Moorhead v. Government of the Virgin Islands, Civ. No. 81-141.

• Decision Date: 08 February 1983
• Docket Number: Civ. No. 81-141.
• Citation: 556 F. Supp. 174
• Parties: James J. MOORHEAD, Plaintiff, v. GOVERNMENT OF THE VIRGIN ISLANDS and Juan Luis in his capacity as Governor of the Virgin Islands, Defendants.
• Court: U.S. District Court — Virgin Islands

556 F. Supp. 174

James J. MOORHEAD, Plaintiff, v. GOVERNMENT OF THE VIRGIN ISLANDS and Juan Luis in his capacity as Governor of the Virgin Islands, Defendants.

Civ. No. 81-141.

District Court, Virgin Islands, D. St. Thomas and St. John.

February 8, 1983.

Leonard B. Francis, Jr., Charlotte Amalie, St. Thomas, V.I., for plaintiff.

Marcia Sherman, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V.I., for defendants.

MEMORANDUM AND ORDER

CHRISTIAN, Chief Judge.

This case is before the Court on the motion of defendants to dismiss the complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The important question presented is whether compliance with the Virgin Islands Tort Claims Act, 33 V.I.C. §§ 3401-3415 is a jurisdictional prerequisite to the commencement of, or recovery under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Because we conclude that no such requirement is imposed upon a Section 1983 litigant under the circumstances herein presented, the motion will be denied.

I.

A.

Plaintiff brought this action following his dismissal as Director of Utilities and Sanitation in the Virgin Islands Department of Public Works on April 9, 1979 (by defendant Luis). He alleges that his discharge was based solely upon his personal political beliefs and thus amounted to a deprivation of his First Amendment and Organic Act rights of association and belief. There is only one asserted jurisdictional basis for the complaint 42 U.S.C. § 1983 which provides in pertinent part as follows:

Every person who, under color of law ... of any State or Territory, subjects, or causes to be subjected, any ... person ... 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.

Defendants were repulsed in a previous challenge to the legal sufficiency of the complaint. We concluded that under the holdings of Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), plaintiff had set forth facts and an underlying legal theory upon which relief could be afforded. 542 F.Supp. 213 (D.V.I.1982).

B.

The contention urged by defendants that the filing of a Section 1983 action must be conditioned upon compliance with a corresponding state procedure has never been accepted by the Courts. It is true that in Abiff v. Government, 1979 St.X.Supp. 293, 297 (D.V.I. Div. of St. Thomas & St. John, Nov. 2, 1979), a case on which defendants principally rely, Judge Young suggested that compliance with the Virgin Islands Tort Claims Act did have a bearing on those Section 1983 actions which sought monetary recovery from the Government of the Virgin Islands.¹ The rationale was subsequently relied upon by this Court in Benjamin v. Government, 1981 St.T.Supp. 158, 159 (D.V.I. March 31, 1981). However, to the extent that these previous decisions required exhaustion of Tort Claims Act remedies as an absolute condition for invoking federal jurisdiction under Section 1983, we now decline to follow them or to apply them to the facts presented in the instant case.

II.

A.

The United States Supreme Court has repeatedly held that exhaustion of state administrative or judicial remedies is not necessary before a Section 1983 case can be commenced. "When federal claims are premised on § 1983 ... we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights." Steffel v. Thompson, 415 U.S. 452, 473, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505 (1974). See also the most recent affirmation of that principle in Patsy v. Board of Regents, ___ U.S. ___, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982).

Even where a specific state tort statute encompasses the very wrongdoing of which a Section 1983 plaintiff complains,² the Supreme Court, looking to the applicable legislative history, has not insisted that such state remedies be first sought and refused prior to the commencement of the federal action. The non-exhaustion rule has been explained as follows:

It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the Fourteenth Amendment might be denied by state agencies.

Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961). Given that legislative purpose, the availability of state law remedies is simply immaterial to the question of federal subject matter jurisdiction in an action based upon 42 U.S.C. § 1983.

B.

The recent plurality opinion of the U.S. Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) has revived to some extent the relevance of available state law remedies with respect, not to jurisdiction but to the actual legal sufficiency of certain Section 1983 claims. However, the restrictions which Parratt places on access to federal courts have no application to the case at bar.

In Parratt a Nebraska prison inmate brought suit against several state officials under Section 1983 alleging that they had negligently misplaced certain hobby materials which he had ordered through the mail. He sought to recover the $23.50 at which the materials were valued. In what has been aptly described as a "quixotic" opinion, Abraham v. County of Washoe, 547 F.Supp. 548, 549 (D.Nev.1982), the plurality held that because Nebraska provided an adequate statutory remedy for a tortious loss inflicted by the state or its agents, plaintiff could not have been "deprived" by the state of his Constitutional rights within the meaning of Section 1983. Where the plaintiff is able to pursue an "adequate" state remedy following the state's admitted denial of his due process rights, Parratt holds that the "deprivation" is thereby cured for purposes of section 1983 and that therefore no federal civil rights claim will lie.

The holding in Parratt is inapposite to the present case in several important respects. First, the Parratt plurality suggested that the existence of state law remedies is material only where the complainant alleges a deprivation of procedural as opposed to substantive Constitutional rights. The complaint in Parratt referred to "no other right, privilege, or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment simpliciter." Id. 451 U.S. at 536, 101 S.Ct. at 1913. By contrast, the plaintiff here alleges a deprivation not simply of procedural due process but of the substantive free speech guarantees of the First Amendment as well.³ Thus while Parratt may "relegate those who claim procedural unfairness to state judicial remedies when those remedies afford procedural due process," it has no application to a claim of "unlawful abrogation" of a substantive right contained in the Bill of Rights. Duncan v. Poythress, 657 F.2d 691, 696, 704-705 (5th Cir.1981), cert. granted, 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982) (claim of denial of right to vote). See also, concurrence of Justice Blackmun in Parratt, supra 451 U.S. at 545-546, 101 S.Ct. at 1917-18.

Secondly, Parratt involved what was conceded to be a negligent denial of property rights. The present case, by contrast, involves a claim of a deliberate abridgment of a critical liberty interest, namely "the individual's ability to act according to his beliefs and to associate with others of this political persuasion ..." Elrod v. Burns, supra 427 U.S. at 356, 96 S.Ct. at 2681. Putting to one side the unresolved question of whether the holding of Parratt is necessarily limited to property as opposed to liberty deprivations, see, e.g., Holmes v. Wampler, 546 F.Supp. 500 (E.D.Va.1982), it is plain that the existence of state remedies is absolutely immaterial where the plaintiff alleges a purposeful denial of federally provided "rights, privileges, or immunities" "under color of" state or territorial law. As one Court has recently noted:

To hold that an individual cannot bring suit under Section 1983 when he has been intentionally deprived of a clearly protected liberty interest ... by one acting "under color of state law," would be to ignore the very purpose of Section 1983 itself, which, it should be remembered, was originally enacted as part of the Ku Klux Klan Act of 1871 ... Moreover, to reject a constitutional claim simply because a state may provide a parallel remedy would render Section 1983 meaningless in innumerable cases, for many of our most cherished liberties are analagous to rights for which the states provide remedies of some sort.

Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177, 1180-81 (M.D.Tenn.1982). Accord, Abraham v. County of Washoe, supra. We conclude that where, as a result of the actions of territorial officials, there has been a "deprivation" of substantive constitutional rights⁴ within the meaning of Section 1983, compliance with the Virgin Islands Tort Claims Act is not a jurisdictional prerequisite to bringing a federal action, even though the conduct of the officials might also give rise to a claim sounding in common law tort.

Finally it should be noted that at least with respect to the District Court of the Virgin Islands, the underlying concern in Parratt for "turning federal courts into forums for dealing with common law torts" Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981), cert. granted ___ U.S. ___, 102 S.Ct. 2294, 73 L.Ed.2d 1299 (1982), has no relevance. This Court is invested with both federal question and general original jurisdiction by virtue of 48 U.S.C. § 1612. Carty v. Beech Aircraft Corporation, 679 F.2d 1051, 1053-1057 (3rd Cir.1982). In the...