808 F.2d 1435 (11th Cir. 1987), 86-7415, Jones v. Preuit & Mauldin
|Citation:||808 F.2d 1435|
|Party Name:||Samuel JONES, Jr., Plaintiff-Appellant, v. PREUIT & MAULDIN, a partnership composed of E.F. Mauldin, individually, and E.F. Mauldin as Executor or Administrator of the Estate of Leonard Preuit, Deceased; E.F. Mauldin; E.F. Mauldin as Executor or Administrator of the Estate of Leonard Preuit, Deceased; and Preuit Mauldin, Defendants-Appellees.|
|Case Date:||February 02, 1987|
|Court:||United States Courts of Appeals, Court of Appeals for the Eleventh Circuit|
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Burr & Forman, C.V. Stelzenmuller, F.A. Flowers, III, Birmingham, Ala., for plaintiff-appellant.
Potts, Young, Blasingame & Putnam, T. Michael Putnam, Florence, Ala., Ronald C. Forehand, Asst. Atty. Gen. for State of Ala., Montgomery, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before HILL and JOHNSON, Circuit Judges, and ESCHBACH [*], Senior Circuit Judge.
JOHNSON, Circuit Judge:
This case involves an appeal by the plaintiff from an order denying his motion for partial summary judgment and another order granting the defendants' motion for
summary judgment. We affirm the district court's denial of plaintiff's motion for partial summary judgment but reverse its order granting summary judgment in favor of the defendants.
Samuel Jones, the plaintiff, owned three International Harvester cotton pickers. In 1981, Jones employed Preuit & Mauldin ("P & M") to repair these pickers. P & M was a partnership composed of Edward Mauldin individually and in his capacity as the executor of the estate of Leonard Preuit. P & M agreed to let Jones pay his repair bill after the 1981 fall harvest. However, Jones also owed money to the Farmer's Home Administration ("FHA"), and the checks he received for the cotton he picked that fall were made out jointly to him and the FHA. Because the FHA refused to let Jones keep any of the proceeds, he was unable to pay the money he owed P & M.
P & M not having been paid, Leonard Preuit Mauldin, the son of Edward Mauldin and an employee of P & M, consulted with David Martin, an attorney. Upon Martin's advice, P & M filed three separate suits in state court--one for each picker--and obtained a writ of attachment for each picker. These writs were issued, and the pickers were seized, without any notice to Jones. The pickers were sold to P & M at a judicial sale in satisfaction of the judgments P & M eventually obtained against Jones in the state court actions.
Jones then filed this action under 42 U.S.C.A. Sec. 1983 against P & M, Edward Mauldin, both individually and in his capacity as the executor of Leonard Preuit's estate, and Leonard Mauldin, alleging that the pre-judgment seizure of his cotton pickers without notice violated his rights under the due process clause of the Fourteenth Amendment. Jones sought $200,000 in compensatory damages and a like amount in punitive damages plus costs. The district court, 586 F.Supp. 1563, originally dismissed the suit on the grounds that the claim was barred by a one year statute of limitations. Another panel of this Court reversed that ruling, holding that a six year statute of limitations applied, and remanded the case for further proceedings. 763 F.2d 1250 (11th Cir.1985).
On remand, and after the close of discovery, Jones filed a motion for partial summary judgment seeking a declaratory judgment that certain provisions of the Alabama attachment statute were unconstitutional. The defendants filed a motion for summary judgment as well, requesting the court to dismiss the case on a number of grounds. The court denied Jones's motion and granted the defendants' motion. 634 F.Supp. 1520. This appeal followed.
CONSTITUTIONALITY OF ALABAMA ATTACHMENT STATUTE
Jones argues that the district court erred in refusing to grant him partial summary judgment on the issue whether Ala.Code Secs. 35-11-5, -110, and -111 were unconstitutional. 1 The denial of a motion for summary judgment will be reversed
only for an abuse of discretion. Johnson v. Bryant, 671 F.2d 1276, 1279 (11th Cir.1982). In the state court actions, P & M sought the enforcement of mechanic's liens against the cotton pickers, thus the writs of attachment were issued under Section 35-11-111. However, the defendants seemingly maintained before the district court that they had voluntarily followed procedures not mandated by the statute. These additional procedures allegedly satisfied the demands of due process. Jones did not supply any material with his motion rebutting the defendants' allegation. Furthermore, the Supreme Court did not hold until nearly a year later in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), that the constitutionality of an attachment statute depends upon the statutorily-mandated procedures and not upon the procedures actually used. Given both the undeveloped facts and the state of the law at the time, we cannot say that the district court abused its discretion in denying Jones's motion for partial summary judgment.
APPLICATION OF PARRATT V. TAYLOR
In awarding summary judgment in favor of the defendants, the district court found that Section 1983 relief was unavailable under the rule of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt, the Supreme Court held that a negligent deprivation of property that did not occur pursuant to an established state procedure does not violate the due process clause of the Fourteenth Amendment if the state provides an adequate post-deprivation remedy. Ever since Hudson v. Palmer, 468 U.S. 517, 530-36, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984), this rule applies to intentional deprivations of property as well. However, Hudson did not eliminate the requirement that the deprivation not occur pursuant to an established state procedure. Therefore, if an intentional deprivation of property occurs pursuant to an established state policy, Parratt does not apply. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1982).
In seizing the cotton pickers without a hearing, P & M did act pursuant to an established state procedure. Ala.R.Civ.P. 64(a) provides for pre-judgment seizures in actions for money damages "for the purpose of securing satisfaction of the judgment ultimately to be entered in the action...." Rule 64(a) does not specify any procedures but states merely that such seizures shall occur "under the circumstances and in the manner provided by law...." Thus, whether P & M effected the seizures pursuant to an established state procedure depends upon the requirements of the particular attachment provisions on which P & M relied.
As previously indicated, P & M relied upon Alabama's mechanic's lien provisions. Ala.Code Sec. 35-11-110 (1975) creates a lien in favor of a repairman against any vehicle he repaired. Ala.Code Sec. 35-11-111 (1975) provides for the enforcement of such a lien by attachment upon the execution of a bond "as in other cases of attachment" and the making of an affidavit stating only that a mechanic's lien exists, that the amount owed for the repairs is due and unpaid, and that the attachment is not sued out for purposes of harassment. No pre-taking notice is required, and the affidavit need not state that a risk of destruction or concealment of the vehicle exists. Nor do the provisions of the general attachment statute incorporated by reference into Section 35-11-111 make any mention of a pre-taking hearing. Ala.Code Secs. 6-6-43 and -45 (1975).
The defendants point to Ala.R.Civ.P. 64(b) which requires a hearing before the issuance of a writ of attachment unless the court determines that there exists a risk of concealment, transfer or harm to the property. Because P & M's affidavit did not aver such a risk, they argue that the seizure of the cotton pickers without any pre-taking hearing contravened Rule 64(b) and therefore did not occur pursuant to an established state policy.
However, Rule 64(b) applies only to actions in detinue and to actions "whereby the owner of a...
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