528 F.2d 426 (9th Cir. 1975), 73--1749, Culbertson v. Leland

Docket Nº:73--1749.
Citation:528 F.2d 426
Party Name:Charles CULBERTSON and Helen Culbertson, his wife, Plaintiffs-Appellants, v. Alice LELAND et al., Defendants-Appellees.
Case Date:October 03, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 426

528 F.2d 426 (9th Cir. 1975)

Charles CULBERTSON and Helen Culbertson, his wife,

Plaintiffs-Appellants, v.

Alice LELAND et al., Defendants-Appellees.

No. 73--1749.

United States Court of Appeals, Ninth Circuit

October 3, 1975

Page 427

Victor Aronow (argued), Mesa, Ariz., for plaintiffs-appellants.

Coit I. Hughes (argued), of Hughes, Hughes & Conlan, Phoenix, Ariz., for defendants-appellees.

OPINION

Before ELY and CHOY, Circuit Judges, and WEIGEL, District Judge. [*]

WEIGEL, District Judge:

WEIGEL, District Jude:

The Arizona Innkeeper's Lien Statute authorizes the keeper of a hotel or lodging house to seize, without notice or judicial procedure, the personal property of a lodger who fails to pay rent. This appeal presents the question whether a private person acting under the authority of the statute does so under color of state law within the meaning of 42 U.S.C. § 1983.

In September 1972, Helen and Charles Culbertson moved into a room in the New Windsor Hotel in Phoenix, Arizona, for which they agreed to pay twenty dollars per week. For several weeks they paid their rent on time, but in November they fell one week in arrears and were evicted by the hotel manager, Alice Leland. At eviction, she seized, as security for the unpaid rent, personal possessions of the Culbertsons which remained in the room. Leland was at no time an official of the State of Arizona. She sought no help from state officials and received none, except that a member of the Phoenix police department told her she had the right to hold her tenants' belongings.

The Culbertsons sued in federal district court for the return of their possessions; for declaratory and injunctive relief against the provisions of the Arizona Innkeeper's Lien Statute (set forth in full in the margin) 1; and for damages

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under 42 U.S.C. § 1983 on the claim that the seizure of their property was made under color of state law and, in the absence of notice and hearing, violated their constitutional right to due process of law. After suit was filed, Leland abandoned her claimed lien and returned the Culbertsons' belongings to them. She and her two co-defendants, the record owner and the beneficial owner of the New Windsor Hotel, then moved to dismiss. The court granted the motion on the ostensible ground that since Leland no longer asserted a lien, any challenge to the Innkeeper's Lien Statute was moot, and that the court lacked jurisdiction. Clerk's Record at 128--29. Subsequently the court also denied a motion to vacate its dismissal order. C.R. at 157. The Culbertsons appeal in forma pauperis.

The jurisdictional issue presented by the appeal is easily resolved. If appellants' demand for damages under 42 U.S.C. § 1983 survives, so too does federal jurisdiction. Lidie v. California, 478 F.2d 552, 554 (9th Cir. 1973). In their complaint the Culbertsons sought $10,000 compensatory damages for the period for which they were deprived of their medicines and other belongings. That claim is cognizable under 42 U.S.C. § 1983, Donovan v. Reinbold, 433 F.2d 738, 743 (9th Cir. 1970), and it remains a live issue despite Leland's renunciation of the claimed lien. It was error to dismiss for lack of jurisdiction. See C.R. at 129, lines 12--14.

However, if the ground of dismissal was failure to state a cause of action, and if there was such a failure, the dismissal should be affirmed. Montana-Dakota Unilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249--50, 71 S.Ct. 692, 95 L.Ed. 912 (1951). In this case the district court was concerned with, and requested briefs on, the effects of Ouzts v. Maryland National Insurance Co., 470 F.2d 790 (9th Cir. 1972). See Reporter's Transcript at 6--7; Appellees' Brief at 3. (Ouzts has subsequently been reheard en banc and has been reaffirmed. 505 F.2d 547 (9th Cir. 1974).) The central issue in Ouzts was whether defendants who were not state officials had acted under color of state law. From the emphasis in the briefs below, from the interpretation of appellees (Appellees' Brief at 5--6), and from the district court's oral statements (R.T. at 6--7), it is apparent that what underlay the dismissal here was the conclusion that Leland's actions were not, as a matter of law, taken under color of state law, and thus did not give rise to a federal cause of action under 42 U.S.C. § 1983. We therefore take up that issue.

It is settled that § 1983 covers some actions taken by private citizens. The principle established by the Supreme Court, and often repeated, is that

Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law. United States v. Classic, 313 U.S. 299, 325--26, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).

In factual settings very similar to the present one, one circuit has found state action in a landlord's exercise of a lien

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against the possessions of a tenant, Hall v. Garson, 430 F.2d 430 (5th Cir. 1970), and one circuit has found no state action. Davis v. Richmond, 512 F.2d 201 (1st Cir. 1975).

The leading case in our circuit is Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973), rehearing en banc denied, cert. denied, 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974). In Adams--the facts of which are outlined below--we held that a private person's use of the self-help repossession provisions of the Uniform Commercial Code, as adopted by the state of California, did not amount to action 'under color' of state law, and that therefore a due process challenged to the repossession statutes failed to state a federal cause of action. 492 F.2d at 329. The opinion warned that '(s)tatutes and laws regulate many forms of purely private activity, such as contractual relations and gifts, and subjecting all behavior that conforms to state law to the Fourteenth Amendment would emasculate the state action concept.' 492 F.2d at 330--31. The existence of a state statute authorizing certain private action 'is not the final answer to the touchstone of state action.' 492 F.2d at 330. Equating the 'under color' requirement of § 1983 with the state action requirement of the Fourteenth Amendment, Adams gauged the repossession activity by the 'significant state involvement' test derived from Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). 492 F.2d at 330--31. Because the statute in Adams merely codified a right already present in the common law, 492 F.2d at 330, and because the right involved, arising from a written contract, was essentially 'a private remedy rather than a (delegated) state power,' 492 F.2d at 336, the involvement of the state in enacting the statute was found not significant. On the latter ground Hall v. Garson, supra, was distinguished; the authority exercised under the Texas landlord's lien statute was found to be of a type which 'was normally exercised by the State and had historically been a function of the State of Texas.' 492 F.2d at 336. It is worth noting that when this court sat en banc to reconsider the state action issue in Ouzts, it followed the same approach as Adams, focusing on common law antecedents and private contractual rights. See 505 F.2d at 550--54.

The transactions in Adams were installment purchases of automobiles. The purchasers signed written security agreements which explicitly set forth the sellers' right to repossess on default; and title remained with the sellers. 492 F.2d at 328. The eventual repossessions were only of the chattels covered by the security agreements--the automobiles--and they were performed by the title holders. They were thus as much a matter of private contractual law as of state statute.

The Adams holding is limited to repossession of a chattel subject to a specific security agreement. When a creditor, acting solely on the authority of statute, takes possession of a debtor's property which is unrelated to the debt and which is not subject to prior contractual agreement, we cannot say that Adams dictates the conclusion that no state action is involved. As in Adams, therefore, we must look to the elements of the case to determine whether Arizona has significantly involved itself in the actions of appellee Leland.

  1. Rights at Common Law

    It is apparent that, as in Davis v. Richmond, supra, the lien statute here gave Leland a right which she would not have had at common law. At common law only innkeepers--and not hotel, boarding house and lodging house keepers--had a lien on the belongings of their guests.

    Beginning in medieval times, an innkeeper had the nearly absolute duty at common law to take in all travelers and to accept their belongings for safekeeping. With minor exceptions he was absolutely liable to his guests for the full

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    value of those belongings. At the same time, the common law gave him a lien on such property until the bill of its owner was paid. See generally Klim v. Jones, D.C., 315 F.Supp. 109, 118--20 and authorities cited. The leading English case is Mulliner v. Florence, (1878) 3 Q.B. 484.

    Historians debate whether the innkeeper's lien arose in the common law to compensate for the innkeeper's strict duty and liability, or whether it had its origins in a separate, equally venerable custom of the realm. See, e.g., Hogan, The Innkeeper's Lien at Common Law, 8 Hastings L.J. 33 (1956). Nevertheless, what passed into American common law with surprising unanimity was the former theory. The Harvard Law Review explained in 1895 that

    As the innkeeper's lien is grounded . . . on the extraordinary liability imposed on him by law, it seems only just that on all goods...

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