Roudybush v. Zabel, No. 85-2319

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore JOHN R. GIBSON; JOHN R. GIBSON
Citation813 F.2d 173
PartiesWilliam Burl ROUDYBUSH and Ruth J. Roudybush, Appellants, v. Ralph W. ZABEL, Zabel Ltd. and First National Bank in Lenox, Appellees.
Decision Date01 April 1987
Docket NumberNo. 85-2319

Page 173

813 F.2d 173
William Burl ROUDYBUSH and Ruth J. Roudybush, Appellants,
v.
Ralph W. ZABEL, Zabel Ltd. and First National Bank in Lenox,
Appellees.
No. 85-2319.
United States Court of Appeals,
Eighth Circuit.
Submitted June 12, 1986.
Decided March 6, 1987.
Rehearing Denied April 1, 1987.

Page 174

Garry D. Woodward, Des Moines, Iowa, for appellants.

Joseph R. Sandre, Des Moines, Iowa, for appellees.

Before JOHN R. GIBSON, Circuit Judge, FAIRCHILD, * Senior Circuit Judge, and MAGILL, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

William and Ruth Roudybush appeal from a summary judgment entered against them on their section 1983 claim. They allege that the appellees unlawfully instituted Iowa's execution of judgment procedures and, acting jointly with state officials, deprived them of their property without due process. In granting summary judgment, the district court 1 concluded that the private party appellees did not act "under color of" state law when they implemented constitutional state execution of judgment procedures in an unlawful manner. The Roudybushes argue that because the appellees acted jointly with state officials in depriving the Roudybushes of their property, the deprivation constitutes state action. They also argue that the district court erroneously denied their motion to have the court open the judgment and allow the filing of a second amended complaint. We reject both arguments and affirm the judgment of the district court.

In reviewing this grant of summary judgment, all facts must be viewed in the light most favorable to the Roudybushes, giving them the benefit of all reasonable inferences to be drawn from the facts. Poolman v. Nelson, 802 F.2d 304, 306 (8th Cir.1986). We so state the facts based on the record before the district court.

On April 21, 1978 in the Union County, Iowa District Court, the First National Bank in Lenox, in one action, and Ralph Zabel and Zabel Ltd., in another, were awarded substantial monetary judgments against Gary and Karyn McKinney. The McKinneys appealed from both judgments to the Iowa Supreme Court, where the actions were consolidated. In order to stay execution proceedings under the district court judgments, the McKinneys filed a supersedeas bond with the Clerk of the Union County District Court. 2 The Roudybushes

Page 175

signed this supersedeas bond as sureties.

On September 25, 1981, the Iowa Supreme Court dismissed the McKinneys' appeal for failure to prosecute, and, on November 2, remanded the case to the Union County District Court. No judgment was ever entered on the supersedeas bond by either the Iowa Supreme Court or the Union County District Court. Thus, the Roudybushes, as sureties on the supersedeas bond, were not lawfully subject to the claims of the appellees, as judgment creditors. 3

Nevertheless, on December 17, 1981 the appellees orally instructed Dorothy Henry, the Clerk of the Union County District Court, to issue a writ of execution directing the Union County Sheriff to levy upon real property referred to as the Dolecheck Farm. Henry issued the writ of execution, apparently believing that the McKinneys owned the Dolecheck Farm when, in fact, the Roudybushes owned it. After obtaining the writ of execution, the appellees filed a praecipe, which indicated that the writ was directed to the Roudybushes' property and was based on a judgment entered on the supersedeas bond. Henry did not read this praecipe.

The appellees presented the writ of execution to the Union County Sheriff. On December 30, 1981, the sheriff levied on the Dolecheck Farm, and the farm was subsequently sold at an execution sale to the First National Bank in Lenox for $100,000. This $100,000 was then applied pro rata to the judgments obtained against the McKinneys by the First National Bank, in one action, and Ralph Zabel and Zabel Ltd., in the other action.

In an unrelated mortgage foreclosure action against the Roudybushes in the Ringgold County, Iowa District Court, the First National Bank in Lenox was awarded a judgment of approximately $122,000, and the court ordered a foreclosure sale of the subject property, the Roudybushes' Haley Farm. The First National Bank successfully bid $200,000 on the Haley Farm, which created a $66,000 overplus after costs were paid. This overplus was transferred to the Clerk of the Court for Ringgold County, the county in which the Haley Farm is located. Ralph Zabel and Zabel Ltd. then obtained a writ of execution from the Clerk of the Union County District Court directed at the overplus in the hands of the Ringgold County Clerk. The writ of execution was obtained based on the misrepresentation by Ralph Zabel and Zabel Ltd. that they possessed unfulfilled judgments against the Roudybushes premised on the supersedeas bond filed in the McKinney action. The Union County Sheriff levied on the overplus, and the proceeds were applied pro rata to the unfulfilled judgments held by Ralph Zabel and Zabel Ltd. in the McKinney action. 4

Based on these events, the Roudybushes instituted an action against the appellees 5

Page 176

under 42 U.S.C. Sec. 1983 (1982). 6 They alleged that the appellees unlawfully initiated execution of judgment procedures based on a supersedeas bond that had never been placed in judgment. This unlawful action triggered negligent action by state officials, which caused the deprivation without due process of both the Roudybushes' Dolecheck Farm and the overplus from the sale of the Haley Farm.

The appellees filed a motion for summary judgment, arguing that the alleged joint action between state officials--the Union County Sheriff and the Clerk of the Union County District Court--and the appellees did not, by itself, establish that the appellees acted "under color of" state law under section 1983. Specifically, the appellees argued that their actions were not attributable to any state policy, and thus, the Roudybushes had failed to allege facts that satisfied the first component of the two-part state action test announced in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The district court granted the appellees' summary judgment motion, relying primarily on the Supreme Court's factual application of the two-part test enunciated in Lugar. See id. at 940, 102 S.Ct. at 2755.

Within ten days of the district court's entry of judgment, the Roudybushes filed a motion under Federal Rule...

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56 practice notes
  • DeWit v. Firstar Corp., No. C 94-4052.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • August 29, 1995
    ...Mountain Band of Chippewa Indians Through LaFromboise, 911 F.2d 137, 139 (8th Cir.1990); Hagerman, 839 F.2d at 413; Roudybush v. Zabel, 813 F.2d 173, 178 (8th Cir.1987); Harris v. Arkansas Dep't of Human Servs., Div. of Mental Retardation-Developmental Disabilities Servs., 771 F.2d 414, 416......
  • DePugh v. Smith, No. C 94-4030.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • March 22, 1995
    ...v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 40 (1988); Roudybush v. Zabel, 813 F.2d 173, 178 (8th Cir.1987); Harris v. Arkansas Dep't of Human Servs., Div. of Mental Retardation-Developmental Disabilities Servs., 771 F.2d 414, 4......
  • In re Lesniewski, Bankruptcy No. 98-15226DWS. Adversary No. 99-0215.
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • March 13, 2000
    ...of a state policy and a state actor. Almand v. Benton County, 145 B.R. 608, 613 (Bankr. W.D.Ark.1992), citing Roudybush v. Zabel, 813 F.2d 173, 176 (8th Cir.1987). The New Jersey Officials are state actors whose conduct is clearly attributable to the state. Their actions were taken under th......
  • Janny v. Gamez, 20-1105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 6, 2021
    ...S.Ct. 2744. This "fair attribution" test has two elements: "a state policy and a state actor." Roudybush v. Zabel , 813 F.2d 173, 176 (8th Cir. 1987). To satisfy the former, "the [constitutional] deprivation must be caused by the exercise of some right or privilege ......
  • Request a trial to view additional results
56 cases
  • DeWit v. Firstar Corp., No. C 94-4052.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • August 29, 1995
    ...Mountain Band of Chippewa Indians Through LaFromboise, 911 F.2d 137, 139 (8th Cir.1990); Hagerman, 839 F.2d at 413; Roudybush v. Zabel, 813 F.2d 173, 178 (8th Cir.1987); Harris v. Arkansas Dep't of Human Servs., Div. of Mental Retardation-Developmental Disabilities Servs., 771 F.2d 414, 416......
  • DePugh v. Smith, No. C 94-4030.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • March 22, 1995
    ...v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 40 (1988); Roudybush v. Zabel, 813 F.2d 173, 178 (8th Cir.1987); Harris v. Arkansas Dep't of Human Servs., Div. of Mental Retardation-Developmental Disabilities Servs., 771 F.2d 414, 4......
  • In re Lesniewski, Bankruptcy No. 98-15226DWS. Adversary No. 99-0215.
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • March 13, 2000
    ...of a state policy and a state actor. Almand v. Benton County, 145 B.R. 608, 613 (Bankr. W.D.Ark.1992), citing Roudybush v. Zabel, 813 F.2d 173, 176 (8th Cir.1987). The New Jersey Officials are state actors whose conduct is clearly attributable to the state. Their actions were taken under th......
  • Janny v. Gamez, 20-1105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 6, 2021
    ...S.Ct. 2744. This "fair attribution" test has two elements: "a state policy and a state actor." Roudybush v. Zabel , 813 F.2d 173, 176 (8th Cir. 1987). To satisfy the former, "the [constitutional] deprivation must be caused by the exercise of some right or privilege ......
  • Request a trial to view additional results

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