Mann v. City of Tucson, Dept. of Police

• Decision Date: 02 December 1985
• Docket Number: No. 85-1847,85-1847
• Citation: 782 F.2d 790
• Parties: David Allen MANN, Plaintiff-Appellant, v. The CITY OF TUCSON, DEPARTMENT OF POLICE; Peter Ronstadt; Anthony Bulver; Brad Cochran; Cathy Filippelli; Franklin S. Rau; Sergeant Starch; Rita Jett; Jerome S. Shull; Jerome S. Shull & Associates; Shannon Park Apartments, limited partnership, Jerome Shull; Terry Regnier; Trayner-Murray, Inc.; Jeffrey Schulten; Detective McCoy; Emory Hanson, Carolyn Hanson; S. Leonard Sheff; Nuart Camera, Inc. and Carl Holzman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 790

782 F.2d 790

David Allen MANN, Plaintiff-Appellant, v. The CITY OF TUCSON, DEPARTMENT OF POLICE; Peter Ronstadt;

Anthony Bulver; Brad Cochran; Cathy Filippelli; Franklin

S. Rau; Sergeant Starch; Rita Jett; Jerome S. Shull;

Jerome S. Shull & Associates; Shannon Park Apartments,

limited partnership, Jerome Shull; Terry Regnier;

Trayner-Murray, Inc.; Jeffrey Schulten; Detective McCoy;

Emory Hanson, Carolyn Hanson; S. Leonard Sheff; Nuart

Camera, Inc. and Carl Holzman, Defendants-Appellees.

No. 85-1847.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 2, 1985 ^*.

Decided Feb. 10, 1986.

David Allen Mann, Florence, Ariz., for plaintiff-appellant.

Stephen Kimble, Kimball, Gothreau, Nelson & Connon, Michael P. Callahan, Ronald Stolkin, Whitehall, Stolkin, Karp, West, Weiss & Berger, Tucson, Ariz., Michael Herzog, Phoenix, Ariz., Keith W. Krosese, Chandler, Tullar, Udall & Redhair, S. Leonard Scheff, Tucson, Ariz., Paul M. May, Fort Lauderdale, Fla., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING, Chief Judge, SNEED and HUG, Circuit Judges

PER CURIAM:

Mann, a pro se litigant, appeals from the dismissal of his action alleging claims under 42 U.S.C. Sec. 1983 (1982), as well as various pendent state causes of action, on the ground that the federal claims were barred by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). We reverse.

Mann sued the City of Tucson, various members of the Tucson and Fort Lauderdale Police Departments, and various private individuals for deprivation of property without due process, unreasonable search and seizure, and on various state causes of action (including conversion and defamation), all arising from searches of his apartment and the seizure of property therein between June 11 and July 14, 1982. He alleged the following facts.

On June 11, officers of the Tucson police department (defendants Anthony Bulver, Bradley Cochran, Cathy Filippeli, Franklin Rau, David Storch, and derivatively, Chief of Police Peter Ronstadt) unlawfully searched Mann's Tucson apartment, seizing photo-optical equipment and file drawers containing cancelled checks and other property. The police were aided by defendant Carl Holzman, Mann's former employer at NuArt Camera, Inc., who helped inventory the photo-optical equipment, allegedly stolen by Mann from NuArt. The photo-optical equipment was subsequently released to him for purposes of photographing and storage as evidence. Holzman also participated in the search and seizure of the file drawer.

Between June 11 and July 1, some or all of defendants Carolyn and Emory Hanson (the managers of Mann's apartment building), Jerome A. Shull (of defendants Jerome A. Shull and Associates, Inc., and Shannon Park Apartments Co., the owners of the building), and S. Leonard Scheff (the attorney for Schull and Associates, Inc. and Shannon Park) entered Mann's apartment and removed audio and video equipment and furniture. Defendant Bulver was present during at least some of these removals and did nothing to stop them.

Meanwhile, on June 25, defendant Terry Regnier of defendant Traynor-Murray, Inc. (for whom Mann had worked as a consultant) sent defendant Brian McCoy (of the Fort Lauderdale, Florida, police department) a list of crystal items allegedly "taken" by Mann. Regnier later stated in a police report that Mann had stolen the crystal. On June 30, defendant Jeffrey Schulten (of the Fort Lauderdale police department) wrote to the Tucson police department, advising that a collection of crystal items had been stolen. On July 14, officer Bulver, with the consent of Emory Hanson, performed an unlawful search of Mann's apartment and seized a collection of crystal items which was released to Regnier at some later, unspecified date.

Section 1983 Claims

The district court dismissed the section 1983 claims in light of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The court held these claims were "based on actions occurring not as a result of established state procedures but from the alleged unauthorized failure of the defendants in obtaining and executing a search warrant," and that adequate post-deprivation state remedies are available to Mann "which can satisfy his right to due process and fully compensate him for any loss incurred." Mann does not contest the dismissal of his procedural due process claims under Parratt, but contends the dismissal of his substantive due process claims, based on a violation of the fourth amendment protection against unreasonable searches and seizures, was error.

Parratt 's rationale is that a deprivation of property does not constitute a deprivation of procedural due process if it is impracticable for the state to provide procedurally adequate pre-deprivation process (because the deprivation was procedurally random and unauthorized), and the state does provide adequate post-deprivation remedies. The Court stated, "The usual rule has been '[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.' " Mitchell v. W.T. Grant Co., 416 U.S. 600, 611, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406 (1974) (quoting Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931)), quoted in Parratt, 451 U.S. at 540, 101 S.Ct. at 1915.

The Parratt rationale does not apply to a denial of substantive due process, for in such a case the deprivation is the taking of property or liberty itself, not the process by which the taking is accomplished, and the availability of neither pre- nor post-deprivation process is relevant. As Justice Blackmun stated, concurring in Parratt I also do not understand the Court to intimate that the sole content of the Due Process Clause is procedural regularity. I continue to believe that there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process.

451 U.S. at 545, 101 S.Ct. at 1918.

Although this court has not squarely addressed the question whether Parratt applies to violations of substantive due process, we have decided such substantive claims without reference to Parratt, (see, e.g., Albers v. Whitley, 743 F.2d 1372 (9th Cir.1984), cert. granted, --- U.S. ----, 105 S.Ct. 2700, 86 L.Ed.2d 716 (1985) (cruel and unusual punishment); McKenzie v. Lamb, 738 F.2d 1005 (9th Cir.1984) (unlawful arrest)), and most recently, in Haygood v. Younger, 769 F.2d 1350, 1354-57 (9th Cir.1985) (en banc), we discussed the application of Parratt to a procedural due process claim, but not to an eighth amendment claim, in affirming a general finding of section 1983 liability based on both.

The Fifth Circuit has concluded that Parratt does not apply to substantive due process claims. See Augustine v. Doe, 740 F.2d 322, 325-27 (5th Cir.1984) (unlawful entry into home to effect arrest); Thibodeaux v. Bordelon, 740 F.2d 329, 333 (5th Cir.1984) (cruel and unusual punishment). Other circuits appear to be of the same view. See Wolf-Lillie v. Sonquist, 699 F.2d 864, 870-72 (7th Cir.1983) (unlawful seizure of property); Williams v. Red Bank Board of Education, 662 F.2d 1008, 1024 n. 17 (3rd Cir.1981) (first amendment violation, although court abstains on other grounds); Robinson v. Moreland, 655 F.2d 887, 890 (8th Cir.1981) (mentioning Parratt, but not applying it to claim of cruel and unusual punishment).

We conclude the district court erred by dismissing Mann's substantive constitutional claims under Parratt. However, dismissal of these claims against defendants other than the Tucson police defendants was proper for other reasons. The substantive constitutional violation charged consisted of two unlawful searches of Mann's apartment. The search was performed by the Tucson police officers. All but two of the other defendants are private persons who allegedly instigated, aided, or participated in the searches. Under Arnold v. IBM Corp., 637 F.2d 1350, 1356-57 (9th Cir.1981), in order to establish the requisite proximate cause between the conduct of private persons and searches in violation of section 1983, a plaintiff must prove the private individuals exercised control over the decisionmaking in a police investigation. Mann has failed to allege that these other defendants controlled the investigation or directed that the searches be conducted, and the facts alleged would not support such a claim. For this reason, the section 1983 claims against these private defendants were properly dismissed.

Similarly, the section 1983 claims against officers McCoy and Schulten of the Fort Lauderdale police department were properly dismissed because Mann failed to state a claim against them. Mann alleged only that McCoy received a letter from Regnier containing a list of crystal items allegedly stolen by Mann, and that Schulten conveyed the same (allegedly false) information to the Tucson Police Department. Mann alleged these acts were in violation of a duty on the part of the officers to employ due diligence to make certain the information was correct.

Assuming arguendo that such a duty exists, Mann has alleged only that the officers acted negligently. Mere negligence on the part of state officials causing injury to life, liberty or property does not violate the due process clause of the fourteenth amendment. Daniels v. Williams, --- U.S. ---, 106 S.Ct. 662, 666-67, 88 L.Ed.2d 662 (1986). Although something more than mere negligence may violate due process, see id. at 667 n.3, any allegations that might be construed as charging conduct by McCoy and Schulten beyond mere negligence are entirely conclusory and unsupported by any facts alleged in the complaint. Although we must, in general, accept the facts alleged in the complaint as true,...