851 F.2d 1321 (11th Cir. 1988), 86-7415, Jones v. Preuit & Mauldin

Docket Nº:86-7415.
Citation:851 F.2d 1321
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, as Executor or Administrator of the Estate of Leonard Preuit, deceased; and Preuit Mauldin, Defendants-Appellees.
Case Date:August 10, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1321

851 F.2d 1321 (11th Cir. 1988)

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, as

Executor or Administrator of the Estate of Leonard Preuit,

deceased; and Preuit Mauldin, Defendants-Appellees.

No. 86-7415.

United States Court of Appeals, Eleventh Circuit

August 10, 1988

        Burr & Forman, C.V. Stelzenmuller, F.A. Flowers, III, Birmingham, Ala., for plaintiff-appellant.

        Potts, Young, Blasingame & Putnam, Robert W. Beasley, Florence, Ala., Don Siegelman, Atty. Gen. of Ala., Ronald C. Forehand,

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Asst. Atty. Gen., Montgomery, Ala., Robert M. Weinberg, Bradley, Arant, Rose & White, David G. Hymer, Donald M. James, Birmingham, Ala., for defendants-appellees.

        Appeal from the United States District Court for the Northern District of Alabama.

        Before RONEY, Chief Judge, and TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.

        HILL, Circuit Judge:

        This case involves the question of whether qualified immunity may be asserted by private individuals who are defendants in an action under 42 U.S.C. Sec. 1983, and, if so, whether the defendants in this case are entitled to qualified immunity. A panel of this court issued an original opinion, 808 F.2d 1435 (1987), and a later opinion on rehearing, 822 F.2d 998 (1987). The two opinions concluded that qualified immunity is available to such defendants, but, on disposition of the case, came to different results. We have taken the case in banc to examine and resolve the issues. We find that private individuals may assert a good faith immunity defense in a section 1983 action, and that these defendants have established a claim to such immunity.

       I. FACTS

        Samuel Jones, the plaintiff, was a cotton farmer in Alabama in 1981. He produced his own crop and, using his mechanical cotton picking equipment, harvested cotton for others. In July of that year, Jones employed Preuit and Mauldin (P & M) to repair three of his cotton pickers. P & M deals in and services International Harvester cotton pickers. The total cost of the repairs was over $10,000, and Jones represented that he would pay for the repairs out of the proceeds from his harvesting work during the coming fall season.

        In February of 1982, the repair bill had not been paid, in part because Jones also owed money to the Farmers Home Administration (FHA) and checks he received for his cotton were made out jointly to Jones and the FHA. After repeated efforts to have Jones pay, P & M's manager, Preuit Mauldin, contacted an attorney, D.L. Martin, about the possibility of collecting on the debt.

        Alabama law provides equipment repairers with a mechanic's lien against vehicles upon which they perform work. Ala.Code Sec. 35-11-110 (1975). Equipment of the kind involved here is subject to such a lien. P & M's attorney thus prepared documents and pleadings necessary to file an action to foreclose the liens asserted by P & M against Jones' three cotton pickers. In addition, he prepared an application for writs of attachment as provided for under Alabama law. Ala.Code Sec. 35-11-111. The pleadings and documents named Jones' other creditors as involuntary plaintiffs because they had potential interests in the cotton pickers. 1

        On February 15, 1982 P & M filed three separate actions in the Circuit Court of Laurence County, Alabama to foreclose on the mechanic's liens against Jones' three cotton pickers. At the same time P & M filed the affidavits for attachment of the equipment and bonds to secure Jones against a wrongful attachment. It is not disputed that the attachment proceedings were in conformity with Alabama law. While the state law appears to allow a clerk of court to issue the writ of attachment (Ala.Code Sec. 6-6-43), these affidavits were presented to the judge of the circuit court, who authorized the issuance of a writ for each of the three pieces of equipment.

        Jones was served with process in the lien foreclosure actions on April 8, 1982 and, on the same day, the writs of attachment were executed upon the equipment which was thereafter stored by the sheriff. Further,

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on that day, two of the involuntary plaintiffs filed a motion for dissolution of the writ and requested a hearing. Jones did not join in this motion. 2 Jones also failed to respond to the summons and complaint in the three foreclosure actions, and a default judgment was entered against him on May 19, 1982. 3

        The circuit court held a hearing on the involuntary plaintiffs' motion for dissolution on June 15, 1982. The hearing involved the relative priority of P & M's liens as against the claims of the other, involuntary, plaintiffs. Jones did not appear as an interested party at the hearing, but, as a witness, he testified for Citizens Bank as to the bank's interest in his equipment. His testimony supported the bank's position. On July 2, 1982 the judge denied the motion for dissolution, 4 confirmed the default judgments, and ordered the cotton pickers sold. The equipment was ultimately sold at auction on September 13, 1982.

        Jones first took formal action as a party in court in this case on August 16, 1983 when he filed a motion pursuant to Rule 65.1 of the Alabama Rules of Civil Procedure seeking a forfeiture of P & M's attachment bond. 5 He alleged that the attachment was wrongful, vexatious, and without legal authority. A hearing was held, and the motion was denied on November 29, 1983. Jones apparently took no further action in state court. 6

        Jones filed the present action in federal district court on February 24, 1984. In his complaint under 42 U.S.C. Sec. 1983 Jones alleged that the prejudgment seizure of his cotton pickers violated his rights under the due process clause of the Fourteenth Amendment. The district court initially dismissed the suit as barred by the applicable statute of limitations, but a panel of this court reversed that decision. 763 F.2d 1250 (11th Cir.1985). Subsequently, Jones moved for partial summary judgment seeking a declaration that the Alabama attachment procedure was unconstitutional. The defendants then moved for summary judgment on Jones' section 1983 claims. The district court denied Jones' motion and granted summary judgment in favor of the defendants.

       II. DISCUSSION

  1. Qualified Immunity

            The district court found that P & M acted in good faith reliance upon laws which were not clearly unconstitutional. This finding raises the question of whether private defendants in a section 1983 action are entitled to assert the defense of qualified immunity. If they are, private defendants would be free from liability "as long

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    as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Stated otherwise, immunity attaches unless the defendants reasonably should have known that their actions violated clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). The Supreme Court held that private defendants may be subject to liability under section 1983 in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Court, however, expressly reserved the question of whether such defendants are entitled to qualified immunity. Id. at 942 n. 23, 102 S.Ct. at 2756 n. 23. 7 We find that private defendants are entitled to a defense of qualified immunity in wrongful attachment actions under section 1983.

            While section 1983 itself is silent as to immunities, the Supreme Court has held that the provision incorporates immunities which were well established at common law and which are consistent with the purposes of the statute. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980); Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). 8 Thus, we must determine whether the good faith reliance on law claimed here was well established as a defense at common law and whether strong policy reasons support its application in section 1983 actions. Two of our fellow circuits have undertaken this analysis and have held that qualified immunity attaches to private defendants under section 1983. See Buller v. Buechler, 706 F.2d 844, 850-53 (8th Cir.1983); Folsom Investment Co. v. Moore, 681 F.2d 1032, 1037-38 (5th Cir. Unit A 1982). Two other circuits have held that private defendants are not entitled to qualified immunity. See Downs v. Sawtelle, 574 F.2d 1 (1st Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978); Howerton v. Gabica, 708 F.2d 380, 385 n. 10 (9th Cir.1983).

            At the time of section 1983's enactment, the common law provided an action for the tort of malicious prosecution, which was used as a remedy for wrongful attachment. Some jurisdictions also recognized an independent tort of wrongful attachment. The plaintiffs in such suits were required to prove that the attachment proceedings had been instituted by defendants with malice and without probable cause. Buller, 706 F.2d at 851; Folsom Investment Co., 681 F.2d at 1038. See also W. Prosser, Handbook of the Law of Torts, Sec. 120 (4th ed. 1971). By requiring proof of malice and lack of probable cause as an element of the claim, the common law recognized a defense of good faith and probable cause in wrongful attachment suits. The Supreme Court has held that the existence of a defense of good faith and probable cause at common law supports the availability of qualified immunity in present day section 1983 suits. See Wood v...

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