Frost v. City and County of Honolulu

• Decision Date: 13 April 1984
• Docket Number: Civ. No. 83-1169.
• Citation: 584 F. Supp. 356
• Parties: Rollin FROST, Plaintiff, v. CITY AND COUNTY OF HONOLULU, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

584 F. Supp. 356

Rollin FROST, Plaintiff, v. CITY AND COUNTY OF HONOLULU, et al., Defendants.

Civ. No. 83-1169.

United States District Court, D. Hawaii.

April 13, 1984.

Edward C. Kemper, and American Civil Liberties Union of Hawaii, Honolulu, Hawaii, for plaintiff.

Gary M. Slovin, Corp. Counsel, Lawrence R. White, Deputy Corp. Counsel, City and County of Honolulu, Honolulu, Hawaii, for defendants.

ORDER DENYING MOTION TO DISMISS

FONG, District Judge.

Plaintiff Rollin Frost filed a complaint on November 4, 1983 claiming damages under 42 U.S.C. § 1983 and the pendant jurisdiction of this court.

Frost alleges that on or about January 15, 1982, defendant police officers Kenneth Ikehara and John Doe I arrived at his home in response to a telephone call from his wife. Though the officers tried to prevent him, Frost made his way into the house, whereafter he was forced to the floor and handcuffed. Frost then claims that, while on the floor, he was severely beaten and kicked without provocation, and choked to unconsciousness twice. As a result of this beating, he suffered a broken elbow, broken ribs, contusions on the stomach and side, and facial abrasions. Subsequently, Frost was "booked," but because of his injuries was taken to the hospital for treatment and corrective surgery. Frost was never prosecuted for any crime.

Frost further claims that the City and County of Honolulu was negligent in the hiring, training, and supervision of the defendant police officers alleging that even though Officer Ikehara was involved in other incidents of misconduct, the City and County of Honolulu continued his employment.

Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, arguing that even if the facts alleged were true, existing state tort remedies provide all the process that is his due under the Fourteenth Amendment. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir.1981), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). Alternatively, defendants maintain that the complaint should be dismissed because it is vague and conclusory.

I

The issue before this court is whether an individual who is intentionally beaten by police without provocation can maintain an action under 42 U.S.C. § 1983 when he also has recourse to state tort remedies.

The enigmatic plurality and concurring opinions that comprise Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), have spawned much diverse commentary. Parratt involved the negligent loss of an inmate's $23.50 hobby kit by prison officials. The inmate, Taylor, sued under 42 U.S.C. § 1983 claiming damages. While recognizing that Taylor's claim met the three prerequisites of a valid due process claim (the prison officials acted under color of state law, the hobby kit was property, and the loss, though negligent, was a deprivation), the Supreme Court found that the Nebraska tort remedies provided adequate postdeprivation process to satisfy the requirements of "procedural due process." Parratt, 451 U.S. at 537, 101 S.Ct. at 1914. The plurality reasoned that where the loss of property was the result of "a random and unauthorized act by a state employee," and a predeprivation hearing was therefore impractical or impossible, the court will look to the adequacy of state postdeprivation process in order to determine whether the deprivation fails to comport with the Due Process Clause of the Fourteenth Amendment. Id. at 541, 101 S.Ct. at 1916.

Parratt is responsive to the ever rising tide of more or less frivolous section 1983 claims that threatens to inundate the province of traditional Fourteenth Amendment protections. It bespeaks the Court's intention to retrench the boundaries of due process protection, but gives little indication just where the new lines will be drawn. Justice Marshall, concurring and dissenting, argues that Parratt is limited to negligent deprivations of property, though there is little in the plurality's opinion or reasoning that would require such a limitation. Id. at 555, 101 S.Ct. at 1923. Justices Blackmun and White, who agree with Justice Marshall's construction of Parratt's scope, further argue "that there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process." Id. at 545, 101 S.Ct. at 1918. Justice Powell, concurring only in the result, also expressed concern about the scope of the plurality's opinion, maintaining that substantive due process limitations on state action may extend to intentional deprivations of property and liberty "even where compensation is available under state law." Id. at 553, 101 S.Ct. at 1922. Justice Stewart, like the plurality, is silent with respect to the proper scope of the opinion. Id. at 544-5, 101 S.Ct. at 1917-18.

In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Supreme Court addressed, albeit obliquely, the scope of Parratt. In Logan, the issue was whether the plaintiff had been deprived of a state-created property interest without due process. Logan had filed a timely employment discrimination claim with a state commission but the commission had failed to convene the required employer-employee conference within the 120-day period specified by statute, thus causing the forfeiture of her claim. Responding to the employer's argument that, under Parratt, a state tort action against the agency provided that employee all the process due her, the Court emphasized that Parratt dealt with a "random and unauthorized" act by a state employee, whereas, in Logan, the plaintiff was challenging an "established state procedure." Logan, 455 U.S. at 436, 102 S.Ct. at 1158. The Court went on to say that "Parratt was not designed to reach such a situation," citing with approval the Parratt concurring opinion of Justices Blackmun and White. Id. Though the Court did not say to just what extent it was adopting this concurring opinion, the implication is clear: Parratt does not automatically bar all section 1983 claims merely because predeprivation hearings are impractical and the state provides a remedy through the "lengthy and speculative process" of an independent tort action. Id. at 437, 102 S.Ct. at 1158.

Though there have been many opinions construing the scope of Parratt, the issue remains unsettled in this circuit. See Haygood v. Younger, 718 F.2d 1472, 1479 (9th Cir.1983); Bretz v. Kelman, 722 F.2d 503, 507 n. 1 (9th Cir.1983) (Fletcher, J., dissenting). Many opinions are fully irreconciliable. One line of cases, Rutledge and its progeny, would extend Parratt to virtually every conceivable deprivation of liberty or property so long as a predeprivation hearing is impractical and the state provides post deprivation tort remedies. See Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir.1981), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Haygood v. Younger, 718 F.2d 1472 (9th Cir. 1983) (following Rutledge); and Bretz v. Kelman, 722 F.2d 503 (9th Cir.1983) (following Rutledge). Other cases sharply limit Parratt's application. Piatt v. MacDougall, 723 F.2d 721 (9th Cir.1984) (application of Parratt limited to negligent deprivations); and Wakinekona v. Olim, 664 F.2d 708 (9th Cir.1981) (Parratt limited to negligent deprivations of property) rev'd on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983).

The Rutledge court, ostensibly relying on Parratt, held that a football coach's alleged assault and battery of a scholarship athlete failed to state a section 1983 claim because the alleged deprivation of liberty "was not, nor could have been, accompanied by a predeprivation hearing." Rutledge, 660 F.2d at 1352. On the basis of this conclusion, Judge Sneed, writing for the court, went on to characterize the remaining issue as "merely whether the remedies available under Arizona law and in the Arizona courts constitute the postdeprivation hearing required by the Fourteenth Amendment." Id.

Judge Sneed again writing for the court, the Haygood panel held that an inmate failed to state a claim for relief under section 1983 where the California Adult Authority "miscalculated" his release date and kept him confined after he had completed the sentence imposed upon him. Haygood, 718 F.2d at 1477. Once more, the court broadly held Parratt applicable "to situations in which process prior to deprivation of liberty would not be feasible or practical." Id. at 1480. The Haygood panel declined to follow either the Ninth Circuit decision in Wakinekona v. Olim, 664 F.2d 708 (9th Cir.1981) rev'd on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (decided only two weeks after Rutledge) or the Fifth Circuit opinion in Brewer v. Blackwell, 692 F.2d 387 (1982), both of which limit Parratt to deprivations of property. Narrowly limiting Logan to its facts, the panel apparently was not convinced that the Supreme Court's reference in Logan to the Parratt concurrence of Justices Blackmun and White required any particular deference. Haygood, 718 F.2d at 1479.

The Rutledge approach is not without its appeal. It is straightforward and would clear many section 1983 claims from the federal dockets. However, Rutledge and its progeny comprise but a portion of the Ninth Circuit case law construing Parratt v. Taylor.

In Wakinekona, the court held that a state prisoner could maintain an action under section 1983 where state prison regulations governing transfers created a liberty interest and the prisoner alleged that he was deprived of an independent decision maker during the transfer proceedings. The court stated that the general language of Parratt "must be read in the context in which it was made, that...