Johnson v. Outboard Marine Corp.

• Decision Date: 24 March 1999
• Docket Number: No. 98-1304,98-1304
• Citation: 172 F.3d 531
• Parties: Lawrence D. JOHNSON and Marvin Rumery, Appellants, v. OUTBOARD MARINE CORPORATION; Kirk Brumbaugh; Mark Quandahl; David L. Pekarek; Terry Wagner; William Jarrett; Margaret A. McDevitt; Cosmopolitan Service Corp., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 531

172 F.3d 531

Lawrence D. JOHNSON and Marvin Rumery, Appellants, v. OUTBOARD MARINE CORPORATION; Kirk Brumbaugh; Mark Quandahl; David L. Pekarek; Terry Wagner William Jarrett; Margaret A. McDevitt Cosmopolitan Service Corp., Appellees.

No. 98-1304.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 19, 1998.

Decided March 24, 1999.

Melody A. Kramer, Lincoln, NE, argued, for Appellants.

Douglas D. Cyr, Lincoln, NE, argued (Gary E. Lacey, Lancaster County Attorney, on the brief), for Appellees.

Before: BEAM, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Armed with a valid writ of execution directing him to levy on personal property of a debtor corporation at the residence address of the corporation's secretary, a deputy sheriff seized a boat and trailer parked in the driveway. It was later determined that the boat and trailer were not property of the corporation, and thus not subject to levy, and they were released to the owners. The owners filed this action against the sheriff and deputies, as well as creditors and creditors' counsel, under 42 U.S.C. § 1983 alleging constitutional violations under the Fourth and Fourteenth Amendments. The district court ¹ granted summary judgment to the sheriff and deputies, and dismissed the other defendants, all on the basis of qualified immunity. Plaintiffs appeal. We affirm the judgment of the district court.

I. BACKGROUND

The essential facts are not in dispute. Following a default judgment for approximately $ 650.00 against Starfish Marine, Inc., a Lancaster county court issued a valid writ of execution. The writ instructed the sheriff of Lancaster County to execute, or levy, on "any and all personal property of the judgment debtor located at 1812 W. Arlington, Lincoln, NE." Deputy Pekarek determined that the judgment debtor had been dissolved for nonpayment of taxes. He tried to execute the writ at the above address on September 16, 1996. No one answered the door, so Pekarek left a civil process card with instructions to contact him. At the same time, Pekarek noticed a boat and trailer parked in the driveway. He subsequently learned that the trailer was registered to Marvin Rumery of 1812 W. Arlington, but was unable to determine ownership of either the boat or the trailer.

Three days later, Deputy Pekarek again attempted to contact the occupants of the W. Arlington address, was unsuccessful, and left another card. He then learned from the Secretary of State that Marvin Rumery had been the secretary of Starfish Marine, and Lawrence Johnson had been the president and treasurer. He was told by a more senior deputy that officers of a "status II corporation" ² had no protection and their assets were subject to levy to satisfy the judgment. On September 24, Pekarek phoned the Rumery residence and left a message stating that he was attempting to serve the writ, and that he intended to levy on the boat in the driveway. Pekarek soon received a phone call from an individual claiming to be Rumery's attorney. Pekarek once again explained his attempts to serve the writ and his intention to levy on the boat.

On September 26, Pekarek failed for a third time to speak with anyone in the house on W. Arlington. Later that day, however, he received a report that Rumery was cleaning out the boat. Pekarek and another deputy went to the W. Arlington address and spoke with Rumery. Rumery stated that the boat was actually owned by his father-in-law, Lawrence Johnson, but could not produce any documentation of ownership for either the boat or the trailer. At the same time, Pekarek also spoke with Rumery's attorney on the phone, who told Pekarek that he could not levy on the boat. Nevertheless, Pekarek seized the boat and trailer and had them towed away.

On October 2, 1996, Rumery and Johnson delivered a Notice of Exemptions to the execution, which was filed with the court the same day. On October 11, the county court ordered the boat and trailer released to Rumery and Johnson.

Plaintiffs then filed this action in district court under 42 U.S.C. § 1983, alleging that the sheriff, deputies, creditors, and creditors' counsel had violated their rights under the Fourth and Fourteenth Amendments of the Constitution. ³ The district court granted summary judgment to the law enforcement defendants based on qualified immunity. The court similarly found that the private defendants were also entitled to qualified immunity and dismissed them from the suit. Rumery and Johnson appeal, contesting the court's findings of qualified immunity.

II. DISCUSSION

We review a grant of summary judgment de novo, considering all evidence in a light most favorable to the nonmoving party. See Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994). A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. We may uphold a grant of summary judgment for any reason supported by the record, even if different from the reasons given by the district court. See Hall v. Lhaco, Inc., 140 F.3d 1190, 1193 (8th Cir.1998). We find the issue of qualified immunity is misplaced for two reasons. First, the plaintiffs, by their pleadings, do not name any public officials acting in their individual capacities, thus any discussion of qualified immunity is inappropriate. Second, even assuming the defendants were properly pleaded, the plaintiffs have failed to allege facts that amount to a violation of their constitutional rights, thus there is no need for a discussion of qualified immunity.

A. The Parties

Public servants may be sued under section 1983 in either their official capacity, their individual capacity, or both. See, e.g., Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir.1997). The amended complaint does not specify in what capacity the law enforcement defendants are being sued. Aside from the corporate parties and their counsel, the amended complaint names "David L. Pekarek, Terry Wagner, William Jarrett." Pekarek and Jarrett are deputy sheriffs and Wagner is the sheriff of Lancaster County. This court has held that, in order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity. See Artis v. Francis Howell North Band Booster Ass'n Inc., 161 F.3d 1178, 1182 (8th Cir .1998); Murphy, 127 F.3d at 754. Because section 1983 liability exposes public servants to civil liability and damages, we have held that only an express statement that they are being sued in their individual capacity will suffice to give proper notice to the defendants. See Nix v. Norman, 879 F.2d 429, 431 (8th Cir.1989); Egerdahl v. Hibbing Comm. College, 72 F.3d 615, 619-20 (8th Cir.1995). Absent such an express statement, the suit is construed as being against the defendants in their official capacity. A suit against a public employee in his or her official capacity is merely a suit against the public employer. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Qualified immunity is not a defense available to governmental entities, but only to government employees sued in their individual capacity. And because the pleadings are construed as a suit against the county, the only issue raised on appeal, qualified immunity, is irrelevant.

A political subdivision may not generally be held vicariously liable under section 1983 for the unconstitutional acts of its employees. See Monell v. Department of Soc. Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A political subdivision may be held liable for the unconstitutional acts of its officials or employees when those acts implement or execute an unconstitutional policy or custom of the subdivision. See id.; Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir.1999) ("policy" is an official policy, a deliberate choice of a guiding principle or procedure made by an official with authority, "custom" is a persistent, widespread pattern of unconstitutional conduct of which officials have notice and subsequently react with deliberate indifference or tacit authorization). Rumery and Johnson have failed to allege facts--or produce evidence--showing that the deprivation of their property was the result of a policy or custom of Lancaster county. In short, the plaintiffs have presented nothing that would indicate liability on the part of the county. Thus, summary judgment was proper.

Private actors may incur section 1983 liability only if they are willing participants in a joint action with public servants acting under color of state law. See Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir.1997). The plaintiffs must establish, at the very least, an agreement or meeting of the minds between the private and state actors, and a corresponding violation of the plaintiffs' rights under the Constitution or laws of the United States. See Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir.1993). Since the plaintiffs have failed to establish that a state actor violated their rights under the Constitution or laws of the United States, their claims against the private actors must also fail.

B. Constitutional Violations

Even assuming there was no defect in the pleadings and the plaintiffs properly named the deputies and the sheriff in their individual capacities, the plaintiffs' case must fail because there are no alleged facts or evidence that suggest a violation of their rights under the Constitution or statutes of the United States, a prerequisite to section 1983 liability. In section 1983 actions against public officials in their individual capacity, a plaintiff must show that the defendant violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73...