Fontana v. Barham

• Decision Date: 17 June 1983
• Docket Number: No. 82-3064,82-3064
• Citation: 707 F.2d 221
• Parties: Luke FONTANA, Plaintiff-Appellant, v. Mack E. BARHAM, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 221

707 F.2d 221

Luke FONTANA, Plaintiff-Appellant, v. Mack E. BARHAM, et al., Defendants-Appellees.

No. 82-3064.

United States Court of Appeals Fifth Circuit.

June 17, 1983.

Silvestri, Marinaro, Massicot & Davis, Frank A. Silvestri, Frank Sloan, New Orleans, La., for plaintiff-appellant.

Stone, Pigman, Walther, Wittmann & Hutchinson, Kyle D. Schonekas, Phillip A. Wittmann, New Orleans, La., for Barham.

Casandra J. Cooper, Harvey, La., for Ernest Jones.

Galen S. Brown, Deputy City Atty., New Orleans, La., for City of New Orleans, et al.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, GEE and RANDALL, Circuit Judges.

GOLDBERG, Circuit Judge:

In this appeal we are asked to determine whether certain alleged activities of governmental officials are actionable under 42 U.S.C. Sec. 1983 (1976). The district court dismissed appellant's cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). We affirm.

I. FACTS AND PROCEEDINGS BELOW

A. Facts

On April 12, 1975, Sheryl Cheatham's husband was killed in an incident involving two New Orleans police officers. Wishing to pursue a wrongful death action against the City of New Orleans ("City"), Mrs. Cheatham retained as her legal counsel plaintiff-appellant Luke Fontana and defendants Charles Cotton, David Dennis, and Ernest Jones. The arrangement between Mrs. Cheatham and her attorneys was memorialized in a contingent fee agreement executed on May 5, 1975, which provided that the attorneys were to receive as compensation fifty percent of Mrs. Cheatham's total recovery following a successful appeal of her claim.

Mrs. Cheatham's wrongful death action, while ultimately successful, precipitated a trial and two appeals in the state courts of Louisiana. Defendant-appellee Mack Barham was engaged to handle the writ application to the Louisiana Supreme Court, which awarded Mrs. Cheatham a $619,000 judgment against the City and others. Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). This judgment became final when the court denied rehearing on January 11, 1980.

After the judgment became final, and during the efforts to collect, a dispute arose concerning the division of attorneys' fees. On March 21, 1980, Fontana attempted to record the contingent fee contract in the record of the Cheatham case in compliance with La.Rev.Stat.Ann. Sec. 37:218 (West Supp.1983). ¹ On April 11, 1980, the City issued two checks in payment of the judgment, both of which listed only Mrs. Cheatham as payee. Mrs. Cheatham negotiated the checks, and the attorneys' fees were apportioned among the other attorneys to the exclusion of appellant Fontana.

After the City had distributed the funds to Mrs. Cheatham, Fontana filed summary proceedings in Louisiana state court against the City, arguing that he was entitled to a portion of the Cheatham judgment pursuant to the recorded contingent fee agreement. The trial court held for Fontana, but the Louisiana court of appeals reversed. Cheatham v. City of New Orleans, 391 So.2d 1324 (La.App.1980). The court of appeals held that Fontana's effort to record his employment contract failed to protect his interest because the contract was filed pursuant to an inapplicable statute. Id. at 1326. The court noted that La.Rev.Stat.Ann. Sec. 37:218, upon which Fontana had relied, provides protection against the loss of attorneys' fees in the event the client and the adverse party settle the pending suit. Id. In this case, the court stated, the applicable statute would have been La.Rev.Stat.Ann. Sec. 9:5001 (West 1951), which grants to attorneys a privilege ² to secure fees on judgments obtained by them. Id. Because Mrs. Cheatham's case resulted in a judgment rather than a settlement, Fontana should have pursued his right to attorneys' fees under La.Rev.Stat.Ann. Sec. 9:5001. The court further observed that in recording the contingent fee agreement Fontana had denominated his action a "petition to intervene." ³ The court labelled the attempted intervention a "misnomer ... considering the provisions of [La.Code Civ.Proc.Ann. art. 1091-1094 (West 1960) ] with respect to intervention and considering that there was no suit pending in the trial court into which an intervention could be filed." Id. Thus, the court held that Fontana's effort to preserve an interest in the Cheatham judgment failed.

B. Procedural History

Fontana initiated this action in the United States District Court for the Eastern District of Louisiana on February 24, 1981. His complaint, which named as defendants the City, the Mayor of New Orleans, the City Attorney, the Chief Administrative Officer of the City, Barham, Cotton, Dennis, and Jones, asserted a cause of action under 42 U.S.C. Sec. 1983 (1976), as well as pendent state claims. Fontana alleged that the defendants "conspired with one and other [sic] to violate the constitutional right of plaintiff, LUKE FONTANA, in contravention of 42 U.S.C. Sec. 1983." Record on Appeal, Vol. I at 2. In particular, Fontana complained that the municipal defendants violated his civil rights when the City "issued a check for the judgment and interest in the Cheatham v. City of New Orleans case and intentionally failed to put plaintiff's name upon said check as payee." Id. at 3. Fontana urged that this action by the City violated his "clearly established constitutional rights of due process, property, employment, free speech, as well as right to petition the government without intimidation or punishment," because the municipal defendants "knew or reasonably should have known that they were setting in motion a series of acts which would cause defendants BARHAM, COTTON, JONES and DENNIS to inflict the constitutional injuries to plaintiff which were suffered by plaintiff." Id. at 4. Fontana further averred that the municipal defendants "should have known or made it their business to find out the manner in which the attorney's fees were to be disbursed." Id. at 3. Fontana then prayed for an award of $1 million, plus attorneys' fees, costs, and interest. Id. at 6.

Barham and the City filed motions to dismiss Fontana's complaint under Fed.R.Civ.P. 12(b)(6). The district court initially denied these motions on May 13, 1981. On May 18, 1981, the United States Supreme Court rendered its opinion in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). ⁴ Barham and the City, encouraged by the Parratt holding, again urged the motions to dismiss, which the district court then granted after oral argument.

In granting the defendants' motion to dismiss, the district court relied heavily upon the Supreme Court's rationale in Parratt. The district court observed that Fontana's alleged deprivation did not occur as a result of an established state procedure and noted that the state of Louisiana provided adequate remedies for redress. The court then stated:

In essence, this case is a dispute over attorneys' fees. It is nothing more than a state court claim masquerading as a Section 1983 claim. The proper forum for plaintiff's claim, despite the Section 1983 trappings, is state court. There is no established state policy upon which defendant could have relied as depriving plaintiff of due process. The right to receive his fair share of attorneys' fees is one of a number of interests best protected by the state through its tort laws.

Fontana v. Barham, No. 81-761, slip op. at 3 (E.D.La. Jan. 6, 1982). Fontana now appeals from the district court's dismissal of his cause of action.

II. ISSUES ON APPEAL

The district court, apparently persuaded that the Parratt principle governed the instant situation, dismissed Fontana's claim under section 1983. In appellate briefs and at oral argument, the parties have expended considerable energy in defending or denouncing the application of Parratt to this case. We, however, find it unnecessary to address the difficult and important questions left unanswered by the Parratt decision, for we agree with the appellees that this case presents a more fundamental issue of section 1983 jurisprudence. In analyzing Fontana's asserted claim under section 1983, we must first determine whether the complaint properly sets forth a claim of a deprivation of rights, privileges, or immunities secured by the Constitution or laws of the United States caused by persons acting under color of state law. Parratt, 101 S.Ct. at 1912-13; Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981). Thus, our initial task is to examine Fontana's complaint, focusing upon the nature of the protected interest, the nature of the alleged deprivation, and the state's involvement in that deprivation. Because we conclude that the complaint does not set forth a deprivation of a protected interest, we affirm the district court's dismissal of Fontana's claim without considering the reach of Parratt 's rationale.

III. THE SECTION 1983 CLAIM

In judging the propriety of the dismissal of a section 1983 claim under Fed.R.Civ.P. 12(b)(6), we are guided by a familiar standard. "[A] motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim." Sims v. Adams, 537 F.2d 829, 831 (5th Cir.1976). Accordingly, in reviewing the district court's dismissal here, our task is to determine whether Fontana's allegations, if proven true, are sufficient to support a cause of action under section 1983.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the...