Watters v. Parrish

• Decision Date: 19 May 1975
• Docket Number: Civ. A. No. 74-C-44-C.
• Citation: 402 F. Supp. 696
• Court: U.S. District Court — Western District of Virginia
• Parties: David L. WATTERS and William L. Ammons, Plaintiffs, v. Trooper L. E. PARRISH et al., Defendants.

402 F. Supp. 696

David L. WATTERS and William L. Ammons, Plaintiffs, v. Trooper L. E. PARRISH et al., Defendants.

Civ. A. No. 74-C-44-C.

United States District Court, W. D. Virginia, Charlottesville Division.

May 19, 1975.

Edward L. Hogshire, Charlottesville, Va., for plaintiffs.

Edgar F. Puryear, Jr., Orange, Va., for Kemper Aylor, Maylon Aylor, Kelsey Jones.

Edward R. Slaughter, Jr., Charlottesville, Va., for L. C. Parrish, Jr., W. E. Shifflette.

Talmage N. Cooley, Waynesboro, Va., for Kemper Aylor, Maylon Aylor.

Henry Massie, Asst. Atty. Gen., Richmond, Va., for L. E. Parrish, William S. Shifflett.

OPINION AND JUDGMENT

DALTON, District Judge.

In this action, defendants have filed pursuant to Fed.R.Civ.P. 12(b)(6) motions to dismiss for failure to state a cause of action under 42 U.S.C. §§ 1983 and 1985(3).

Plaintiffs bring this action for declaratory, injunctive and compensatory relief under 42 U.S.C. §§ 1983, 1985(3), 2201 and 2202 and allege the following facts:

On a weekend in October, 1973, plaintiffs, hiking enthusiasts from Northern Virginia, parked their automobiles alongside state roads bordering Shenandoah National Park. They then entered the Park for an overnight camping trip. The next day, upon returning to the site where they had parked their automobiles, plaintiffs discovered them missing. They immediately notified the Virginia State Police in Culpeper, Virginia. The State Police told them that their cars had been towed away by private towing services at the request of the state police and that they could retrieve their cars at establishments operated by Defendants Aylor and Jones.

With much personal inconvenience, plaintiffs located their cars. Plaintiff Watters was required to pay a towing charge of $25.00. He further discovered that because of improper towing, his car had been damaged in an amount estimated at $850.00. Plaintiff Ammons was required to pay a towing charge of $30.00. He likewise discovered that because of improper towing, his car had been damaged in an amount estimated at $100.00. Neither plaintiff received any traffic citation, summons or warrant.

Plaintiffs have filed suit against L. E. Parrish, William S. Shifflett both Virginia State Policemen, and Kemper Aylor, Maylon Aylor, and Kelsey Jones, private towing operators who removed plaintiffs' cars. Plaintiffs also sue "certain unknown named members of the Virginia State Police".

Plaintiffs invoke this court's jurisdiction under 28 U.S.C. § 1343.

Defendants have filed motions to dismiss that challenge (1) this court's jurisdiction and (2) the causes of action purportedly stated under sections 1983 and 1985.¹

I

Defendants' first ground for dismissal is that this court does not have jurisdiction under 28 U.S.C. § 1343. Defendants argue that § 1343(3), which, they admit, covers § 1983 actions, extends federal court jurisdiction only to those civil rights actions under § 1983 that implicate "personal rights" as opposed to a "mere property right". They cite as authority Howard v. Higgins, 379 F.2d 227 (10th Cir. 1967).

For years, the distinction between "personal rights" and "property rights" as the basis of jurisdiction under § 1343 was widespread among lower courts. In 1972, however, the Supreme Court in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424, repudiated this differentiation as a contour of federal jurisdiction. The court, Mr. Justice Stewart speaking for the majority, observed:

". . . the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a "personal" right, whether the "property" in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. ... Congress recognized these rights in 1871 when it enacted the predecessor of §§ 1983 and 1343(3)." Ibid at 552, 92 S.Ct. at 1122.

The effect of Lynch, supra is to make § 1343(3) co-extensive with the substantive rights protected under § 1983. This court accordingly has jurisdiction under 28 U.S.C. § 1343(3). Defendants' motion to dismiss on this ground is therefore without merit.

II

Plaintiffs base their suit on two constitutionally protected rights: the right to due process and the right to interstate travel.

Plaintiffs state as their first cause of action that:

"the concerted actions of the defendants in towing away plaintiffs' automobiles without issuing them a citation or summons and without affording them a hearing in order to contest such actions have thereby deprived plaintiffs of their property without due process of law under color of state law."

It is the opinion of this court that this allegation states a cause of action under 42 U.S.C. § 1983.

It is important to note that plaintiffs do not claim, and with good reason, that they were entitled to a hearing before their cars were seized and towed. Nor do they challenge the constitutionality of the state statute under which the police officers purportedly acted. What plaintiffs do claim, however, is that by failing to issue them a citation for their alleged violation of state law which resulted in the seizure of their cars, the police officers denied them the opportunity to be heard before they suffered the unremediable and final consequences, both legal and practical, of their conduct. This, they claim, denied them due process. The dispositive issue, then, is whether the failure of the state to provide a hearing at any time, before or after property is seized, violates due process. This court is of the opinion that this question must be answered affirmatively and that if proved, plaintiffs' allegations would indicate a denial of due process for which relief is available under section 1983.

The fourteenth amendment prescribes that the state may not deprive a person of property without due process of law. Most of the recent cases that have considered the requirements of the Due Process Clause have considered whether a hearing is required before state seizure of property. See e. g., Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). These recent cases, however, must not obscure settled constitutional doctrine that a fundamental requirement of due process is the opportunity to be heard at some meaningful time. Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L. Ed. 1363 (1914). "The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1965) (Frankfurter, J., concurring). A survey of the cases on this point clearly indicates that where the court has rejected the need for a hearing before the initial seizure, a principal rationale has been that a hearing would be provided before the injury occasioned by the taking became final. See, e. g., North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed 195 (1908) (seizure of food unfit for consumption); Ewing v. Mytinger and Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (seizure of misbranded articles in commerce). Addressing this issue, Mr. Justice White, after reviewing the contours of due process, observed in the recent case of Arnett v. Kennedy, 416 U.S. 134, 179, 94 S.Ct. 1633, 1656, 40 L.Ed.2d 15 (1974) (concurring in part and dissenting in part): "While these cases discussing the due process requirements indicate that the particular interests involved might not have demanded a hearing immediately, they also reaffirm the principle that property may not be taken without a hearing at some time." If state policemen acting under color of state law, seized plaintiffs' car in such a way that deprived them of the opportunity to challenge the lawfulness of the seizure, they acted in a way that deprived plaintiffs of due process. The plaintiffs have stated a claim under section 1983.

Plaintiffs' second cause of action under section 1983 is based on the constitutionally protected right to interstate travel vitalized in United States v. Guest, 383 U.S. 745, 757-760, 86 S.Ct. 1170, 16 L.Ed.2d 239 and its progeny. Plaintiffs' complaint, however, makes clear that plaintiffs were not engaged in interstate travel. They resided in Northern Virginia and intended to travel to a National Park within Virginia. No interstate travel being intended, there is no need to consider whether defendants impeded that travel. Plaintiffs' cause of action based on interstate travel is therefore dismissed.

III

Two questions remain: (1) whether plaintiffs' cause of action, cognizable under section 1983 against the defendant state policemen, may be maintained against the private towing operators Aylor and Jones; (2) whether plaintiffs' cause of action may be maintained under 42 U.S.C. § 1985(3).

Plaintiffs allege that "Defendants Aylor and Jones, in responding to the requests of the Defendants Parrish, Shifflett and other named but unknown State Troopers acted as agents of the state in a conspiracy which had as its effect the deprivation of plaintiffs' right to due process, under the color of state law. ..." Plaintiffs further allege that Defendants Aylor and Jones acted at the direction of the state police and then only in response to and reliance on the authority of the state police. This being the case, it is clear that Defendants Aylor and Jones acted "under color of state law" for the purposes of section 1983. "Misuse of power, possessed by virtue of state...