Vicory v. Walton

• Decision Date: 28 March 1984
• Docket Number: No. 82-3828,82-3828
• Citation: 721 F.2d 1062
• Parties: John W. VICORY, Plaintiff-Appellee, v. Robert R. WALTON, Sheriff of Butler County; and John F. Holcomb, Butler County Prosecutor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1062

721 F.2d 1062

John W. VICORY, Plaintiff-Appellee, v. Robert R. WALTON, Sheriff of Butler County; and John F Holcomb, Butler County Prosecutor, Defendants-Appellants.

No. 82-3828.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1983.

Decided Nov. 30, 1983.

Rehearing En Banc Denied March 28, 1984.

Victoria Daiker, Carl D. Ferris, argued, Hamilton, Ohio, for defendants-appellants.

John D. Smith, argued, Franklin, Ohio, for plaintiff-appellee.

Before MERRITT and KENNEDY, Circuit Judges, and BERTELSMAN, ^* District Judge.

MERRITT, Circuit Judge.

The primary question before us in this damage suit under 42 U.S.C. Sec. 1983 (1976) for deprivation of property under color of state law without due process, is whether plaintiff must plead and prove the absence ofadequate state damage remedies as an element of the constitutional tort. We conclude under the authority of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that in section 1983 damage suits for deprivation of property without procedural due process the plaintiff has the burden of pleading and proving the inadequacy of state processes, including state damage remedies to redress the claimed wrong. The plaintiff in this case has failed to carry this burden. The judgment of the court below awarding damages to plaintiff is therefore reversed.

I.

Defendants Robert R. Walton and John F. Holcomb, the sheriff and prosecutor of Butler County, Ohio, appeal an order of the District Court granting a summary judgment against them in a section 1983 action for damages resulting from an alleged violation of civil rights guaranteed by the fourth, fifth and fourteenth amendments to the Constitution.

Plaintiff John W. Vicory owns a mobile home trailer in Overpeck, Ohio. On October 1, 1979, three persons were shot in this trailer which had been rented from Vicory by one of the murder victims.

At the direction of prosecuting attorney Holcomb, and with the consent of plaintiff, Sheriff Walton seized the trailer on October 2, 1979, for the purpose of investigating the triple homicide. The sheriff and prosecutor conducted an investigation at the trailer, which the coroner, Garrett J. Boone, had ordered sealed in order to preserve the scene for evidentiary purposes in case the trial judge, in his discretion, should order a view of it in the criminal trial.

After extended criminal proceedings against Richard E. Saylor, who entered pleas of not guilty and not guilty by reason of insanity to three counts of murder, the case was concluded on March 10, 1980, when the accused entered pleas of guilty to all three counts of the indictment. Two weeks later on March 24, 1980, Prosecutor Holcomb directed Sheriff Walton to return the trailer to Vicory's possession.

On October 16, 1980, plaintiff Vicory commenced this section 1983 suit against Sheriff Walton, alleging that he had been deprived of his property, the trailer, under color of state law, without just compensation. ¹ On May 25, 1982, plaintiff amended his complaint to add Prosecutor Holcomb as a defendant.

On October 27, 1982, the District Judge issued an order granting plaintiff's motion for summary judgment and awarding him a judgment for $850, the stipulated lost rental value of the trailer, plus reasonable attorneys' fees. The District Court held that the prosecutor was not entitled to absolute immunity, but only to a good faith immunity which on the facts of this case could not be invoked. Further, the court held that the retention of plaintiff's trailer without compensation amounted to a violation of due process under the fifth amendment. ²

II.

In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that the negligent deprivation of a prisoner's property does not violate due process if adequate state remedies are available to redress the wrong. Parratt held that in order to state a claim for relief in federal court under section 1983, a plaintiff must show that available state procedures were not adequate to compensate him for the deprivation of his property.

For the purposes of due process, retention of plaintiff Vicory's trailer in this case is analogous to the retention of the prisoner's hobby materials in Parratt. In both cases, a law enforcement official under color of state law has rightfully acquired, but perhaps wrongfully retained, the property of a citizen; and in both cases, state law provides immediate corrective process in its courts. In Parratt, Nebraska law provided the prisoner with a means to redress the loss of the hobby materials. See Neb.Rev.Stat. Sec. 81-8,209 (1976). In this case, plaintiff can resort to an action in an Ohio court for forcible entry and detainer. See Ohio Rev.Code Ann. Secs. 1923.01-.14 (Baldwin 1977). Moreover, the plaintiff is entitled to a jury trial under this statute. See id. Sec. 1923.10. See also Cuyahoga Metropolitan Housing Authority v. Jackson, 67 Ohio St.2d 129, 423 N.E.2d 177 (1981) (purpose of forcible entry and detainer statute is to provide summary, extraordinary and speedy method for recovery of possession of property). Although these state remedies may not provide the prisoner in Parratt or the plaintiff here with all the relief which might have been available if they could have proceeded under section 1983, the remedies could have fully compensated them for the property loss sustained, and are therefore sufficient to satisfy the requirements of due process.

There is a further significant similarity between this case and Parratt. The Parratt Court states that there is an important difference between a challenge to an established state procedure as lacking in due process--see, e.g., Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (invalidating Florida garnishment procedure requiring a hearing only after the repossession)--and a property damage claim arising out of the alleged misconduct of state officers. In the latter case, as here, "the state action is not necessarily complete," because state law provides a means for the plaintiff to be made whole for the loss of property. See Parratt, 451 U.S. at 542, 101 S.Ct. at 1916 (quoting with approval now-Justice Stevens' analysis in Bonner v. Coughlin, 517 F.2d 1311 (7th Cir.1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978)); cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (distinguishing Parratt, the Court held that availability of post-termination tort action does not supply due process when "[i]t is the state system itself that destroys a complainant's property interest" with an established state procedure).

Allowing the plaintiff in this case to invoke section 1983 in the absence of a showing that state remedies are deficient would "make of the fourteenth amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States." Parratt, 451 U.S. at 544, 101 S.Ct. at 1917 (quoting Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). It is difficult indeed to perceive any logical stopping place to a line of reasoning that would almost necessarily result in turning every alleged property deprivation resulting from a criminal investigation or prosecution in which the property of citizens is retained by the state for evidentiary purposes into a section 1983 action. ³

Plaintiff attempts to distinguish Parratt on the basis of intent. He argues that the conduct in refusing to return the property was intentional, rather than negligent, as in Parratt. Courts of Appeal are divided on whether the Supreme Court will extend the Parratt requirement of a showing of inadequate state remedies to cases involving the deprivation of liberty interests arising under the first and fourth through the eighth amendments or to intentional property deprivations. See, e.g., Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1352 (9th Cir.1981) (holding that under Parratt, plaintiff must show that post-deprivation tort remedies available under Arizona law were deficient in order to state section 1983 claim for intentional assault and battery), aff'd on other grounds sub nom. Kush v. Rutledge, --- U.S. ----, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Palmer v. Hudson, 697 F.2d 1220 (4th Cir.1983) (Parratt applies to intentional deprivations of property but not to substantive violation of privacy rights), cert. granted, --- U.S. ----, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983); Vail v. Board of Education of Paris Union, 706 F.2d 1435 (7th Cir.1983) (section 1983 extends to protect property interest of employee with implied contract of employment, and since Supreme Court has refused to expand Parratt beyond "a tortious loss of property or result of a random and unauthorized act by a state employee," Parratt rationale does not require employee to allege inadequacy of state law remedies), cert. granted, --- U.S. ----, 104 S.Ct. 66, 78 L.Ed.2d 81 (1983); Friedman, Parratt v. Taylor: Opening and Closing the Door on Section 1983, 9 HASTINGS CONST.L.Q. 545 (1982). See also Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (no violation of procedural due process in school paddling case when plaintiff makes no showing that state remedies are inadequate).

As we read Parratt, the principle being applied does not turn on the question of whether the claimed constitutional tort affecting property is caused by intentional conduct or negligent conduct or is based on strict liability. Nor does it matter whether the writ at common law would be in detinue (action for wrongful detention of a chattel by a bailor), trespass de bonis asportatis (action for carrying away plaintiff's chattels), trespass on the case (roughly speaking, an action for negligence) or a motion in a criminal case for return of property held as evidence. The reasoning of Parratt appears to extend at least to all ...