Norton v. Liddel, No. 78-1712

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BARRETT, DOYLE and McKAY; BARRETT
Citation620 F.2d 1375
PartiesW. V. NORTON, Larry Norton and Louis Harold Norton, Plaintiffs-Appellants, v. Wesley LIDDEL, Sheriff; Van A. Zimmerman, Marvin Wade, Claud Cain, Buck Mayes, Woodie Caldwell, Deputy Sheriffs; and George L. Pace, formerly Assistant District Attorney, all of Love County, State of Oklahoma, Defendants-Appellees.
Docket NumberNo. 78-1712
Decision Date06 March 1980

Page 1375

620 F.2d 1375
W. V. NORTON, Larry Norton and Louis Harold Norton,
Plaintiffs-Appellants,
v.
Wesley LIDDEL, Sheriff; Van A. Zimmerman, Marvin Wade, Claud
Cain, Buck Mayes, Woodie Caldwell, Deputy Sheriffs; and
George L. Pace, formerly Assistant District Attorney, all of
Love County, State of Oklahoma, Defendants-Appellees.
No. 78-1712.
United States Court of Appeals,
Tenth Circuit.
Argued Nov. 28, 1979.
Decided March 6, 1980.

Page 1376

Henry C. Starke, Oklahoma City, Okl., for plaintiffs-appellants.

Page 1377

Ronald E. Worthen, Dist. Atty., Twentieth Judicial Dist., State of Oklahoma, and Robert M. Highsmith, Asst. Dist. Atty., Marietta, Okl., for defendants-appellees Liddel, Zimmerman, Wade, Cain, Mayes and Caldwell.

Jan Eric Cartwright, Atty. Gen. of Oklahoma, and John F. Fischer, II, Asst. Atty. Gen. of Oklahoma, Oklahoma City, Okl., for defendant-appellee Pace.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

The issue presented in this case is whether a private individual actively conspiring with an immune State official to purposely and knowingly deprive another of his rights secured under the Constitution and laws of the United States is acting under "color of law" as required by 42 U.S.C. § 1983. 1

Factual Background

In June, 1976, W. V. Norton (Norton) filed an action in the District Court of Love County, Oklahoma, to quiet title to a twelve acre tract of land. One of the defendants in the action, F. J. Schmitz (Schmitz) occupied the property under a lease from Norton. During the term of the lease, Schmitz constructed various improvements on the property in connection with his development of a race track. The lease agreement specifically provided that any improvements of a permanent nature made by Schmitz would become the property of Norton upon termination of the lease.

In November, 1976, Schmitz was judicially declared in default under the lease. James W. Oliphant (Oliphant), also a defendant in the action, was granted a lien against personal property of Schmitz located on the subject twelve acre tract as a result of unsatisfied debts incurred in connection with the construction of the improvements. Oliphant's lien on Schmitz' personal property was declared superior to any lien claimed by Norton against Schmitz.

In November, 1976, a writ of execution was issued by the District Court of Love County, Oklahoma, commanding Sheriff Wesley Liddel (Liddel) to seize property of Schmitz located on Norton's real property in satisfaction of Oliphant's judgment. Admittedly, the writ of execution was drawn in broader terms than that of the judgment.

On December 28, 1976, Sheriff Liddel, his deputies, and Assistant District Attorney George L. Pace (Pace) proceeded to Norton's property to execute the writ. After being refused entry to the premises, a skirmish ensued between Larry Norton, Louis Harold Norton and several Sheriff's deputies. Larry Norton and Louis Harold Norton were subdued and arrested for resisting and interfering with the deputies in the performance of their official duties, and for assault and battery on a police officer. Following their arrest, and the subsequent removal of W. V. Norton, the Sheriff and his deputies proceeded to remove certain permanent improvements which were later sold to satisfy Oliphant's judgment against Schmitz.

Some time after the occurrence of the incidents on December 28, 1976, charges of inciting to riot were filed in State District Court against all three plaintiffs. These charges were dismissed at plaintiffs' preliminary hearing on January 24, 1977.

The Instant Litigation

In a complaint filed in the United States District Court for the Eastern District of Oklahoma, plaintiffs charged that defendants Liddel and Pace actively conspired to cause an Information to issue charging them with inciting to riot, a felony, as a "mere pretext to provide color for the arrest and punishment of plaintiffs for exercising their lawful and constitutional right(s)." (R., Vol. II, p. 303). Substantial compensatory and punitive damages were prayed for in the complaint.

Page 1378

Approximately seven months later, after extensive discovery, motions for summary judgment were filed on behalf of all defendants. In an order entered July 18, 1978, the District Court granted Sheriff Wesley Liddel's summary judgment "as to all claims arising from his alleged participation in the filing of an information charging the plaintiffs with inciting to riot." (R., Vol. IV, pp. 763, 770). 2 The District Court ruled in pertinent part as follows:

The plaintiffs' claim for damages allegedly resulting from the filing of the inciting to riot charges are (sic) based upon the allegation that ". . . the defendant(s), George L. Pace and Wesley Liddel caused an information to issue out of the District Court of Love County charging the plaintiffs, and each of them, with inciting to riot. . . ." In Oklahoma, it is the office of the District Attorney, not the Sheriff, which files criminal informations. See 22 O.S. § 258; Ex parte Lewis, (85 Okl.Cr. 322) 188 P.2d 367 (Okl.Cr.1947). To the extent that the Sheriff merely provided facts to defendant Pace upon which the information was ultimately based, his actions were of such a nature that they could have been taken by any citizen, and in providing such facts, defendant Liddel was not acting under color of State law as required by 42 U.S.C. § 1983. While it is true that the acts of a private individual can constitute acts done under color of State law if there is joint activity or a conspiracy between the private individual and a state official acting within the authority of his office, Warner v. Croft, 406 F.Supp. 717 (W.D.Okla.1975), such private individuals cannot be held liable under § 1983 if the state official is himself immune to liability under the facts alleged. Sykes v. State of California, 497 F.2d 197 (9th Cir. 1974). This Court has previously held that defendant Pace is immune from liability for his acts in connection with the filing of the information, and it is therefore clear that no claim based upon that information can be maintained against defendant Liddel. Consequently, all claims for damages allegedly arising from the filing of the information are hereby dismissed.

(R., Vol. IV, pp. 767-768).

Our Disposition

"Although a § 1983 claim has been described as 'a species of tort liability,' Imbler v. Pachtman, 424 U.S. 409, 417 (96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976)), it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute." Martinez v. California, --- U.S. ----, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). To hold otherwise would render § 1983 and the Fourteenth Amendment to the United States Constitution a "font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976).

We do not believe that the Fourteenth Amendment or the Civil Rights Act were designed to redress injuries incurred by reason of unfounded or malicious claims/suits brought in State court, where adequate State remedies are available to the aggrieved parties. Nevertheless, if the misuse of the legal procedure is so egregious as to subject the aggrieved individual to a deprivation of Constitutional dimension, and the tortfeasor is acting under color of State law, § 1983 may be employed. See : Hampton v. Hanrahan, 600 F.2d 600, 630 (7th Cir. 1979), cert. docketed (No. 79-912, December 11, 1979); Beker Phosphate Corporation v. Muirhead, 581 F.2d 1187 (5th Cir. 1978) (Per curiam).

It must be emphasized that two elements must be pled and proven by a plaintiff to recover under § 1983.

First, the plaintiff must prove that the defendant has deprived him of a right

Page 1379

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). See also: Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Clappier v. Flynn, 605 F.2d 519 (10th Cir. 1979); Lessman v. McCormick, 591 F.2d 605 (10th Cir. 1979).

It was the absence of the second element above referred to (acting under color of law) which induced the District Court to grant summary judgment to Sheriff Liddel on the malicious prosecution claims. Relying primarily on Sykes v. State of California, supra, the District Court ruled, in essence, that no claim for relief can exist under the Civil Rights Act if a private person is alleged to have conspired with an immune...

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167 practice notes
  • Annunziato v. The Gan, Inc., No. 671
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 26 Junio 1984
    ...minds' between [private and government defendants] to knowingly attempt to accomplish an alleged wrongful purpose"); Norton v. Liddel, 620 F.2d 1375, 1379 (10th Cir.1980) (claim stated under Sec. 1983 where private individual "actively conspires" with the intent purposely and knowingly to d......
  • Gray v. Bell, No. 82-1838
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 21 Junio 1983
    ...640 F.2d at 453 (plea bargaining); Lee v. Willins, 617 F.2d at 322 (falsification of evidence, subornation of perjury); Norton v. Liddel, 620 F.2d 1375, 1379 (10th Cir.1980) (filing information); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979) (filing information, offering perjured tes......
  • Pierce v. Gilchrist, No. 02-6241.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 2 Marzo 2004
    ...bodies in order to maliciously bring about a citizen's trial or conviction." 767 F.2d at 662. The court also relied on Norton v. Liddel, 620 F.2d 1375 (10th Cir.1980), which found an actionable constitutional violation when the sheriff and prosecutor conspired to cause a false information t......
  • Brown v. Reardon, Nos. 83-2484
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 19 Agosto 1985
    ...and detention. See, e.g. Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981); Kite v. Kelley, 546 F.2d 334 (10th Cir.1976). In Norton v. Liddel, 620 F.2d 1375 (10th Cir.1980), we held that a sheriff who conspired with a private individual with the intent and design to deprive another of rights gua......
  • Request a trial to view additional results
167 cases
  • Annunziato v. The Gan, Inc., No. 671
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 26 Junio 1984
    ...minds' between [private and government defendants] to knowingly attempt to accomplish an alleged wrongful purpose"); Norton v. Liddel, 620 F.2d 1375, 1379 (10th Cir.1980) (claim stated under Sec. 1983 where private individual "actively conspires" with the intent purposely and knowingly to d......
  • Gray v. Bell, No. 82-1838
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 21 Junio 1983
    ...640 F.2d at 453 (plea bargaining); Lee v. Willins, 617 F.2d at 322 (falsification of evidence, subornation of perjury); Norton v. Liddel, 620 F.2d 1375, 1379 (10th Cir.1980) (filing information); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979) (filing information, offering perjured tes......
  • Pierce v. Gilchrist, No. 02-6241.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 2 Marzo 2004
    ...bodies in order to maliciously bring about a citizen's trial or conviction." 767 F.2d at 662. The court also relied on Norton v. Liddel, 620 F.2d 1375 (10th Cir.1980), which found an actionable constitutional violation when the sheriff and prosecutor conspired to cause a false information t......
  • Brown v. Reardon, Nos. 83-2484
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 19 Agosto 1985
    ...and detention. See, e.g. Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981); Kite v. Kelley, 546 F.2d 334 (10th Cir.1976). In Norton v. Liddel, 620 F.2d 1375 (10th Cir.1980), we held that a sheriff who conspired with a private individual with the intent and design to deprive another of rights gua......
  • Request a trial to view additional results

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