Scott v. Dixon, 82-8376

• Citation: 720 F.2d 1542
• Decision Date: 15 December 1983
• Docket Number: No. 82-8376,82-8376
• Parties: Lindsey M. SCOTT, Plaintiff-Appellant, v. Larry DIXON, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1542

720 F.2d 1542

Lindsey M. SCOTT, Plaintiff-Appellant, v. Larry DIXON, et al., Defendants-Appellees.

No. 82-8376.

United States Court of Appeals Eleventh Circuit.

Dec. 15, 1983.

George Rountree, Brunswick, Ga., for plaintiff-appellant.

Edward E. Boshears, Richard A. Brown, Jr., Terry K. Floyd, Brunswick, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before HATCHETT and CLARK, Circuit Judges, and SCOTT ^*, District Judge.

CLARK, Circuit Judge:

In January 1980, defendant Larry Dixon sold a truck to plaintiff Lindsey Scott on credit. A dispute arose regarding the payment agreement. Plaintiff alleges that under the purchase agreement he was to paint Dixon's house in lieu of a $700 downpayment, trade in his old truck for credit of $600, and finance the $2,800 balance pursuant to a retail installment contract. Plaintiff asserts that Dixon refused to allow him to paint the house but all installment payments were timely tendered. Dixon denies that he consented to permit Scott to work off part of the payment and that the payments were otherwise timely. The district court found plaintiff's version convincing, including that Scott gave Dixon a $700 check on the provision it not be cashed since sufficient funds were not available. The lower court found that Dixon wanted to repossess the truck on the allegation of improper insurance coverage.

Dixon, at the time Chairman of the Board of Commissioners, testified that on August 6, 1980 he sought legal advice from defendant Floyd, Clerk of the State Court of Glynn County, Georgia, on how to obtain the truck or payment therefor. Dixon swore out an affidavit for the issuance of a warrant for Scott's arrest, charging plaintiff with "endangering a security interest" in violation of Ga.Code Ann. Sec. 26-1707 (1977). ¹ Defendant Floyd issued the criminal warrant to Dixon. Floyd directed Dixon that he should take the warrant to the police for enforcement. ²

Dixon kept the warrant in his possession for five months during which time he threatened plaintiff with legal action if the latter failed to pay for or return the truck. On the evening of January 19, 1981, Dixon, who was no longer Commissioner, "ran into" two police officers (defendants Kelley and Latham) at a restaurant, inquired into the continued viability of the warrant, and requested that they accompany him to plaintiff's home in the event of violence.

Arriving at plaintiff's home, Dixon approached Scott and requested the truck keys. The officers remained in the police car. When plaintiff refused to accede to Dixon's wishes, Dixon left in his own car and the officers arrested Scott. Subsequent to his incarceration, plaintiff was released on bond and the charge ultimately dismissed. ³

Alleging a deprivation of liberty and property without due process of law in violation of 42 U.S.C.A. Sec. 1983 (1981), Scott sued Dixon, Floyd, Kelley, Latham, and American Fire and Casualty Company (AFCC). Scott also alleged three pendent state law claims. ⁴ Defendants sought summary judgment on the ground that, among other things, plaintiff's claim fell outside the jurisdictional scope of section 1983. ⁵ Defendant AFCC also filed a motion for judgment on the pleadings.

Subsequent to oral argument, the district court granted the summary judgment motions of Dixon, Floyd, Kelley, and Latham. The district court found no section 1983 claim in that Dixon secured the warrant as a private citizen, Floyd enjoyed absolute immunity in exercising a discretionary judicial function and Kelley and Latham enjoyed qualified immunity in carrying out their duties in good faith. The court also granted AFCC's motion for judgment on the pleadings, finding that AFCC bonded only the County Board of Commissioners and not Floyd. The motions of Alma and Mabel Dixon were overruled and denied, but based on the prior rulings, the district court declined to exercise ancillary jurisdiction over the fraudulent conveyance claim and dismissed it sua sponte. The lower court also dismissed the pendent state claims. After an independent review of the evidence viewed in the light most favorable to plaintiff, and upon application of the law governing these facts, we find the district court order granting summary judgments erroneous with respect to Dixon, Latham and Kelley. We reverse and remand.

Dixon

A claim grounded in section 1983 has as a prerequisite a finding of state action. Plaintiff must also show causal deprivation without due process of a right secured him by the federal laws. Brown v. Miller, 631 F.2d 408, 410 (5th Cir.1980). Plaintiff's complaint alleges deprivation of both a liberty and property right. At the summary judgment hearing, Dixon's attorney "assume[d] that [Scott] was deprived of due process." Record Vol. 5 at 7. Likewise, the district court stated that "assuming a deprivation, it did not occur 'under color of state law.' " Record at 629. We therefore look only to the question of state action.

In the instant case, the district court found that Dixon "obtained the warrant as a private citizen" and thus did not act under color of state law. Both Lugar v. Edmondson Oil Co., Inc., ⁶ 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), and Morrison v. Washington County, Alabama, ⁷ 700 F.2d 678, 683-84 (11th Cir.1983), were decided since the district court considered this case. These cases make clear the proposition that a private party acting pursuant to state law or in conjunction with state officials may, in certain circumstances, incur liability under section 1983. The conduct causing deprivation of the federal right must be "fairly attributable to the state." Lugar, 457 U.S. at 937, 102 S.Ct. at 2754, 73 L.Ed.2d at 495. This requirement is satisfied by a showing that the deprivation resulted from "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" and that "the party charged with the deprivation [is] a person who may fairly be said to be a state actor [either] 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." Id.

In the instant case, the state of Georgia provided a statutory scheme authorizing criminal prosecution of a person who endangers a security interest. Ga.Code Ann. Sec. 26-1707. A state official issued and state officials executed a criminal warrant pursuant to the statute. Dixon acted pursuant to a procedural scheme which permitted through its abuse the arrest of Scott for not paying a debt. Dixon clearly acted in conjunction with and obtained significant aid from state officials. The evidence permits a conclusion that Dixon conspired with Floyd to obtain the warrant, acted in bad faith in securing it, and used his prior position to procure its execution. The appellant in response to the motion for summary judgment asserted that Dixon and others knowingly misused state procedure in violation of Scott's civil rights and that the procedure itself was invalid. Whether Dixon was acting as Commissioner or as a private citizen, the district court erred in finding an absence of genuine issues of material fact in light of Lugar and Morrison, supra. On the record before us in light of the controversy in the evidence, we cannot say as a matter of law that Dixon's actions were completely outside the purview of section 1983. We emphasize that we in no way intimate that every affiant to a criminal warrant engages in state action of a constitutional dimension. Accord Lugar v. Edmondson Oil Co., 457 U.S. at 942, n. 23, 102 S.Ct. at 2757 n. 23. Nor do we suggest that Dixon is or is not liable under section 1983. We merely find that summary judgment was improvidently granted.

Floyd

In order to determine whether absolute immunity extends to Floyd, it is important to consider the "reasons underlying the creation of the immunity shield." McCray v. Maryland, 456 F.2d 1, 3 (4th Cir.1972). The reasons for extending judicial immunity are to protect those officials with discretionary power similar to that exercised by a judge and thereby to ensure courageous exercise of that discretionary power. Id. The question which must be answered with regard to the extension of absolute judicial immunity, therefore, is whether the act performed by the officer is discretionary or ministerial in nature.

In this case, the district court correctly found that State Court Clerk Floyd exercises a discretion normally reserved to the judiciary. Floyd is empowered by the 1945 Acts p. 1095 Sec. 4 to issue criminal warrants. ⁸ In deciding whether to issue such warrants, he must determine the law applicable to the complaint being lodged by the affiant and whether or not probable cause exists. Since Floyd performs a function normally handled by a judge, he falls within this circuit's narrow extension of absolute judicial immunity to court clerks. ⁹

If Floyd were a judge, his absolute immunity would be assured despite the assertion by the appellant that Dixon and Floyd conspired with one another or reached an understanding about the issuance of a warrant to be used as a lever to pry possession of the truck from the appellant. The Supreme Court considered the issue of judicial immunity in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Stump provides that a judge will be shielded from liability if he has not acted in the "clear absence of all jurisdiction," 435 U.S. at 357, 98 S.Ct. at 1105, 55 L.Ed.2d at 339 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872)), and if his act is a judicial one. 435 U.S. at 360-62, 98 S.Ct. at 1106-07, 55 L.Ed.2d at 341-42. Stump also states that if judicial acts are done within his subject matter jurisdiction he will not be liable even if he acts in error, maliciously or in excess of...