754 F.2d 186 (6th Cir. 1985), 82-5371, Wagner v. Higgins

Docket Nº:82-5371.
Citation:754 F.2d 186
Party Name:Ed WAGNER, Jr., Plaintiff-Appellant, v. Jon HIGGINS, Jay Pierce, Detective Catlett, and Sheryl Jackman, Individually and in their official capacities as Employees of the Louisville Police Department, Defendants-Appellees.
Case Date:February 08, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 186

754 F.2d 186 (6th Cir. 1985)

Ed WAGNER, Jr., Plaintiff-Appellant,


Jon HIGGINS, Jay Pierce, Detective Catlett, and Sheryl

Jackman, Individually and in their official

capacities as Employees of the

Louisville Police Department,


No. 82-5371.

United States Court of Appeals, Sixth Circuit

February 8, 1985

Argued Nov. 18, 1984.

Page 187

Phillip Shepherd, Frankfort, Ky., for plaintiff-appellant.

Winston E. King, City of Louisville, Dept. of Law, Louisville, Ky., for defendants-appellees.

Before ENGEL and CONTIE, Circuit Judges, and POTTER, District Judge. [*]

ENGEL, Circuit Judge.

Ed Wagner, Jr. appeals a judgment of the United States District Court for the Western District of Kentucky dismissing his civil rights complaint filed pursuant to 42 U.S.C. Sec. 1983. Wagner asserts that the defendants, officials of the Police Department of Louisville, Kentucky, stole personal property from his automobile in violation of his rights under the Fourth and Fourteenth Amendments and under Kentucky law. The question is whether, after Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), such allegations state a claim for relief under the Civil Rights Act.

The dispute arose when, on January 26, 1978, Wagner was arrested in a Convenient Food Mart on suspicion of rape. Wagner was cornered in the food mart by customers after the alleged rape victim came into the mart and accused him. The police were subsequently summoned and apprehended Wagner. After both Wagner and the alleged victim were questioned, Wagner was taken to police headquarters and his vehicle was impounded. The circumstances of the incident are more fully set forth in Wagner v. Commonwealth, 581 S.W.2d 352 (Ky.1979).

In his pro se complaint filed in the district court, Wagner alleged that the defendant officers took his automobile into custody, towed it to the police station, and then searched and inventoried it. He further asserted that he wrote to defendant Jon Higgins, Chief of Police, complaining of the theft of all of the personal property that had been in the automobile. Wagner claimed that although an investigation of his complaint was eventually begun by an official of the City, the City determined that there had been no property in the automobile because none had been turned over to the Police Department's property clerk. Essentially, Wagner asserts that the Police Department officials stole certain property from his automobile and refused to return it. The police acknowledge that the automobile was inventoried, but Wagner claimed in his pleadings that the car was "stripped, not inventoried." Relying primarily upon Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the district court dismissed the complaint upon a finding that Wagner failed altogether to state a constitutional claim cognizable under section 1983 of the Civil Rights Act, 42 U.S.C. Sec. 1983. The court concluded that Wagner had alleged no more than the common law tort of conversation for which there was an adequate remedy in state court.


As a preliminary matter, Wagner asserts that the trial judge improperly entertained

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the defendants' motion for summary judgment. That motion charged that plaintiff had failed to state a claim upon which relief can be granted. Because Federal Rule of Civil Procedure 12(b), which allows this defense to be made by motion, specifically provides that "a motion making any of these defenses shall be made before pleading if a further pleading is permitted," Wagner argues that the motion was untimely filed and, thus, improperly granted.

Wagner is correct that the time for filing motions under Rule 12(b) had technically passed when defendants filed their motion. The circumstances under which the motion was filed are described in his brief before us:

After the case had lain dormant for over a year, the District Judge entered an order to show cause why it should not be dismissed. (Order, September 29, 1981.) Mr. Wagner responded by asserting that he was ready to go to trial and that he needed no discovery because he could rely on the public record of proceeding, in his criminal case to establish his claim; Mr. Wagner requested that the case be set for trial or that a pretrial conference to discuss settlement be set. (Response to Show Cause Order, October 7, 1981.) The District Judge then entered an order in which he observed that "the sufficiency [of this response] ... may be questionable," but ordered the case retained on the docket and invited the defendants "to move for summary judgment." (Memorandum and Order, November 13, 1981.)

Defendants moved for summary judgment under Rule 56, FRCP, although the basis for their motion was that the complaint "failed to state a claim upon which relief can be granted."

Appellant's brief at 3-4.

From an examination of the district court files, it is apparent that the motion actually made by the defendants was for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), although the motion improperly referred to Rule 12(b)(6). We believe that such an incorrect reference to the Rules is not fatal where the substance of the motion is plain. Rule 12(c) provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings," Fed.R.Civ.P. 12(c). Further, Federal Rule of Civil Procedure 56(a) provides that a motion for summary judgment may be made "at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party." Thus, we conclude that the motion, however styled, was properly addressed. No surprise or other prejudice to the plaintiff was claimed either at the time or now in his briefs. We, therefore, proceed to the merits.


Because Wagner's complaint referred to both Fourth Amendment and Fourteenth Amendment grounds for relief under section 1983, this appeal appeared at first blush to present issues beyond the limited scope of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt v. Taylor, the Supreme Court held that a complaint alleging negligent deprivation of procedural due process rights does not state a claim for relief under section 1983 if the state provides adequate post-deprivation remedies. It is plain to us that Parratt v. Taylor was not intended to limit relief from all violations of constitutionally protected individual rights merely by a showing that state remedies are adequate to redress them. Indeed, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), a case which remains viable authority although it was reversed in part in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court recognized the availability of the Civil Rights Act to redress alleged deprivations of rights guaranteed by the search and seizure clause of the Fourth Amendment. Were the seizure of Wagner's automobile and its contents in violation of the Fourth

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Amendment as incorporated into the Fourteenth Amendment, a more difficult question than existed in Parratt v. Taylor would be presented. A careful examination of the record, however, reveals that in fact no such Fourth Amendment claim is or can be made.

Wagner does not claim here that either his original arrest or the impoundment of his vehicle was violative of his federally guaranteed rights under the Fourth and Fourteenth Amendments. Instead, for recovery here he relies solely upon the finding of the Kentucky Supreme Court that his state, not federal, constitutional rights were violated. Wagner relies upon the following language of the Kentucky Supreme Court:

The more difficult question is the legality of a routine police inventory of a vehicle subsequent to a lawful impoundment. Mere legal custody of an automobile by law enforcement officials does not automatically...

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