Buller v. Buechler

Decision Date05 May 1983
Docket NumberNo. 82-1770,82-1770
Citation706 F.2d 844
PartiesLowell BULLER, Dale Buller, Happy Family Farmers Co., Growing Animals Producers of Natron County, Wyoming and South Dakota Livestock Enterprises, Appellants, v. Milton BUECHLER, and Kenneth Nordman, d/b/a Nordman Brothers Construction, Appellees, v. Dennis L. DUNCAN, Individually and as Representative of Zimmer, Richter and Duncan, a Partnership or Association, and Zimmer, Richter and Duncan and John Homan, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Carleton R. Hoy, Sarah Richardson, Linda H. Roberts, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S.D., for appellees John Homan, Dennis L. Duncan, and Zimmer, Richter and Duncan.

Frank J. Brady, Yankton, S.D., for appellee, Milton Buechler.

Lee R. Burd, Sioux Falls, S.D., for appellants.

Richard Bogue, Canton, S.D., for defendant and appellee.

Before HEANEY and FAGG, Circuit Judges, and HANSON, * Senior District Judge.

HEANEY, Circuit Judge.

Plaintiffs Dale and Lowell Buller and the farming enterprise they operate appeal from the district court's order granting summary judgment in favor of the defendants on the plaintiffs' section 1983 action. The plaintiffs claim that the defendants denied them procedural due process by garnishing the proceeds of the plaintiffs' auction sale pursuant to South Dakota's unconstitutional garnishment law. The district court held that the plaintiffs failed to establish the section 1983 requirement that the defendants acted "under color of state law." Because we believe that the plaintiffs did satisfy this statutory requirement, we reverse the district court's judgment

and remand to permit the plaintiffs to proceed with their action.


The plaintiffs are engaged in a family farming operation near Parker, South Dakota. On March 22, 1980, they held a large public auction. Near the beginning of the sale, a county deputy sheriff served on the assistant auctioneer and the plaintiffs three sets of garnishment documents representing the claims of John Homan, Kenneth Nordman and the law firm of Zimmer, Richter and Duncan (Zimmer firm). The plaintiffs concede that the three garnishment actions substantially complied with the requirements of South Dakota's garnishment statute, S.D. Codified Laws Ann. Secs. 21-18-1 et seq. That statute, however, had been declared unconstitutional six years earlier by the United States District Court for the District of South Dakota. Stuckers v. Thomas, 374 F.Supp. 178 (D.S.D.1974).

As a result of the garnishment, the auctioneer retained in his possession $281,000 from the proceeds of the sale; the creditors' claimed debts totaled approximately $15,000. On the Monday following the Saturday auction, the plaintiffs' attorney contacted Milton Buechler, the lawyer for Nordman, and Dennis Duncan, the lawyer for Homan and for the Zimmer firm. The plaintiffs' attorney informed her counterparts that the South Dakota garnishment law was unconstitutional and requested that they release the garnished auction proceeds. Attorney Duncan promptly agreed to seek the release of the funds, but according to the plaintiffs, attorney Buechler refused to agree to the release.

Through the efforts of the plaintiffs, their counsel, and attorney Duncan, all but $15,000 of the garnished funds were released by approximately the end of March, 1980. On June 5, 1980, the plaintiffs commenced this action pursuant to 42 U.S.C. Sec. 1983 against attorney Buechler and his client Nordman, and attorney Duncan and his clients Homan and the Zimmer firm. The plaintiffs alleged that the defendants had taken their property without due process in violation of the fourteenth amendment by utilizing S.D. Codified Laws Ann. Secs. 21-18-1 et seq. to garnish the proceeds from their auction. 1 In May, 1982, the district court granted summary judgment in favor of all defendants.

Prior to submission of this appeal, the plaintiffs reached a settlement with Duncan, Homan, and the Zimmer firm. Thus, we need only determine whether the district court properly entered summary judgment in favor of defendants Buechler and Nordman.


Summary judgment is justified only when, viewing the facts and inferences that may be derived therefrom in the light most favorable to the nonmoving party, the court is convinced that there is no evidence to sustain a recovery under any circumstances. E.g., Westborough Mall, Inc. v. City of Cape Girardeau, Mo., 693 F.2d 733, 736-737 (8th Cir.1982). The burden thus is on the defendants to establish that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Id.; Ralph's Distributing Co. v. AMF, Inc., 667 F.2d 670, 672 (8th Cir.1981). Applying these standards to this case, we cannot agree with the district court that the defendants are entitled to summary judgment.

A. The "Under Color of State Law" Requirement.

To establish a cause of action under 42 U.S.C. Sec. 1983, the plaintiffs must In Lugar v. Edmondson Oil Co., Inc., supra, 639 F.2d at 1058, the Fourth Circuit upheld Virginia's prejudgment attachment statute against a procedural due process challenge. The Court found that the private creditor who instituted the attachment proceedings did not act under color of state law because "merely invoking a state's judicial process and thereafter participating in it solely as a private litigant does not constitute joint engagement or participation by the private litigant with the state officials who then independently conduct and enforce that process." Id. at 1069. It concluded that a contrary conclusion was not compelled by the line of prejudgment attachment and garnishment cases in which the Supreme Court had addressed the merits of the debtors' procedural due process claims because they involved "state action" under the fourteenth amendment, rather than action "under color of state law" within section 1983. 4 Id. at 1066-1068.

                establish (1) that they have been deprived of a right secured by the Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under color of state law.   Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978).  The district court granted summary judgment in favor of Buechler and Nordman because it found that their actions were not taken under color of state law. 2   Relying on the Fourth Circuit's decision in Lugar v. Edmondson Oil Co., Inc., 639 F.2d 1058 (4th Cir.1981) (en banc), rev'd, --- U.S. ----, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the court reasoned that the defendants, by instituting proceedings under South Dakota's garnishment law, did not engage in sufficient joint action with state officials to be considered state actors for purposes of section 1983. 3

Subsequent to the decision of the court below, the Supreme Court reversed the Fourth Circuit in Lugar v. Edmondson Oil The Court then articulated a two-part test for determining whether the conduct allegedly causing the deprivation of a federal right constitutes state action:

                Co., Inc., --- U.S. ----, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (hereafter Lugar ).  After reviewing the Sniadach line of cases, see note 4, supra, the Supreme Court concluded that the Court of Appeals had erred in distinguishing between "state action" and action "under color of state law."    Id. --- U.S. at ---- - ----, 102 S.Ct. at 2752-53, 73 L.Ed.2d at 492-494.  It stated that these cases demonstrated that in the context of garnishment actions and prejudgment attachments, the constitutional requirement of "state action" and the statutory requirement of action "under color of state law" were the same.  Id. --- U.S. at ----, 102 S.Ct. at 2753, 73 L.Ed.2d at 494

First, the deprivation must be caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible. * * * Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state.

Id. --- U.S. at ----, 102 S.Ct. at 2754, 73 L.Ed.2d at 495.

The plaintiffs argue that the district court's holding that the defendants did not act under color of state law must be reversed because it relied on the Fourth Circuit's erroneous Lugar decision. They contend that under the two-prong test articulated by the Supreme Court in Lugar, the defendants acted under color of state law by invoking S.D. Codified Laws Ann. Secs. 21-18-1 et seq., which permitted the defendants to garnish the plaintiffs' property by preparing ex parte the required garnishment papers and by having them served by the county deputy sheriff.

There is no question that the first requirement of the Lugar state action test is met here. In this case, as in Lugar, the state created the procedural scheme by which the defendants were able to garnish the plaintiffs' property. See Lugar, --- U.S. at ----, 102 S.Ct. at 2756, 73 L.Ed.2d at 498. The more difficult question is whether the plaintiffs have satisfied the second part of the state action test.

The Lugar Court described the second, or "state actor," requirement of its state action test as follows:

As is clear from the discussion [of the Sniadach line of cases], we have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment. * * *

* * *

* * *

The Court of Appeals erred in holding that in this context "joint participation" required something more than invoking the aid of state officials to take advantage of state created...

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