Lavicky v. Burnett

• Decision Date: 19 March 1985
• Docket Number: 82-1998 and 82-1999,Nos. 82-1969,s. 82-1969
• Citation: 758 F.2d 468
• Parties: David LAVICKY, Plaintiff-Appellee and Cross-Appellant, v. Bob BURNETT, Deputy Sheriff of Garfield County; Sam Otis, Deputy Sheriff of Alfalfa County; Delmar Coppock, Sheriff of Alfalfa County; Ed L. Moore, Assistant District Attorney, Alfalfa County, Defendants-Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 468

758 F.2d 468

David LAVICKY, Plaintiff-Appellee and Cross-Appellant, v. Bob BURNETT, Deputy Sheriff of Garfield County; Sam Otis Deputy Sheriff of Alfalfa County; Delmar Coppock, Sheriff of Alfalfa County; Ed L. Moore, Assistant District Attorney, Alfalfa County, Defendants-Appellants and Cross-Appellees.

Nos. 82-1969, 82-1998 and 82-1999.

United States Court of Appeals Tenth Circuit.

March 19, 1985.

Robert A. Nance, Asst. Atty. Gen. of Okl., Oklahoma City, Okl. (Michael C. Turpen, Atty. Gen. of Okl., Oklahoma City, Okl., with him on briefs), for defendant-appellant Ed L. Moore.

Stephen Jones, James Craig Dodd, and Mary Helm, Enid, Okl., filed briefs for defendants-appellants Robert Burnett, Delmar Coppock, and Sam Otis.

Christopher W. Venters, Oklahoma City, Okl. (Harley E. Venters, Oklahoma City, Okl., with him on the briefs), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, SETH and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

These appeals arise from a jury verdict granting plaintiff David Lavicky damages for violations of his Fourth and Fourteenth Amendment right to be free from warrantless searches and seizures and for violations of his Fifth and Fourteenth Amendment right not to be deprived of property without due process of law. The jury awarded plaintiff compensatory damages of $300 and punitive damages of $250 against each defendant. The trial court, however, granted defendants' motion for judgment n.o.v. on the issue of punitive damages. Plaintiff alleged violations of 42 U.S.C. Secs. 1983, 1985(3), and 1986. On appeal we analyze the case only under 42 U.S.C. Sec. 1983, because there are insufficient allegations of a racial or other class-based conspiracy to support the 42 U.S.C. Secs. 1985(3) and 1986 claims. See Santistevan v. Loveridge, 732 F.2d 116, 117-18 (10th Cir.1984).

All defendants claim on appeal that: (1) plaintiff was not deprived of due process; (2) plaintiff is collaterally estopped from asserting a Fourth Amendment violation because the state court declined to suppress the seized evidence at his criminal trial; and (3) defendants did not violate plaintiff's Fourth Amendment rights. In addition, defendant Deputy Sheriff Bob Burnett claims he should not have been found liable because of his qualified immunity as a deputy sheriff. Defendant Undersheriff Sam Otis claims that the trial court erred by not granting his motions for directed verdict and judgment n.o.v. based on his tenuous involvement in the vehicle search and seizure. Defendant Sheriff Delmar Coppock claims that the trial court erred by not granting his motion for judgment n.o.v. for the same reason. Finally, defendant prosecutor Ed L. Moore claims he should be absolutely immune from suit as a prosecutor. Plaintiff cross-appeals, claiming that the trial court erred in granting the judgment n.o.v. denying his punitive damage award.

On March 15, 1979, Deputy Sheriff Burnett arrested plaintiff while plaintiff was working on his pickup truck at his home in Enid, Oklahoma, in Garfield County. Burnett had an arrest warrant, which had been issued in Alfalfa County in connection with the larceny of an automobile owned by Bruce and Ronnie Eckhardt of Alfalfa County. Burnett testified that while making the arrest he observed parts from the stolen Eckhardt truck, particularly the carburetor and valve covers, on plaintiff's pickup. At the time of the arrest Burnett neither seized nor searched the pickup. Instead, the next morning, without obtaining a warrant, Burnett arranged to have plaintiff's pickup towed to Franklin Motors in Garfield County. Burnett testified that Undersheriff Otis assisted him in towing the pickup. Later in the day Burnett, Otis, and Ronnie and Bruce Eckhardt conducted a warrantless search of plaintiff's pickup at Franklin Motors.

On approximately March 21, 1979, Tom Kent, a tow-truck operator, met with Otis, and Kent then towed plaintiff's vehicle from the Franklin Motors Garage to Kent's garage in Helena, in Alfalfa County, where he stored it. The pickup was brought to the Alfalfa County courthouse for plaintiff's larceny trial and was returned to Kent's garage after one day at the courthouse. Neither the pickup, nor any parts of the truck, were introduced into evidence during the criminal trial. During the trial the prosecution did attempt to enter into evidence a screwdriver set found in the pickup, but the court ruled it inadmissible.

A state court jury convicted plaintiff of larceny of an automobile. On the day the court sentenced plaintiff for automobile larceny his attorney asked prosecutor Moore if plaintiff could obtain his pickup truck from the county. Moore told plaintiff's attorney that his truck could be returned as soon as the Eckhardts claimed their parts from it. In order to allow the Eckhardts to claim their parts, defendants Moore, Coppock, and Otis arranged to have the pickup towed to a garage in Cherokee, Oklahoma. The Eckhardts removed the parts that they believed were theirs, and then the owner of the Cherokee garage called Sheriff Coppock to have the pickup returned to Kent's garage. Otis then informed plaintiff's attorney that plaintiff could claim his truck. After plaintiff observed that the tires and wheels had been taken, the engine, transmission, and stereo were gone, the seats and carpets were torn, and the entire truck was essentially stripped, he filed this civil rights action against defendants for the alleged constitutional violations arising out of these events.

I Due Process Claim

Defendants argue that plaintiff may not bring a Sec. 1983 claim for deprivation of property without due process because plaintiff had a postdeprivation remedy under the Oklahoma Political Subdivision Tort Claims Act, Okla.Stat.Ann. tit. 51, Secs. 151-170, which would provide constitutionally adequate procedural due process. Although we agree that postdeprivation state remedies can provide adequate process for some intentional deprivations, we do not agree that plaintiff in this case should be restricted to his postdeprivation remedy.

In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that the Due Process Clause is not violated when a state employee, by a random and unauthorized act, negligently deprives an individual of property, if the state makes available a meaningful postdeprivation remedy. Hudson v. Palmer, --- U.S. ----, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), extended that rule to random and unauthorized intentional conduct of state employees. ¹

In Coleman v. Turpen, 697 F.2d 1341 (10th Cir.1982), this court, interpreting Parratt, held that a prisoner may assert a Sec. 1983 cause of action for deprivation of property without due process when the state retained money, not used as evidence, that it had seized from the prisoner. We said:

"It might have been impractical for the State to give Mr. Coleman a hearing before it seized the money during his arrest. However, the deprivation Mr. Coleman challenges is not the seizure of the money, but its retention by the State until his execution. A hearing to determine the propriety of this retention is not impractical."

Id. at 1344.

The Supreme Court's ruling in Hudson does not overrule our Coleman decision. The Court in Hudson, applying the rationale of Parratt to intentional torts, reasoned that a state could not anticipate its employees' "random and unauthorized" intentional conduct any more than it could anticipate similar negligent conduct. --- U.S. at ----, 104 S.Ct. at 3203. Consequently, it was similarly impractical for a state to be required to hold predeprivation hearings for "random and unauthorized" intentional conduct. Id. Furthermore, the Court rejected prisoner Palmer's argument that postdeprivation hearings do not provide a meaningful remedy when an agent of a state could have held a predeprivation hearing. The Supreme Court concluded: "Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the State is in a position to provide for predeprivation process." Id.

In the instant case, the defendants' conduct in disposing of the pickup could not be characterized as the sort of random or unauthorized action that may be remedied by postdeprivation hearings. The record reveals that plaintiff's attorney approached prosecutor Moore requesting return of the vehicle after the larceny trial. Moore responded that the plaintiff's truck would be returned after the Eckhardts received their stolen parts. Coppock and Otis coordinated the dealing with the Eckhardts and arranged the recovery of the parts the Eckhardts claimed to be theirs. These actions constitute an intentional deprivation that may not be characterized as random. Moreover, Moore indicated that he believed, as a policy matter, that he had the duty to turn over the allegedly stolen parts to the Eckhardts without a hearing. This action, planned and authorized, is not the sort of action for which postdeprivation process will suffice. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436-37, 102 S.Ct. 1148, 1158-59, 71 L.Ed.2d 265 (1982); Augustine v. Doe, 740 F.2d at 327-29.

In this case, as in Coleman, it was not impractical for the state officials to hold a hearing to determine the ownership of the truck and its parts before its disposition. Indeed Oklahoma law already has a framework, which the officials here ignored, for determining ownership of allegedly stolen property prior to its disposition. An Oklahoma statute on seized stolen property provides that "[w]hen property alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it subject to the order of the magistrate authorized by the next section to direct the disposal thereof." Okla.Stat.Ann. tit. 22, Sec. 1321 (footnote omitted). The following section provides:

"On satisfactory proof of the title of the owner of the property,...