipal Court and a hearing scheduled for November 10, 1966, to determine if the court should authorize Peterson under section 847.5 to return Ouzts to Las Vegas as a fugitive from Nevada. At the hearing, the Long Beach court refused to enter such an order unless Peterson first obtained a warrant from the justice court in Las Vegas. The hearing was continued until December 12, 1966, and Ouzts was released from custody on his own recognizance.

The Petersons returned to Las Vegas and informed Embry of their lack of success. They all then went back to Long Beach and on November 18, without warrant, court order or court approval, hired the defendant Wilfred I. Lagatella to take Ouzts into custody and deliver him to them in San Pedro, California. Lagatella was supplied with the bailbond and a written authorization to act for Maryland National. On November 18, 1966, Lagatella and an assistant forcibly took Ouzts into custody at his residence in Long Beach and delivered him to Embry and the Petersons in San Pedro. They then transported him to Las Vegas, Nevada, where Ouzts was delivered to the custody of the police. The Las Vegas charges against Ouzts were subsequently dismissed.

Ouzts alleges that his arrest by Maryland National was accomplished by force and violence and that Lagatella and his assistant claimed they were special police officers of Los Angeles County and displayed badges of authority. These contentions were denied by the defendants. It is clear, however, that neither was in fact an officer, special officer or clothed with authority by any official governmental entity.

This action for damages by Ouzts thereafter came before the District Court on an amended complaint basing jurisdiction upon the Civil Rights Act, 42 U.S.C. 1983, and its jurisdictional counterpart, 28 U.S.C. 1343(3). A second state law claim seeking damages for unlawful extradition was joined under the theory of pendent jurisdiction. The District Court granted a motion for summary judgment in favor of the defendants upon the ground that it lacked subject matter jurisdiction. It seems clear, however, that the reason underlying the ruling was that no federal cause of action was established. The court also dismissed the pendent state law claim. A panel of this court unanimously affirmed upon the ground that the appellant had not established a cause of action under federal law.

In order to state a claim under 42 U.S.C. 1983, a plaintiff must allege that (1) the defendants were acting under color of state law and (2) that their conduct subjected him or caused him to be subjected to a deprivation of some right, privilege or immunity secured by the Constitution of the United States. 2 We recognize at the outset that the 'state action' requirement of the fourteenth amendment and the 'under color of state law' requirement of section 1983 have been construed by the Supreme Court to be substantially the same. United States v. Price, 383 U.S. 787, 794 n.7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). It is also a truism by now that there is no rigid formula for measuring state action for purposes of section 1983 liability. Rather, it is a process of 'sifting facts and weighing circumstances' which must lead us to a correct determination. Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

Here it is necessary to determine whether the conduct of the appellees in forcibly seizing Ouzts and removing him to Nevada constituted action under the color of state law. We note that purely private conduct, no matter how wrongful, is not within the protective orbit of section 1983. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). For such conduct the wrongdoer faces potential liability in state courts, but a federal action would not lie under section 1983. In addition the protection of the fourteenth amendment may not be invoked unless the state has been involved in the deprivation of rights to some significant extent. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Reitman v. Mulkey, supra, 387 U.S. at 378, 380, 87 S.Ct. 1627.

We begin this analysis with an examination of the nature and source of the bail bondsman's status and authority. The institution of bail itself goes back to the days of pre-Norman England. Note, Bail: An Ancient Practice Re-examined, 70 Yale L.J. 966 (1961). Under the early common law, the bondsman not only undertook the risk of loss of his own property if his principal did not appear, but in some instances, the bondsman was made to suffer the punishment which would have been inflicted upon the prisoner. 2 Pollock & Maitland, The History of English Law 589, 590 (2d ed. 1899). As a result of this responsibility, the common law recognized a bondsman's right to recapture and surrender his principal to authorities without resort to any legal process.

The common law conception of bail was adopted by most American jurisdictions early in the history of the United States. The Constitution itself contains a reference to bail in the eighth amendment, and early American case law also acknowledged the bondsman's common law authority. In Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371, 21 L.Ed. 287 (1872), for example, the recapture right was recognized:

'When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner.'

See also Carlson v. Landon, 342 U.S. 524, 547, 72 S.Ct. 525, 96 L.Ed. 547 (1952); United States v. Goodwin, 440 F.2d 1152, 1156 (3d Cir. 1...

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