544 F.Supp. 149 (E.D.Va. 1982), Civ. A. 82-0194, Henderson v. Counts

Docket Nº:Civ. A. 82-0194
Citation:544 F.Supp. 149
Party Name:Henderson v. Counts
Case Date:August 02, 1982
Court:United States District Courts, 4th Circuit, Eastern District of Virginia

Page 149

544 F.Supp. 149 (E.D.Va. 1982)

Richard HENDERSON, Jr., Plaintiff,


M. V. COUNTS, Defendant.

Civ. A. No. 82-0194-R.

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

Aug. 2, 1982

Page 150

Richard Henderson, Jr., pro se.

Joseph P. Rapisarda, Acting County Atty., Henrico County, Richmond, Va., for defendant.


RICHARD L. WILLIAMS, District Judge.

Plaintiff Richard Henderson, Jr., is an inmate at the Henrico County (Va.) Jail. He has filed a section 1983 action against M. V. Counts, a Henrico County police officer. See 42 U.S.C. s 1983 (1976). The plaintiff alleges that Counts and another officer used excessive force in arresting him. Henderson seeks damages and a letter of apology from the defendant. Counts moves for summary judgment on the plaintiff's claim. See Fed.R.Civ.P. 56(b).


On the morning of December 24, 1981, Counts attempted to stop Henderson for questioning about a recent bank robbery. The officer thought that the plaintiff fit

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the description of the suspect in the bank robbery case. Henderson does not dispute that Counts had sufficient cause to stop him for questioning. The defendant claims that he asked Henderson several times to halt, but that the plaintiff failed to do so. Henderson again does not dispute this fact. When the plaintiff finally responded to the officer's requests, Counts ordered him to place his hands on the hood of Counts' police vehicle. Henderson apparently complied with this order.

At this point, the accounts given by Counts and Henderson begin to differ radically. The defendant asserts that Henderson first "moved his right hand towards his coat pocket as if he were reaching for a weapon." Affidavit of M. V. Counts P 3. Counts and another officer then allegedly wrestled with the plaintiff in an attempt to handcuff him. Id. During the struggle, large amounts of cash fell out of Henderson's shirt. After the officers subdued the plaintiff, they formally arrested him.

Henderson, on the other hand, claims that Counts began striking him in the face without provocation. After hitting him five or six times, the officer then allegedly threw him to the ground and continued the beating. Henderson contends that Counts finally handcuffed him and dragged him to the rear of the police vehicle. At this time, Counts supposedly threw the plaintiff into the trunk of the vehicle.

On March 15, 1982, Henderson filed a section 1983 action against Counts in this court. His complaint does not indicate which constitutional provision forms the basis for his section 1983 claim. The plaintiff seeks $10,000 in damages and a letter of apology from Counts.


The defendant moves for summary judgment on the ground that Henderson's claim does not amount to a constitutional violation. The plaintiff's allegations do not implicate any of the specific guarantees enumerated in the Bill of Rights. 1 The court, therefore, will analyze Henderson's claim only in terms of procedural and substantive due process.

The Supreme Court's decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), provides the touchstone for a procedural due process analysis of the plaintiff's allegations. Under Parratt, a meaningful postdeprivation remedy is sufficient to satisfy due process, unless the deprivation in question was pursuant to an established state practice or procedure. See id. 451 U.S. at 541, 101 S.Ct. at 1915-16. Parratt dealt only with negligent property deprivations. See id. at 536-37, 101 S.Ct. at 1913-14. The court, however, rules that the decision's rationale also applies to intentional nonproperty takings such as the assault and battery alleged here. See id. at 541, 101 S.Ct. at 1915-16; Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1352 (9th Cir. 1981), cert. granted, --- U.S. ----, 102 S.Ct. 3508, 73 L.Ed.2d 1382 (1982); Irshad v. Spann, 543 F.Supp. 922 at 927 n.1 (E.D.Va. July 19, 1982); Frazier v. Collins, 538 F.Supp. 603, 607 (E.D.Va.1982); Eberle v. Baumfalk, 524 F.Supp. 515, 517-18 (N.D.Ill.1981); Meshkov v. Abington Township, 517 F.Supp. 1280, 1286 (E.D.Pa.1981);

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Sheppard v. Moore, 514 F.Supp. 1372, 1376...

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