Abbott v. Latshaw

Decision Date11 June 1998
Docket NumberNo. 97-3460,97-3460
PartiesMark ABBOTT, Appellant, v. Laurie J. LATSHAW, Albert Diehl, Dennis George, Robert Stafford and Donald Sarsfield. . Argued Under Third Circuit LAR 34.1(a)
CourtU.S. Court of Appeals — Third Circuit

David J. Millstein (Argued), Jacquelyn A. Knupp, Millstein & Knupp, Youngwood, PA, for Appellant.

Christopher K. McNally (Argued), Murphy Taylor, P.C., Pittsburgh, PA, for Appellees, Dennis George, Robert Stafford and Donald Sarsfield.

John K. Greiner (Argued), Belden, Belden, Persin & Johnston, Greensburg, PA, for Appellee, Albert Diehl.

Before: STAPLETON, COWEN, and RENDELL, Circuit Judges


RENDELL, Circuit Judge:

On the evening of April 23, 1996, Laurie Latshaw telephoned Constable Albert Diehl and enlisted his aid in her plan to take a van from her former husband, Mark Abbott, the next day. Although Latshaw recovered the van, her plan was less than successful in that Abbott then filed an action under 42 U.S.C. § 1983 against her, Diehl, and three Greensburg, Pennsylvania, police officers who arrived on the scene to assist the constable, for violation of his Fourteenth Amendment right to procedural due process. The district court granted summary judgment and dismissed Abbott's claim against all of the defendants, determining that the law enforcement officers were entitled to qualified immunity, and that both the pleadings and the evidence failed to implicate Latshaw in any state action. Abbott appeals the district court's dismissal of his § 1983 claim against all of the defendants, as well as its denial of his motion to add a claim alleging a violation of the Fourth Amendment. We will affirm summary judgment in favor of Officer Sarsfield and Officer Stafford of the Greensburg police department on qualified immunity grounds, but will reverse dismissal of Abbott's § 1983 claim against Diehl, Lieutenant George of the Greensburg police, and Latshaw. We will also reverse the district court's denial of leave to amend the complaint.


Mark Abbott and Laurie Latshaw were married from 1983 until 1993. Latshaw's father, Dale Feather, purchased a van with "GMAC" financing in 1989, and received a Commonwealth of Pennsylvania certificate of title issued in his name. On November 18, 1991, Feather and Abbott signed a Bill of Sale in which Feather agreed to "grant[ ], sell[ ], convey[ ] and deliver[ ]" the van to Abbott "free and clear of all liens and encumbrances ... subject to the Purchaser paying all of the loans and encumbrances levied against" it. Thereafter, Abbott and Latshaw used the van, but its title and registration remained in Feather's name.

Abbott retained sole possession of the van after he and Latshaw were divorced in 1993. He had completely paid off the GMAC loan on February 25, 1994, but chose not to transfer the van's title and registration to his own name because by doing so he would have forfeited the van's nontransferable warranty.

On April 23, 1996, Feather assigned the van's title to his daughter by writing her name and address on the reverse side of the Certificate of Title alongside his notarized signature. The next day, Latshaw took the document to Greensburg where a title service reissued the van's registration in her name. She then telephoned Albert Diehl, a Westmoreland County constable, and informed him "that [she had] the title to the car, it is signed over to [her] and that [she] needed help in retrieving it from Mark Abbott." She expected the constable to "tell Mark that, yes, the [van] was [hers] and [she] could take it and that was it." Latshaw admits that she contacted Diehl in his capacity as a constable. She also testified that she paid him for his services. 1

On April 25, 1996, Latshaw and Diehl met outside Abbott's chiropractic office in Greensburg. Neither of them had notified Abbott of the impending seizure. As proof that she owned the van, Latshaw showed the constable the Pennsylvania certificate of title issued in her father's name and bearing a notarized assignment to her, a temporary registration issued in her name, temporary license plates, and an insurance card indicating that the van was insured by a policy issued to James P. Latshaw, presumably her husband.

Convinced that Latshaw was entitled to immediate possession of the van, Diehl approached Abbott, identified himself as a constable, and asked him if he would give Latshaw the keys to the van. Abbott refused. He insisted that he had paid for the van, had driven it for seven years, and had a bill of sale at home establishing that he owned it. Abbott asked if he could drive the van home to get the proof of ownership, but Diehl threatened to arrest Abbott if he drove off in "her vehicle." Abbott then telephoned David Harr, the attorney who had represented him in the sale transaction with Feather. Harr told Diehl that the bill of sale existed, and warned the constable that he would be held liable if he helped Latshaw take the van.

Shortly thereafter, Diehl telephoned the Greensburg police and requested that an officer come to the scene to review Latshaw's documentation. Lieutenant Dennis George, Officer Robert Stafford, and Officer Donald Sarsfield of the Greensburg police arrived on the scene in response to the call. They reviewed Latshaw's paperwork and confirmed by radio that the van was in fact registered to Dale Feather. One of them told Latshaw she was entitled to immediate possession of the van.

David J. Millstein, Abbott's current counsel, arrived at the scene at about this time. He spoke briefly to Diehl, and then entered into a heated discussion with Lt. George in which he vehemently opposed the seizure. When words proved ineffective, Millstein took action. By then, a locksmith whom Diehl had recommended to Latshaw had cut a key to the van. Millstein boxed the van into its parking space with his car in order to prevent Latshaw from driving it out of the parking lot. According to the police report submitted by Stafford, Lt. George then threatened to arrest Millstein if he did not make way for the van. When Millstein refused to do so, Lt. George told him that he was under arrest. The Greensburg police officers then issued him a summary citation for disorderly conduct and briefly detained him in a police car. Meanwhile, Latshaw managed to maneuver the van around Millstein's car and drove off.

Abbott commenced a 42 U.S.C. § 1983 action against Diehl, the Greensburg police officers, and Latshaw, claiming that they deprived him of property under color of state law without due process. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and 42 U.S.C. § 1983. Abbott now appeals from the July 21, 1997, final order of the district court granting summary judgment on qualified immunity grounds in favor of Diehl and the Greensburg police officers, dismissing his § 1983 claim against Latshaw for lack of state action, and denying him leave to amend his complaint to include an alleged violation of the Fourth Amendment.

We have jurisdiction to review the final order of the district court under 28 U.S.C. § 1291. In reviewing an order of summary judgment predicated on qualified immunity grounds, we exercise plenary review over the district court's legal conclusions. See Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir.1997). We will affirm summary judgment if, after drawing all reasonable inferences from the underlying facts in the light most favorable to the nonmoving party, we conclude that there is no genuine issue of material fact to be resolved at trial, and that the moving party is entitled to judgment as a matter of law. See id.


The district court held that although Abbott asserted a property interest upon which a § 1983 claim for violation of procedural due process may be predicated, qualified immunity shields the officers from potential liability for their role in the seizure. We agree with the finding that the officers were state actors and effected a constitutional deprivation, but part company with the district court on the issue of qualified immunity.

A. 42 U.S.C. § 1983

Section 1983 provides a cause of action for violations of federally secured statutory or constitutional rights "under color of state law." 42 U.S.C. § 1983. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Abbott alleges in his § 1983 claim that Constable Diehl and the Greensburg police officers violated his Fourteenth Amendment right to procedural due process by using the authority vested in Pennsylvania law enforcement officers to deprive him of property without prior notice and an opportunity to be heard. If their conduct satisfies the state action requirement of the Due Process Clause, then it also qualifies as action "under color of state law" for § 1983 purposes. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

1. Constable Diehl and the Greensburg Police Officers

Where, as here, defendants have successfully raised the shield of qualified immunity in a § 1983 action, an appellant trying to reverse summary judgment bears the initial burden of showing that the defendants violated a clearly established statutory or constitutional right. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.1997) (citing In re City of Philadelphia Litigation, 49 F.3d 945, 961 (3d Cir.1995)). In particular, Abbott must establish that the officers were acting as state actors when they deprived him of a property interest to which he had a legitimate claim of entitlement without the process he deserved.

a. State Action

State action is a threshold issue in a Fourteenth Amendment claim. "[T]he deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the state is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a...

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