639 F.2d 1058 (4th Cir. 1981), 78-1717, Lugar v. Edmondson Oil Co., Inc.

Docket Nº:78-1717.
Citation:639 F.2d 1058
Party Name:Giles M. LUGAR, Appellant, v. EDMONDSON OIL COMPANY, INC.; Ronald L. Barbour, Appellees.
Case Date:January 09, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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639 F.2d 1058 (4th Cir. 1981)

Giles M. LUGAR, Appellant,


EDMONDSON OIL COMPANY, INC.; Ronald L. Barbour, Appellees.

No. 78-1717.

United States Court of Appeals, Fourth Circuit

January 9, 1981

Argued Jan. 7, 1980.

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Robert L. Morrison, Jr., Danville, Va., for appellant.

H. Victor Millner, Jr., Chatham, Va. (Vansant, Millner & Vines, Chatham, Va., on brief), and Jackson L. Kiser, Martinsville, Va. (Young, Kiser, Haskins, Mann, Gregory & Young, Ltd., Martinsville, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN and SPROUSE, Circuit Judges, sitting en banc.


Giles M. Lugar appeals the dismissal of his 42 U.S.C. § 1983 action in which he had alleged that the defendants as private party debt claimants in a state court action had maliciously invoked against him state prejudgment attachment procedures which resulted in the seizure of his property under a levy that was later set aside in the state proceeding because not supported on the facts shown. Claiming that the seizure by levy whether as authorized by the state attachment statute or as erroneously carried out by state officials 1 had deprived him of property without due process of law, he sought monetary relief against the state debt claimants.

The issue presented is whether the debt claimants' conduct as alleged constituted private action "under color of state law" within contemplation of § 1983. The district court held, relying essentially upon Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), that the complaint did not allege a deprivation of property by "state action," and accordingly dismissed the action for failure of the

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complaint to allege a claim cognizable under § 1983. Though we do not find Flagg Brothers dispositive as did the district court, we affirm dismissal of the action on the basis that the defendants' conduct as alleged did not constitute private action under color of state law.


In the spring of 1977, Lugar was operating a truck stop in Pittsylvania County, Virginia, and was then indebted to the defendant Edmondson Oil Co., Inc. (Edmondson). Edmondson commenced a civil action to recover on the debt in a Virginia state court, and ancillary to that action petitioned pursuant to state law 2 for prejudgment attachment of certain of Lugar's property to prevent its dissipation as a judgment satisfaction source. The petition, as verified under oath by the defendant Ronald L. Barbour, Edmondson's president and sole stockholder, alleged in conclusory terms a belief that Lugar was disposing of or might dispose of his property in order to defeat his creditors and prayed that certain identified property be attached to prevent his doing so. Acting upon the ex parte petition, a clerk of the state court in which the principal action was pending issued a writ of attachment, which was then executed in due course by the county sheriff, who levied upon certain of Lugar's property, effectively sequestering it though it was left in Lugar's possession. No preattachment bond was required by state law as a condition to securing the attachment, and none was provided, but Edmondson did later post a bond as required by law after Lugar filed an affidavit of substantial defense some days after the levy. Pursuant to statute, a hearing on the propriety of the attachment and levy was later conducted by a state trial judge who then, some thirty-four days after the levy, ordered the attachment dismissed on the basis that Edmondson had failed to carry the burden imposed by state law to establish by evidence the grounds for attachment alleged in the petition. At this point the petition for attachment was retained on the state court docket and the principal action proceded to the entry of judgment on the debt in favor of Edmondson. Some of Lugar's property was then sold in execution of the judgment.

Lugar then brought this § 1983 action against Edmondson and Barbour, alleging in greater detail the essential facts above summarized as to the course of the state court proceedings; that Edmondson's and Barbour's actions were maliciously inspired; that the attachment of his property was by virtue of official state action in which Edmondson and Barbour had willingly participated; that this resulted in a deprivation of his property without due process of law; and that in consequence he sustained specifically identified financial loss for which he was entitled to compensatory and punitive damages. 3 As earlier indicated, the district court concluded that the complaint failed to state a claim upon which relief could be granted under § 1983, essentially on the basis that Flagg Brothers compelled the conclusion that the private actions of the defendants as alleged did not constitute state action. 4 This appeal followed.


Against this background, we begin analysis by restating, in slightly recast form, the dispositive issue as we perceive it. It is whether the mere institution by a private

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litigant 5 of presumptively valid state judicial proceedings, without any prior or subsequent collusion or concerted action by that litigant with the state officials who then proceed with adjudicative, administrative, or executive enforcement of the proceedings, constitutes action under color of state law within contemplation of § 1983.

Because this formulation of the issue both anticipates and reflects major points in our analysis, we emphasize those of its elements most critical to that analysis. First, it deliberately focuses inquiry upon whether the specific conduct directly chargeable to the § 1983 defendants was taken under color of state law, rather than upon whether the ultimate deprivation of right charged can be attributed to state action. Next, it emphasizes that the conduct directly chargeable to the § 1983 defendants is narrowly that of invoking, as private litigants, state judicial proceedings for the adjudication of a private controversy, and includes no earlier or later involvement of the § 1983 defendants with state officials other than as private litigants in those proceedings. Finally it emphasizes that the ordering principle being sought is one generally applicable to the noncollusive invocation by private litigants of any state judicial proceeding, and is not limited to the particular type here in issue ancillary proceedings for seizure of property for the benefit of creditors.

As suggested in this formulation and discussion of the dispositive issue, we think that its resolution requires, in the first place, careful attention to and refinement of a fundamental distinction between the closely related, frequently congruent, concepts of state action and action under color of state law in § 1983 doctrine. To say why requires a brief preliminary analysis of the way in which evolving § 1983 doctrine may have tended to blur or to finesse the distinction, followed by a discussion of the importance of the distinction in making proper application of § 1983 doctrine to private defendants in the particular litigation context of this case.

It has become a commonplace that in the typical § 1983 case involving a claim of deprivation of a constitutionally secured right, the state action requirement necessitated by the Fourteenth Amendment's undergirding, 6 and the under color of state law requirement necessitated by the statutory language 7 ordinarily come to the same thing. 8 Nevertheless there has been occasional recognition that this is not always so that the two are separate, not necessarily congruent, but cumulative predicate elements of a prima facie § 1983 claim. 9 The

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reason for all this emerges upon consideration of the way in which the two requirements are confronted in the three basic patterns into which § 1983 litigation has tended to fall. 10

In the first pattern the so called "official act" case which makes up the bulk of § 1983 litigation the specific conduct alleged to have deprived of secured right is indubitably only official action, 11 i. e., that alone of state officials acting officially in legislative, e. g., Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); judicial, e. g., Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); or executive enforcement, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (police officers) roles. In such cases the only possible state action is that of the state officials charged, and the only possibly disputable question 12 is whether those officials were acting under color of state law in doing the act charged. Where dispute has arisen on the latter issue, its resolution has necessarily resolved any further question whether the resulting deprivation of right was by virtue of state action. See Flagg Brothers, 436 U.S. at 157 & n.5, 98 S.Ct. at 1734 & n.5. Because in most official act cases decided since Monroe v. Pape there is no disputing that the specific conduct charged to officials was done "under color," there has not been any great need arising from these cases to refine the distinction. In these cases, that is to say, the state action question is subsumed in the under color of question, and the latter is seldom raised.

In the second pattern, private actors alone are alleged to have engaged, at what could be called the operational or enforcement level, in conduct that deprived of a secured right. At this level, no state official is involved. If state action is found to exist it is because the private action at the level where deprivation actually occurs is "attributable to the state" by virtue of decisions taken, or policy established, or legislation enacted at higher levels. "Attribution" of this kind of private action to the state may be tested under...

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