Tucker v. Maher

• Decision Date: 07 May 1974
• Docket Number: No. 663,Docket 73-2451.,663
• Citation: 497 F.2d 1309
• Parties: Stanley V. TUCKER, Plaintiff-Appellant, v. Joseph D. MAHER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

497 F.2d 1309 (1974)

Stanley V. TUCKER, Plaintiff-Appellant, v. Joseph D. MAHER et al., Defendants-Appellees.

No. 663, Docket 73-2451.

United States Court of Appeals, Second Circuit.

Argued March 18, 1974.

Decided May 7, 1974.

COPYRIGHT MATERIAL OMITTED

Stanley V. Tucker, pro se.

Maurice T. Fitzmaurice, Hartford, Conn. (Regnier, Moller & Taylor, Hartford, Conn., on the brief), for defendants-appellees.

Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

The appellant, Stanley V. Tucker, acting pro se, commenced an action in the United States District Court for the District of Connecticut on April 9, 1970, challenging the constitutionality of Conn.Gen.Stat.Ann. § 49-33, which provides for the filing of materialmen's liens that become encumbrances upon title to real property. Tucker is a real estate developer in Connecticut and a materialman's lien had been filed against certain of his real property in Hartford, Connecticut on March 3, 1970, by an electrical subcontractor, L & M Electric Co., Inc. Subsequently, the subcontractor sued Tucker for $3000 damages in a civil suit in the state court of Connecticut arising from work performed in the construction of an apartment house where Tucker was allegedly acting as a general contractor. The materialman's lien was released and, in conjunction with the state suit, a real estate attachment was substituted as security on April 17, 1970. Tucker then amended his federal complaint to challenge the constitutionality of Connecticut's prejudgment attachment statutes, in particular Conn.Gen.Stat.Ann. §§ 52-279, 52-280 & 52-285. He sought both injunctive and declaratory relief, as well as $50,000 damages, by reason of an alleged deprivation of property in violation of his constitutional rights to due process and equal protection of law under the fourteenth amendment. In addition to L & M Electric Co., the complaint named as defendants Joseph D. Maher and Lawrence J. Levesque, who are officers of L & M; William J. Kotchen, who is an attorney representing the corporation and its officers; and Anthony DeLaura, who is a Deputy to the Sheriff of Hartford. All are alleged to have participated in the procurement and filing of either the materialman's lien or the attachment.

On November 16, 1970, Chief Judge M. Joseph Blumenfeld dismissed the complaint¹ on the ground that there was no subject matter jurisdiction under 28 U.S.C. § 1343(3), relying primarily upon the personal rights-property rights dichotomy drawn in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969). This Court affirmed the dismissal, Tucker v. Maher, 441 F.2d 740 (1971) (per curiam). After the affirmance, the Supreme Court decided Lynch v. Household Fin. Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), which rejected the distinction made in Eisen. On April 17, 1972, the Supreme Court vacated the judgment in this case and remanded it to this Court, 405 U.S. 1052, 92 S.Ct. 1489, 31 L.Ed.2d 787, which in turn remanded to the District Court for the District of Connecticut, 471 F.2d 1370 (2 Cir. 1973) (per curiam).

On July 6, 1973, a three-judge court consisting of Senior Circuit Judge J. Joseph Smith and District Judges M. Joseph Blumenfeld and Jon O. Newman, once again dismissed the complaint. Civ. No. 13,786 (D.Conn). The court held that the request for injunctive relief was moot and inappropriate since the Connecticut General Assembly had implicitly annulled the challenged attachment statutes by enacting a new statute which became effective on May 30, 1973 and which provided for an adversary hearing prior to attachment (Public Act No. 73-431, 1973 Session). The court added as an additional reason for its declination of injunctive relief the fact that the defendants had already released the attachment challenged in the suit. The civil suit in the Connecticut court which prompted the attachment was settled when Tucker paid a compromise amount to the appellees.

On appeal the sole contention is that the court below erred in dismissing the complaint without a trial on the damage issue. Relying on Kavanewsky v. Greater Dev. Co., Civ. No. B-587 (D.Conn. July 6, 1973), the court held that "there is no basis for the assertion of a damage claim against those who, acting in good faith, secured an attachment under the then existing statutes." Kavanewsky, in turn, depended upon an opinion of Judge Newman, Pfotzer v. Dorr-Oliver, Inc., Civ. No. B-587 (D.Conn. May 11, 1973) which held that in the absence of any showing that persons have acted in bad faith in securing an attachment, they will not be required to respond in damages for proceeding under statutes that had not then been ruled invalid.

The initial question we face is whether or not this court has jurisdiction to hear this appeal which is at least nominally from a judgment of dismissal entered by a three-judge court. The fact that all of the parties agree that we do is consoling but obviously they cannot confer jurisdiction upon us. The question is vexing and the rules of the game are imprecise. Hopefully, the exercise will become obsolete. See generally James L. Oakes, Second Circuit Note 1972 Term—Foreward: The Three-Judge Court and Direct Appeals to the Second Circuit, 48 St. John's L.Rev. 205 (1973).

The Supreme Court has exclusive appellate jurisdiction from orders "granting or denying . . . an interlocutory or permanent injunction. . . ." 28 U.S.C. § 1253; see Lynch v. Household Fin. Corp., supra, 405 U.S. at 541, n. 5. In our view, the appeal here from the dismissal of the complaint is not, in essence, an appeal from such an order. The release of the materialman's lien and the attachment prior to judgment, as well as the enactment of a new statute (two days after the argument before the court), which in effect repealed the legislation challenged by the complainant, rendered moot the injunctive relief which was sought. Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 386-387 (2d Cir. 1973); Kerrigan v. Boucher, 450 F.2d 487 (2d Cir. 1973); see Rosado v. Wyman, 304 F.Supp. 1354 (E.D.N.Y.), aff'd, 414 F.2d 170 (2d Cir. 1969) rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). The appellant here does not seek review of the order denying injunctive relief but is instead concerned with the claim for damages. The appeal therefore is properly to this court. See Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 763, 26 L.Ed.2d 378 (1970) (per curiam); 9 J. Moore, Federal Practice ¶ 110.03 3, at 77-85 (2d ed. 1973).

Had the fact of release and the repeal of the statute which was challenged been made known to the court prior to the argument, it might well have been dissolved, as happened in Rosado v. Wyman, supra, since the injunctive relief sought was obviously mooted. In such case the appeal would clearly be to this court. In Rosado, we affirmed the dissolution, 414 F.2d 170 (1969), rev'd on another issue, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), after the Supreme Court had dismissed a direct appeal from the judgment of the three-judge court for want of jurisdiction, 395 U.S. 826, 89 S.Ct. 2134, 23 L.Ed.2d 739 (1969) (per curiam). Having heard the argument as a three-judge court, the court did not dissolve itself. It would be an exercise in futility to send the case back to dissolve the court and inevitably have a single judge reach the same conclusion. See 9 Moore's Federal Practice ¶ 110.03 3, at 77-79 (2d ed. 1973). See also our discussion in Jordan v. Fusari, 496 F.2d 646 (1974). In view of the unusual procedural posture of the case, the fact that the litigation has persisted for four years and the Supreme Court's admonishment that its appellate jurisdiction is to be narrowly construed, Gunn v. University Comm. to End the War, 399 U.S. 383, 387, 90 S.Ct 2013, 26 L.Ed.2d 684 (1970), we believe that the appeal should now be decided in this forum.

The question of what constitutes a constitutional tort under § 1983 has provoked learned comment² but actual litigation has not provided us with much precedential material. We can, however, at the outset rather easily dispose of the claim against the Deputy Sheriff DeLaura. There is nothing in the record to suggest that he was acting in bad faith. His sole role here was to serve a copy of the writ of attachment upon the Clerk of the Town of Hartford. There is no indication that the writ was facially defective, that he was improperly motivated, or that he deviated from the statutory procedure. This is not a case of a peace officer who is making an arrest claiming that he had probable cause to believe that a crime was being committed. In such a case there may be some question of good faith which will raise a factual question. Here, there is none. DeLaura was performing a ministerial function which he was obligated to do.

The only basis for Tucker's claim against DeLaura is that the statute under which he proceeded was unconstitutional. It is well settled, however, that a peace officer cannot be charged with the responsibility of predicting the future course of constitutional law. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In the absence of bad faith, it is therefore apparent that no action lies against DeLaura under § 1983. There is abundant authority for this proposition even where a warrantless arrest is made. See, e. g., Anderson v. DeCristofalo, 494 F.2d 321 (2d Cir. 1974) (per curiam); Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973); Rodriguez v. Jones, 473 F.2d 599 (5th Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). A fortiori, where an attachment is effected by a sheriff filing a writ with a town clerk upon an affidavit made by a party which is ancillary to a state civil action, we have no hesitation in finding that he has no personal tort liability under § 1983.

The role of the private party appellees, litigants and their counsel is, of course, distinguishable, but upon analysis w...