Jones v. Preuit & Mauldin, Civ. A. No. 84-AR-5131-NW.

• Citation: 634 F. Supp. 1520
• Decision Date: 28 May 1986
• Docket Number: Civ. A. No. 84-AR-5131-NW.
• Parties: Samuel JONES, Jr., Plaintiff, v. PREUIT & MAULDIN, a partnership, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

634 F. Supp. 1520

Samuel JONES, Jr., Plaintiff, v. PREUIT & MAULDIN, a partnership, et al., Defendants.

Civ. A. No. 84-AR-5131-NW.

United States District Court, N.D. Alabama, Northwestern Division.

May 23, 1986.

Addendum May 28, 1986.

C.V. Stelzenmuller, F.A. Flowers, III, Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., Harold L. Speake, J.G. Speake, Speake, Speake & Reich, Moulton, Ala., for plaintiff.

T. Michael Putnam, Potts, Young, Blasingame, Suttle & Putnam, Florence, Ala., for defendants.

Charles Graddick, Atty. Gen., Ronald C. Forehand, Asst. Atty. Gen., Montgomery, Ala., for Non-Party, State of Ala.

MEMORANDUM OPINION

ACKER, District Judge.

On June 15, 1984, this court granted the motion of defendant Preuit & Mauldin, a partnership, to dismiss the above entitled action brought by plaintiff, Samuel Jones, Jr. This court's opinion at that time was based exclusively on its belief that Jones' cause of action under 42 U.S.C. § 1983 was barred by Alabama's one year statute of limitations. Jones v. Preuit & Mauldin, 586 F.Supp. 1563 (N.D.Ala.1984). In light of Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), decided several months after this court's ruling of June 15, 1984, the Eleventh Circuit reversed and remanded the case on June 21, 1985. Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985). The Supreme Court denied certiorari on January 27, 1986, with Justice White dissenting, ___ U.S. ___, 106 S.Ct. 893, 88 L.Ed.2d 926 (1986).

The only issue in this case thus far addressed by any judge of this court, the Eleventh Circuit or the Supreme Court, has been the question of the appropriate statute of limitations to be applied to a § 1983 action in Alabama. The law of the Eleventh Circuit now is that the § 1983 statute of limitations in Alabama is six years, so that Jones' cause of action is not time barred.

Upon remand, Preuit & Mauldin interposes other defenses and has filed a motion for summary judgment which will now be granted for the separate and several reasons hereinafter discussed.

As noted by Justice White, Jones is "an Alabama farmer who brought a § 1983 action against petitioners Preuit & Mauldin for allegedly violating his Fourteenth Amendment due process rights by causing his equipment to be seized pursuant to prejudgment attachment writs that petitioners obtained without notice or a hearing". 106 S.Ct. at 893. Jones' original complaint did not expressly claim that § 35-11-111, Ala.Code (1975) (the only Alabama statute actually mentioned in Jones' complaint) was unconstitutional, but did claim broadly that "the procedures set out in said statute ... did not comply with the requirements of the Fourteenth Amendment concerning deprivations of property without due process of law in relation to prejudgment seizures of property". After remand and after the pre-trial conference the equivocation as to Jones' position on what Alabama statutes, if any, he claims to be unconstitutional, vel non, were somewhat clarified when on March 5, 1986, Jones notified the Attorney General of Alabama pursuant to § 6-6-227, Ala.Code (1975) (a statute which requires that where any state statute is "alleged to be unconstitutional, the attorney general ... shall ... be served with a copy of the proceeding and entitled to be heard"), that Jones claimed unnamed Alabama statutes to be unconstitutional. Presumptively Jones was referring to §§ 35-11-5, 35-11-110 and 35-11-111, Ala.Code (1975), the statutes which he later specifically alleged to be unconstitutional in his motion for partial summary judgment filed on March 24, 1986. For aught appearing he is not attacking any other Alabama statutes or rules which deal with prejudgment attachment, although his brief describes Rule 64, Alabama Rules of Civil Procedure, as being unconstitutional and he lists §§ 6-6-41, 6-6-43 and 6-6-44, the general attachment statutes, as also being implicated. Whether he claims that any or all of these rules and statutes are unconstitutional is anybody's guess. It is also interesting that when applied to resident debtors §§ 6-6-43 and 6-6-44 have already been held to be unconstitutional by this court, a fact apparently not known to Jones' counsel. Wiggins v. Roberts, CV 75-M-1760 (unpublished opinion). After receiving Jones' notice the Attorney General filed a denial that any pertinent Alabama statute or rule is unconstitutional. Jones' motion for partial summary judgment challenging for the first time the constitutionality vel non of three statutes, §§ 35-11-5, 35-11-110 and 35-11-111, has previously been denied.

Preuit & Mauldin interpose five alternative alleged absolute defenses worthy of comment, viz:

1. Alabama's statutory prejudgment personal property attachment procedures are constitutional, especially (a) when invoked by a lien holder, and (b) where a judicial officer actually authorizes the prejudgment attachment. Therefore, defendants' invocation and employment of these procedures did not violate § 1983.

2. In the event the Alabama procedures are in some respects found to be constitutionally defective, Preuit & Mauldin is entitled to a qualified immunity from § 1983 liability because it invoked and employed the procedures without any obvious reason to believe that they were unconstitutional.

3. If Preuit & Mauldin did violate Jones' right to procedural due process, that right only involved interests in personal property, and inasmuch as Alabama provides adequate and valid post-deprivation procedures or remedies for the wrongful attachment of personal property, the rationale of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precludes § 1983 as a federal remedy available to Jones.

4. Jones does not claim any violation of substantive due process. Thus, because the undisputed fact is that Jones actually owed Preuit & Mauldin most, if not all, of the money Preuit & Mauldin claimed (and as adjudicated by the state court), Jones impliedly waived or eliminated any § 1983 claim arising out of any possible technical violation of procedural due process because he did not invoke the procedures available in the state court proceeding.

5. Jones is barred by res judicata by virtue of the fact that he had the opportunity to litigate the same issues here presented in a prior proceeding in the state court in a direct confrontation with Preuit & Mauldin and either lost on the issues or failed to present the issues when he could have done so.

THE PERTINENT UNDISPUTED FACTS

Jones, a farmer, owned three cotton picking machines. In the summer of 1981 Jones contracted with Preuit & Mauldin for the repair of the three pickers. After Preuit & Mauldin had completed the repairs and the pickers were delivered to Jones, Jones failed to pay Preuit & Mauldin for its labor and material. The Alabama mechanic's lien statute, § 35-11-110, Ala. Code (1975), by its terms automatically gave Preuit & Mauldin a lien on the pickers to secure the reasonable value of Preuit & Mauldin's labor and materials. Preuit & Mauldin's attorney (not the same attorney representing Preuit & Mauldin in the present case) prepared papers seeking to invoke §§ 35-11-110 (the mechanic's lien statute) and 35-11-111, (the procedural attachment statute) Ala.Code (1975), in order to obtain possession of the pickers and to enforce the mechanic's lien. He obviously overlooked the supplementary requirements of Rule 64, Alabama Rules of Civil Procedure. His papers consisted of three sets of the following (one for each picker): summons, complaint, attachment affidavit, bond, order and writ. An authorized agent of Preuit & Mauldin executed the affidavit and bond in each case in compliance with § 35-11-111, and the attorney then filed three separate actions (CV-82-21, CV-82-22 and CV-82-23) all in the Circuit Court of Lawrence County, Alabama. On February 17, 1982, he presented the papers to the circuit judge, Honorable Billy C. Burney, who thereupon entered orders authorizing the attachments and directing the clerk to issue writs which were duly issued and which were ultimately executed by the sheriff on April 8, 1982 when he actually attached the pickers. The sheriff's returns show service of the summonses and complaints to Jones on April 8, 1982. The amounts of the attachment bonds varied according to the sums claimed against each picker. In CV 82-21 the bond was for $15,000.00, in CV 82-22 $1,600.00, and in CV-82-23 $4,500.00. Pursuant to § 35-11-112, Ala.Code (1975), because there were other liens on the pickers, Preuit & Mauldin joined certain involuntary plaintiffs in the three cases in order to have the respective lien priorities judicially determined. One of these lienors was Citizens Bank.

On April 8, 1982, two of the involuntary plaintiffs filed motions to dissolve the writs of attachments in each of the three actions in Lawrence Circuit Court. At a hearing held on June 15, 1982, Jones actually testified in support of these motions to dissolve. On that date he obviously knew of the suits and of the attachments. However, he himself never answered any of Preuit & Mauldin's three complaints and a default was entered against Jones on each complaint on May 19, 1982. Jones claims never to have been served with any one of the summonses or complaints, contrary to what the state court record reflects. On July 12, 1982, Judge Burney denied the motions to dissolve filed by the other lienholders, finding that Preuit & Mauldin held the superior lien. Citizens Bank thereupon appealed in one of the cases to the Court of Civil Appeals of Alabama, which on November 24, 1982, (reh'g denied, January 5, 1983), reversed Judge Burney's holding that Preuit & Mauldin's lien was superior to that of the bank. Citizens Bank v. Preuit Estate, 425 So.2d 470 (Ala.Civ.App.1983). The appellate procedures of Alabama require that the notice of appeal be given to all who were parties in the lower court proceeding. Rule 3(d), A.R.A.P. Therefore,...