Roudybush v. Zabel, 85-2319

Decision Date01 April 1987
Docket NumberNo. 85-2319,85-2319
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.
CourtU.S. Court of Appeals — Eighth Circuit

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 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 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 of Civil Procedure 59(e) asking the court to open the judgment and allow the Roudybushes to file a second amended complaint. The district court denied the motion. This appeal followed.

I.

In reviewing the district court's decision to grant summary judgment, we apply the same standard as the district court. Poolman v. Nelson, 802 F.2d at 307. Summary judgment should be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

Under section 1983, the plaintiff must show that the defendant deprived him of a constitutional right while acting "under color of" state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The issue here is whether the Roudybushes have alleged facts sufficient to show that the private party appellees were acting "under color of" Iowa law when they unlawfully instituted facially constitutional execution of judgment procedures and, with the assistance of state officials, deprived the Roudybushes of property without due process. In Lugar v. Edmondson Oil Co., 457 U.S. at 922, 102 S.Ct. at 2745, the Supreme Court held that in a section 1983 case where a private party defendant performs an act ordinarily performed by private parties and it triggers action by state officials, the defendant's actions are committed "under color of" state law if the conduct qualifies as state action under the fourteenth amendment. Id. at 935, 102 S.Ct. at 2752. The issue thus hinges on whether the defendant's "conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State." Id. at 937, 102 S.Ct. at 2753.

This fair attribution test has two components: a state policy and a state actor. The state policy component requires that "the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." Id. A state policy may be inferred from either a state statute, see id. at 940-41, 102 S.Ct. at 2755-56, or a well-settled custom or practice, see Adickes v. S.H. Kress & Co., 398 U.S. at 168, 90 S.Ct. at 1613. The state actor component requires that the defendant "must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar, 457 U.S. at 937, 102 S.Ct. at 2754.

The appellees' actions, as alleged by the Roudybushes, fail to satisfy the state policy component of Lugar's fair attribution test. The Roudybushes allege only that the appellees violated Iowa's execution of judgment statutes. They expressly disavow any claim that the appellees acted pursuant to an unconstitutional statute 7 or that the process by which the Roudybushes were deprived of their property--a process that included negligent action by state officials--conformed to a permanent and well-settled practice of the State. If anything, the Roudybushes' allegations are antithetical to a claim that the appellees' actions are attributable to a state policy. They claim that the appellees intentionally violated state policy by failing to adhere to Iowa's laws governing the execution of judgments.

State policy is not implicated when an injured party claims that a private party has violated a constitutional post-judgment procedural statute in the course of depriving the injured party of his property. To the...

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