Wright v. City of Reno

• Decision Date: 28 October 1981
• Docket Number: No. CIV-R-80-277-ECR.,CIV-R-80-277-ECR.
• Citation: 533 F. Supp. 58
• Parties: Kerry M. WRIGHT, Plaintiff, v. The CITY OF RENO, et al., Defendants.
• Court: U.S. District Court — District of Nevada

533 F. Supp. 58

Kerry M. WRIGHT, Plaintiff, v. The CITY OF RENO, et al., Defendants.

No. CIV-R-80-277-ECR.

United States District Court, D. Nevada.

October 28, 1981.

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G. C. Backus, and Lawrence J. Semenza, Polaha, Conner, Semenza & Lufty, Chartered, Reno, Nev., for plaintiff.

M. Jerome Wright, Reno, Nev., for defendant City Auto Towing.

Richard P. Wait, Reno, Nev., for King's Skate Country.

Louis Test, Reno City Atty. and Wait Shamberger, Georgeson, McQuaid & Thompson, Reno, Nev., for defendants City of Reno & Lloyd Birchett.

William G. Cobb, Erickson, Thorpe, Swainston & Cobb, Reno, Nev., for defendants County of Washoe, Calvin R. X. Dunlap & Rod Chapin.

ORDER

EDWARD C. REED, Jr., District Judge.

This is a civil rights action, asserting violations of 42 U.S.C. §§ 1983, 1985 and 1986. The amended complaint alleges that the plaintiff, a juvenile, was stopped on a private parking lot by defendant Lloyd Birchett, a Reno police officer working there as a security guard. Birchett accused the plaintiff of reckless driving there the previous night. According to the pleading, defendant Birchett seized the keys out of the ignition switch and, when the plaintiff remonstrated, he battered the plaintiff with a flashlight. The plaintiff was placed under arrest and his automobile was searched. Although the plaintiff claims he needed medical attention by reason of the battering he received, neither defendant City of Reno nor defendant County of Washoe, which owned and operated the juvenile detention center to which the plaintiff was taken, provided any medical treatment. It is alleged that said City and County, as a matter of policy, don't provide medical treatment.

Immediately upon the arrest of the plaintiff, defendant Birchette summoned a tow truck owned and operated by defendant City Auto Towing. In order to avoid the towing away and impoundment of the plaintiff's car, his father paid the tow truck operator $22. The amended complaint contends that such towing and impoundment would have constituted an unreasonable seizure in the view of the Fourth Amendment, and would have been accomplished without due process.

The plaintiff claims that the arrangement whereby City Auto Towing impounds automobiles at the request of the City of Reno police is a conspiracy to deprive people of their property without due process of law. In addition, the arrangement is in furtherance of the policy of the City, according to the pleading.

It is further contended that all of the defendants conspired to charge the plaintiff with numerous petty offenses, in Juvenile Court, in retaliation for the initiation of this civil rights suit. Those offenses consisted of reckless driving, operating a motor vehicle without a driver's license in possession, failure to obey a police officer and obstructing a public officer. All are misdemeanors.

The amended complaint alleges that the person who swore out the petty offenses complaint against the plaintiff had no first hand knowledge of the occurrences. This procedure is part of a scheme concocted by defendant Calvin R. X. Dunlap, who is the Washoe County District Attorney, according to the plaintiff.

Finally, the plaintiff alleges that the proceedings against him were without probable cause. He insists that detention and filing of charges without probable cause is a local custom. This is a violation of the Fourth and Fourteenth Amendments, in the eyes of the plaintiff.

Two motions to dismiss for failure to state a claim for which relief can be granted, Fed.R.Civ.P. 12(b)(6), have been filed, one by defendant City Auto Towing and the other by defendants County of Washoe and District Attorney Dunlap. The two motions are here being considered together by the Court.

City Auto Towing emphasizes that it tows and impounds automobiles at the request of the Reno Police Department, pursuant to a formal contract. It urges that this is not an unlawful agreement, therefore no conspiracy can exist. All decisions to make an arrest or tow or impound a vehicle are made by a Reno Police Officer, and not by the towing company. Further, City Auto Towing argues that it is not the cause of any deprivation of the plaintiff's rights. Towing and impoundment would not be such cause, but rather, it is attributable to the failure of the City of Reno to provide for a meaningful hearing. At such hearing, the vehicle owner would be provided an opportunity to show that he should not be deprived of his automobile.

Defendant Dunlap maintains that all of his conduct was in his capacity as District Attorney. Therefore, he claims to be absolutely immune to any damages award. In addition, he contends that any wrongful acts were those of his deputies, and he cannot be held liable solely on respondeat superior. Also, the District Attorney argues that the declaratory and injunctive relief sought by the plaintiff may not be granted as to a state criminal proceeding.

The position of defendant County of Washoe is that any wrongful conduct was by its agents or employees, and it cannot be held liable solely on the basis of respondeat superior.

Points and authorities have been filed and oral argument has been heard. The Court feels fully advised.

Discussion:

The equitable restrictions on federal intervention in state prosecutions does not preclude a litigant from resorting to a federal forum in seeking redress under the Civil Rights Act. Wooley v. Maynard, 430 U.S. 705, 710, 97 S.Ct. 1428, 1432, 51 L.Ed.2d 752 (1977); Zablocki v. Redhail, 434 U.S. 374, fn. 5, 98 S.Ct. 673, fn. 5, 54 L.Ed.2d 618 (1978). The plaintiff is rightfully before this Court.

In deciding a motion to dismiss for failure to state a claim for which relief can be granted, the allegations of the complaint must be accepted as true and the complaint dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962); Classon v. Shopko Stores, Inc., 435 F.Supp. 1186 (E.D.Wis.1977).

Only two allegations are required to state a claim for relief under 42 U.S.C. § 1983. First, the plaintiff must allege that the defendants subjected him to the deprivation of a right, privilege or immunity secured by the Constitution or laws of the United States and, second, that the conduct complained of was engaged in under color of state law or authority. Morrison v. Jones, 607 F.2d 1269 (9th Cir. 1979); Sykes v. State of California (Dept. of Motor Vehicles), 497 F.2d 197 (9th Cir. 1974). Further, the Morrison opinion points out that Civil Rights Act complaints are to be construed liberally.

For § 1983 purposes, to act "under color of" state law or authority does not require that the defendant be an officer of the state. It is enough that a private party was a willful participant in joint action with state agents. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Sykes v. State of California (Dept. of Motor Vehicles), supra. The rendering of mutual benefits between the private party and the state makes the activity engaged in state action. Melara v. Kennedy, 541 F.2d 802 (9th Cir. 1976). The test of whether a joint participation, or conspiracy, existed is whether the facts alleged demonstrate that the private party and the public official acted with a common understanding, or meeting of the minds, to deprive the plaintiff of his federal rights. Baer v. Baer, 450 F.Supp. 481 (N.D.Cal.1978). For the purposes of City Auto Towing's instant motion to dismiss, the amended complaint contains sufficient allegations to demonstrate that said defendant was acting under color of State law. Most jurisdictions that have considered the question have so held as to towing companies. See, e.g., Stypmann v. City of San Francisco, 557 F.2d 1338 (9th Cir. 1977); Hann v. Carson, 462 F.Supp. 854 (M.D.Fla.1978); Tedeschi v. Blackwood, 410 F.Supp. 34 (D.Conn.1976).

It is also clear the amended complaint has alleged, with legal sufficiency, that the plaintiff was deprived of a right secured by the U. S. Constitution. Loss of the use and enjoyment of an automobile deprives the owner of a property interest, Stypmann v. City of San Francisco, supra, or liberty interest, Schuman v. State of California, 584 F.2d 868 (9th Cir. 1978), that may be taken from him only in accordance with the Due Process Clause. The Stypmann opinion, at 557 F.2d 1344, declares: "Seizure of property without prior hearing has been sustained only where the owner is afforded prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause." In other words, the hearing establishes whether the initial removal of the vehicle was rightful; if its removal was wrongful, recovery may not be conditioned on payment of towing or storage charges. Huemmer v. Mayor & City Council, Etc., 632 F.2d 371 (4th Cir. 1980). Whether probable cause existed is a question for the jury. Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978).

Count Three of the amended complaint alleges a conspiracy between defendants City Auto Towing and City of Reno to deprive citizens of their property without due process of law. Count Four contends that all of the defendants conspired against the plaintiff in connection with the filing of the petition against him in Juvenile Court. A conspiracy to deprive the plaintiff of his civil rights without due process states a claim for relief under § 1983. Rundle v. Madigan, 356 F.Supp. 1048 (N.D.Cal.1972); see also Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959), overruled on other grounds in Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962).

Violation of local law, e.g., state tort law, is not enough to state a claim for relief under § 1983; there must be a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424...