Reimer v. Smith
| Citation | 663 F.2d 1316 |
| Decision Date | 14 December 1981 |
| Docket Number | No. 81-2009,81-2009 |
| Parties | Joe REIMER, Plaintiff-Appellant, v. John SMITH, Individually and in his capacity as an Officer of Texas Rangers, et al., Defendants-Appellees. Summary Calendar. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Joe Reimer, pro se.
Nancy M. Simonson, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before AINSWORTH, REAVLEY and RANDALL, Circuit Judges.
This case involves a § 1983 action against the Texas Rangers Department of Public Safety and three of its employees for deprivation of property without due process. The trial court found for defendants on all issues. We affirm.
Sometime between the 12th and 15th of December, 1978, Dan North, a sergeant with the Texas Rangers Department of Public Safety, received a report of a stolen mobile Big Mac car crusher from Rudi Rodriguez, a Texas Ranger in San Antonio. Rodriguez provided North with a description of the car crusher, along with the serial number, and a location where the crusher might be found. The alleged victim of the theft was a Dick Vander Vorste. Acting on Rodriguez's information, North called Ranger John Smith and told him to investigate the story. He sent Smith to Graham's Wrecker Service in Baytown, Texas, an establishment owned by John W. Graham. Smith found a Big Mac car crusher attached to an autocar diesel tractor truck. The serial number on the crusher matched the number provided by Rodriguez. Smith told Graham that the car crusher was stolen property and that he should not let the crusher leave the premises without Smith's permission. Graham stated at trial that Smith did not indicate specifically that he was also seizing the autocar diesel tractor truck, but because the crusher and the tractor were coupled together, Graham assumed both were being seized. At trial Smith stated that he only told Graham that he was seizing the car crusher.
Regardless of what was actually seized, it is undisputed that Smith did not follow the statutorily prescribed procedures subsequent to seizure of allegedly stolen property. He did not immediately thereafter file a schedule of the property seized with a court or magistrate explaining why the property had been seized, as required by Texas law. 1 He did file a schedule some two months later, listing only the car crusher as seized.
Subsequent to the seizure, arrangements were made to return the car crusher to its owner, Mr. Vander Vorste. On December 16, 1978, Ranger Smith met at Graham's Wrecker Service with Mr. McDaniel, an employee of Vander Vorste whom Vander Vorste had authorized to pick up the car crusher; Sergeant North instructed Smith that he was to release the car crusher to McDaniel. Once again it is undisputed that North and Smith did not comply with Texas statutory procedures, which require a court order to be issued before seized stolen property can be released to its owner. 2
When Smith and McDaniel had arrived at Graham's lot, Smith had McDaniel sign a property inventory form which permitted McDaniel to take possession of the car crusher. The form listed only the car crusher. Smith and McDaniel also signed a receipt which was given to Graham. This receipt, prepared by Graham's wife, and based upon information given to her by Graham, states: "Picked up auto car and crusher left on or about November 1, 1978 by Joe Reimer, License 2CX836."
Because the car crusher could not be moved without moving the autocar, McDaniel got into the cab of the autocar and started it. In attempting to move the autocar he damaged it severely. There was disputed testimony as to whether Smith was present at the time the damage occurred.
On December 25th, North got a phone call from the plaintiff, Joe Reimer. Reimer had learned from Graham of the car crusher's removal. It appears that Reimer had brought the car crusher, autocar, and a forklift to Graham's lot early in November of 1978. North told Reimer that the car crusher had been turned over to an agent of Vander Vorste; North did not have any information as to the fate of the autocar diesel tractor. When Reimer visited Graham to check up on his autocar, he found that the whole dash had been ripped out, that a piece of the radiator was gone, and that the engine had been ruined from overheating when the radiator stopped functioning.
Reimer then brought the present action in the Southern District of Texas against Rangers North and Smith, the captain of the Texas Rangers, W. B. Wilson, and the Texas Department of Public Safety. The suit was brought under 42 U.S.C. § 1983, alleging that defendants had deprived Reimer of his property without due process under color of state law by (1) seizing the car crusher, autocar and forklift and (2) damaging the autocar.
The defendants moved to dismiss on the grounds that (1) the Texas Department of Public Safety was immune from a suit for damages under the Eleventh Amendment since the State of Texas had not consented to suit; (2) Wilson was an improper party as there were no allegations of his personal involvement in the alleged deprivations; and (3) the car crusher claim was improper as there was a previous state litigation which had concluded that Reimer was not the owner of the car crusher.
The trial court gave Reimer twenty days to amend his pleadings; Reimer made no amendments, and the court then dismissed the suit against Wilson. Using the previous adjudication of ownership as defensive collateral estoppel, it granted summary judgment against Reimer on the car crusher claim. However, it did not dismiss the suit against the Texas Department of Public Safety, since there were triable issues of fact which could demonstrate that the officers' actions fell within the provisions of the Texas Tort Claims Act. After a bench trial, the court found for defendants on the merits of the remaining autocar and forklift claims. It also held that the Eleventh Amendment barred the suit against the Texas Department of Public Safety. On appeal, Reimer contests the decision of the trial court on the autocar and forklift claims. He also contests the dismissal of Wilson as a party, the trial court's holding that the Eleventh Amendment barred the suit against the Department of Public Safety, and the summary judgment on the car crusher claim.
The claims that Reimer's autocar diesel tractor truck was illegally seized and damaged and that a "hold" order was placed on his forklift were heard at a bench trial. At the close of the plaintiff's case, defendants moved for a directed verdict and the trial judge granted the motion, entering judgment for defendants. The trial judge later made conclusions of law and findings of fact based on the evidence received before him in accordance with Rule 52 of the Federal Rules of Civil Procedure.
Because we are dealing with a bench trial, we will treat the motion for directed verdict granted at the close of plaintiff's case as a Rule 41(b) motion for involuntary dismissal. See Fidelity and Casualty Company of New York v. Key Biscayne Bank, 483 F.2d 438 (5th Cir. 1973); 5 Moore's Federal Practice P 41.13(1) at 41-177 n.24 (2d ed. 1976). Although he did not explicitly so state, the trial judge also apparently treated the motion for directed verdict as a Rule 41(b) motion, since he made the findings of fact which are required under that Rule.
When reviewing a trial court's grant of a Rule 41(b) motion, we are required to accept the court's findings of fact unless they are clearly erroneous. M.O.N.T. Boat Rental Services, Inc. v. Union Oil Company of California, 613 F.2d 576 (5th Cir. 1980); Robinson v. M/V Merc Trader, 477 F.2d 1331 (5th Cir. 1973); Henderson v. Hayden Stone, Inc., 461 F.2d 1069 (5th Cir. 1972); Trask v. Susskind, 376 F.2d 17 (5th Cir. 1967); 5 Moore's Federal Practice P 41.13(4) (2d ed. 1976). 3
The trial court found that Smith had seized the car crusher but not the autocar or the forklift. Viewing the record as a whole, we cannot say that this finding is clearly erroneous. Smith denied that he had seized either the autocar or the forklift, and the inventory of stolen property he had McDaniel sign at the Grahams' lot listed only the car crusher as subject to release. North testified that he had instructed Smith to seize the car crusher. No evidence was presented that North instructed Smith to seize the autocar or the forklift. The only evidence that anything other than the car crusher had been seized consisted of (1) Graham's statement that he assumed that the autocar had been seized because it was connected to the car crusher, and (2) the receipt prepared by Mrs. Graham for her husband, which listed the car crusher and autocar as being released to McDaniel. It was well within the province of the trier of fact in this case to weigh the conflicting evidence and decide that no seizure of the autocar had taken place. There was clearly no evidence in the record that the forklift had been seized or made subject to a "hold."
The trial court also found that North and Smith did not participate in the removal of the Big Mac car crusher which led to the damage to Reimer's autocar. Again we think this finding is supported by the record. It is undisputed that Smith, acting on instructions from North, released the car crusher to Mr. McDaniel. Smith testified, and the trial court found (although there was some evidence to the contrary), that Smith left after he released the car crusher to McDaniel. In any case, there is no evidence in the record that Smith or North authorized McDaniel to use Reimer's autocar or instructed him or directed him in anyway with respect to the removal of the car crusher. Nor was there any evidence that Smith or North operated the autocar or forklift themselves. On the basis of the record, we are convinced that these findings of fact are not clearly erroneous.
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