Wyatt v. Cole, 90-1058

• Citation: 928 F.2d 718
• Decision Date: 17 April 1991
• Docket Number: No. 90-1058,90-1058
• Parties: Howard L. WYATT, Plaintiff-Appellant-Cross-Appellee, v. Bill COLE, et al., Defendants-Appellees, and Lloyd S. Jones, Wiley Magee & Mike Moore, Defendants-Appellees-Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 718

928 F.2d 718

Howard L. WYATT, Plaintiff-Appellant-Cross-Appellee, v. Bill COLE, et al., Defendants-Appellees, and Lloyd S. Jones, Wiley Magee & Mike Moore,

Defendants-Appellees-Cross-Appellants.

No. 90-1058.

United States Court of Appeals, Fifth Circuit.

April 17, 1991.

Rehearing and Rehearing En Banc

Denied May 30, 1991.

Jim Waide, Tupelo, Miss., Douglas M. Magee, Mendenhall, Miss., for Wyatt.

Michael F. Myers, Whitman B. Johnson, Steen, Reynolds, Dalehite & Currie, Jackson, Miss., for Jones and Magee.

Richard A. Compere, and R. Stewart Smith, Jr., Special Asst. Atty. Gens., Leslie Scott, Asst. Atty. Gen., Jackson, Miss., for the State.

Mark C. Baker, John M. Roach, Leonard McClellan, Asst. Atty. Gen., Jackson, Miss., for Robbins and Cole.

Appeals from the United States District Court for the Southern District of Mississippi.

Before JOHNSON, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Howard L. Wyatt appeals a summary judgment order denying his claim for monetary damages under 42 U.S.C. Sec. 1983 and awarding less than his requested attorneys fees under 42 U.S.C. Sec. 1988. We find that monetary damages are barred by the defendants' immunities and that the fee award against the state was not clearly erroneous, but remand to the district court for the calculation of a reasonable fee award against defendant Bill Cole.

I.

Howard L. Wyatt and Bill Cole are former business partners. On July 25, 1986, with the assistance of his attorney, John Robbins II, Cole filed a complaint in replevin against Wyatt to the Circuit Court of Simpson County, Mississippi, accompanied with a replevin bond of $18,000. Cindy Jensen, a deputy of County Clerk Wiley Magee, then issued a writ of replevin. Circuit Judge Jerry Yeager signed an order directing the county sheriff to execute the writ of replevin several days later. Sheriff Jones, Deputy Sheriff Smith, wrangler Ray Roberts, and several others subsequently seized 24 head of cattle, a tractor, and parts on July 29 and 30, 1986. The writ and summons were served on Wyatt on July 31, 1986. Several months later, on October 3, 1986, Judge Yeager entered an order dismissing the writ, continuing the replevin bond in force, and ordering the immediate restoration of Wyatt's property. Judge Yeager dismissed the action without prejudice on September 3, 1988, although Cole had not yet complied with the October 3, 1986, order. Mississippi's replevin under bond statute, Miss.Code Ann. Sec. 11-37-101, ¹ prescribed this procedure.

Wyatt filed this suit under 42 U.S.C. Sec. 1983, 28 U.S.C. Sec. 2201, and several state statutes, in July of 1987. When Mississippi filed as an amicus curiae, Wyatt added the state as a defendant, later substituting Attorney General Moore in his official capacity for the state.

The district court declared Sec. 11-37-101 unconstitutional on April 13, 1989, 710 F.Supp. 180, and ordered Wyatt to detail the claims against each defendant by moving for summary judgment. Wyatt did so, requesting damages and attorneys fees from Cole and Robbins, Jones, Smith, Magee, and Jensen, in their official capacities, and Simpson County, alternatively from Moore in his official capacity. The district court granted summary judgment against Cole for any damages accruing after April 14, 1989, denied summary judgment against Robbins, and dismissed the claims against Simpson County, Jones, Smith, Magee, Jensen, and Roberts.

After a jury found no actual damages, Wyatt moved for nominal damages and attorneys fees against Cole, Robbins, and Simpson County, and for attorneys fees against Moore in his official capacity. The district court found Mississippi liable for fifty percent of the fees earned for work before it declared Sec. 11-37-101 unconstitutional, but found the remaining defendants were not liable for any damages or fees.

Defendants do not appeal the declaratory judgment. ² Wyatt seeks monetary damages from the private defendants, Cole and Robbins, and attorneys fees from both the private defendants and the state of Mississippi. He waived his claims against the county defendants individually below and, at oral argument before this court, conceded that those defendants are not liable in their capacities as county officials. ³

II.

Based on our opinion in Folsom Inv. Co., Inc. v. Moore, 681 F.2d 1032, 1037 (5th Cir.1982), the district court found that Cole and Robbins were entitled to a good faith immunity from damages accrued before it declared Sec. 11-37-101 unconstitutional. In Folsom, we held that "a Sec. 1983 defendant who has invoked an attachment statute is entitled to an immunity from monetary liability so long as he neither knew nor reasonably should have known that the statute was unconstitutional." ⁴

Wyatt contends that Folsom is inconsistent with Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), where the Supreme Court held that private defendants accused of conspiring with a judge were not entitled to a derivative immunity. In Folsom, however, we stated quite clearly that the immunity of private defendants is not derivative, but rather is independent and functional:

The private party who invokes a presumptively valid attachment law is not entitled to immunity because the officer executing it is. Rather, quite independently, the private party is entitled to an immunity because of the important public interest in permitting ordinary citizens to rely on presumptively valid state laws, in shielding citizens from monetary damages when they reasonably resort to a legal process later held to be unconstitutional, and in protecting a private citizen from liability when his role in any unconstitutional action is marginal.

Wyatt also argues that, even if Cole and Robbins were entitled to a good faith immunity under Folsom, their actions here were not in good faith. He points out that Sec. 11-37-101 was clearly unconstitutional after Johnson v. American Credit Co. of Georgia, 581 F.2d 526 (5th Cir.1978), where we struck down a similar Georgia prejudgment statute. This contention gives us some pause, but it is not so clear as Wyatt would have it. Indeed, as late as Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 2756, 73 L.Ed.2d 482 (1982), the role of a private actor invoking state attachment procedure was legally uncertain. Folsom, in turn, left the precise contours of the immunity to future cases. Specifically, Folsom was unwilling to conclude that "a private citizen should be charged with the same degree of knowledge as to whether a statute or practice is unconstitutional that would be attributed to a public official." Id. at 1037. Today, we squarely face that issue.

We need not conclude that a private actor is entitled to rely on any statutory relic, regardless of its current absurdity, in order to conclude that Cole and Robbins, as non-governmental actors, were entitled to rely on Sec. 11-37-101 until the district court declared it unconstitutional. Rather, we say only that liability on these facts would undercut the purpose of the immunity, promoting lawfulness by allowing citizens the reasonable sanctuary of the law. It is true that the statutory scheme was in legal jeopardy. It is also true that Cole and Robbins acted with the assistance of government officials who were giving full force and effect to the statutory procedure. The presence of these officials contributed to the reasonableness of the private actors' conformity to the statutory procedure. In sum, the question is close, but on balance we are persuaded that reliance upon the statute by the private actors was not an act of unreasonable ignorance. The first line of responsibility rests with the legislative body enacting the statute. The next line of responsibility rests with the enforcing officials. When the legislature has not repealed, and executive and judicial officials are still enforcing a statute, it is not unreasonable for private actors to fail to quickly comprehend a developing body of doctrine that portends trouble for its constitutionality. ⁵

III.

The district court concluded that Wyatt had prevailed on the central issue in the case, the constitutionality of Sec. 11-37-101, and awarded Wyatt's attorneys $16,588.15 in fees under Sec. 1988, to be paid by the state of Mississippi. Wyatt had requested a much larger fee award, but the district court limited the award to compensate Wyatt's attorneys only for their success on the constitutional issue.

A. Qualified immunity, sovereign immunity, and Sec. 1988.

Wyatt argues that Cole and Robbins should be held jointly liable for his attorneys fees. But the same good faith immunity that insulates the private defendants from monetary damages also forecloses liability for attorneys fees. Familias Unidas v. Briscoe, 619 F.2d 391, 406 (5th Cir.1980); see also Clanton v. Orleans Parish School Bd., 649 F.2d 1084, 1103 (5th Cir.1981); and Universal Amusement Co., Inc. v. Vance, 559 F.2d 1286, 1301 (5th Cir.1977), aff'd on other grounds, 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); accord Stevens v. Gay, 792 F.2d 1000, 1003 (11th Cir.1986). "[L]iability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, Sec. 1988 does not authorize a fee award against that defendant." Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114 (1985). Cole and Robbins are thus immune from liability for attorneys fees for all acts taken before the district court declared Sec. 11-37-101 unconstitutional.

Mississippi stands on different footing. Attorney General Moore, Sheriff Jones, Deputy Sheriff Smith, and Clerk Magee were sued in their official capacities; good faith immunity is not available as a defense in official-capacity actions. The state is entitled only to its immunity under the Eleventh Amendment and as a sovereign. Graham, 473 U.S. at 167, 105 S.Ct. at 3105. As the Supreme...