Frazier v. Collins, Civ. A. No. 81-1091-R.

• Decision Date: 05 April 1982
• Docket Number: Civ. A. No. 81-1091-R.
• Citation: 538 F. Supp. 603
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Lloyd Barry FRAZIER, Plaintiff, v. James COLLINS, Warden, Defendant.

538 F. Supp. 603

Lloyd Barry FRAZIER, Plaintiff, v. James COLLINS, Warden, Defendant.

Civ. A. No. 81-1091-R.

United States District Court, E. D. Virginia, Richmond Division.

April 5, 1982.

Lloyd Barry Frazier, pro se.

Alan Katz, Asst. Atty. Gen., Richmond, Va., for defendant.

MEMORANDUM

RICHARD L. WILLIAMS, District Judge.

This matter came before the court on defendant's motion for summary judgment under Fed.R.Civ.P. 56(b). Plaintiff has responded to that motion with a memorandum of law.

Plaintiff alleges that defendant has deprived him of certain personal property. Plaintiff escaped from Unit # 30 in Fairfax County on May 29, 1981, was captured, and transported to Powhatan Correctional Center after sentencing on his escape conviction. He submits that defendant is intentionally depriving him of the property which he left behind when he escaped from Unit # 30. He has not claimed that the alleged deprivation is due to defendant's negligence.

At the outset, the court notes that it has a duty to assist a pro se litigant who may not understand concepts of legal responsibility. See Irshad v. Johnson, 673 F.2d 1311 (4th Cir., 1982); Davis v. Zahradnick, 600 F.2d 458, 459 n.1 (4th Cir. 1979); Gordon v. Leeke, 574 F.2d 1147, 1152 n.1 (4th Cir. 1978). A pro se litigant may not understand that under the Federal Rules of Civil Procedure, he "may set forth two or more statements of a claim ... alternately or hypothetically," and "may also state as many separate claims ... as he has regardless of consistency ...." Fed.R.Civ.P. 8(e). Therefore, in considering this motion, the court will construe plaintiff's complaint to have included a statement of his claim based on a theory of negligence.¹

Since Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), some actions under 42 U.S.C. § 1983 for property deprivations occurring in Virginia have been dismissed on the grounds that Virginia provides a remedy for the deprivation alleged, and that the state remedy provided satisfies procedural due process requirements. See Carroll v. Stacey, Civil Action No. 81-0249-R (W.D.Va., October 28, 1981); Graham v. Mitchell, 529 F.Supp. 622, (E.D. Va., 1982); Whorley v. Karr, 534 F.Supp. 88 (W.D.Va., 1981). Also cf. Peery v. Davis, 524 F.Supp. 107 (E.D.Va.1981) (section 1983 claim based on personal injury due to negligence dismissed under Parratt). Defendant submits that Parratt mandates summary judgment in his favor in this case.

Parratt held that the Fourteenth Amendment protection against negligent deprivation of property without due process of law can be satisfied by a meaningful postdeprivation hearing made available by a state, if a meaningful predeprivation process is impractical. See Parratt, 451 U.S. at 535-45, 101 S.Ct. at 1913-18. The statute involved there was Neb.Rev.Stat. § 81-8, 209 et seq. (1976), which provides a remedy to those who have suffered tortious losses at the hands of the State of Nebraska. A roughly congruent statute will go into effect in the Commonwealth of Virginia on July 1, 1982,² but the alleged deprivation in this case cannot be redressed via this statute, because it will apply to claims "only accruing on or after" July 1, 1982. Therefore, the court must consider whether there is a right of action under Virginia law which would redress plaintiff's deprivation; whether the defendant here, if made the defendant in the state action, would partake of the state's sovereign immunity; and whether such an action meets procedural due process requirements.

I. SUBSTANTIVE CAUSE OF ACTION

Article I, § 11, of the Constitution of Virginia (1971) provides that "no person shall be deprived of his life, liberty, or property without due process of law." It has been suggested that this section guarantees due process protection to those who have been unlawfully or improperly deprived of their property. See Graham, supra. It appears, however, that a private right of action under this state constitutional provision exists only if a preexisting common law action underlies the constitutional guarantee. Cf., e.g., Burns v. Board of Sup'rs of Fairfax Cty., 218 Va. 625, 238 S.E.2d 823, 825 (1977) (action under Art. I, § 11's prohibition against damaging private property for public uses, without just compensation; constitutional right to compensation enforceable by a common law implied contract action). Also, even on the assumption that there is an underlying common law action, section 11 may not apply to a claim based on negligence, because it is questionable whether a loss of property due to negligence is a deprivation under section 11.

Parratt has established that a loss of property due to negligence can be a deprivation under the federal Constitution's Fourteenth Amendment. See Parratt, 451 U.S. at 534-7, 101 S.Ct. at 1912-14. See also Chandler v. Hutto, 673 F.2d 1307 (4th Cir., 1981) (unpublished). However, one Justice in Parratt took the straightforward, commonsensical position that the word "deprivation" in the Due Process Clause of the Fourteenth Amendment "connotes an intentional act" and not a negligent deed. See Parratt, 451 U.S. at 548-9, 101 S.Ct. at 1919-20 (Powell, J., concurring in result). The language of the Due Process Clause of the Virginia Constitution is virtually identical to that of the Fourteenth Amendment. This court believes that the courts of Virginia would consider "negligent deprivation" to be a contradiction in terms as far as the state's own due process clause is concerned.

However, plaintiff has available to him state common law actions, whether or not the state constitution provides him a cause of action.³ He may sue for conversion or detinue. See Carroll, supra.

II. IMMUNITY

Given the availability of state common law actions, the next question is whether defendant here would partake of the state's sovereign immunity if made a defendant in state proceedings.

A. Negligence.

In Virginia, a state employee who acts wantonly or in a grossly negligent manner cannot don the cloak of sovereign immunity. James v. Jane, 221 Va. 43, 267 S.E.2d 108, 113 (1980). However, simple negligence, i.e. failure to use ordinary or reasonable care in the performance of a duty, is another matter. Factors to be considered in determining whether a state employee can be liable for simple negligence in the performance of his duty include: (1) whether the activity involved constitutes a governmental intrusion into formerly private areas; (2) whether the act performed involves the use of judgment and discretion; and (3) what degree of control and direction was exercised by the state over the employee alleged to have performed negligently. Id. 267 S.E.2d at 113.

The interplay of these factors is most subtle, and yields the following sample results as to the availability of immunity for simple negligence: University of Virginia Hospital administrators, available, see Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973); University of Virginia Hospital physicians, unavailable, see James, supra; University of Virginia Hospital surgical intern, available, see Lawhorne, supra; public high school teacher, unavailable, see Crabbe v. School Board and Albrite, 209 Va. 356, 164 S.E.2d 639 (1968). But see James, supra, 267 S.E.2d at 115 (Cochran, J., concurring) (Lawhorne and Crabbe are inconsistent). It is difficult for this court to augur this defendant's position under Virginia law, but it believes that he would enjoy immunity, because there are no privately operated prisons, and the state monitors and controls prison officials more closely than it does state university hospital physicians.

Since defendant cites Parratt and Carroll, supra, it may appear that he thereby declares he will not seek to cloak himself in the state's sovereign immunity in state court. That is not the case, however. In Subica v. Major Reynolds, Civil Action No. 82-0025-AM (E.D.Va., filed January 13, 1982), a case pending in the Alexandria Division, defendant officers of the Virginia State Penitentiary moved for summary judgment against plaintiff's property deprivation claim, on Parratt grounds, and citing Carroll and Graham, supra. The court granted summary judgment, stating that "since the Commonwealth has cited Carroll in support of her contention that there is available to the plaintiff a constitutionally adequate remedy in the state system, this court will assume that a contrary position, i.e. immunity, will not be asserted if that remedy is pursued by the plaintiff." (Order of February 23, 1982.) The court received a letter from the office of the Attorney General in Richmond in response, stating that the citation of Carroll was not meant "to represent that the Commonwealth would waive any available defenses in any forum." (Letter of February 26, 1982.)⁴ Apparently the state wishes to slide down both sides of the same pole. In light of this position and of the James factors, this court must deny summary judgment to defendant on Parratt grounds, insofar as plaintiff's claim sounds in negligence.⁵

B. Intentional Torts.

Sovereign immunity does not extend to a state official otherwise liable for an intentional tort. Elder v. Holland, 208 Va. 15, 155 S.E.2d 369 (1967). Thus, insofar as plaintiff's claim is founded upon intentional tort, he has an adequate state postdeprivation remedy for conversion or detinue. By the order accompanying this memorandum, the court grants summary judgment to defendant insofar as plaintiff's claim rests on intentional tort, pursuant to Fed.R.Civ.P. 56(b).

This is not the end of the court's dealings with that much of plaintiff's complaint, however. Plaintiff has a federal law claim arising out of the same nucleus of operative facts as the state law claim. Therefore the court should entertain the state claim under its powers of pendent jurisdiction.⁶ The court will deem plaintiff to have filed an amended complaint setting forth the same allegations as those in the original complaint, and...