Johnson v. Louisiana Dept. of Agriculture

• Decision Date: 12 April 1994
• Docket Number: No. 92-5092,92-5092
• Parties: Donald M. JOHNSON, Plaintiff-Appellant, v. LOUISIANA DEPARTMENT OF AGRICULTURE, Bob Odom, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 318

18 F.3d 318

Donald M. JOHNSON, Plaintiff-Appellant, v. LOUISIANA DEPARTMENT OF AGRICULTURE, Bob Odom, et al Defendants-Appellees.

No. 92-5092.

United States Court of Appeals Fifth Circuit.

April 12, 1994.

Rehearing Denied May 20, 1994.

Milton Dale Peacock, Monroe, LA, for plaintiff-appellant.

David S. McFadden, C. James Gelpi, New Orleans, LA, Donald Coleman Brown, Woodley, Williams, Fenet, Palmer, Boudreau & Norman, Lake Charles, LA, for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, DAVIS and JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Donald Johnson appeals the district court's dismissal of his Sec. 1983 action. We affirm in part and reverse in part.

I.

In the early 1980s, Donald Johnson operated a cropdusting business, the Transylvania Flying Service, in Louisiana. On four occasions from 1982 through 1984, the Louisiana Department of Agriculture brought charges against Johnson and his company for violating the Louisiana pesticide laws. On each occasion, the Louisiana Advisory Committee on Pesticide held hearings on the charges and then recommended that the Agriculture Commissioner assess penalties against Johnson. The Commissioner accepted the findings and sanctioned Johnson each time. The penalties became increasingly severe, and Johnson's cropdusting career ended when the Department revoked his license and his certification to apply pesticides. After three of the four hearings, Johnson appealed the sanctions to a Louisiana state court, where the findings of liability were generally affirmed although the sanctions were often reduced.

Johnson alleges that the agriculture department continued citing him because he refused to make a large enough contribution to the reelection campaign of Agricultural Commissioner Bob Odom. He claims that the agriculture department fabricated evidence against him and forced an employee to give perjured testimony in order to sustain the convictions. He also alleges that Odom and other agriculture department officials contacted Commission members to influence their votes at his hearings. Further, he asserts that Dale Rinicker, the parish sheriff, helped the department gather illegal evidence against him.

When the motion for summary judgment was filed, the complaint asserted claims under 42 U.S.C. Sec. 1983 against Bob Odom, Commissioner of Agriculture, employees of the Louisiana Department of Agriculture, members of the Advisory Commission on Pesticides, and Sheriff Rinicker. After several requests by the court and the defendants for specific allegations against specific defendants, the district court determined that Johnson's complaint alleged violations of his First Amendment and Fourth Amendment rights, of procedural due process, and of equal protection.

The court dismissed the First Amendment and procedural due process claims because the plaintiff had failed to comply with the court's orders to plead them more specifically, and alternatively because the complaint did not state a claim. The court determined that Johnson's allegations of selective prosecution stated an equal protection claim with sufficient specificity, but then held that qualified immunity protected defendants from that claim. The court also determined that Sheriff Rinicker was entitled to summary judgment because Johnson had no standing to contest any actions the sheriff took in violation of the Fourth Amendment.

II. FIRST AMENDMENT CLAIM

We first must determine if the district court erred when it held that Johnson failed to state a claim under Sec. 1983 for violation of his First Amendment rights. ¹ Johnson alleges that "his first amendment rights were violated by the defendants' coercive attempts to stifle him and his free expression of speech." Johnson alleges that defendants targeted him for prosecution because he "would not shut up and acquiesce to the mistreatment inflicted upon him by the LDOA."

If this allegation asserts a claim on any basis, we agree with the district court that the claim is one for malicious prosecution in violation of Johnson's First Amendment rights. Whether the Constitution comprehends any such claim is far from clear. The Supreme Court has recently held that malicious criminal prosecution, if actionable in constitutional law, should be governed by the Fourth Amendment rather than substantive due process, with its "scarce and open-ended" "guideposts." Albright v. Oliver, --- U.S. ----, 114 S.Ct. 807, 812, 127 L.Ed.2d 114 (1994). Significantly, the Court expressed no view whether such a claim would succeed under the Fourth Amendment. Johnson raised no Fourth Amendment malicious prosecution claim. Further, it is an even more complex question whether and on what basis a First Amendment claim of malicious prosecution can be made. But at the very least, if the First Amendment protects against malicious prosecution, Johnson must not only allege a deprivation of a constitutional right, but must also establish all of the elements of the common law tort action. Johnson has failed to satisfy the common law requirement that "the underlying criminal proceeding ² ... terminate in the plaintiff's favor." Brummett v. Camble, 946 F.2d 1178, 1183 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2323, 119 L.Ed.2d 241 (1992).

Johnson appealed five of his administrative penalties, and four ended in a decrease in punishment. See, Johnson v. Odom, 470 So.2d 988 (La.App. 1st Cir.), writ denied, 476 So.2d 355 (La.1985) (Johnson violated the law by using pesticide inappropriately, but remanded because Commissioner not authorized by statute to impose both fine and suspension); Johnson v. Odom, 536 So.2d 541 (La.App. 1st Cir.1988); writ denied, 537 So.2d 213 (1989) (Johnson violated the law by flying without a license, but fine excessive; Johnson violated the law, but penalties unfair; Johnson admitted committing battery on a Department worker trying to serve a subpoena, but the worker did not have the statutory power to serve subpoena so Johnson did not violate statute penalizing interference with a Commission representative in performance of his duties).

However, none of the appeals ended with a finding of not guilty. Therefore, even if Johnson's claim is cognizable after Albright, the district court did not err in dismissing Johnson's First Amendment claim.

III. DUE PROCESS CLAIM

Johnson alleges that Odom and his employees denied Johnson procedural due process by engaging in ex parte contacts with Advisory Committee members and soliciting perjured testimony to present to them. The district court held that such actions constitute the kind of "random, unauthorized" deprivations of rights that are not actionable under Sec. 1983 if the state has adequate post-deprivation remedies for them. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part not relevant here, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Because Johnson had a right to a rehearing of his adjudication and a right to seek judicial review of the Commissioner's findings, the district court held that his claim was not actionable.

This circuit has held that a Sec. 1983 action for deprivation of procedural due process is barred if a state has adequate post-deprivation remedies and the following conditions exist: 1) the deprivation must truly have been unpredictable or unforeseeable; 2) pre-deprivation process would have been impossible or impotent to counter the state actors' particular conduct; and 3) the conduct must have been "unauthorized" in the sense that it was not within the officials' express or implied authority. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992).

Defendants argue, as proof of all three elements, that bias, ex parte contacts, and solicitation are expressly prohibited by Louisiana law. See, La.Rev.Stat. Sec. 49:960 (prohibiting regulator bias); La.Rev.Stat. Secs. 14:122(3), 14:129.1(a), 14:134(3) (prohibiting perjury). Because Louisiana does not authorize public officials to taint adjudications through acts of bias, but instead expressly forbids it, the state could not predict when public officials might break the law nor could it expect that additional laws would prevent the acts if existing laws did not.

Johnson's sole argument on this issue is that our decision in an earlier opinion in this case established a violation of due process as law of the case. The relevant language from that opinion states:

Johnson's claim for relief rests on the allegations that the Department of Agriculture, through the named defendants, 1) encouraged perjured testimony to facilitate adjudicating him guilty of violating Louisiana's Pesticide Control laws and 2) singled him out for prosecution and revocation of his license using illegally obtained evidence. Such actions, if true, would violate Johnson's due process rights.

Johnson v. Odom, 910 F.2d 1273, 1277 (5th Cir.1990) (per curiam), cert. denied, 499 U.S. 936, 111 S.Ct. 1387, 113 L.Ed.2d 443 (1991).

The doctrine of the law of the case "merely expresses the practice of courts generally to refuse to reopen what has been decided" and does not limit their power to consider matters that could have been, but were not, raised and resolved in the earlier proceeding. Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.1989). This court's earlier opinion did not consider the Parratt/ Hudson doctrine and whether Louisiana provided adequate post-deprivation remedies. Rather, we stated generally that Johnson had alleged actions inconsistent with due process. That statement does not conflict with the district court's ruling in this...