851 F.2d 1212 (9th Cir. 1988), 87-3924, Wood v. Ostrander

Docket Nº:87-3924.
Citation:851 F.2d 1212
Party Name:Linda K. WOOD, Plaintiff-Appellant, v. Steven C. OSTRANDER; Neil Maloney, Defendants-Appellees.
Case Date:July 13, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1212

851 F.2d 1212 (9th Cir. 1988)

Linda K. WOOD, Plaintiff-Appellant,


Steven C. OSTRANDER; Neil Maloney, Defendants-Appellees.

No. 87-3924.

United States Court of Appeals, Ninth Circuit

July 13, 1988

Argued and Submitted Feb. 3, 1988.

Paul Lindenmuth, Neil J. Hoff, Tacoma, Wash., for plaintiff-appellant.

Betty Edwards, Asst. Atty. Gen. (on brief), Rene D. Tomisser, Asst. Atty. Gen. (argued), Olympia, Wash., for defendants-appellees.

Page 1213

Appeal from the United States District Court for the Western District of Washington.

Before FLETCHER and THOMPSON, [*] Circuit Judges, and CARROLL, [**] District Judge.

FLETCHER, Circuit Judge:

Linda Wood brought this action against Washington State Trooper Steven Ostrander and others for damages under 42 U.S.C. Sec. 1983. Wood appeals the district court's dismissal on summary judgment. We reverse.


At 2:30 a.m., in the morning of September 23, 1984, Trooper Ostrander pulled a car to the side of the road for driving with its high beams on. Ostrander determined that the driver, Robert Bell, was intoxicated and placed him under arrest. Ostrander called for a tow truck to have the car impounded, and returned to the car and removed the keys. Wood, who was sitting in the car, asked Ostrander how she would get home. Ostrander replied that he was sorry, but that Wood would have to get out of the car. These facts are not disputed. Wood claims that Ostrander simply returned to his patrol car and drove away. Ostrander claims that he offered to call a friend or family member who could give Ms. Wood a ride home, but that she declined the offer. Although Wood claims that she did not see any open business at the time Ostrander drove away, Ostrander claims that a Shell station and a Seven-Eleven store were clearly visible and open for business. Ostrander further claims that Wood was picked up by an unknown driver before Ostrander drove away, though Bell and Wood dispute this.

Ostrander left Wood near a military reservation in the Parkland area of Pierce County, which has the highest aggravated crime rate in the County outside the City of Tacoma. The temperature was 50 degrees and Wood was wearing only a blouse and jeans. After walking one half block towards her home, which was five miles away, and having turned down rides offered by three or four strangers, Wood accepted a ride with an unknown man. The driver took Wood to a secluded area and raped her.

Wood had little or no money on her person at the time. Although she lived with her parents, Wood did not try to call them for help because, she claims, they would have been unable to pick her up: her mother has night-blindness and her step father suffers from brain damage.

The district court denied defendants' first summary judgment motion, ruling that Ostrander's actions could not be characterized as merely negligent. Subsequently, the district court granted defendants' second motion for summary judgment, on the ground that Ostrander was entitled to good faith, qualified immunity, and that Ostrander owed no "affirmative constitutional duty of protection" to Wood. 1

We review the district court's grant of summary judgment de novo to determine whether there is any genuine issue of material fact and whether the substantive law was correctly applied. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). All facts in the record and inferences drawn from them must be viewed in the light most favorable to the non-moving party. Clipper Exxpress v. Rocky Mountain Motor Tariff, 690 F.2d 1240, 1250 (9th Cir.1982).

Page 1214


I. Whether Wood has stated a Sec. 1983 claim

To sustain an action under Sec. 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right. Rinker v. Napa County, 831 F.2d 829, 831 (9th Cir.1987) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981)). Defendants do not dispute that in arresting Bell and impounding the car, Ostrander was acting under color of state law. They do, however, argue that Wood fails to state a claim cognizable under Sec. 1983 because, first Ostrander's conduct at most negligent and, second, Wood has adequate state remedies to pursue her claim. These distinct threshold issues are considered in turn.

  1. The "mere negligence" bar

    In Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986), and Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986), the Supreme Court held that mere negligence or lack of due care by state officials does not trigger the protections of the Fourteenth Amendment and therefore does not state a claim under Sec. 1983. In doing so, the Court overruled that part of Parratt, 451 U.S. at 536-37, 101 S.Ct. at 1913; which held that a negligent loss of property by state officials could be a "deprivation" under the Due Process Clause. Daniels, 474 U.S. at 330, 106 S.Ct. at 664. However, the Court expressly left open the question of "whether something less than intentional conduct, such as recklessness or gross negligence, is enough to trigger the protections of the Due Process Clause." Id. at 334 n. 3, 106 S.Ct. at 667 n. 3.

    This question has since been addressed by several courts of appeal. In Ketchum v. Alameda Co., 811 F.2d 1243 (9th Cir.1987), this court stated that Daniels did not control the resolution of a Sec. 1983 case claiming state liability for third-party crimes, where the plaintiff had alleged gross negligence by the state. 811 F.2d at 1244, 1246 n. 3. Other circuits have held recklessness or gross negligence sufficient to state a Sec. 1983 claim, whereas none has held that only intentional misconduct will suffice. See, e.g., Taylor v. Ledbetter, 818 F.2d 791, 793 (11th Cir.1987) (en banc) (claim that state officials "were 'grossly negligent' or 'deliberately indifferent' " is "sufficient to overcome either a Daniels or Davidson bar"); Vinson v. Campbell County Fiscal Court, 820 F.2d 194, 199-200 (6th Cir.1987) (gross negligence cognizable under Sec. 1983); White v. Rochford, 592 F.2d 381, 385 (7th Cir.1979) (gross negligence or reckless disregard for the safety of others is cognizable); see also Davidson v. O'Lone, 752 F.2d 817, 828 (3rd Cir.1984) (en banc), aff'd sub nom., Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (gross negligence or reckless indifference sufficient) (plurality view). 2

    In this case, Wood has raised genuine issues of fact tending to show that Trooper Ostrander had acted with gross negligence, recklessness, or "deliberate indifference" to Wood's safety. See Taylor v. Ledbetter, 818 F.2d at 793, 795-97 (deliberate indifference to victim's well-being is more than negligence and supports Sec. 1983 claim); Davidson v. O'Lone, supra, 752 F.2d at 828; see also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (prison officials' deliberate disregard of prisoner's serious illness or injury violates Eighth Amendment and is cognizable under Sec. 1983). The rationale underlying Daniels ' bar of negligence-based Sec. 1983 claims is that mere lack of due care, such as leaving a pillow on the prison stairs

    Page 1215

    (Daniels ) or mislaying an inmate's property (Parratt ) is "quite remote" from the Fourteenth Amendment's purpose of redressing abuses of power by state officials. 474 U.S. at 332, 106 S.Ct. at 665. Here, the facts put in issue by Wood--that Ostrander arrested the driver, impounded the car, and left Wood by the side of the road at night in a high-crime area--show an intentional assertion of government power which, according to Wood's version of the case, tends to show a disregard for Wood's safety that may amount to more than negligence. Even in Davidson v. Cannon, although the injury to the plaintiff was also very serious, the officials' acts and omissions were not deliberate, as Ostrander's allegedly were; rather, as characterized by the Court, the acts in Davidson were no more than negligent oversight. 474 U.S. at 347, 106 S.Ct. at 670. Ostrander's actions allegedly involve an element of abuse of power, and his conduct may be more than mere negligence. Wood's claim is not barred by Daniels.

  2. The "state remedies" bar

    Parratt v. Taylor, 451 U.S. at 541-44, 101 S.Ct. at 1916-17, and its progeny hold that a deprivation of liberty or property is not cognizable under Sec. 1983 when a state's post-deprivation remedies are adequate to protect a victim's procedural due process rights. See, e.g., Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1983). 3 However, "[t]he Parratt line of cases does not focus on the relevance of procedural protections to alleged violations of substantive constitutional rights." Smith v. City of Fontana, 818 F.2d 1411, 1414 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 311, 98 L.Ed.2d 269 (1988). Accordingly, the existence of state remedies is irrelevant and the Parratt bar inapplicable where the plaintiff alleges a violation of a substantive right under either the Bill of Rights or the Due Process Clause. Smith, 818 F.2d at 1415; accord Mann v. Tucson Dept. of Police, 782 F.2d 790, 792-93 (9th Cir.1986) (per curiam); see also Daniels, 474 U.S. at 337-39, 106 S.Ct. at 677-79 (Stevens, J., concurring); Parratt, 451 U.S. at 545, 101 S.Ct. at 1917 (Blackmun, J., concurring); Haygood v. Younger, 769 F.2d 1350, 1356 (9th Cir.1985) (en banc) (Parratt and Hudson "did not deal with official assaults, batteries or other invasions of personal liberty").

    Defendants argue that the existence of a state tort remedy for Wood precludes the Sec. 1983 claim under Parratt. According to defendants, the only distinction between this case and the Parratt line is that Parratt and its progeny involve deprivations of property whereas this...

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