Reese v. Kennedy, 88-5035
| Decision Date | 12 January 1989 |
| Docket Number | No. 88-5035,88-5035 |
| Citation | 865 F.2d 186 |
| Parties | Laurel REESE, Appellant, v. Brian KENNEDY, Richard Bong, Carolyn Bong, The City of Sioux Falls, and "John Does" who are unknown officers of the City of Sioux Falls, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lee R. Burd, Sioux Falls, S.D., for appellant.
Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.
Laurel Reese appeals from the district court 1 order dismissing without prejudice her complaint brought pursuant to 42 U.S.C. Sec. 1983. The issues raised are the adequacy of South Dakota's post-deprivation remedies and whether the complaint stated a substantive due process claim. We affirm.
The facts alleged in Reese's pleadings are as follows. Laurel Reese and Brian Kennedy lived together for two years. During that time, they acquired a house and two cars as well as other personal property. Reese and Kennedy had an agreement whereby she would purchase "groceries and items for the house" and Kennedy would make the mortgage payments. The deed for the residence was acquired in Kennedy's name only.
In early October 1986, Reese agreed to move out as soon as she was financially able. On October 15, 1986, Kennedy, who was out of state, called the Sioux Falls Police Department to ask that Reese be removed from his home. That evening, two unknown police officers consulted with Richard and Carolyn Bong, Kennedy's neighbors, and asked Reese and her children to leave. When Reese asked to see a court order, the officers threatened to put her in jail. Reese was not allowed to remove a car or other personal property she claimed she owned. When Reese returned to the residence to retrieve her belongings, the locks had been changed, the doors were barricaded, and the Bongs retained possession of the car. Reese made repeated attempts to retrieve her property but the appellees threatened her with criminal prosecution if she tried to enter the home, use the car, or remove her property.
On November 20, 1986, Reese filed this complaint pursuant to 42 U.S.C. Sec. 1983 against Kennedy, the Bongs, the unknown police officers, and the Sioux Falls Police Department, alleging that the forced eviction and denial of access to her personal property violated her due process rights. Reese also included pendent state tort claims. Reese later amended her complaint to name the City of Sioux Falls as a defendant in lieu of the Sioux Falls Police Department.
The district court concluded that Reese's amended complaint failed to state a section 1983 claim, and dismissed her complaint without prejudice to allow her to assert the state law claims in state court. This appeal followed.
Reese's primary argument on appeal is that the district court erred in finding that South Dakota's postdeprivation remedies provided her with adequate procedural due process under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt, the Supreme Court held that when a deprivation of property is caused by a random and unauthorized act of a state employee, "it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation." 2 Id. at 541, 101 S.Ct. at 1916. The Court concluded that when state law provides adequate postdeprivation remedies, they are sufficient to satisfy due process requirements, and relief under section 1983 is therefore not warranted. Id. at 543-44, 101 S.Ct. at 1916-17.
To the extent that Reese argues that appellees did not follow existing eviction procedures, Parratt provides that a due process deprivation does not occur because of an unauthorized failure of state officials to follow established state procedures. See 451 U.S. at 541, 101 S.Ct. at 1916; see also Birkenholz v. Sluyter, 857 F.2d 1214, 1217 (8th Cir.1988). Absent a due process challenge to the state procedures themselves, Reese has failed to state a procedural due process claim. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982) (). We further believe that the availability of state tort remedies precludes Reese's section 1983 claim and satisfies the requirements of procedural due process. See, e.g., Greco v. Guss, 775 F.2d 161, 169 (7th Cir.1985) (); Wilson v. Beebe, 770 F.2d 578, 584 (6th Cir.1985) ().
Reese also argues that Parratt does not apply to this case under "the rule that intentional abuse of official power, which shocks the conscience or which infringes a specific constitutional guarantee * *...
To continue reading
Request your trial
-
Thomas v. Cohen
...violative of the Fourteenth Amendment. In support of this argument, Defendants point to the Eighth Circuit's decision in Reese v. Kennedy, 865 F.2d 186 (8th Cir.1989). In Reese, an unmarried couple shared a home for two years. The couple shared bills, but the deed to the house was in the ma......
-
Fagan v. City of Vineland
...live-in companion of arrestee and her children), cert. denied, --- U.S. ----, 112 S.Ct. 226, 116 L.Ed.2d 183 (1991); Reese v. Kennedy, 865 F.2d 186, 187-88 (8th Cir.1989) (police officers' forced eviction of plaintiff from her home); see also Black v. Stephens, 662 F.2d 181, 188 (3d Cir.198......
-
Soltesz v. Rushmore Plaza Civic Ctr.
...under some circumstances, post-deprivation notice and a hearing will satisfy constitutional due process requirements. Reese v. Kennedy, 865 F.2d 186, 187 (8th Cir.1989). The Due Process Clause “ ‘is not a technical conception with a fixed content unrelated to time, place and circumstances,’......
-
AGI-Bluff Manor, Inc. v. Reagen
...a claim requiring malice where the plaintiff made only conclusory allegations, as the plaintiffs have done here. Reese v. Kennedy, 865 F.2d 186, 188 (8th Cir.1989). In contrast to the purely conclusory allegations of malice, the plaintiffs concede that the Emergency Amendment was adopted to......