Howse v. DeBerry Correctional Institute

• Decision Date: 30 April 1982
• Docket Number: No. 82-3134.,82-3134.
• Citation: 537 F. Supp. 1177
• Parties: Curley Lee HOWSE v. DeBERRY CORRECTIONAL INSTITUTE.
• Court: U.S. District Court — Middle District of Tennessee

537 F. Supp. 1177

Curley Lee HOWSE v. DeBERRY CORRECTIONAL INSTITUTE.

No. 82-3134.

United States District Court, M. D. Tennessee, Nashville Division.

April 30, 1982.

Curley Lee Howse, pro se.

William B. Hubbard, Chief Deputy Atty. Gen. and David M. Himmelreich, Asst. Atty. Gen., Nashville, Tenn., for defendant.

MEMORANDUM

WISEMAN, District Judge.

Plaintiff Curley Lee Howse is an inmate at the DeBerry Correctional Institute DCI, a state prison located at Nashville, Tennessee. Plaintiff has filed this action under 42 U.S.C. § 1983 against two employees at DCI, Willie Hector and William Foxx, seeking damages for alleged deprivations of his civil rights.¹ Specifically, plaintiff charges that defendant Hector physically assaulted him in November 1981 and that defendant Foxx physically assaulted him in December 1981. Defendants Hector and Foxx have filed a motion to dismiss or in the alternative a motion for summary judgment asserting that plaintiff has failed to state a claim relievable under section 1983. The Court concludes that defendants' motion to dismiss is well made. Although for reasons different from those urged by defendants, plaintiff's allegations do not rise to the level of a civil rights violation justifying relief under section 1983. Consequently, for the reasons stated below, plaintiff's action is dismissed.

The gravamen of plaintiff's complaint against defendant Hector is that defendant Hector shoved plaintiff and also grabbed plaintiff so tightly by his shirt front that plaintiff allegedly suffered pain. Plaintiff's assertion against defendant Foxx is that defendant Foxx similarly grabbed plaintiff by plaintiff's shirt, pushed plaintiff down a corridor, and poked plaintiff in the chest "harshly" while threatening plaintiff.

Defendants contend that plaintiff's claims against them are precluded by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt, the plaintiff, a prisoner, sued various prison officials under section 1983 after a hobby kit that plaintiff had ordered and been sent by mail was negligently lost in the prison mail system. The plaintiff argued that the negligence of the prison officials had deprived him of property without due process of law. The Supreme Court, in an opinion written by Justice Rehnquist, ruled that plaintiff's claim did not amount to a violation of the fourteenth amendment. The Court held that because the state of Nebraska, where the plaintiff was incarcerated, provided a tort remedy to persons who suffered property losses at the hands of the state, the plaintiff was not deprived of his property "without due process." In other words, even though the plaintiff had clearly been deprived of his property by persons acting "under color of state law," as is necessary for a section 1983 action, the state's post-deprivation tort remedy provided all the due process to which the plaintiff was there entitled. Thus, the plaintiff's constitutional rights had not been violated, and he had no claim under section 1983. As Justice Rehnquist stated, "Nothing in the fourteenth amendment protects against all deprivations of life, liberty or property by the State. The Fourteenth Amendment protects only against deprivations "without due process of law.'" 451 U.S. at 537, 101 S.Ct. at 1913, 68 L.Ed.2d at 430.

Defendants Hector and Foxx assert that the reasoning employed by the Supreme Court in Parratt applies with equal force to the facts of this case and dictates that plaintiff's claim be dismissed because Tennessee law ostensibly provides plaintiff a tort remedy against defendants. This Court does not agree. Parratt is inapposite here.

As noted above, Parratt involved the negligent deprivation of property by state officials. In contrast, plaintiff's claim in this case involves an alleged intentional deprivation of a liberty interest. This Court does not believe that the Supreme Court intended the rationale of Parratt to extend beyond facts basically similar to those in that case—that is, when only a negligent deprivation of property is involved. This Court's conclusion is supported by the opinions of those Justices who concurred in Justice Rehnquist's opinion in Parratt. Justice Blackmun, wrote:

I do not read the Court's opinion as applicable to a case concerning deprivation of life or liberty....

Most importantly, I do not understand the Court to suggest that the provision of "post deprivation remedies" ... within a state system would cure the unconstitutional nature of a state official's intentional act that deprives a person of property.

451 U.S. at 545, 101 S.Ct. at 1918, 68 L.Ed.2d at 435 (Blackmun, J., concurring). Justice Powell echoed those comments:

The Due Process Clause imposes substantive limitations on state action, and under proper circumstances these limitations may extend to intentional and malicious deprivations of liberty and property, even where compensation is available under state law.

Id. at 552-553, 101 S.Ct. at 1921-1922, 68 L.Ed.2d at 439-40 (Powell, J., concurring in the result).

Despite the limitations understood by members of the Supreme Court to exist on the Parratt ruling, some lower courts have applied Parratt's reasoning to claims involving other than negligent property deprivations. In Meshkov v. Abington Township, 517 F.Supp. 1280 (E.D.Pa.1981), for example, the court used Parratt to dismiss a negligent deprivation of life claim. In Meshkov, the plaintiff sued Abington Township and several members of the township's police force after the policemen had allegedly negligently allowed the plaintiff's son to hang himself while detained at the township police station in an unwatched cell. Relying on Parratt, the court ruled that because state law provided the plaintiff a tort action against the defendants, no due process violation existed and plaintiff therefore had no claim under section 1983.

In a less drastic application of Parratt, the court in Sheppard v. Moore, 514 F.Supp. 1372 (M.D.N.C.1981), dismissed the plaintiffs' claims under section 1983 that they allegedly had been deprived intentionally of their property by local police officials. In Sheppard, the officials had seized plaintiffs' coin, gun, and knife collections as part of a pending criminal investigation. After the investigation was terminated, however, the officials refused to return the items to the plaintiffs, and the plaintiffs filed suit. The court dismissed plaintiffs' complaint, ruling that plaintiffs had an adequate remedy under state law.

Epitomizing the lengths to which some courts have gone to dismiss section 1983 claims under Parratt is the decision in Eberle v. Baumfalk, 524 F.Supp. 515 (N.D. Ill.1981). In Eberle, the court dismissed the plaintiffs' negligent deprivation of liberty claim against several police officers even though the plaintiffs did not have a remedy against the defendants under state law. The plaintiffs alleged that they had been negligently injured by the defendant policemen while being taken into custody. Although Illinois law prohibited suits against public employees for negligence, the court in Eberle nonetheless ruled that the plaintiffs' action should be dismissed under Parratt. The court reasoned that Parratt should not be read literally to require the existence of adequate state remedies, despite the fact that the plaintiffs were left with no recourse whatsoever against the defendants because of its ruling.

The above three decisions can all be distinguished from the instant case, whether on the basis of the facts involved or simply, as with Eberle, the illogic of the result. Defendants Hector and Foxx do, however, rely most heavily on one case that is at least legally apposite here. In Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir. 1981), the Ninth Circuit held that the plaintiff could not maintain an action under section 1983 for assault and battery against state officials when the state provided an adequate tort remedy. In Rutledge, the plaintiff, a football player at Arizona State University, was allegedly punched in the mouth and otherwise attacked by his coach during a practice session. The Ninth Circuit, declaring that under Parratt the issue was really whether the alleged deprivation of liberty occurred "without due process of law," ruled that the state tort law provided all the process that the plaintiff was due, especially in view of the fact that the plaintiff had already pursued his state remedies.

Rutledge thus seems squarely on point with the present action, so far as concerns the legal issue raised here, and this Court has seriously evaluated the opinion. Were Rutledge a decision by the Sixth Circuit, this Court would obviously be compelled to follow its result. It is not, however, and despite Rutledge's relevancy, this Court must declare that it finds Rutledge's reasoning —as well as that of the other decisions previously noted—unpersuasive. This Court does not believe that the Supreme Court intended Parratt to be applied automatically and unthinkingly to every instance in which a section 1983 claim can be said to resemble a state tort action. Parratt's effect is limited by its facts, and it is inapplicable to any claims other than those alleging negligent deprivations of property.

Several courts are in agreement with this Court's assessment of Parratt. In Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. granted, ___ U.S. ___, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982), the Fifth Circuit rejected the argument that Parratt precluded a section 1983 claim for violations of voting rights because the state provided adequate remedies. Not only did the court deny Parratt's applicability, it also declared that Parratt was limited simply to procedural due process issues and did affect substantive due process claims. As the Fifth Circuit stated,

It is important to recognize that Parratt concerned procedural due process rather than substantive due process. The Parratt Court was

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