Campbell v. Shearer

• Citation: 732 F.2d 531
• Decision Date: 24 April 1984
• Docket Number: No. 82-1665,82-1665
• Parties: Chester Wheeler CAMPBELL, Plaintiff-Appellant, v. Joseph SHEARER, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 531

732 F.2d 531

Chester Wheeler CAMPBELL, Plaintiff-Appellant, v. Joseph SHEARER, et al., Defendants-Appellees.

No. 82-1665.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 25, 1983.

Decided April 24, 1984.

Patmon, Young & Kirk, Detroit, Mich., Carol Evans (argued), Detroit, Mich., for plaintiff-appellant.

Thomas Gallagher (argued), Gary Kress (argued), Detroit, Mich., for defendants-appellees.

Before LIVELY, Chief Judge, MERRITT, Circuit Judge and HOLSCHUH, District Judge. ^*

MERRITT, Circuit Judge.

In this procedural due process action brought under 42 U.S.C. Sec. 1983 (1976) for deprivation of property, we are presented again with the question of what elements are necessary to state and prove a cause of action for constitutional deprivation of property under section 1983. The District Court decided in favor of the various defendants on grounds that they are protected from liability by either an absolute, or a qualified immunity. We affirm on a different ground. Under our recent decision in Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983), a plaintiff must plead and prove that available state remedies are inadequate or systemically defective in order to state or prove a proper procedural due process claim under section 1983 for deprivation of property. Plaintiff must prove the due process element of the wrong as well as the property deprivation element, and in this case he has failed to show that Michigan's administrative and judicial remedies are inadequate or that they do not provide adequate process to remedy the constitutional violation claimed.

I.

Plaintiff, who is currently incarcerated, filed this section 1983 action alleging that his due process rights were violated when Detroit police officers seized approximately $280,100 in cash from his home pursuant to a warrant that authorized them to search for weapons, drugs, drug paraphernalia, and other evidence of drugs. Upon the issuance of a jeopardy tax assessment by the Michigan Department of Treasury, the Detroit Police Department surrendered $127,775.38 to the state tax collectors. The remaining cash was apparently turned over to the Internal Revenue Service under a federal jeopardy tax assessment.

Soon thereafter, a judge of the Recorder's Court for the city of Detroit held that the seizure of the money was illegal because it was not within the scope of the search warrant. Plaintiff then filed a request with the Michigan Department of Treasury for an informal hearing concerning the assessment. A series of bureaucratic or procedural impediments then arose.

Pursuant to plaintiff's request, the Department scheduled a hearing. Before it held the hearing, the Department determined that it lacked jurisdiction. Since plaintiff had relied upon an earlier departmental practice of allowing informal hearings in such tax assessment matters, however, the Department indicated that plaintiff would be allowed thirty days to bring a proper appeal before the Michigan Board of Tax Appeals.

Approximately one week later, plaintiff filed an appeal with the Board of Tax Appeals. The Michigan Attorney General moved to dismiss the appeal because it had not been filed within the statutorily required thirty days of the actual assessment. The Board granted the Attorney General's motion, dismissing the appeal for lack of jurisdiction, while noting that the dismissal "works an unconscionable result and an obvious deprivation of fundamental due process."

Plaintiff thereupon filed a mandamus action in the Michigan Court of Appeals, seeking to compel the Michigan Department of Treasury to return the money seized under the jeopardy sales tax assessment and to compel the Board of Tax Appeals to hold a hearing on the assessment. The Michigan Court of Appeals issued a writ of mandamus remanding the case to the Board for a hearing. The Board held that the jeopardy assessment issued by the State of Michigan against plaintiff was valid but declined to rule whether statutory procedures were violated because it said that it lacked equitable power to grant injunctive relief. See Campbell v. Department of Treasury, 77 Mich.App. 435, 258 N.W.2d 508 (1977).

Plaintiff never appealed the Board's decision. Even before the Board had rendered its decision, plaintiff filed this action in the District Court. Plaintiff alleged that the defendants, while acting under color of state law, caused him to be deprived of constitutional rights guaranteed under the fourth and fourteenth amendments (1) by illegally seizing his property under the jeopardy sales tax assessment without affording him an administrative or Board of Tax Appeals hearing; and (2) by wrongfully depriving him of a post-seizure administrative hearing to protest the jeopardy assessment in accordance with state practice and procedure. Defendants are five Detroit police officers, the city of Detroit, the state Revenue Commissioner, a hearing officer of the Michigan Department of Treasury, and four agents of the Michigan Department of Treasury, Intelligence Unit. The defendants connected with the city of Detroit, called the "city defendants," failed to answer plaintiff's complaint, and consequently the clerk of the District Court entered default judgments against them. After a hearing on the morning of trial, the District Court ruled that excusable neglect caused the city defendants' failure to answer, and therefore set aside the defaults. Following the jury trial, the District Court directed a verdict in favor of the city defendants, and granted a summary judgment for the remaining state defendants, on grounds that either an absolute or qualified immunity from liability under section 1983 covered all of the defendants.

II.

This case is closely analogous to the situation we addressed recently in Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983). In Vicory, the plaintiff brought a due process action under 42 U.S.C. Sec. 1983 complaining that he had been deprived of property, a mobile home trailer seized as evidence in a state trial. The District Court granted a summary judgment on immunity grounds against defendants, the prosecutor and sheriff who had seized plaintiff's trailer. On appeal, we held 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 that state damage remedies are inadequate to redress the alleged wrong. The plaintiff in Vicory failed to meet this burden, because forcible entry and detainer or small claims actions were available in Ohio courts which could have redressed the alleged wrong.

Similarly, the plaintiff here failed to allege any deficiency in the state's corrective procedures. Michigan law provides for an appeal from adverse decisions of the state Board of Tax Appeals. See Mich.Comp.Laws Ann. Sec. 205.22 (West 1983) (as amended, original version at Mich.Comp.Laws Ann. Sec. 205.9 (West 1967)). An aggrieved taxpayer can file a claim for recovery in the state court of claims. If the court of claims' decision is also adverse, plaintiff may appeal to the Michigan Supreme Court. See id.

Furthermore, in addition to this procedure, the statutes providing for jeopardy tax assessment have been interpreted by the Michigan Supreme Court to allow an aggrieved taxpayer to commence an immediate action in the circuit court of the county where he resides. See Craig v. City of Detroit, 397 Mich. 185, 243 N.W.2d 236 (1976). Although the Supreme Court in Laing v. United States, 423 U.S. 161, 96 S.Ct. 473, 46 L.Ed.2d 416 (1976), ¹ had held that access to a post-seizure hearing within sixty days was sufficient to satisfy the requirements of due process, the Michigan court in Craig hinted that a review procedure which allowed a hearing within sixty days "is not in our opinion a prompt post-seizure hearing" because a decision might not be forthcoming until the ninety-fifth day after the taxpayer had filed his appeal. 397 Mich. at 189-90 n. 5, 243 N.W.2d at 238 n. 5. The Craig court did not go so far as to say that this appeal procedure violates due process, however. Rather, it held that "[a]ssuming that seizure has injured a taxpayer in a way that could not be adequately remedied by a judgment in a refund suit, and assuming that there is no basis in fact for the assessment," the taxpayer need go no further than the circuit court of the county of his residence to challenge the departmental finding that an act tending to jeopardize collection has been made or is about to be committed. Id. at 191, 243 N.W.2d at 239. Craig was decided after the jeopardy assessment in this case was issued, but well before plaintiff initiated his section 1983 action. Therefore, it was open to plaintiff to file in Wayne County Circuit Court for a post-seizure hearing to test his federal constitutional claims asserted under section 1983 as well as his state claims.

Plaintiff's remedies under Michigan law are clearly adequate. He is therefore unable to satisfy the "due process" element of his 1983 claim, the requirement that he show the existence of a procedural deficiency in state law or a systemic problem with the state's corrective process. Accordingly, the judgment of the District Court is affirmed. ²

HOLSCHUH, District Judge, dissenting.

I respectfully dissent for two basic reasons. First, the majority's conclusion that the plaintiff's action against the state defendants was insufficient to state a section 1983 claim is based upon a very expansive interpretation of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), an interpretation that would virtually eliminate, in my view, all section 1983 claims for deprivation of property without procedural due process. Second, the majority opinion does not distinguish between plaintiff's claims against the state defendants and plaintiff's claims against the city defendants, and I...