Ramos v. Gallo

Citation596 F. Supp. 833
Decision Date24 October 1984
Docket NumberCiv. A. No. 81-281-K.
PartiesWalter RAMOS, Jr., Plaintiff, v. Robert GALLO, Defendant.
CourtU.S. District Court — District of Massachusetts

596 F. Supp. 833

Walter RAMOS, Jr., Plaintiff,
Robert GALLO, Defendant.

Civ. A. No. 81-281-K.

United States District Court, D. Massachusetts.

October 24, 1984.

596 F. Supp. 834
596 F. Supp. 835
Anthony Cardinale, Belmonte, Cardinale, Cotter & Merrill, Boston, Mass., for plaintiff

Suzanne Sheats, Claire S. Berman, Issac Braddock, Asst. Corp. Counsel, City of Boston Law Dept., Boston, Mass., for defendant.

Opinion and Order

KEETON, District Judge.

This action arises out of the shooting of the plaintiff, Walter Ramos, Jr., by defendant Boston Police Officer Robert Gallo. Ramos brings claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, together with pendent state law claims. Ramos claims that Gallo used excessive force. He also claims that Gallo acted negligently, wantonly, willfully, maliciously, and with such reckless disregard of the consequences as to reveal a conscious indifference to the clear risk of death or bodily injury. Defendant has now moved for summary judgment on the grounds that there is no genuine issue as to any material fact and he is entitled to judgment as a matter of law.

I. Factual Background

The relevant facts in the case are as follows: At or about midnight on February 11, 1978, defendant and his partner, Boston Police Officer Joseph Mugnano, came upon the plaintiff at the intersection of Chelsea and Gove Streets in East Boston, Massachusetts. Plaintiff at the time was accompanied by several of his friends. The officers, who were in a police wagon driving up Gove Street, stopped their vehicle and got out. They attempted to arrest Ramos for alleged possession of marijuana and place him in the back of the wagon, but Ramos ran away. Gallo immediately began to chase after Ramos, withdrew his service revolver, and shot one time into the air. Plaintiff thereupon stopped. Gallo continued to run toward Ramos with his weapon drawn. The weapon went into plaintiff's stomach and then discharged.

On June 29, 1978, Ramos was convicted in East Boston District Court of possession of marijuana with intent to distribute. Officer Mugnano testified at that hearing. Ramos appealed, was retried before a jury in Suffolk Superior Court, and was found not guilty on March 1, 1979.

Ramos sought a complaint against Gallo in East Boston District Court for assault and battery by means of a dangerous weapon. Following a hearing on March 1, 1978, no complaint was issued.

II. Standard for Summary Judgment

In deciding a motion for summary judgment, the court must look at the record in the light most favorable to the party opposing the motion. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). It must also draw all inferences in favor of the non-movant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The movant has the burden of showing the absence of a disputed issue of material fact. Mack v. Cape Elizabeth School Board, 553 F.2d 720, 722 (1st Cir.1977). The court cannot weigh the evidence to dispose of the motion. O'Neill v. Dell Publishing Co., 630 F.2d 685, 687 (1st Cir.1980). The court rules only on questions of law and fact-based questions as to which the evidence would not support a finding against the movant.

III. Section 1983 Claims

I turn first to plaintiff's claim for relief under the due process clause of the Fourteenth Amendment and 42 U.S.C. § 1983, which states in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or 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 immunities secured by the Constitution and laws, shall be liable to the party injured in an action at
596 F. Supp. 836
law, suit in equity, or other proper proceeding for redress.

It is undisputed that Gallo was acting under color of state law during the incident in which Ramos was shot. Viewed in the light most favorable to the plaintiff, the complaint alleges a deprivation of Ramos's liberty without due process of law, in violation of the due process clause of the Fourteenth Amendment. Defendant argues, however, that no violation of rights of due process exists with respect to the shooting of Ramos because Ramos has state remedies that will afford him full redress for deprivation of liberty, if any occurred. Defendant's argument is based on the Supreme Court's holdings in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).

In Parratt, a prison inmate sued for damages under § 1983, alleging that he was deprived of property without due process of law when prison officials negligently lost a hobby kit the inmate had ordered through the mail. The Court agreed that the plaintiff had been deprived of property within the meaning of the Fourteenth Amendment. 451 U.S. at 536-37, 101 S.Ct. at 1913-14. The Court went on to hold that, because a pre-deprivation hearing was not feasible under the circumstances, the availability of a post-deprivation damages remedy under state law negated plaintiff's contention that the deprivation of property was without due process of law. Id. at 540-44, 101 S.Ct. at 1915-17.

In Hudson v. Palmer, the Supreme Court extended the rationale of Parratt to intentional deprivations of property, holding that such deprivations do not violate the procedural requirements of the due process clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available under state law. ___ U.S. at ___, 104 S.Ct. at 3204.

The present case presents a question not yet decided by the Supreme Court: Is the principle of Parratt and Hudson applicable to intentional or negligent deprivations of liberty? Federal district and circuit courts have varied in their responses to this question. Some courts, noting that Justices Blackmun and White joined the Parratt opinion only on the understanding that the decision did not apply to deprivations of life or liberty, 451 U.S. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring), have limited the reach of Parratt to deprivations of property. See, e.g., Brewer v. Blackwell, 692 F.2d 387, 394-95 (5th Cir.1982) (Parratt inapplicable to intentional deprivations of liberty); Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981) (same), rev'd on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Wilson v. Beebe, 743 F.2d 342, 350 (6th Cir.1984) (Parratt is inapplicable to intentional or negligent deprivations of life or liberty). Other courts, finding no principled reason to distinguish between deprivations of property and of liberty, have applied Parratt to negligent deprivations of liberty interests, see, e.g., Thibodeaux v. Bordelon, 740 F.2d 329, 334-38 (5th Cir.1984); Haygood v. Younger, 718 F.2d 1472, 1478-81 (9th Cir.1983), reh'g en banc granted, 729 F.2d 613 (9th Cir.1984); Daniels v. Williams, 720 F.2d 792, 796 (4th Cir.1983) and to intentional deprivations of liberty. See, e.g., Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir.1981), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 905-10 (11th Cir.1984).

Were this case merely one involving the applicability of principles of procedural due process, illustrated in Parratt, to deprivations of liberty interests, summary judgment for defendant might be appropriate. I need not rule on this question at this point in the proceedings, however, for defendant's argument urging the application of Parratt to the present case fails to take account of the distinction between substantive and procedural due process.

596 F. Supp. 837

A Fourteenth Amendment due process claim, such as the one asserted by Ramos, may be analyzed as a claim of denial of either procedural or substantive due process, or both. A procedural due process claim alleges that the state has unlawfully interfered with a protected liberty or property interest by failing to provide adequate procedural safeguards. The claim focuses on the procedures used by the state in effecting the deprivation of liberty or property, which the claimant argues were inadequate in light of the significance of the interests involved. Schiller v. Strangis, 540 F.Supp. 605, 613 (D.Mass. 1982). Parratt and other cases discussed above invoke this analysis.

A substantive due process claim, on the other hand, alleges not that the state's procedures are somehow deficient, but that the state's conduct is inherently impermissible, regardless of any protective or remedial procedures it provides. Schiller, 540 F.Supp. at 614. It is based on "the right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court." Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980).

The theory of substantive due process derives from the case of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the Court held that police action in obtaining evidence by subjecting a suspect against his will to a stomach pump so "shocks the conscience" as to violate due process. Justice Frankfurter wrote, "Due process of law is a summarized constitutional guarantee of respect for those personal immunities which ... are `so rooted in the traditions and conscience of our people as to be ranked as fundamental,' or are `implicit in the concept of ordered liberty.'" (citations omitted) Id. at 169, 72...

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