United States General, Inc. v. Schroeder

• Decision Date: 17 September 1975
• Docket Number: No. 75-C-203.,75-C-203.
• Citation: 400 F. Supp. 713
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: UNITED STATES GENERAL, INC., a Wisconsin Corporation, Plaintiff. v. Ralph SCHROEDER, d/b/a Schroeder Oil & Excavating and William F. Gansen, Defendants.

400 F. Supp. 713

UNITED STATES GENERAL, INC., a Wisconsin Corporation, Plaintiff. v. Ralph SCHROEDER, d/b/a Schroeder Oil & Excavating and William F. Gansen, Defendants.

No. 75-C-203.

United States District Court, E. D. Wisconsin.

September 17, 1975.

John P. Brady, Weiss, Steuer, Berzowski & Kriger, Milwaukee, Wis., for plaintiff.

Ernest J. Philipp, Otjen, Philipp & Van Ert, S. C., Milwaukee, Wis., for Schroeder.

Jack R. Wiedabach and Donald M. Lieb, Prosser, Wiedabach, Lane & Quale, S. C., Milwaukee, Wis., for William F. Gansen.

MEMORANDUM AND ORDER

WARREN, District Judge.

This is an action commenced by the plaintiff named above in an effort to obtain injunctive relief and monetary damages to compensate losses allegedly sustained as a result of an unconstitutional garnishment action instituted against it in Branch One of the Shawano-Menominee County Court, Shawano County, Wisconsin. The defendants include the individual plaintiff named in that garnishment proceeding, Ralph Schroeder d/b/a Schroeder Oil & Excavating (Schroeder), as well as the attorney that prosecuted the action in his behalf, William F. Gansen (Gansen). The plaintiff's cause of action is said to arise under the provisions of § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction lies, if at all, pursuant to 28 U.S.C. § 1343.

Counsel for defendant Schroeder has answered the principal complaint. He admits that jurisdiction lies under 28 U.S.C. § 1343, and cross-complains against defendant Gansen seeking indemnification for any losses sustained here.

No answer has been filed on behalf of defendant Gansen, rather a motion has been brought under Rule 12(b) (6), Federal Rules of Civil Procedure, charging that the complaint fails to state a claim against him. It is this motion for dismissal to which this memorandum opinion is addressed. The sole issue concerns the question of whether, in the context of this case, this attorney can be said to have acted under color of state law within the meaning of 42 U.S.C. § 1983.

The Court notes that, for purposes of resolution of a motion based upon Rule 12(b) (6), the allegations set forth in the pleading are to be construed in the light most favorable to the pleader and accepted as true. The Court is not permitted to delve into extraneous evidence, but must confine the scope of its analysis to matters presented by the pleadings, memorandums, briefs and oral arguments. See, 5 Wright & Miller, Federal Practice and Procedure: Civil §§ 1363, 1366 at pp. 656, 682 respectively (1969 ed.). It is thought that an action, especially one brought pursuant to the Civil Rights Act, is not to be dismissed at the pleading stage unless it appears to a certainty that no relief can be granted to the plaintiff under any state of facts which might be proved in support of his claims. See, e. g., Flores v. Yeska, 372 F.Supp. 35, 39 (E.D. Wis. 1974).

After due consideration of those materials to which the Court may properly direct its attention, as viewed from the perspective required by the liberal standards outlined above, the Court finds that this complaint has in fact stated a legitimate claim against defendant Gansen; his motion for dismissal is thus to be denied, in accordance with the terms of the following memorandum opinion.

I.

In order to achieve a thorough understanding of the contentions presented by these parties, it is necessary to briefly review the rather tortured history of § 267.02 Wis.Stats., the Wisconsin garnishment statute upon which the events leading to this action were based.

On June 9, 1969 the United States Supreme Court ruled that, as applied to the prejudgment garnishment of an individual's wages, § 267.02(1)(a) Wis. Stats. was unconstitutional for want of certain fundamentals of procedural due process. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

Shortly after this decision was rendered, the Wisconsin legislature attempted to cure the defects the Supreme Court had noted by amending § 267.02 at subsection (2). The revised statute, effective August 9, 1969, restricted the ability of a civil plaintiff to commence a garnishment action affecting the earnings of a principal defendant. These legislative efforts appear to have been futile, however, for on November 25, 1969, the Wisconsin Supreme Court ruled that the principles of procedural due process articulated in Sniadach required that § 267.02(1)(a) be held unconstitutional as applied not only to prejudgment wage garnishment, but also as to prejudgment garnishment of "other property" as well. Larson v. Featherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969); rehearing denied, February 3, 1970. Subsequent to the Larson decision, the United States Supreme Court confirmed the principles of due process that the Wisconsin Supreme Court had established. See: North Georgia Furnishing, Inc. v. Di-Chem, Inc., 419 U.S. 681, 95 S.Ct. 719, 42 L. Ed.2d 1751 (1975).

Despite the fact that both the Wisconsin Supreme Court and the United States Supreme Court have, in effect, found § 267.02(1)(a) Wis.Stats. to have fatal constitutional deficiencies in excess of those to which the amendment of subsection (2) was directed, no further corrective action has been undertaken by the Wisconsin legislature. This particular provision of the Wisconsin Statutes has remained as amended, effective August 9, 1969, and was successfully invoked against this plaintiff by the defendants named above in a garnishment proceeding begun in July of 1974. Nothwithstanding what appears to have been repeated efforts by this plaintiff's counsel to have that garnishment dissolved, such a result was not accomplished until this Court entered an order to that effect on May 1, 1975. This action seeks compensation for losses allegedly sustained as a result of that garnishment proceeding.

II.

No party can or does dispute the fact that, as a matter of settled federal law, any case arising under the provisions of 42 U.S.C. § 1983 must demonstrate both a deprivation of a right, privilege or immunity secured by the Constitution or laws of the United States, and causation of such deprivation by a person or entity acting under color of state law within the meaning of the fourteenth amendment. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Bright v. Isenbarger, 314 F.Supp. 1382, 1388 (N. D.Ind., 1970). The question raised by counsel for defendant Gansen is whether under the charges set out in this complaint, an attorney for a private individual may be found to be acting under color of state law by virtue of his institution of, prosecution of, and failure to withdraw a patently unconstitutional garnishment proceeding. The Court would answer this question in the affirmative.

As a general rule, it is apparent that state court litigants are not amenable to suit under the provisions of the Civil Rights Act. This is true because, as mere participants in the state forum, their activities cannot be said to be attributable to the state itself. See, e. g., Firnhaber v. Sensenbrenner, 385 F.Supp. 406 (E.D.Wis., 1974).

On the other hand, several courts have held that a private person who effects an unconstitutional prejudgment judicial remedy does perform state action within the meaning of 42 U.S.C. § 1983. See, e. g., Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970), citing Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). The rationale supporting this theory is as follows:

". . . A private citizen is acting under color of state law when his action is encouraged by state law and especially when it is possible only by virtue of state law. In the instant case defendants were able to obtain a prejudgment garnishment only because of state law, therefore, they were acting under color of state law."

McMeans v. Schwartz, 330 F.Supp. 1397, 1399 (S.D.Ala.1971).

The decision rendered in Klim v. Jones itself articulates the logic through which state action is imputed to the private individual:

"Not only does California Civil Code § 1861 outline the conditions applicable to the lien in question here, but it is only by virtue of Section 1861 that defendant Jones had the power to impose a lien on the plaintiff's belongings, and it is only by virtue of Section 1861 that defendant Jones could impose such lien without subjecting himself to the forms of civil liability excluded by Section 1861. This is not just action against a back-drop of an amorphous state policy, but is instead action encouraged, indeed only made possible, by explicit state authorization."

Klim v. Jones, supra, 315 F.Supp. at p. 114. Emphasis in original.

The theories set forth above have been adopted by at least one court within the Seventh Circuit. See: Collins v. Viceroy Hotel Corporation, 338 F.Supp. 390 (N.D.Ill.1972); cf. Larkin v. Bruce, 352 F.Supp. 1076 (E.D.Wis.1972) State action attributed to a private party bringing suit pursuant to a particular state statutory scheme. This Court finds them to be controlling here.

If the doctrine articulated in the foregoing cases is accepted as valid, it would appear to follow, a fortiori, that an attorney is engaging in state action within the meaning of § 1983 when he brings and presses a suit which attributes state action to his client: it is the attorney who actually causes the existing state procedures to be implemented; it is both he and the person he represents who stand to gain monetarily from the use of such state procedures, and seemingly should be liable for money damages if substantial constitutional rights are thereby violated. Cf: Tunheim v. Bowman, 366 F.Supp. 1395 (D.Nev.1973).

Despite the foregoing, it is clear that as a general proposition, attorneys are held to be immune from civil liability under 42 U.S.C. § 1983, even if their clients are not. See, e. g., Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970); Kovacs v. Goodman,...