Thompson v. Baker

• Decision Date: 19 August 1955
• Docket Number: Civ. A. No. 653.
• Citation: 133 F. Supp. 247
• Parties: Elmer THOMPSON, LeRoy Currington, Fred McCoy, Walter Neal, Cleo Smith, and others similarly situated, Plaintiffs, v. W. A. BAKER, Justice of the Peace, and R. L. Hoyle, Constable, in and for Pennington Township, Bradley County, Arkansas, Defendants.
• Court: U.S. District Court — Western District of Arkansas

133 F. Supp. 247

Elmer THOMPSON, LeRoy Currington, Fred McCoy, Walter Neal, Cleo Smith, and others similarly situated, Plaintiffs, v. W. A. BAKER, Justice of the Peace, and R. L. Hoyle, Constable, in and for Pennington Township, Bradley County, Arkansas, Defendants.

Civ. A. No. 653.

United States District Court W. D. Arkansas, El Dorado Division.

August 19, 1955.

DuVal L. Purkins, Warren, Ark., for plaintiffs.

B. Ball, Warren, Ark., Charles S. Harley, Little Rock, Ark., for defendants.

JOHN E. MILLER, District Judge.

On December 10, 1954, plaintiffs filed their complaint against the defendants, W. A. Baker, a Justice of the Peace, and R. L. Hoyle, a Constable, alleging that said defendants had violated plaintiffs' civil rights. On January 26, 1955, the defendants filed a motion to dismiss plaintiffs' complaint on the ground that said complaint failed to state a claim against defendants upon which relief could be granted. On the same date the Court entered an order postponing further consideration of the case until a determination by the United States Court of Appeals for the Eighth Circuit of the appeal in Civil Action No. 652, Tate v. Arnold, El Dorado Division, 223 F.2d 782. (The Tate case was essentially the same as the instant case insofar as the Justice of the Peace is concerned.)

On June 28 the Court of Appeals affirmed the decision of this Court in the Tate case, and on July 5 this Court advised the attorneys in the instant case of the disposition of the Tate case on appeal. The Court also requested the parties to file briefs in support of their respective contentions on the motion to dismiss. The briefs have been received, and the motion is now ready for final disposition.

The following portion of plaintiffs' complaint sufficiently states the essential elements of plaintiffs' claim:

"3.

"Defendants are W. A. Baker, a Justice of the Peace, and R. L. Hoyle, the Constable, who are now and during the times complained of, duly elected, qualified and acting officials and officers of Pennington Township, Bradley County, Arkansas, and, in which political subdivision of said State the City of Warren is located.

"4.

"On or about August 26, 1954, Russell Carmical, in some manner not known to plaintiffs advised W. A. Baker, Justice of the Peace, or R. L. Hoyle, Constable, he had an account for an alleged indebtedness of $80.25 owing him by Elmer Thompson; and, said Justice of the Peace, without requiring the filing of any evidence of the claim in writing or a verified itemized account or any interrogatories or any allegations or any bond as required by Arkansas Statutes, § 31-501 et seq., issued a Writ of Garnishment before Judgment directed to the Bradley Lumber Company of Arkansas, the employer of Elmer Thompson; and, which Writ of Garnishment was served upon the Bradley Lumber Company of Arkansas by R. L. Hoyle, Constable, but no copy of said writ nor summons nor notice of any kind was served upon Elmer Thompson; and, the first, and the only notice Thompson had of the proceedings was when informed by his employer his wages had been garnished. To any claim of debt by Russell Carmical against him, Elmer Thompson, had a meritorious defense, and, after learning from his employer of the garnishment and the resulting withholding of wages due him, a hearing was requested, but it was postponed from time to time, until finally, and after five weeks, in order to secure his wages released by his employer Elmer Thompson paid under restraint the sum of $40.00 to Russell Carmical.

"8.

"As set out in paragraphs 4, 5, 6, 7 and 8 of this Complaint, not only the named plaintiffs, but divers and sundry other employees of the Bradley Lumber Company of Arkansas and the Southern Lumber Company, between January 1, 1954, and December 1, 1954, and for some years prior thereto, have suffered irreparable damage, harassment, invasion and deprivation of their rights in the wrongful and unlawful execution, issuance and service on the employers of approximately 650 claims of debt by various persons or businesses on such spurious writs of garnishment before judgment by W. A. Baker, Justice of the Peace, and, R. L. Hoyle, Constable, who, as such officers under color of Arkansas Statutes, § 31-501 et seq., have subjected or caused to be subjected these plaintiffs, all citizens of the United States, to the deprivation of their rights, privileges, and immunities without due process of law as secured by the Constitution and laws of the United States."

Plaintiffs pray an injunction against the defendants restraining them from issuing, serving, or executing writs of garnishment without complying with the Arkansas law. Plaintiffs also pray damages for the loss of their jobs, the alleged illegal deprivation of their wages, and attorney's fees. Plaintiffs also seek a declaratory judgment declaring the rights and legal relations of the parties. The question raised by defendants' motion is whether plaintiffs' complaint states a claim within the purview of the Civil Rights Act, and more particularly 42 U.S.C.A. § 1983, which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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 law, suit in equity, or other proper proceeding for redress."

(Plaintiffs' claim is based upon this Section and it is not contended that the defendants were engaged in a conspiracy.)

To come within the general language of this statute a claim must contain two essential elements: (1) the defendant must have acted under color of a statute, ordinance, regulation, custom, or usage of a State or Territory; and (2) the defendant must deprive plaintiff of a right, privilege, or immunity secured by the Constitution and laws of the United States.

With regard to the question of color of office, the rule is stated in Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495, as follows:

"It is clear that under `color' of law means under `pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it."

It has also been held that, "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law". United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368. To the same effect see Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774; Geach v. Moynahan, 7 Cir., 207 F.2d 714; Watkins v. Oaklawn Jockey Club, 8 Cir., 183 F.2d 440; McCollum v. Mayfield, D.C. Cal., 130 F.Supp. 112; State of Arkansas for Use and Benefit of Temple v. Central Surety & Insurance Corp. of Kansas City, Mo., D.C.Ark., 102 F.Supp. 444, 445.

It is clear that plaintiffs' complaint, when tested in the light of the foregoing authorities, sufficiently alleges that the defendants were acting under color of State law, and thus the next question is whether the complaint alleges a violation of the plaintiffs' constitutional rights. It is probable that the allegations of plaintiffs' complaint are sufficient to charge the defendant, W. A. Baker, Justice of the Peace, with a violation of their constitutional rights, in that he allegedly issued writs of garnishment against plaintiffs' employers without the filing of suits by plaintiffs' creditors against them and without any notice whatsoever to the plaintiffs. But for reasons hereinafter to be stated, plaintiffs' claim against the defendant Baker must be dismissed since he is protected by the judicial immunity rule.

However, there is a serious question as to whether plaintiffs' allegations in the complaint are sufficient to charge the defendant, R. L. Hoyle, Constable, with a violation of plaintiffs' civil rights. Insofar as the complaint discloses, the only action taken by the defendant, R. L. Hoyle, was in serving writs of garnishment against plaintiffs' employers. It is true, as plaintiffs contend, that the allegations of the complaint, if true, establish that the provisions of the Arkansas law relating to garnishment before judgment have not been followed. See Sec. 31-501 et seq., Ark.Stats.1947 Anno. But, the question is not whether the State law has been followed; rather the question is whether the plaintiffs have been denied due process of law, as guaranteed by the Constitution of the United States, by reason of the action of the defendant Hoyle. Ortega v. Ragen, 7 Cir., 216 F.2d 561; Mueller v. Powell, 8 Cir., 203 F.2d 797.

Due process of law requires notice to all interested parties and an opportunity by them to be heard in any proceeding which is to be accorded finality. Mullane v. Central Hanover Bank and Trust Co., Trustee, 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865. However, ordinarily the issuance of a writ of garnishment is merely a preliminary matter and has no degree of finality. In this connection, in Byrd v. Rector, 112 W.Va. 192, 163 S.E. 845, 81 A.L.R. 1213, the Court at page 1216 of 81 A.L.R. said:

"We think the answer to these propositions is that a defendant is not deprived of his property by reason of the levy of a copy of the attachment upon a person who is indebted to him or who has effects in his custody belonging to the defendant. The most that such procedure does is to deprive defendant of the possession of his property temporarily by establishing a lien thereon. Whether the defendant shall be deprived of such property must depend of course upon the plaintiff's subsequent ability to obtain a judgment in personam or in rem on his claim against the

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