Wilson v. Civil Town of Clayton, Ind.

• Decision Date: 03 February 1988
• Docket Number: No. 86-1280,86-1280
• Citation: 839 F.2d 375
• Parties: Rawleigh C. WILSON, Plaintiff-Appellant, v. The CIVIL TOWN OF CLAYTON, INDIANA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 375

839 F.2d 375

Rawleigh C. WILSON, Plaintiff-Appellant, v. The CIVIL TOWN OF CLAYTON, INDIANA, et al., Defendants-Appellees.

No. 86-1280.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1987.

Decided Feb. 3, 1988.

Ray W. Campbell, Kirkland & Ellis, Chicago, Ill., for plaintiff-appellant.

Michelle A. Spahr, Norris, Choplin & Johnson, Indianapolis, Ind., for defendants-appellees.

Before CUMMINGS, HARLINGTON WOOD, Jr., and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Rawleigh C. Wilson filed a pro se complaint pursuant to 42 U.S.C. Sec. 1983 against the Town of Clayton, Indiana and its Trustees, the County of Hendricks and its Commissioners, two town marshals, two deputy sheriffs and the bonding company which indemnified the marshals and sheriffs. ¹ The meager complaint, attached hereto as an Appendix, alleges that actions by the defendants "violate[d] the plaintiff's civil rights under the United States Constitution." The district court construed the plaintiff's complaint as stating only a procedural due process claim. Then, relying on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the court dismissed the claim against all seven categories of defendants, in their official and personal capacities, on the ground that the Indiana Tort Claims Act ("ITCA") provides an adequate post-deprivation state remedy.

On appeal, Wilson, now represented by appointed counsel, argues that the district court erred by narrowly construing his pro se complaint as nothing more than a procedural due process claim instead of reading it broadly to allege substantive constitutional violations that state a claim under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. As to the procedural due process claims, Wilson makes two arguments. First, he asserts that Parratt is inapposite because the alleged deprivations were the result of official policy. Second, even if Parratt applies, Wilson argues that the ITCA is a procedural bar to cases against state officials and state units and thus is not the kind of adequate post-deprivation remedy required by Parratt. We agree with the district court's narrow characterization of the complaint as one of procedural due process, but reluctantly disagree with the court's analyses of these claims. We affirm in part, reverse in part and remand for further proceedings because Parratt does not apply to deprivations of property allegedly not due to random and unauthorized acts.

I

Wilson's pro se complaint makes the following allegations. He owned a business, the Poverty Shop, ² in Clayton, Indiana. On the night of August 3, 1983, Clayton Town Marshals Jim Bennett and Bill Carter and Hendricks County Sheriffs Frank Harris and Larry Dockery evicted the customers and employees then present in the Poverty Shop and told them "to go home and not to come back and if they congregated there the next day or any other night they would be taken to jail because they had no business being there." Eight days later, on August 11, 1983, the Clayton Town Board of Trustees conspired to write a letter to Wilson's landlord demanding that he evict Wilson. Despite the alleged conspiracy, the Board of Trustees never actually wrote such a letter. The complaint alleges that the failure to act on the conspiracy and to send the letter to Wilson's landlord was based on subsequent legal advice from the Clayton town attorney. Nevertheless, Wilson's landlord was contacted. Defendant Clayton Town Trustee Ernest Davis telephoned Wilson's landlord and threatened that if he did not evict Wilson "something would happen to his building." The complaint also includes several general allegations of lies, threats of violence and a cover-up.

The district court dismissed this pro se complaint against all defendants pursuant to a F.R.Civ.P.Rule 12(b)(6) motion to dismiss by the bonding company for the marshals and sheriffs, United States Fidelity & Guaranty Co., Inc. ("USF & G"). In reviewing this action we must follow the well-settled law of this Circuit that pro se complaints are not held to the stringent standards expected of pleadings drafted by lawyers. In contrast, pro se complaints are to be liberally construed. See Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.1987); Caldwell v. Miller, 790 F.2d 589, 595 (7th Cir.1986). We also recognize that Wilson's complaint alleges civil rights violations and that a pro se civil rights complaint may only be dismissed if it is beyond doubt that there is no set of facts under which the plaintiff could obtain relief. Shango v. Jurich, 681 F.2d 1091, 1103 (7th Cir.1982).

Under this liberal standard, Wilson's complaint still fails to state a substantive constitutional claim. Wilson's appointed counsel argues that a proper examination of the complaint shows that plaintiff's allegations state claims under both the equal protection clause and the First Amendment. Counsel adds that "[t]hese legal theories are illustrative, rather than exhaustive." However, upon studying the allegations of the complaint itself, it is clear that the theory of a First Amendment claim is illustrative only of creative appellate advocacy. Plaintiff's complaint simply makes no allegations which in any manner implicate First Amendment concerns.

Similarly, despite the liberality with which civil rights complaints are read, there is nothing in the plaintiff's allegations which supports an equal protection claim. Although no talismanic phrases are mandatory to state such a claim, the complaint fails to mention equal protection, discrimination, differential treatment, preference, prejudice, or any other phrase invoking the Equal Protection Clause of the Fourteenth Amendment. The closest plaintiff comes to stating such a claim is the conclusion "that the above said actions violate plaintiff's civil rights under the United States Constitution." This conclusion, without any facts alleged to support it, is simply insufficient. Therefore the district court's holding that Wilson failed to state an equal protection claim was also correct.

II

After dismissing Wilson's substantive claims, the district court construed his complaint to allege violation of his right to procedural due process under the Fourteenth Amendment. The court then stated that complaints of procedural due process are governed by the rule of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and proceeded to dismiss the complaint against all defendants on this basis. The district court failed to recognize that Parratt applies only to random and unauthorized deprivations.

In Parratt, the plaintiff ordered a hobby kit to be delivered to him at the state prison where he was an inmate. The plaintiff never received the kit. He alleged that it was lost through the negligence of prison officials and filed suit in federal court under 42 U.S.C. Sec. 1983 to recover damages. A state remedy was also available to the plaintiff, for Nebraska had a tort claims procedure which provided a remedy to persons, such as the plaintiff, who suffered tortious losses at the hands of the State. Id. at 530, 101 S.Ct. at 1910.

Considering whether the plaintiff could make a federal case from the negligent loss of a hobby kit valued at $23.50, the Supreme Court held that (1) a deprivation of property can violate the due process clause of the Fourteenth Amendment even if caused by mere negligence, id. at 536-537, 101 S.Ct. at 1913-14, but (2) the requirements of due process can be satisfied, at least where the deprivation is the result of a random and unauthorized act by a state employee, by post-deprivation remedies such as the right to bring a damage suit in state court, id. at 541, 543-544, 101 S.Ct. at 1916-17. The second holding was reaffirmed in another case involving a prisoner's personal property, Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), but the first holding was overruled in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) ("[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Id. 106 S.Ct. at 663 (emphasis in original)); see also Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).

Read broadly, Parratt would bar most, if not all, plaintiffs challenging deprivations of property without due process of law from federal court relief under 42 U.S.C. Sec. 1983. If due process is satisfied by the ordinary state judicial remedies for torts, virtually no interference with property would be actionable in federal court under Sec. 1983. Even a classic constitutional-tort case, such as that of the policeman who kills a suspect in order to bypass the cumbersome procedures of the criminal justice system, would not be actionable federally if the killing was a tort under state law. Tavarez v. O'Malley, 826 F.2d 671, 675 (7th Cir.1987). The Supreme Court could not have meant to deny every Sec. 1983 plaintiff his or her day in federal court, no matter how egregious the constitutional violation, simply because of the availability of a similar state tort action. Courts have therefore sought to limit Parratt by making principled distinctions between it and the cases before them. See, e.g., id.; Sullivan v. Town of Salem, 805 F.2d 81 (2d Cir.1986); Sanders v. Kennedy, 794 F.2d 478 (9th Cir.1986); Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc ), certiorari denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).

One limiting principle is to confine Parratt to cases where it is not feasible for the state to provide a hearing before the deprivation occurs. Tavarez, 826 F.2d at 675. For example, in Parratt the Supreme Court found that it was not feasible for the state to provide a pre-deprivation hearing because the loss...