Turner v. Blackburn

WOODROW WILSON JONES, Chief District Judge

(dissenting):

Since I firmly believe that the Complaint fails to state a cause of action over which this court has jurisdiction and that the action should therefore be dismissed, I respectfully dissent.

It must be remembered that the plaintiff brought this action under the provisions of 42 U.S.C.A. § 1983 alleging that the defendants deprived her of her property rights without due process of law by failing to provide her with proper notice of a foreclosure sale under a deed of trust which she had signed. She asserts that this court has jurisdiction of her action under 28 U.S.C.A. § 1343 (3). It is necessary that we examine these statutes in the light of the facts of this ease.

Section 1983 was enacted by the Congress shortly after the adoption of the Fourteenth Amendment and is founded solely upon its provisions. The Fourteenth Amendment is a prohibition against certain types of conduct by a State. It declares that no State shall deprive any person of life, liberty, or property without due process of law. Individual invasion of individual rights is not the subject matter of the amendment. It nullifies all State action and State laws *1262 which impair the privileges and immunities of citizens of the United States or which injures them in life, liberty, or property without due process of law. It empowered Congress to pass legislation to enforce the amendment but it does not authorize Congress to create a code of municipal or state law for the regulation of private rights. It authorizes the Congress to provide modes of redress against the operation of State laws and the action of State officers when these- rights are abridged.

For the plaintiff to invoke the Fourteenth Amendment here she must establish that her rights have, been impaired by the State of North Carolina. Section 1983 is inapplicable unless the defendants have acted “under color of” state law, custom, or usage. In other words, the plaintiff must show State action in order to maintain this action and to give this court jurisdiction.

As Justice Rehnquist said in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 , 95 S.Ct. 449, 453 , 42 L.Ed.2d 477 (1974):

“The Due Process Clause of the Fourteenth Amendment provides ‘nor shall any State deprive any person of life, liberty, or property, without due process of law.’ In 1883, this Court in The Civil Rights Cases, 109 U.S. 3 , 3 S.Ct. 18 , 27 L.Ed. 835 , affirmed the essential dichotomy set forth in that Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, ‘however discriminatory and wrongful,’ against which the Fourteenth Amendment offers no shield. Shelley v. Kraemer, 334 U.S. 1 , 68 S.Ct. 836 , 92 L.Ed. 1161 (1948).

“We have reiterated that distinction on more than one occasion since then. See, e. g., Evans v. Abney, 396 U.S. 435, 445 , 90 S.Ct. 628, 633 , 24 L.Ed.2d 634 (1970); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-179 , 92 S.Ct. 1965, 1970-1974 , 32 L.Ed.2d 627 (1972). While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer. Burton v. Wilmington Parking Authority, 365 U.S. 715, 723 , 81 S.Ct. 856, 860 , 6 L.Ed.2d 45 (1961); Moose Lodge No. 107, v. Irvis, supra, 407 U.S. at 172 , 92 S.Ct. [1965] at 1971.”

Thus, the plaintiff has the burden of showing that State action was involved in the loss of her property rights. In the case of Moose Lodge No. 107 v. Irvis, 407 U.S. 163 , 92 S.Ct. 1965 , 32 L.Ed.2d 627 (1972), the court held that State action could not be found unless the State had “significantly involved” itself with the challenged conduct. Thus, the question of the involvement of the State of North Carolina in the foreclosure of the plaintiff's property under the challenged statute must be considered with this “significantly involved” concept in mind.

Here, the plaintiff, Stella Turner, and Piedmont Pacific Lumber Company entered into an agreement whereby the Company sold and delivered to her and thereafter affixed to her house aluminum siding for the sum of $4,543.53. Mrs. Turner agreed to pay the sum in monthly installments which were secured by a second deed of trust on her property. Under North Carolina law the parties could elect to use a mortgage or deed of trust with or without a power of sale in the event of default. The procedure for the foreclosure of a mortgage or deed of trust containing no power of sale is by a civil action with summons being served upon the defaulting party and with a full trial, including a jury trial. The sale is then conducted under orders of the Superior Court. If the instrument selected by the parties contains a power of sale the foreclosure procedure would be in accordance with the agreement of the parties. The parties here selected a deed of trust containing a power of sale and no state officer had anything to do with such selection. The parties agreed *1263 that in the event of default in the payment of the monthly installments the Trustee would, upon the demand of the third party, proceed to sell the property at public auction at the front door of the Courthouse of Mecklenburg County after giving the notice required by the law of North Carolina. Default occurred and the holder of the note, Dixie Acceptance Corporation, demanded of the Trustee, Charles D. Gray, III, to foreclose. He prepared, posted and published a notice of sale as required by the deed of trust and the statute. No contact is made with any state office or officer until after the public auction. The statute then requires that within five days after the public sale the Trustee shall file a written report in the Clerk’s office showing among other things, the date of sale, the highest bid, and the bidder. If there is no increased bid filed within ten days from the date of the report, the Clerk has nothing further to do with the sale except to receive and audit an accounting of the Trustee.

If the above ministerial acts of the Clerk of Superior Court are sufficient to constitute state action so as to confer jurisdiction upon a federal court, is it not logical to assume that all disputes over property in the nation would come under federal scrutiny merely because the deeds and mortgages are required to be recorded under state law and are actually recorded by state officers ? I do not believe Congress intended to confer such wide jurisdiction upon the federal courts.

The plaintiff contends that if the part played by the Clerk in the foreclosure proceeding is not sufficient to constitute state action, then the “Notice and Order of Service” issued by the Clerk upon the petition for Application for a Writ of Assistance and Possession filed by the purchaser is state action and confers jurisdiction upon this Court. Surely, Congress did not intend that all litigation between private parties automatically involves state action so as to confer jurisdiction upon federal courts under the Civil Rights Act merely because the action is filed under state law and is before a state judge with process being served by a County Sheriff. If this is the law, then we will need a federal judge in every town and hamlet in the land to handle all the federal cases which will arise.

There is no reason why the plaintiff could not raise the constitutional issue in the state court action now pending between the parties. She was served with process in the state court action and had until April 11, 1973 in which to answer or otherwise plead. Instead of proceeding in the state court action, she filed this 1983 action on March 27, 1973 and sought and obtained from Judge McMillan a preliminary injunction restraining further action in the state court proceeding. The question of lack of notice of the foreclosure proceeding raises a constitutional issue which must be determined, but it can be determined in the state action already pending. There is no reason to believe that the state courts would not follow the recent due process decisions of the United States Supreme Court.