Havas v. Thornton, 77-3139

• Decision Date: 21 November 1979
• Docket Number: No. 77-3139,77-3139
• Citation: 609 F.2d 372
• Parties: Victor HAVAS and Arlene Havas, Plaintiffs-Appellants, v. John T. THORNTON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 372

609 F.2d 372

Victor HAVAS and Arlene Havas, Plaintiffs-Appellants, v. John T. THORNTON et al., Defendants-Appellees.

No. 77-3139.

United States Court of Appeals Ninth Circuit.

Nov. 21, 1979.

Rehearing Denied Dec. 26, 1979.

Victor Havas, pro se.

Henry H. Rawlings, Jr., William P. Curran, Las Vegas, Nev., argued, for defendants-appellees; Cromer, Barker & Michaelson, Las Vegas, Nev., on brief.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT and ANDERSON, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Victor Havas and Arlene Havas, his wife, brought this action under 42 U.S.C. §§ 1983 ¹ and 1985, ² for damages and injunctive relief, claiming a conspiracy to deprive them of their civil rights to liberty, property, and due process of law. They named as defendants various officials of the State of Nevada and Clark County, Nevada, and members and officers of the Metropolitan Police Department of Clark County, together with the City of Las Vegas, Clark County, and the State of Nevada. They appeal from a judgment dismissing the third, fourth, fifth, sixth, seventh, and eighth causes of action of their amended complaint and dismissing the entire action as to all defendants except five named police officers. ³ We affirm.

Causes of action three through eight allege civil rights violations resulting from (1) the filing of a civil complaint by the office of the Attorney General of Nevada, Consumer Affairs Division, seeking a preliminary and permanent injunction against Havas and alleging the unauthorized repair of a motor vehicle, deceptive and misleading advertising, and false and deceptive trade practices; ⁴ and (2) an administrative action by the Department of Motor Vehicles of the State of Nevada, seeking revocation of a used dealer's license issued to Courtesy R V Motors, in which Havas had some interest.

Plaintiffs allege, Inter alia, that the actions of the defendants were malicious and intentional and for the purpose of harassing and intimidating plaintiff Victor Havas in violation of his fourth, fifth, and fourteenth amendment rights; that defendants' actions have "subjected Plaintiff to a violation of his Civil Rights, to his right to privacy, and due process of law"; and that both plaintiffs "have lost and will in the future lose large sums of money by reason of having been greatly humiliated and held up to public scorn and derision as a result of the . . . acts of the defendants".

The defendants filed motions to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Following the filing of briefs and oral argument the district court ordered dismissal in open court for the reason that the causes of action three through eight stated "no deprivation of a federally-protected civil right, ⁵ and that the defendants named as defendants are immune under the controlling precedents." An order was entered pursuant to Rule 54(b) certifying that there was no just reason for delay and directing the entry of judgment. This appeal was taken from the judgment of dismissal.

Appellants contend that the district court erred in (1) determining that causes of action three through eight did not seek vindication of any federally protected rights; (2) determining that the dismissed defendants were immune from liability; (3) ordering dismissal without affording plaintiffs an opportunity to further amend their complaint; and (4) dismissing the claim for injunctive relief.

It is well settled that in order to recover under either § 1983 or § 1985(3) it is necessary to allege facts showing a deprivation of rights secured by the Constitution or laws of the United States, and that merely because the acts are performed by public officials, a state-law tort claim is not thereby transmuted into one for the deprivation of rights secured under the Fourteenth Amendment.

In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court reviewed many prior decisions in holding that defamation, even by public officials acting under color of state law, is not actionable under § 1983. ⁶ The Court noted that in the leading case of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Court had considered the proper application of the criminal counterpart of § 1983, and had recognized that, "Violation of local law does not necessarily mean that federal rights have been invaded." In Screws the plurality opinion had "observed that Congress should not be understood to have attempted 'to make all torts of state officials federal crimes. It brought within (the criminal provision) only specified acts "under color" of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States'." Paul v. Davis, 424 U.S. at 700, 96 S.Ct. 1155, 1160, quoting Screws v. United States, 325 U.S. at 109, 65 S.Ct. 1031. The Court also stated in Paul v. Davis that it had noted "the 'constitutional shoals' that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102, (91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338, 347-48) (1971); A fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law." ⁷ Id. 424 U.S. at 701, 96 S.Ct. at 1160.

In attempting to distinguish Paul v. Davis, appellants state in their reply brief that they are not "seeking relief for alleged defamation, except as such defamation itself is incidental to the real purpose of the conspiracy as alleged." They claim that the conspiracy was intended to drive them out of business and by an injunction to keep them from ever engaging in the automobile business again. They rely on a statement in Paul v. Davis that a line of previous cases "does not establish the proposition that reputation alone, Apart from some more tangible interests such as employment, is either 'liberty' or 'property' by itself sufficient to invoke the procedural protection of the Due Process Clause." Id. at 701, 96 S.Ct. at 1161. (Emphasis added.) That language must be read in the context of employment cases, such as Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), where the Court recognized that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and opportunity to be heard as to the defamation. The Court noted, however, that the language of this holding in Roth "is quite inconsistent with any notion that a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable under the Fourteenth Amendment." Id. 424 U.S. at 709, 96 S.Ct. at 1164.

The Court in Paul v. Davis also distinguished prior cases where "a right or status previously recognized by state law was distinctly altered or extinguished." The Court concluded:

Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners' actions. Rather his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any "liberty" or "property" recognized by state or federal law, nor has it worked any change of respondent's status as theretofore recognized under the State's laws. For these reasons we hold that the interest in reputation asserted in this case is neither "liberty" nor "property" guaranteed against state deprivation without due process of law.

Id. at 711-712, 96 S.Ct. at 1165-1166.

Appellants also argue that they have alleged an invasion of their rights to "personal privacy". A similar claim was rejected in Paul v. Davis. The Court noted that while "there is no 'right of privacy' found in any specific guarantee of the Constitution, the Court has recognized that 'zones of privacy' may be created by more specific constitutional guarantees and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 113, 152-153, (93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-178) (1973)." Id. at 712-713, 96 S.Ct. at 1166. The Court concluded, however, that respondent's claim was

far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private," but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.

Id. at 713, 96 S.Ct. at 1166.

We conclude, as did the district court, that Paul v. Davis is controlling and that plaintiffs have failed to state a claim for deprivation of a federally-protected civil right. ⁸

Appellants argue further that it was error for the district court to grant a motion to dismiss under Rule 12(b)(6) without...