McClary v. O'Hare

• Decision Date: 17 March 1986
• Docket Number: No. 272,D,272
• Citation: 786 F.2d 83
• Parties: Pauline A. McCLARY, Administratrix of the Estate of Roger C. McClary, Deceased, Appellant, v. Richard O'HARE, as Superintendent of the Steuben County Highway Department; County of Steuben; Lillian Roberts, as Commissioner of Labor of the State of New York; State of New York; Civil Service Employees Association, Appellees. ocket 85-7518.
• Court: U.S. Court of Appeals — Second Circuit

Page 83

786 F.2d 83

Pauline A. McCLARY, Administratrix of the Estate of Roger C McClary, Deceased, Appellant, v. Richard O'HARE, as Superintendent of the Steuben County Highway Department; County of Steuben; Lillian Roberts, as Commissioner of Labor of the State of New York; State of New York; Civil Service Employees Association, Appellees.

No. 272, Docket 85-7518.

United States Court of Appeals Second Circuit.

Argued Oct. 22, 1985.

Decided March 17, 1986.

John W. Vogel, Dansville, N.Y. (Edward J. Degnan, Canisteo, N.Y., of counsel), for appellant.

Barbara J. Delgross (Mark G. Farrell, Buffalo, N.Y., of counsel), for appellee O'Hare.

Frederick H. Ahrens, Jr., Bath, N.Y. (Michael T. Tomaino, Kathleen A. Frensky, Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., of counsel), for appellee Steuben County.

Michael S. Buskus, Asst. Atty. Gen., State of N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., Robert Hermann, Sol. Gen., Peter H. Schiff, Deputy Sol. Gen., Albany, N.Y., of counsel), for appellees Roberts and the State of N.Y.

Before OAKES, NEWMAN and KEARSE, Circuit Judges.

OAKES, Circuit Judge:

Roger C. McClary died on June 2, 1983, in the course of his employment with the Steuben County Highway Department when a wire cable on a mobile truck crane being operated by a fellow employee broke, causing the boom of the crane to fall and strike the decedent in the head. His wife, administratrix of his estate, brought suit under 42 U.S.C. Sec. 1983 (1982) and its jurisdictional counterpart, 28 U.S.C. Sec. 1343 (1982), against the County; against Richard O'Hare, the superintendent of the County highway department; against the State of New York; and against Lillian Roberts, Commissioner of Labor of the State of New York. ¹ McClary alleged in her complaint that the crane operator did not have a certificate of competency, contrary to N.Y.Gen.Bus.Law Sec. 482 (McKinney 1984); that the County and Superintendent O'Hare authorized, permitted, directed, and required this operator to operate the crane; and that O'Hare neglected to follow state occupational safety and health laws by failing to inspect the crane and maintain it in a safe condition or to provide the decedent with a safe work place. The United States District Court for the Western District of New York, Michael A. Telesca, Judge, dismissed the complaint. We affirm.

As to the County and Superintendent O'Hare, the complaint asserts that acting under color of state law the Highway Department and its Superintendent deliberately disregarded and violated state laws, rules, and regulations for occupational safety and the operation of mobile cranes thereby creating a high risk of danger to the decedent and thus (1) denying equal protection of the law to County employees as opposed to those in private industry; ² (2) denying decedent his substantive due process right to life; and (3) depriving decedent of his right to procedural due process of law as no adequate state remedy for the deprivation existed, Workers' Compensation Law, the exclusive remedy, being inadequate. A fourth claim was made against all defendants on the basis of pendent state law, and a fifth claim was made against the Commissioner of Labor and the State of New York for failure to enforce the New York State Occupational Safety and Health Act ("SOSHA"), N.Y.Lab.Law Sec. 27-a (McKinney Supp.1986), and the requirements of the General Business Law relative to certificates of competency of mobile crane operators. The appellees claim that any section 1983 action is barred by the exclusivity provisions of the Workers' Compensation Law, a question the district judge did not reach in dismissing the other claims on the merits.

We reach the appellees' claim first. The New York Workers' Compensation Law makes the liability of an employer for workers' compensation benefits "exclusive and in place of any other liability whatsoever ... at common law or otherwise...." N.Y.Work.Comp.Law Sec. 11 (McKinney Supp.1986). Numerous cases have upheld the constitutionality of the exclusivity provisions of state compensation laws, see, e.g., Middleton v. Texas Power & Light Co., 249 U.S. 152, 162-63, 39 S.Ct. 227, 230-31, 63 L.Ed. 527 (1919); Davidson v. Hobart Corp., 643 F.2d 1386, 1387 (10th Cir.1981), but this does not mean that a state statute's exclusivity provision may bar a federal civil rights action. See Rosa v. Cantrell, 705 F.2d 1208, 1221 (10th Cir.1982), cert. denied, 464 U.S. 821, 104 S.Ct. 85, 78 L.Ed.2d 94 (1983). Conduct that is wrongful under section 1983 cannot be immunized by state law. See Martinez v. California, 444 U.S. 277, 284 & n. 8, 100 S.Ct. 553, 558 & n. 8, 62 L.Ed.2d 481 (1980) (state statute giving immunity to officials for injuries arising from their parole decisions does not control section 1983 claim). We pass therefore to appellant's section 1983 claims.

Were appellant complaining merely of negligent conduct on appellees' part, the Supreme Court has recently held that such claims do not state a due process violation cognizable under section 1983. See Daniels v. Williams, --- U.S. ----, ----, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) ("[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property.") (emphasis in original); Davidson v. Cannon, --- U.S. ----, ----, 106 S.Ct. 668, 669, 88 L.Ed.2d 677 (1986). However, we feel that the complaint adequately alleges, for purposes of a motion to dismiss, that the officials engaged in acts that were at the very least reckless. Daniels expressly eschewed determination of the sufficiency of allegations of recklessness in a section 1983 action. --- U.S. at ---- n. 3, 106 S.Ct. at 666 n. 3. Davidson did not involve reckless conduct, according to Justice Rehnquist's majority opinion. --- U.S. at ---- - ----, 106 S.Ct. at 669-70. But see id. at ---- n. 2, ----, 106 S.Ct. 673 n. 2, 674 (Pt. III) (Blackmun, J., dissenting). We therefore cannot dispose of appellant's claims so simply, and must look to their merits to determine whether the alleged acts rise to a constitutional violation.

We read the procedural due process claim against the County and the Highway Superintendent as not merely alleging incompetence of County employees but as alleging that an established state procedure--the alleged policy of disobeying state and federal safety regulations--caused McClary to be deprived of his life, and that, in any case, the available post-deprivation remedy provided by the Workers' Compensation Law is inadequate to satisfy the requirements of procedural due process. In alleging an "established state procedure" counsel was doubtless relying on language in Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), in an effort to remove this case from the holding of Parratt and of Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984) (Parratt extends to intentional deprivations of property), that where, through misconduct, State actors deprive a person of property, and no pre-deprivation remedy is possible, there has been no procedural due process violation if adequate post-deprivation remedies exist. Counsel thus attempts to elevate the claim from one sounding in state tort law to one of constitutional dimensions, under the rubric of procedural due process. ³

Although the parties assume that Parratt applies to this case, in which a deprivation of life, rather than property, is alleged, whether it does in fact apply remains undecided by the Supreme Court. In Conway v. Village of Mount Kisco, 758 F.2d 46, 48 (2d Cir.1985), cert. granted sub nom. Cerbone v. Conway, --- U.S. ----, 106 S.Ct. 878, 88 L.Ed.2d 915 (1986), we noted that Parratt and Hudson involved claims for deprivation of property, and declined to apply Parratt to a deprivation of liberty. ⁴ See also Parratt, 451 U.S. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring) (reading Court's opinion as inapplicable to a deprivation of life or liberty); Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177, 1178-79 (M.D.Tenn.1982). However, we need not here decide if Parratt applies to a deprivation of life; in this case we reach the same result whether we apply Parratt or not. Assuming that Parratt does not apply, we must consider what pre-deprivation process was due here. It is difficult for us to see what sort of process the State should or could have provided the deceased. Procedural due process requires that certain procedures be followed before (or under Parratt after) the State can properly take life, liberty, or property. Appellant does not claim that any procedures the State could have followed would have made the accidental, even if recklessly caused, deprivation of her husband's life proper. Appellant complains that state actors caused her husband's death, not that in doing so they failed somehow to apply the proper procedures. Procedural due process is simply not implicated in this case at all.

Assuming that Parratt does apply to this case yields the same result. Appellant's claim that the deprivation here was effected by an "established state procedure" meets a major difficulty: any claim against a state or local official that sounds in tort can be pleaded, as this one is, as an "established state procedure" case. See Rittenhouse v. DeKalb County, 764 F.2d 1451, 1456 (11th Cir.1985); Holmes v. Ward, 566 F.Supp. 863, 866-67 (E.D.N.Y.1983). Since Parratt's thrust is to avoid "turning every alleged injury which may have been inflicted by a state official acting under 'color of law' into a violation of the Fourteenth Amendment cognizable under Sec. 1983," Parratt, 451 U.S. at 544, 101 S.Ct. at 1917, allowing all claims sounding essentially in tort to evade Parratt through artful pleading would make the case meaningless.

We think that Parratt's "established state procedure" exception was intended to apply only where the procedure deprives the...