Periera v. Chapman
| Decision Date | 01 November 1988 |
| Docket Number | No. CV 88-4734-WDK (JRx).,CV 88-4734-WDK (JRx). |
| Citation | 92 BR 903 |
| Court | U.S. District Court — Central District of California |
| Parties | Fernando PERIERA, Plaintiff, v. Harvey L. CHAPMAN, Mary Ann Chapman, Christopher Blaisdell, Riverside County Marshal Frank Franco, Deputy Marshal Richard Hart, Deputy Marshal B.P. Wells, Deputy Marshal L. Allison, Deputy Marshal Fisher, Riverside County Counsel Dorothy Hahn, Riverside County Municipal Court, Desert Judicial District, Richard H. Amoroso, and Does 4-10, inclusive, Defendants. |
Fernando Periera, Palm Springs, Cal., in pro. per.
Michael A. Bell, Fidler & Bell, Riverside, Cal., Martin Stein, Timothy T. Coates, Greines, Martin, Stein & Richland, Beverly Hills, Cal., for defendants.
Christopher M. Blaisdell, Palm Desert, Cal., in pro. per.
Harvey L. Chapman, Mary Ann Chapman, Torrance, Cal., in pro per.
This motion to dismiss for failure to state a claim is before the Court pursuant to Fed.R.Civ.P. 12(b)(6). In appraising the sufficiency of a complaint, this Court must follow "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Because the Court finds that the plaintiff cannot state a claim for relief under section 1983 or section 1985(3) on the basis of the facts pleaded in his First Amended Complaint, the Court ORDERS that the complaint be dismissed.
PROCEDURAL BACKGROUND:
The plaintiff, appearing in propria persona, filed a complaint in the United States District Court for the Eastern District of California on May 5, 1988, alleging that the defendants had violated the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a), thereby abrogating his civil rights in violation of 42 U.S.C. § 1983. The plaintiff also alleged that certain of the defendants had conspired among themselves to deprive him of his right to an automatic stay in violation of 42 U.S.C. § 1985.
Defendant Blaisdell filed a motion to change venue to the Central District of California on June 8, 1988. That motion was granted on July 19, 1988, and the case was transferred from the Eastern District to this Court.
Counsel for Defendants the Riverside County Marshals and the Riverside County Counsel has filed a motion to dismiss for failure to state a claim on which relief can be granted. On the Court's own motion, defendants Christopher Blaisdell, Harvey Chapman, and Mary Ann Chapman are joined in this motion. See Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir.1987) (); Wood v. Santa Barbara Chamber of Commerce, 507 F.Supp. 1128, 1134 (D.Nev.1980) (). The defendants contend that the plaintiff's remedy should be based on 11 U.S.C. § 362(h). Section 362(h) provides actual damages, including costs and attorneys' fees, and punitive damages, if appropriate, to any individual "injured by any willful violation of a stay provided by this section." 11 U.S.C. § 362(h) (West Supp. 1988). The defendants contend that this remedy is exclusive and that a section 1983 action cannot be based on a violation of the statutory rights provided in the Bankruptcy Code. The defendants have filed this motion in lieu of a responsive pleading.
The plaintiff opposed this motion and sought leave of the Court to amend his complaint to cure any deficiencies. At the hearing on September 19, 1988, this Court granted the plaintiff's motion to amend his complaint. The plaintiff filed his First Amended Complaint on September 26, 1988.
FACTUAL BACKGROUND:
The plaintiff obtained title to a house in Palm Springs by a quitclaim deed from the record owner, allegedly without paying value for the deed. The quitclaim deed was recorded in the Riverside County Recorder's office on July 22, 1986.
Defendants Harvey and Mary Ann Chapman held a note from the grantor of the quitclaim deed, secured by a trust deed on the Palm Springs house. The note had a balance of $101,343.02 at 11% annual interest, payable at $1077.09 per month. The grantor of the quitclaim deed made his last payment on the note on July 1, 1986. After receiving the deed, the plaintiff did not make any payments on the note.
The Chapmans commenced foreclosure proceedings, and a trustee's sale was set for March 20, 1987. On March 19, 1987, the plaintiff filed a petition in bankruptcy in the Eastern District, and the foreclosure sale was stayed. On April 8, 1987, the bankruptcy petition was dismissed pursuant to an order to show cause by the bankruptcy court.
The foreclosure sale was held on May 22, 1987, and a trustee's deed to the property was conveyed to the Chapmans and Blaisdell. Two days later, the Chapmans filed an unlawful detainer action in the Municipal Court for the Desert Judicial District and duly served the plaintiff. On July 31, 1987, a judgment and writ of possession was levied against the plaintiff, Fernando Periera, and the Chapmans were restored to legal, as contrasted with actual, possession of the property as to the plaintiff.
At the time of the levy of the writ of possession, Pamela Periera appeared and identified herself as the plaintiff's wife. She was served as John Doe 1 in a new foreclosure action instituted in the Palm Springs Municipal Court. Pamela Periera then filed a petition in bankruptcy in the Central District. On February 10, 1988, the Chapmans were granted relief from the automatic stay, thereby allowing them to proceed with the Municipal Court action and enforce any judgment for possession. On March 21, 1988, a judgment and an order for a writ of possession was issued by the Palm Springs Municipal Court. The Chapmans were then restored to legal possession of the Palm Springs house.
On March 28, 1988, the plaintiff filed a petition in bankruptcy in the Eastern District, thus invoking the automatic stay provision of 11 U.S.C. § 362(a). (An earlier petition, filed on August 28, 1987, in the Central District, was dismissed pursuant to an order to show cause.) The next day, the plaintiff presented his bankruptcy petition to Riverside County Marshal B.P. Wells and Deputy Marshal Richard Hart at the Riverside County Courthouse. The plaintiff alleges that while he was at the courthouse, he observed Wells consult with Blaisdell, the Chapmans' attorney, regarding Blaisdell's desired course of action. The plaintiff also alleges that he observed Hart consult with the Honorable Arthur Block of the Municipal Court of the Desert Judicial District.
That afternoon, Harvey Chapman and Deputy Marshals Hart and Allison attempted to verbally evict the plaintiff from the Palm Springs residence. After the plaintiff informed them of the automatic stay provisions of the Bankruptcy Code, Chapman and the deputy marshals left the premises. The plaintiff then called Riverside County Counsel Dorothy Hahn, to inform her of the violation of the automatic stay. Hahn stated that she could not cause the marshals to cease attempts to execute the writ of possession.
On March 31, 1988, Deputy Marshals Hart, Wells and Allison evicted the plaintiff from the Palm Springs house.
DISCUSSION:
I. The plaintiff's section 1983 Claim:
There are two primary issues regarding the defendants' motion to dismiss the plaintiff's section 1983 claim: first, whether the Marshals acted under "color of law" by enforcing the Palm Springs Municipal Court judgment, and, second, whether section 1983 can provide a cause of action for the denial of rights created by the Bankruptcy Code.
The Ninth Circuit has held that a police officer who actively participates in the repossession of a debtor's property acts under color of state law. Harris v. City of Roseburg, 664 F.2d 1121, 1127 (9th Cir. 1981). In Harris, the Court stated:
In the instant case, the plaintiff alleges in his complaint that the marshals carried out the eviction. The enforcement of a state court judgment constitutes state action under 42 U.S.C. § 1983. Sotomura v. County of Hawaii, 402 F.Supp. 95, 103 (D.Haw.1975). As a result, the plaintiff has alleged facts sufficient to meet the "color of law" requirement.
The second issue raised by the defendants' motion to dismiss is whether plaintiff may base a section 1983 claim on an alleged violation of the bankruptcy laws. The Supreme Court has held that section 1983 can provide a cause of action for the denial of rights created by a federal statute. Maine v. Thiboutot, 448 U.S. 1, 4-7, 100 S.Ct. 2502, 2504-06, 65 L.Ed.2d 555 (1980). However, Thiboutot has been narrowed by subsequent decisions. See Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n., 453 U.S. 1, 19, 101 S.Ct. 2615, 2625-26, 69 L.Ed.2d 435 (1981); Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981). Pennhurst created two exceptions limiting the effect of the Thiboutot rule. More particularly, in cases involving the enforcement of federal statutory rights, access to a section 1983 remedy should be denied if (1) the language of the statute indicates a...
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