Miller v. Campbell County, Wyo.

• Decision Date: 02 October 1989
• Docket Number: No. C88-0194J.,C88-0194J.
• Citation: 722 F. Supp. 687
• Parties: H. Douglas MILLER, Plaintiff, v. CAMPBELL COUNTY, WYOMING; Campbell County Commissioners, Bill Barkley, Thomas Ostlund, and Mickey Wagensen, Defendants.
• Court: U.S. District Court — District of Wyoming

722 F. Supp. 687

H. Douglas MILLER, Plaintiff, v. CAMPBELL COUNTY, WYOMING; Campbell County Commissioners, Bill Barkley, Thomas Ostlund, and Mickey Wagensen, Defendants.

No. C88-0194J.

United States District Court, D. Wyoming.

October 2, 1989.

Gary Shockey, Jackson, Wyo., for plaintiff.

John Young, Gillette, Wyo., Rick Thompson, Cheyenne, Wyo., for defendants.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT

ALAN B. JOHNSON, District Judge.

The plaintiff, H. Douglas Miller, seeks damages under Section 1 of the Ku Klux Klan Act of 1871, 42 U.S.C. Section 1983, for alleged deprivations of his civil rights under the Fourteenth Amendment to the United States Constitution. The case arose after county officials discovered that lethal gasses, hydrogen sulfide and methane, were seeping into the Rawhide subdivision where the plaintiff owned a home. The gasses, evidently, were also seeping into the homes located in the subdivision. The subdivision is located in Campbell County, Wyoming, and is adjacent to a large open pit coal mine owned by Amax Coal Company.

The plaintiff and other persons owning homes in the subdivision previously sued Amax in this court under various tort theories, alleging that Amax's mining operations caused the dangerous gasses to seep into their homes thereby causing them injuries to their property and persons. The court dismissed that action on April 26, 1989, because of a settlement reached by and between the parties. Miller is now suing Campbell County and its commissioners, alleging that the commissioners violated his constitutional rights when, in response to the gas problems, they voted to pass a resolution that ordered the property owners of the Rawhide subdivision to evacuate their homes.

The county discovered the presence of dangerous gasses in the subdivision in February 1987. After consulting with federal and state agencies concerning health and safety problems posed by the gas seepage, the Wyoming Department of Environmental Quality (DEQ) conducted drill tests that confirmed the presence of methane and hydrogen sulfide gasses. In response to the problem, the county commissioners passed two resolutions declaring the Rawhide subdivision uninhabitable and ordered, by their first resolution, that some residents evacuate their homes by July 3, 1987.

The defendants passed the first resolution on June 2, 1987, and attempted to order a permanent evacuation of the subdivision on or before July 31, 1987. The resolution calling for a permanent evacuation however was soon rescinded. On June 3, the governor of the state of Wyoming declared the Rawhide subdivision a disaster area and thereby activated the state emergency operation plan to help coordinate the emergency assistance to persons living in the Rawhide subdivision. In response to a drilling program conducted by the DEQ within the subdivision, the county commissioners passed a second resolution on July 3, 1987, ordering the immediate evacuation of those persons residing near the drilling sites, which included the plaintiff. This is the resolution about which the plaintiff now complains.

The commissioners passed it after determining that the DEQ's drilling augmented the gas danger to the Rawhide residence. To enforce this order, the commissioners ordered that the Campbell County Sheriff's Office erect supervised road blocks at the entrances to the evacuated parts of the subdivision. The county therefore physically deprived the plaintiff, at least temporarily, of all use of his property.

The plaintiff, who operated a small business in his home, refused to leave until July 6. He initially refused to leave unless the county had compensated him for lost business income. After attending a meeting with the county commissioners the next day, on July 7, the plaintiff attempted to return to his home, but was arrested by sheriff deputies when he traveled through a barricade to the entrance of the subdivision. The plaintiff spent the night in jail and was released the following day.

He then filed this action, alleging that the county and its commissioners deprived him of his liberty and property interests without due process of law in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The defendants have moved for summary judgment on the ground they are entitled to both qualified and absolute immunity.

The civil rights statute under which the plaintiff sues provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory for the District of Columbia, 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 immunity secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit and equity, or other proper proceeding for redress.

42 U.S.C. § 1983. To prevail under § 1983 the plaintiff must show he was deprived of a federally secured right by someone acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Wise v. Bravo, 666 F.2d 1328, 1331 (10th Cir.1981). Action under state law includes a "misuse of power, possessed by virtue of state law, and made possible only because the wrongdoer is clothed with the authority of state law." Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961).

It is well established that § 1983 does not create substantive rights, but merely provides remedies for deprivation of rights established elsewhere. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). Thus violation of a state law ordinarily is not cognizable under § 1983. It is cognizable, however, when a state law supplies the basis for a constitutional right, — for example, where state law creates a property right that the fourteenth amendment protects, such as the right to own real property. Davis v. Scherer, 468 U.S. 183, 193, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). It is, of course, axiomatic that the due process clause of the fourteenth amendment requires that the states employ fair procedures in effecting a deprivation of property. Williamson County Regional County Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 205, 105 S.Ct. 3108, 3126, 87 L.Ed.2d 126 (1985) (Stevens, J. concurring); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir.1989).

In a § 1983 action the plaintiff initially must show that the conduct about which he complains was committed by a person acting under color of state law and that the conduct deprived him of rights, privileges, or immunities guaranteed by the constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). It is undisputed that in passing the resolutions at issue, the defendants acted under color of law. They hold their positions as county commissioners by virtue of state law and as such are in positions of considerable authority. Thus the court must focus on whether the defendants deprived the plaintiff of a federally secured right, the second prong of the test articulated by Parratt. The plaintiff asserts that the defendants' resolution requiring that he evacuate his residence deprived him of property without procedural due process of law because presumably it was passed without any notice to him and an opportunity for him to be heard.

Generally, the right to procedural due process under the fourteenth amendment requires that the state provide adequate notice and a hearing "at a meaningful time and in a meaningful hearing" prior to the deprivation of a property right. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). "Ordinarily, due process of law requires an opportunity for some kind of hearing prior to the deprivation of a significant property interest." Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978). See also Hodell v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264, 299, 101 S.Ct. 2352, 2372, 69 L.Ed.2d 1 (1981); Fuentes v. Shevin, 407 U.S. 67, 81-82, 92 S.Ct. 1983, 1994-95, 32 L.Ed.2d 556 (1972); Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S.Ct. 780, 786-87, 28 L.Ed.2d 113 (1971). There are, however, two exceptions to this general rule requiring predeprivation procedural due process.

The first exception is where the deprivation of property is the "result of a random and unauthorized act by a state" actor, who, through negligence, deprives someone of a federally secured right. Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. In Parratt, the court held that this type of deprivation does not violate one's procedural due process rights absent a showing that post-deprivation procedures for redress are inadequate or "that it was practicable for the state to provide a predeprivation hearing." 451 U.S. at 543, 101 S.Ct. at 1917. In Parratt, state prison guards negligently lost an inmate's personal property, making it impossible to provide a predeprivation hearing. Parratt therefore is inapplicable here because the actions of the defendants were deliberate and calculated as opposed to random and unauthorized.

The second exception to predeprivation procedural due process is where an emergency exists requiring the state to take summary action. The taking of property without prior notice and an opportunity to be heard does not violate due process where the deprivation is the result of summary governmental action taken in emergencies and designed to protect...