Long v. CITIZEN'S BANK & TRUST CO. OF MANHATTAN

• Decision Date: 10 May 1983
• Docket Number: Civ. A. No. 81-1339.
• Citation: 563 F. Supp. 1203
• Parties: Tony LONG, Plaintiff, v. The CITIZEN'S BANK & TRUST COMPANY OF MANHATTAN, KANSAS and Meryl D. Wilson, Defendants.
• Court: U.S. District Court — District of Kansas

563 F. Supp. 1203

Tony LONG, Plaintiff, v. The CITIZEN'S BANK & TRUST COMPANY OF MANHATTAN, KANSAS and Meryl D. Wilson, Defendants.

Civ. A. No. 81-1339.

United States District Court, D. Kansas.

May 10, 1983.

Mark A. Furney, Manhattan, Kan., Paul H. Hulsey, Jones, Schroer, Rice, Bryan & Lykins, Topeka, Kan., for plaintiff.

Larry Mundy and Ronald W. Fairchild, Eidson, Lewis, Porter & Haynes, Topeka, Kan., for defendant Bank.

Thomas E. Wright, Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, Kan., for defendant Wilson.

OPINION AND ORDER SUSTAINING DEFENDANT'S MOTION TO DISMISS

THEIS, Senior District Judge.

This is a civil rights case, brought under the auspices of 42 U.S.C. § 1983, in which the plaintiff, Tony Long, seeks to recover damages for the unlawful prejudgment attachment of his 1980 Jeep CJ-5. The defendant, Citizens Bank and Trust Company of Manhattan, Kansas, held a lien on the Jeep and set in motion the train of events that led to the challenged prejudgment attachment. Jurisdiction is predicated on 28 U.S.C. § 1343(3). The case is currently before the Court on the defendant's motion to dismiss for lack of subject-matter jurisdiction.

I. Factual Setting

Prior to January 17, 1980, the plaintiff received an injury that resulted in total blindness in his right eye. The workmen's compensation award received by the plaintiff for this injury enabled him to purchase the Jeep involved in this litigation, which he apparently purchased outright.

On January 17, 1980, the defendant lent money to the plaintiff and his wife to enable them to purchase a mobile home. As a condition of receiving the loan, the plaintiff granted to the defendant a lien on the Jeep, which was previously unencumbered, and executed the usual promissory note.

On or about June 5, 1981, the defendant filed suit on the promissory note in the District Court of Riley County, Kansas hereinafter the Kansas Court, seeking acceleration of the balance due. See Citizens Bank and Trust Company v. Tony Long and Brenda Long, No. 81C-402, Riley County, Kansas District Court (1981). At the same time, the Bank filed an affidavit in support of its application for a prejudgment attachment of the Jeep, pursuant to K.S.A. § 60-703 (1981 Supp.). The prejudgment attachment was issued on June 5, 1981 on the signature of a deputy clerk of the Kansas Court, and the Jeep was attached the same day by a uniformed officer of the Riley County Police Department. The original complaint in this action was filed on July 22, 1981.

On January 19, 1982, a hearing was held in the Kansas Court for the purpose of determining the propriety of the prejudgment attachment. Judge Innes of that Court found that K.S.A. § 60-703 requires all prejudgment attachments to be signed by a Kansas District Court Judge, that the prejudgment attachment covering the plaintiff's Jeep was instead signed by a deputy clerk, and that the prejudgment attachment was therefore void on its face as a matter of law. The attachment was dissolved. The Jeep has apparently since been sold by the plaintiff and the proceeds applied to the outstanding loan balance.

II. Claim and Motion to Dismiss

It is important, at the outset, to clearly define what this case is and is not. The plaintiff's only federal claim is that his constitutionally protected property interest in his Jeep was injured and that the process received by him was less than that due him: pendent state claims based on conversion, malicious prosecution, outrage, and intentional infliction of emotional distress are also presented as counts II-IV of the Complaint. The federal claim is alleged to arise only under 42 U.S.C. § 1983: no claim in the nature of a direct action under the Fourteenth Amendment is presented. The plaintiff also expressly disavows any challenge to the constitutionality of any statute of the state of Kansas. No agent of the state or any of its subdivisions has been joined as a defendant. The plaintiff has alleged no conspiracy between Riley County officials and the defendant to deprive the plaintiff of his constitutional rights.

The defendant seeks to have the federal claim dismissed for want of subject matter jurisdiction, alleging that its actions were not "state action" under the Fourteenth Amendment nor "under color of" state law for the purposes of § 1983. The defendant has conceded, for the purposes of this motion to dismiss only, that the plaintiff suffered an injury to a constitutionally protected property right and that the process accorded to him in the course of that deprivation was less than that due him under the Fourteenth Amendment.

III. Analysis Under Lugar v. Edmondson Oil Company, Inc.

A. Traditional Fourteenth Amendment Analysis under 42 U.S.C. § 1983.

The Fourteenth Amendment to the Constitution provides, in pertinent part, that

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

42 U.S.C. § 1983 provides that

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Because of the clear language of § 1983, the traditional analysis of claims brought under that section has involved a two-step process:

First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law." Adickes v. S.H. Kress and Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).

In the context of claims under § 1983 that the rights to due process guaranteed by the Fourteenth Amendment have been violated, this two-step analysis would traditionally be satisfied as follows. First, to prove the constitutional violation, the plaintiff would have to show that he was deprived of a life, liberty, or property interest by state action. Second, to make out a cause of action under § 1983, the plaintiff would have to show that the defendant is a "person" who deprived the plaintiff of his Fourteenth Amendment rights while acting "under color of" state law.

There are three basic formats in which § 1983 claims of due process deprivations can arise. First, the named defendant can be a state officer or official whose acts are rendered "state action" by virtue of his position, who is a "person" under § 1983, and who acts "under color of" state law by virtue of his position in performing the challenged acts. This will be called a "first format case" in this opinion. Second, the named defendant can be a private party whose otherwise private actions are attributable to the state because some state statute, custom, or policy allows the private party to perform acts ordinarily performed only by the state, see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) ("public function" test); Adickes, supra ("state compulsion" test); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ("nexus" test). This will be called a "second format case" in this opinion. Third, the named defendant can be a private party who has taken some action which has, in turn, triggered other action by state officials. This will be called a "third format case" in this opinion. The facts of the present case make it a third format case: the defendant filed a state lawsuit on the underlying debt and an application for a prejudgment attachment, while the court clerk and the county policeman performed the legal and mechanical aspects of the claimed deprivation.

Under the third format, and therefore under the facts of this case, it would appear, at first blush, that the two steps of the Adickes analysis are incapable of simultaneous satisfaction inasmuch as the private actor/named defendant has taken no action that can be labeled as that of the state. The problem has traditionally been circumvented, however, by satisfying the "state action" requirement of the Fourteenth Amendment with the action of the involved state officials and then applying various tests to the conduct of the private actors to determine if those private actors have acted "under color of" state law for the purposes of § 1983. Adickes itself is a classic example of this procedure. There, a private actor (the Kress Company) refused service to a white woman in the company of six blacks. After leaving the store, the white woman was groundlessly arrested for vagrancy by a uniformed policeman. Only the private actor was sued under § 1983. On the plaintiff's conspiracy count, the Supreme Court found the "state action" requirement satisfied by the acts of the policeman, and applied a "joint action" or "conspiracy" test to the acts of the private actor to render that private actor's acts ones done "under color of" state law for the purposes of § 1983. In contrast, the substantive § 1983 claim presented by the plaintiff, that Kress had directly violated her Fourteenth Amendment rights, was analyzed as arising in the second format explained above: the private conduct of refusing service was rendered "state action" under the Fourteenth Amendment by applying a "state compulsion" test.

B. Traditional Fourteenth Amendment Analysis in the Context of Prejudgment Deprivations.

In the...