Roy E. Daniels v. Andrew Williams, Deputy

748 F.2d 229

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 19, 1985
• Docket: 82-6538
• Status: Published

Opinions

JAMES DICKSON PHILLIPS, Circuit Judge,

dissenting in part and concurring in part:

The majority affirms dismissal of Daniels’s claim under 42 U.S.C. § 1983 on alternative grounds. First, that as a matter of general principle there is no constitutionally protected liberty interest in being free of bodily injury caused by merely negligent, as opposed to intentional, conduct of state agents, or, put differently, that the merely negligent infliction of bodily injury by a state agent does not constitute “deprivation” of any constitutionally protected liberty interest; second, that even if such an interest in general exists, or such a deprivation might in general occur, any deprivation occurring here was not without due process because the state provides an adequate post-deprivation remedy for Daniels in the form of a traditional common law personal injury negligence action. Since § 1983 requires proof both that there has been deprivation of a constitutionally protected liberty (or property) interest and that it shall have occurred without due process, no cognizable § 1983 claim is here stated.

I disagree with the first ground.

On the second, I agree that with respect to the kind of negligent deprivation of liberty interest here involved a state’s post-deprivation tort remedy may provide the process constitutionally due; but I do not believe that due process is provided if a sovereign immunity defense is available to bar the state’s post-deprivation remedy. And because I do not believe that on the record before us we can determine whether that defense is so available, I would only affirm dismissal of this § 1983 claim on condition that it might be reinstated if the defense is drawn upon to bar his state claim in state court.

I therefore dissent to the outright dismissal mandated by the majority.

I

As I understand the majority’s reasoning on the first ground — -that there is no constitutionally protected liberty interest in being free of bodily injury inflicted negligently by state agents — it runs as follows. Until Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), decided that one could be “deprived” of a constitutionally protected property interest by negligent conduct of state agents, the law of this circuit had been that only intentional conduct could “deprive” of either property or liberty interests. Parratt decided only that one might be so deprived of property interests; hence prior circuit law respecting the deprivation of liberty interests is unaffected by intervening Supreme Court authority and remains that one may not be so deprived of liberty interests. By implication, circuit law on liberty interests should not in this case be brought into conformity with Parratt’s new dispensation as to property interests, because there are rational bases for maintaining the distinction first necessitated by Parratt.

With respect, I simply disagree with this analysis.

First off, I do not believe that the critical principles that emerged from Parratt can be read as being narrowly confined to property interests. It is true that the case was about a property interest so that the specific holding is so limited, but the threshold issue identified and addressed in the majority opinion was “whether mere negligence will support a claim for relief under § 1983,” 451 U.S. at 532, 101 S.Ct. at 1911. And this issue was answered affirmatively, if somewhat obliquely, in the same broad terms in which it was put by the Court: “§ 1983 affords a ‘civil remedy’ for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind.” 451 U.S. at 535,101 S.Ct. at 1913.

All of the other Justices writing in the case assumed that a necessary implication of the majority’s holding on this point was that it applied to liberty as well as property interests. Justice Powell, concurring, was principally concerned that “deprivation” should not be construed to cover any but intentional acts, and he unmistakably assumed, as his references show, that the Court’s opinion applied to deprivations of liberty as well as property interests. 451 U.S. at 546-554 & nn. 6, 7, 9, 101 S.Ct. at 1918-1923 & nn. 6, 7, 9. Justice Stewart, concurring, also plainly assumed that the majority’s specific holding that deprivations of property might be by negligent conduct necessarily would apply in logic as well to deprivations of liberty. 451 U.S. at 544-45, 101 S.Ct. at 1917-18 (Stewart, J., concurring). Justice Blackmun, concurring, joined by Justice White, was only concerned that the majority’s post-deprivation remedy analysis should be confined to property cases and not extended to claimed deprivations of life or liberty, clearly assuming that deprivation of either might be by negligent or intentional conduct. 451 U.S. at 545-46, 101 S.Ct. at 1917-18.

I therefore believe that whatever may have been the pre-Parratt state of circuit law, Parratt made it plain as national law that whether challenged conduct was negligent or intentional is irrelevant to the threshold § 1983 question whether it was committed under color of state law and whether it deprived a person of federally secured rights, see Parratt, 451 U.S. at 535, 101 S.Ct. at 1912, and that this is true whether the rights allegedly violated involved property or liberty interests.¹

Furthermore, I doubt that it is accurate to suggest that before Parratt, this circuit had never recognized any § 1983 claim based on mere negligence. Certainly we had recognized such claims in the congruent eighth amendment context. See, e.g., Withers v. Levine, 615 F.2d 158, 162 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980) (negligent failure to protect prison inmate against known threats of physical harm).²

Finally, with all deference, I simply cannot accept the majority’s apparent holding that somehow the fourteenth amendment imposes a more stringent duty upon the states to avoid deprivations of the property than the liberty interests of either their prison inmates or citizens in their free societies. If there is a constitutional scale of values associated with the two kinds of interests, the majority’s analysis seems to me to stand on its head the obvious rank order that would be assigned them. See Parratt, 451 U.S. at 542, 101 S.Ct. at 1916 (suggesting that an intentional deprivation of liberty interests is “arguably ... more egregious” than a negligent deprivation of property interests); id. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring) (suggesting that deprivations of liberty interest might not be adequately remedied by state post-deprivation process though deprivations of property interests could be). Certainly in purely human terms it would be difficult to suppose that the Constitution assigned less value to the concededly modest bodily harm allegedly suffered in this case than the Supreme Court in Parratt held that it assigned to the loss of a $23.50 hobby kit.

I would therefore hold, contrary to the majority, that Daniels’s complaint states a cognizable § 1983 claim that he was deprived of a liberty interest by the defendant acting under color of state law. This would then lead to the question whether the complaint had also sufficiently alleged that the deprivation was without due process.

II

On the due process question, I think it plain that Parratt’s principal holding that a state’s post-deprivation remedies may supply the due process that suffices to defeat an otherwise cognizable claim of rights deprivation under § 1983 applies to liberty as well as property interests. Indeed, the general principle had already been established in the pre-Parratt liberty interest case of Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (school paddling), a point the Parratt Court expressly recognized and relied upon. See Parratt, 451 U.S. at 542, 101 S.Ct. at 1916 (court’s post-deprivation remedy analysis asserted to be “quite consistent with the approach taken ... in Ingraham ”). Accordingly, I accept that Virginia’s ordinary tort remedies (irrespective of any special state Tort Claims Act remedies later provided) might supply the due process that would defeat a § 1983 claim such as Daniels’s.

But I would hold that if under state law the defendant in this case could avoid liability on Daniels’s state-law claim by the defense of sovereign immunity, the state’s post-deprivation remedy does not provide for Daniels the adequate state remedy required to defeat his § 1983 claim on Parratt/Ingraham grounds. See Parratt, 451 U.S. at 551 n. 9, 101 S.Ct. at 1921 n. 9 (Powell, J., concurring).³

III

But this in turn, then leads to the difficult question of how, in this or any case, a federal § 1983 court is to determine whether an otherwise adequate post-deprivation state remedy is made inadequate because of the possible availability of a sovereign immunity, or other official immunity, defense to the generally cognizable state-law claim. Of course, no problem would exist where state law on the point is clear, or is stipulated, or possibly where the defense though available is waived for a particular case. But that, regrettably, is not the case we have. Here, the availability and scope of the defense is by no means clear on the record before us.⁴ And indeed, the problem is aggravated here by the fact that though the Commonwealth argues before us that the state remedy is not made inadequate by that means, we are told that in the parallel state action it has raised sovereign immunity as a defense.

In this situation, I believe that the only fair course for a federal § 1983 court — certainly the only fair one for the claimant — is to condition dismissal of the § 1983 action on the abandonment or waiver by the state of any sovereign immunity defense it might assert, or the entry of an authoritative judgment by the state court that the defense does not bar the claimant’s state claim.

Accordingly, I would remand to the district court with instructions to dismiss on those conditions, leaving to claimant the right to reinstate his § 1983 claim upon the entry of any judgment in his state action holding his state claim barred by sovereign immunity.

Chief Judge HARRISON L. WINTER and Judge MURNAGHAN authorize me to say that they join in this opinion. Judge ERVIN authorizes me to say that he concurs in part I of this opinion.

1 . The majority here relies heavily on the Parratt majority’s specific expression of concern about § 1983 being extended to cover “an automobile accident with a state official,” see 451 U.S. at 544, 101 S.Ct. at 1917, as showing an intention by that Parratt Court to confine its "deprivation by negligence” holding to cases involving property interests. But the language quoted occurs in a passage laying out a general justification for finding in state post-deprivation remedies an appropriate means by which to prevent § 1983’s extension to all negligence cases. Indeed, the Parratt Court’s hypothetical automobile accident could presumably have given rise both to property damage and personal injury claims; the Court is saying that both are being kept out of § 1983's reach by the post-deprivation remedy solution.

2 . The majority says that in Jenkins v. Averett, 424 F.2d 1228 (4th Cir.1970), we had decided explicitly that a claim of "mere negligence” did not give rise to a cause of action under § 1983. With all deference, I suggest that the language referred to in Jenkins was dicta that has necessarily been treated as such in later pre.-Parratt cases such as Withers. See also McCray v. Maryland, 456 F.2d 1, 5 (4th Cir.1972) (Sobeloff, J.) (holding that "a section 1983 action may be based on negligence when it leads to a deprivation of rights,” citing Jenkins).

The specific holding in Jenkins was that the non-intentional infliction of harm there in issue was cognizable in § 1983 because of its particular quality of wantonness and degree. This was thought to amount to a “substantive due process" violation, and the language referred to by the majority was simply setting in contrast negligent inflictions of harm not rising to that level. In retrospect, Jenkins and other pr e-Parratt substantive due process decisions are properly seen as harbingers of the principle that for some deprivations of secured interests — including those caused by "mere negligence” — post-deprivation state remedies may supply the process constitutionally due that makes them not cognizable under § 1983. Thus the holdings of those cases are not that "mere negligence" can never deprive of constitutionally secured interests and thus support cognizable § 1983 claims, but that some such deprivations are of such a character that no state post-deprivation remedy could constitute due process. See Palmer v. Hudson, — U.S. —, — n. 4, 104 S.Ct. 3194, 3197 n. 4, 82 L.Ed.2d 393 (1984) (Stevens, J., concurring).

3 .- The state suggests that even if sovereign immunity is available to defeat a parallel state tort claim, this cannot be held to negate the adequacy of the state’s post-deprivation remedy as due process, given the fact that the availability of a qualified immunity defense to § 1983 claims is not thought to raise any due process questions. There is an element of plausibility in this, but I think it could present a serious question only if the available state immunity defense were no broader than the qualified immunity defense under § 1983. There is no suggestion here of that, and the question can therefore be reserved for another day.

4 . The majority avoids specific decision on this issue by assuming that if the existence of a sovereign immunity defense could make a state's post-deprivation process inadequate for § 1983 purposes, no such defense would be available under state law to the defendant here, either because the duties in question were ministerial or because no sovereign immunity defense is available to a sheriff (or his deputy) as distinguished from other state officials. For reasons explained in Judge Winter’s opinion in the companion cases, Ausley v. Mitchell and Poole v. Morris, 748 F.2d 224 (4th Cir.1984), and because of the state's litigation positions in this and the parallel state action, I do not believe that the assumption that no sovereign immunity defense will be available in the state action can — in fairness to claimant — be indulged by this court as the basis for dismissal.