Howell v. Tanner

• Decision Date: 13 July 1981
• Docket Number: No. 79-3374,79-3374
• Citation: 650 F.2d 610
• Parties: Van HOWELL, Plaintiff-Appellant, v. Joe D. TANNER, Individually and as Commissioner of Department of Natural Resources, et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 610

650 F.2d 610

Van HOWELL, Plaintiff-Appellant, v. Joe D. TANNER, Individually and as Commissioner of Department of Natural Resources, et al Defendants-Appellees.

No. 79-3374.

United States Court of Appeals, Fifth Circuit.

Unit B

July 13, 1981.

J. E. B. Stewart, Jonesboro, Ga., for plaintiff-appellant.

Mark A. Dickerson, Isaac Byrd, Asst. Attys. Gen., Atlanta, Ga., William P. Langdale, Jr., Valdosta, Ga., for defendants-appellees.

Ronald A. Lowry, Atlanta, Ga., for Raulerson.

Appeal from the United States District Court for the Middle District of Georgia.

Before JONES, FAY and HENDERSON, Circuit Judges.

HENDERSON, Circuit Judge:

The appellant, Van Howell, filed suit in the United States District Court for the Northern District of Georgia pursuant to provisions of 42 U.S.C. §§ 1983 and 1985(3) ¹ alleging that he was maliciously arrested and prosecuted as well as physically accosted in violation of his constitutional rights. Named as defendants were the Georgia Department of Natural Resources (DNR); Joe D. Tanner, Commissioner of the DNR; Louis T. Raulerson, Ross Knowlton and Wallace King, employees of the DNR; J. Leon Raulerson, the former sheriff of Echols County, Georgia; and The Langdale Company, the owner of the land subject to a game management contract with the DNR.

On June 21, 1975, Howell was arrested and cited by state game and fish officers Knowlton and King on charges of criminal trespass and possession of a firearm. Louis T. Raulerson conferred with the officers at the arrest site. Shortly thereafter warrants on the same charges were sworn out against Howell by Raulerson. On January 28, 1976, J. Leon Raulerson, brother of Louis Raulerson and the sheriff of Echols County, drew up an affidavit in support of the accusations which were then pending in Echols Superior Court.

Meanwhile earlier that month, on January 3, 1976, Louis T. Raulerson had had a previous encounter with Howell. While driving near Halo, Georgia in the company of his daughter, Howell was waved down by Raulerson, who was standing by the DNR car which had been assigned to him. Raulerson was dressed in his DNR uniform but was off-duty. When he had stopped, Howell was questioned by Louis Raulerson about nails which had been placed on the property leased by The Langdale Company to DNR. The parties disagree on the sequence of events which followed. Howell contends that Raulerson maliciously and without warning shot him several times with a DNR rifle and then beat and kicked him while he lay unconscious on the roadway. By Raulerson's account the trouble began when Howell became argumentative and waved a pistol at him. Allegedly Raulerson shot Howell in self defense. Three days later, on January 6, 1976, a warrant based on an affidavit by Raulerson was issued for the arrest of Howell and his daughter on the charge of aggravated assault against Raulerson. The criminal proceeding on this charge was terminated a month later, however, when the county grand jury returned a "no bill". ²

Eventually Howell also prevailed on the charges against him for criminal trespass and unlawful possession of a firearm. These counts came on for trial on February 5, 1976. The jury found Howell not guilty of trespass but guilty of a firearm offense. On appeal of the firearm conviction to the Supreme Court of Georgia, Howell's conviction was reversed on grounds that the Georgia statute permitting prosecution was unconstitutional. ³

Howell filed this civil suit in the Northern District of Georgia on January 2, 1978. The district court judge dismissed DNR as a party defendant, but denied the motion to dismiss filed by the other defendants. Thereafter a motion for change of venue filed by the defendants was granted and the cause was transferred to the Middle District of Georgia, Valdosta Division.

Additional motions were filed by the defendants in the Middle District of Georgia. The district judge granted motions for summary judgment as to all the defendants except Louis Raulerson "for the reasons asserted by counsel" in their briefs. He dismissed the claim against Louis Raulerson because he found it to be "too nebulous to rise to the constitutional proportions". The final judgment from which this appeal is taken was rendered on August 30, 1979.

Howell assigns as error (1) the award of summary judgment to all defendants except Louis Raulerson and the granting of Louis Raulerson's motion to dismiss; (2) the change of venue from the Northern District of Georgia to the Middle District of Georgia; (3) the refusal to remand the case to the Northern District of Georgia; (4) the entry of final judgment by the clerk; (5) the denial of his motion to amend his complaint; (6) the refusal to reinstate the DNR as a party defendant; and (7) the dismissal of the "summary of events" filed by Howell.

The appellant attacks the summary judgment ruling on procedural as well as substantive grounds. He first focuses on the fact that he received no notice of the date of the hearing on the motion. He purportedly had affidavits he would have filed had he known that a decision on the motion would be forthcoming so quickly. At oral argument, Howell's counsel identified this lack of notice as the principal error in the case and the main reason for reversal of the summary judgment.

Howell's counsel reads the Fed.R.Civ.P. 56(c) requirement for notice of the hearing date to mean that he will know the outside time in which opposing affidavits must be served. ⁴ The appellant cannot dispute the fact that he had notice of the pendency of the motion, though, because he filed a response. The appellees answer that the litigants' rights are preserved by a local rule for the Middle District of Georgia which provides that (1) a respondent to a motion for summary judgment must submit all responses, briefs or affidavits within ten days of service of the motion; and (2) all motions are decided without hearing unless otherwise ordered by the court on its own motion or at the request of counsel. ⁵ M.D.Ga.R. (b), (e) (1960). Fed.R.Civ.P. 56(c) contemplates that the ten-day advance notice of the earliest possible hearing date must be given so that the adverse party will have an opportunity to fully prepare his case. The respondent's Rule 56 interests were fully protected by the local rule which defined a ten-day period within which all materials must be filed in order to receive consideration from the court. Kibort v. Hampton, 538 F.2d 90, 91 n. 1 (5th Cir. 1976).

Howell also maintains that the adverse summary judgment was erroneously rendered as a matter of law. We do not agree with the appellant. We find, as did the district judge, that the facts and law were adequately and accurately presented by the parties in their briefs on motion in the trial court. For the following reasons, the district judge was correct in entering summary judgment favorable to the appellees.

Game and Fish rangers Knowlton, King and Raulerson are charged with deprivation of Howell's constitutionally-protected interests in arrest and prosecution accomplished with due process of law. See Cook v. Houston Post, 616 F.2d 791 (5th Cir. 1980); Reeves v. City of Jackson, Mississippi, 608 F.2d 644 (5th Cir. 1979). The appellees had probable cause to believe in good faith that Howell broke the law on June 21, 1975. Howell admitted that the area in which he was approached was a game management area. (Appellant's Reply Brief at 24). He further concedes that he was carrying a firearm, but he says the possession was lawful because the gun was broken. (Transcript at 173). The defense of probable cause negates a § 1983 claim based on an alleged false arrest. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 228 (1967); Hunter v. Clardy, 558 F.2d 290, 291 (5th Cir. 1977); Rodriguez v. Jones, 473 F.2d 599, 604-05 (5th Cir.), cert. denied 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). Once probable cause has been established, the legality of the arrest is not affected by collateral bad faith of the arresting officer or a subsequent dismissal or acquittal of the charges. ⁶ Hunter v. Clardy, 558 F.2d at 292; Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975). Knowlton, King and Louis T. Raulerson were entitled to summary judgment as a matter of law.

Joe D. Tanner's lack of personal participation in Howell's arrest dictates the summary judgment in his favor. The arrest was not effected pursuant to either a direct order from Tanner or a custom or policy instituted by Tanner. Since there is no showing of direct involvement by Tanner in the arrest, he cannot be liable under § 1983. See Reimer v. Short, 578 F.2d 621, 625 (5th Cir. 1978) cert. denied 440 U.S. 947, 99 S.Ct. 1425, 59 L.Ed.2d 635 (1979); Locust v. DeGiovanni, 485 F.Supp. 551, 552 (E.D.Pa.1980). ⁷

Summary judgment was also authorized for Sheriff Leon Raulerson. In his deposition, Howell stated that he included Raulerson as a party only because his action in swearing out the accusations for the trespass and firearms offenses made him a "prosecutor". Raulerson is required by state law to issue accusations upon receipt of instructions from the district attorney as was the case here. Ga.Code Ann. § 27-704 (1972) (current version at Ga.Code Ann. § 27-704 (Supp.1980)). Where state law obligates an official to perform a ministerial duty, good faith is presumed absent express evidence on the record of bad motive. Tucker v. Maher, 497 F.2d 1309, 1313 (2d Cir.) cert. denied 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974). ⁸

With respect to the claim against Louis Raulerson arising from the January 3, 1976 shooting incident, however, we think the appellant alleged sufficient facts to withstand a motion to dismiss. A claimant must state facts showing that the state has deprived him of a liberty or property interest without due process of law. Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir. 1980) (U.S. app. pending). If these facts, when...