Jones v. Preuit & Mauldin

• Decision Date: 24 July 1987
• Docket Number: No. 86-7415,86-7415
• Citation: 822 F.2d 998
• Parties: Samuel JONES Jr., Plaintiff-Appellant, v. PREUIT & MAULDIN, a partnership, composed of E.F. Mauldin, individually, and E.F. Mauldin, as Executor or Administrator of the Estate of Leonard Preuit, Deceased; E.F. Mauldin; E.F. Mauldin as Executor or Administrator of the Estate of Leonard Preuit, deceased; and Preuit Mauldin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 998

822 F.2d 998

Samuel JONES Jr., Plaintiff-Appellant, v. PREUIT & MAULDIN, a partnership, composed of E.F. Mauldin individually, and E.F. Mauldin, as Executor or Administrator of the Estate of Leonard Preuit, Deceased; E.F. Mauldin E.F. Mauldin as Executor or Administrator of the Estate of Leonard Preuit, deceased; and Preuit Mauldin, Defendants-Appellees.

No. 86-7415.

United States Court of Appeals, Eleventh Circuit.

July 24, 1987.

Burr & Forman, C.V. Stelzenmuller, F.A. Flowers, III, Birmingham, Ala., for plaintiff-appellant.

Potts, Young, Blasingame & Putnam, Robert W. Beasley, Florence, Ala., Don Siegelman, Atty. Gen., State of Ala., Ronald C. Forehand, Asst. Atty. Gen., Montgomery, Ala., Bradley, Arant, Rose & White, David G. Hymer, Donald M. James, Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING IN BANC

Before HILL and JOHNSON, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

HILL, Circuit Judge:

The defendants, Preuit and Mauldin ("P & M"); E.F. Mauldin, both individually and in his capacity as administrator of the estate of Leonard Preuit; and Preuit Mauldin, petition for a rehearing en banc of this panel's opinion in Jones v. Preuit & Mauldin, 808 F.2d 1435 (11th Cir.1987). ¹ Although they do not seek a reconsideration of the panel opinion, we treat their petition as such in accordance with Eleventh Circuit Rule 26(f) and Rule V.C.b(1) of our Internal Operating Procedures. ² See Lewis v. Hillsboro Transit Authority, 726 F.2d 668, 669 (11th Cir.1984).

In their petition, the defendants seek reconsideration of our holding that they are not entitled to qualified immunity. On rehearing, we reaffirm our holding that private defendants are entitled to qualified immunity in section 1983 suits seeking damages on account of unconstitutional attachments. However, we modify our holding that the defendants here have not demonstrated that they are entitled to summary judgment on a claim of qualified immunity. Therefore, except for the statement of the facts and our discussion regarding the availability of qualified immunity to private defendants in the circumstances presented here (that portion of the opinion encompassed by headnotes 5 and 6 at pages 1440-42), our prior opinion is vacated and the following discussion is substituted in its place.

We now address whether the defendants here are entitled to prevail on their claim of qualified immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court promulgated an objective standard for determining whether government officials, generally shielded from liability for civil damages, were entitled to qualified immunity in a particular case. The court held that such officials are, "shielded from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." ³ As Harlow 's emphasis on objective criteria suggests, the question of whether a statutory or constitutional right was clearly established at the time that the alleged wrong was committed is a question of law to be determined by the court. Mitchell v. Forsyth, 472 U.S. 511, 526, 528 n. 9, 105 S.Ct. 2806, 2815-2816 n. 9, 86 L.Ed.2d 411 (1985); Joseph v. Brierton, 739 F.2d 1244, 1249 (7th Cir.1984); Czurlanis v. Albanese, 721 F.2d 98, 108 and n. 8 (3d Cir.1983); Trejo v. Perez, 693 F.2d 482, 488 (5th Cir.1982). The appellants are thus entitled to de novo review on this issue.

Here the right at issue is a debtor's right to due process when his property is attached by a private creditor pursuant to state statute. Mr. Jones claims that in 1982 he had a clearly established right to notice and a hearing before the attachment of his property. We now analyze the relevant Supreme Court cases on this issue to determine whether this assertion is correct.

We turn first to Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In that case, the Supreme Court struck down a Wisconsin statute which authorized the prejudgment garnishment of wages, which the court noted were "a specialized type of property presenting distinct problems in our economic system." 395 U.S. at 340, 89 S.Ct. at 1822. The suing creditor could garnish the debtor's wages without demonstrating a lien or prior interest in the property attached, and the attachment could be accomplished without judicial supervision. Holding that these safeguards were inadequate, the court found the statute unconstitutional for failure to provide pregarnishment notice and hearing to the debtor.

In its next treatment of this issue, a seven member court invalidated the replevin statutes of Florida and Pennsylvania, which statutes authorized the sellers of goods to obtain repossession of their wares "without judicial order, approval or participation." The writ of replevin could be issued by a court clerk on "the bare assertion of the party seeking the writ that he is entitled to one." Fuentes v. Shevin, 407 U.S. 67, 74, 92 S.Ct. 1983, 1991, 32 L.Ed.2d 556 (1972). The court found both statutes further flawed because the only post-deprivation remedy granted to the debtor was the eventual opportunity to be heard as the defendant should the creditor commence an action to determine his rights to repossession. In light of these procedural inadequacies the court declared both statutes unconstitutional.

However, in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the court upheld a Louisiana sequestration statute which did not require that the debtor receive preseizure notice or hearing. The Mitchell court determined that when the debtor is provided with a variety of procedural safeguards which protect his interests, a sequestration or attachment statute is not facially unconstitutional because it does not provide for preseizure notice or hearing. The court distinguished the Louisiana sequestration statute from those invalidated in Sniadach and Fuentes on several different grounds. First, under the Louisiana statute a writ of sequestration was available only to a creditor with a mortgage or lien in the property. Second, the statute authorized the writ, "only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts" shown by a verified petition or affidavit. Mitchell, 416 U.S. at 616, 94 S.Ct. at 1904. Further, in the specific district at issue, this requisite showing had to be made to a judge, so that "Mitchell was not at the unsupervised mercy of the creditor and court functionaries." Id. The statute provided for, "judicial control of the process from beginning to end." Id. In addition, the statute provided that, "the defendant [debtor] by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued." Id. at 622, 94 S.Ct. at 1907. The Supreme Court interpreted this provision as allowing for an immediate hearing to determine whether the writ was wrongfully issued. Id. at 618, 94 S.Ct. at 1905. Finally, the debtor was protected by a provision in the statute which allowed for damages for the wrongful issuance of a writ, and for attorney's fees, "whether the writ is dissolved on motion or after trial on the merits." Id. at 617, 94 S.Ct. at 1905.

The final link in this chain of cases came in the court's next term, when it invalidated a Georgia attachment statute which did not provide some of the procedural safeguards approved in Mitchell. The Georgia statute allowed a creditor to garnish property, absent a bond, via a writ of garnishment issued by a court clerk, with no guarantee that the writ could be challenged unless the debtor could file a bond to protect the plaintiff creditor. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 607, 95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1974). The court in Di-Chem again reviewed those procedural safeguards which had enabled the Louisiana statute in Mitchell to comport with the requirements of due process. It noted that under the Louisiana statute the creditor had a lien or prior interest in the property; filed a bond to obtain the writ, was required to submit an affidavit, "clearly setting out the facts entitling the creditor to seek sequestration" to a judge; and was entitled to "an immediate hearing after seizure and to dissolution of the writ absent proof by the creditor of the grounds on which the writ was issued." Di-Chem, 419 U.S. at 607, 95 S.Ct. at 722. ⁴ Finding these protections lacking, the court declared the Georgia garnishment statute unconstitutional, for failure to provide pre-deprivation notice and hearing.

Having carefully examined the Supreme Court pronouncement in this area, we cannot say as a matter of law that at the time Mr. Jones' cotton pickers were seized, a debtor was entitled to preseizure notice and hearing in all instances of prejudgment attachment. Thus, we cannot say that the single fact that no preseizure hearing occurred means that the defendants here forfeit any claim to qualified immunity.

However, it is clear that by 1982 Supreme Court precedent had granted debtors certain clearly established due process rights upon the attachment of their property. By 1982 the Fifth Circuit had already determined that Mitchell and Di-Chem required that a prejudgment seizure be authorized by a judge who has discretion to deny issuance of the appropriate writ. Johnson v. American Credit Company of Georgia, 581 F.2d 526, 533-35 (5th Cir.1978). ⁵ Similarly, two readily apparent common threads run through all of the Supreme Court decisions outlined above. First, a debtor must be given the opportunity to challenge the seizure in a...