Messick v. Leavins

811 F.2d 1439
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 9, 1987
DocketNo. 85-3402
StatusPublished
Cited by8 cases

This text of 811 F.2d 1439 (Messick v. Leavins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Messick v. Leavins, 811 F.2d 1439 (11th Cir. 1987).

Opinion

FAIRCHILD, Senior Circuit Judge:

Plaintiffs Ronald and Trish Messick, brought this action pursuant to 42 U.S.C. § 1983, against the City of Apalachicola and the individual defendants, alleging that they have been deprived of their property without due process of law. They have also brought two pendent state law claims. The district court granted judgment for defendants on the theory that the availability of a state law tort action provides due process. The pendent claims were dismissed. Plaintiffs appeal.

Viewed in the light most favorable to the plaintiffs, the facts are as follows: in 1981, plaintiffs purchased or obtained some type [1441]*1441of interest in1 a cypress barge in rough condition which had been located for many years on property owned by Apalachicola. Over the next two years the Messicks made significant repairs. After the barge was renovated, they planned to place their house trailer on it and live on the houseboat rent free. One,or the other or both of the Messicks visited the barge on a regular basis.

In the fall of 1982, defendant McLaurin, Apalachicola’s Superintendent of Public Works, defendant Myer, Apalachicola’s City Planner, and defendant Leavins, the Executive Director of the Florida Seafood Festival, Inc., met to discuss plans for the City’s annual seafood festival. It appears that they decided that the land on which the barge was located should be cleared for a “kiddie ride.” Burning the barge was considered. Leavins then attempted to contact someone she thought might be the owner, but no further efforts were made by anyone to determine who owned the barge or to give notice of any kind that it was to be destroyed.

Myer testified that Leavins later told him that the barge was to be destroyed; he also stated that the City’s policy was to leave the final decision of whether property was abandoned and worthless and should be disposed of to the individual in charge, in this case McLaurin. McLaurin testified that Leavins told him that she had permission from Myer to burn the barge and that a permit had been obtained. McLaurin and two City employees then burned the barge.

This lawsuit followed. The district court entered summary judgment for the defendants on the § 1983 claim, because “the Parratt [v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) ] doctrine does apply in cases of intentional takings ... plaintiffs cannot seek relief under section 1983 because there are adequate state remedies available.” This count was dismissed with prejudice, and the pendent counts without prejudice.

Because the plaintiffs adequately pled a cause of action pursuant to § 1983 under

Parratt v. Taylor and its progeny, we reverse the entry of judgment in favor of the defendants, and remand the case to the district court.

I

The district court entered judgment for the defendants on the basis of “adequate state remedies” available to redress the plaintiffs’ loss. However, as will be seen, the availability of a state tort action is irrelevant to a claim for deprivation of a protected interest which is carried out by persons acting under color of state law pursuant to an established procedure where predeprivation process is feasible.

Defendants do not contest the proposition that if the Messicks possessed an interest in the barge, it would be protectable as property within the meaning of the Due Process Clause. Instead, they simply argue that if a state law tort action is available to a plaintiff injured pursuant to state policy, then relief under § 1983 is precluded. However, as the decisions of the United States Supreme Court and of this Circuit make clear, the possibility of state redress does not, by itself, bar a federal action.

The “established state procedure” analysis has its genesis in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). There, an inmate sued prison officials for the negligent loss of his hobby materials. In holding that the plaintiff had failed to state a claim, the court reasoned that a state postdeprivation remedy provided all the process the plaintiff was due, because the “tortious loss of a prisoner’s property as the result of a random and unauthorized act of a state employee ... is not a result of some established state procedure and the state cannot predict precisely when the loss will occur.” Id. at 541, 101 S.Ct. at 1916. The Court noted that a postdeprivation remedy was also sufficient, for example, in cases of seizure and de[1442]*1442struction of unwholesome food or drugs, and other situations, where

[ejither the necessity of quick action by the state or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the state’s action at some time after the initial taking, can satisfy the requirements of procedural due process.

Id. at 540, 101 S.Ct. at 1915.

Parratt has recently been overruled “to the extent that it states that mere lack of due care by a state official may ‘deprive’ an individual of life, liberty or property under the Fourteenth Amendment.” Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986).

In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Court again emphasized that it is the infeasibility of predeprivation process, not the mere existence of a state remedy, that makes postdeprivation process constitutionally acceptable. In that case, the state procedures that effected the deprivation were tested against the requirements of due process, and found wanting.

[A]bsent “the necessity of quick action by the State or the impracticality of providing any predeprivation process,” a postdeprivation hearing here would be constitutionally inadequate____ That is particularly true where, as here, the state’s only post-termination process comes in the form of an independent tort action.

Id. at 436, 102 S.Ct. at 1158.

Similarly, in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984), the Court explained that “[t]he underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, pre-deprivation procedures are simply ‘impracticable’ since the state cannot know when such deprivations will occur.” The Court explained that there is no logical distinction between negligent and intentional unauthorized acts, and therefore the employee’s state of mind is irrelevant to the constitutional inquiry, which is “solely whether the State is in a position to provide for pre-deprivation process.” Id., 104 S.Ct. at 3204.

Thus, we have previously held that “where a deprivation occurs pursuant to an established state procedure, pre-deprivation process is ordinarily feasible.” Rittenhouse v.

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