Petition — Palmer v. Hudson

In The

Supreme Court of the United States

October Term, 1983

RUSSELL THOMAS PALMER, JR..,

Cross- Petitioner

versus

TED S. HUDSON,

Cross- Respondent.

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEBORAH C. WYATT*

STEVEN D. ROSENFIELD

D. BROCK GREEN

917 East Jefferson Street

Chariottesville, Virginia 22901

(804) 296-4138

Attorneys for Cross- Petitioner

*Counsel of Record

QUESTIONS PRESENTED

Does the intentional deprivation of property by an official

abuse of power constitute a due process violation notwithstand-

ing the existence of state remedies?

Il.

Does the intentional deprivation of property by an official

abuse of power constitute a due process violation when state

relief is uncertain?

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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EE SO EERE OES... ecco ccccccccccccccens 2

REASONS FOR GRANTING

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I. PARRATT V. TAYLOR WAS MISAPPLIED

TO THIS CASE INVOLVING INTENTIONAL,

ABUSIVE DEPRIVATION OF PROPERTY

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A. A deprivation caused by an official abuse of

power is a due process violation notwithstanding

theoretical state court remedies ...........60000005 3

B. The intentional deprivation of property by a

prison guard in Virginia is a due process

violation because Virginia provides no certain

SNUUNENE POIIOGY osc scccccscccccvscccccces 6

I]. LOWER COURTS ARE IN NEED OF GUIDANCE

FROM THIS COURT IN THE APPLICATION OF

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Cee Teen i bvarinbystcccuccegescccocseccece 8

TABLE OF AUTHORITIES

Page

CASES

Baker v. McCollan, 443 U.S. 137 (1979) .............. 3, 4, 5

Banks v. Sellers, 224 Va. ___ , 224 V.R.R. 152 (7: Ga 7

Brewer v. Blackwell, 692 F.2d 387 (Sth Cir. SED 5s Sexes 5,8

Briscoe v. Lahue, U.S. , 75 L.Ed.2d 96 (1983) .... 4

Evans v. Ciiy of Chicago, 689 F.2d 1286 (7th Cir. 1982) .... 8

First Virginia Bank-Colonial y. Baker, Clerk,

Bed NG, snitecin (Ea VM: GEE obo occ 7

Flower Cab Co. v. Petitte, 685 F.2d 192 (7th Cir. 1982) ..... 8

Gilday v. Boone, 657 F.2d | (Ist Cir. 1981) ........... a A

Hirst v. Gertzen, 676 F.2d 1252 (9th Cir. 1982) ............. 7

Panes +. Fate, TAT Ve) RA og idine eee cee 7

Lawhorne v. Harlan, 214 Va. 405 (1973) ............0.00--. 7

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ...... 5

Lugar v. Edmundson Oil Co., ___. U.S. ___. , 73 L.Ed.2d

Me CHUND Ss Vn gn as apace vcescsa deco ne 4, 5,6

Madyun v. Thompson, 657 F.2d 868 (7th Cir. 1981) ........ 7

Monroe v. Pape, 365 U.S. 167 (1961) ..........ccccceee 4,6

Parratt v. Taylor, 451 U.S. 527 (1981) ............... passim

Paul v. Davis, 424 U.S. 693 (1976) ...... ccc ccccccccccecee, 4

Rutledge v. Arizona Board of Regents, 660 F.2d 1345

(9th Cir. 1981), aff'd sub nom Kush v. Rutledge,

U.S. » 31 U.S.L.W. 4356 (1983) .......... 5, 7,8

Screws v. United States, 325 U.S. 91 (1945) ............. 4,5

Weiss v. Lehman, 676 F.2d 1320 (9th Cir. es 5,8

Wright v. Dallas County Sheriff Dept., 660 F.2d 6223

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OTHER AUTHORITY

Page

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No.

In The

Supreme Court of the United States

October Term, 1983

RUSSELL THOMAS PALMER, JR.,

Cross- Petitioner

versus

TED S. HUDSON,

Cross- Respondent.

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the United States District Court for the West-

ern District of Virginia is unreported and is included as Appendix

A to the Petition for Writ of Certiorari. The opinion of the Court

of Appeals is as yet unreported and is included as Appendix Bto

the Petition for Writ of Certiorari.

JURISDICTION

The judgment of the United States Court of Appeals for the

Fourth Circuit was entered January 6, 1983. Cross-Respondent

filed a Petition for Writ of Certiorari which was received on April

6, 1983. This Court has jurisdiction pursuant to 28 U.S.C.

§1254(1). Cross-Petitioner relies upon Rule 19.5 of the Rules of

the Supreme Court of the United States.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fourteenth Amendment to the United

States Constitution, which provides, in pertinent part:

...[ N]Jor shall any State deprive any person of life, liberty, or

property, without due process of law; ...

This case also involves Title 42 U.S.C. §1983, which provides,

in pertinent part:

Every person who, under color of any statute, ..., custom, or

usage, of any State or Territory, subjects, or causes to be

subjected, any citizen of the United States...to the depriva-

tion of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured ...

STATEMENT OF THE CASE

On September 28, 1981, Plaintiff Palmer, Cross-Petitioner

herein, brought a pro se §1983 suit against Defendant Hudson,

Cross-Respondent herein, who is a guard at the Bland Correc-

tional Center. Plaintiff alleged that he was subjected to destruc-

tive, ransacking searches by Defendant for no purpose other than

to harass and that during such searches noncontraband property

belonging to Plaintiff was destroyed. Plaintiff further alleged

other forms of harassment by Defendant Hudson.

On November 17, 1981, the United States District Court for

the Western District of Virginia entered summary judgment

against Plaintiff, ruling that the allegations, if true, did not statea

constitutional deprivation.

Plaintiff timely appealed to the Fourth Circuit Court of

Appeals. On January 6, 1983, the Court of Appeals held that,

while the allegations did state a possible Fourth Amendment

violation, the intentional taking and destruction of property was

governed by this Court's decision in Parrati v. Taylor and that

there was no due process violation.

3

REASONS FOR GRANTING WRIT OF CERTIORARI

I

PARRATT V. TAYLOR WAS MISAPPLIED TO THIS

CASE INVOLVING INTENTIONAL, ABUSIVE DEPRIVA-

TION OF PROPERTY BY AN OFFICIAL.

In Parratt v. Taylor, 451 U.S. $27 (1981), this Court addressed

the question of whether or not an accidental deprivation of

property by a state official constitutes a due process violation

when a state court provides a postdeprivation remedy as by suit

for tort. Similar to the reasoning of the earlier case of Baker v.

McColian, 443 U.S. 137 (1979), where this Court addressed

negligent deprivations of liberty, this Court’s plurality Parratt

opinion held that such official negligence does not rise to the level

of a due process violation where a state court provides a suitable

postdepriva.ion remedy.

In the prevent case, Plaintiff Palmer alleged willful, malicious

destruction of his property by a prison guard as a means of

harassment and an abuse of power. The Fourth Circuit Court of

Appeals decided that the Parratt holding applied to intentional

deprivations as claimed by Palmer. However, for the reasons set

forth below, the Court of Appeals misapplied Parratt to the

present case.

A. A deprivation caused by an official abuse of power is a due

process violation notwithstanding theoretical state court remedies.

As noted in several separate opinions to the Parratt decision,

Parratt did not present an intentional deprivation of property.

While the rationales of the opinions differed slightly as to why

intentional deprivations can be distinguished from negligent

losses, One primary principle lies at the core of each: The Four-

teenth Amendment and the civil rights acts are intended to pre-

vent abuses of power above all. Where an official’s wrongful

taking of property is not a mistake but intentional, such action

takes on the characteristics of state procedure, the imprimatur of

the state. Such officials “carry a badge of authority of a State and

4

represent it in some capacity whether they act in accordance with

their authority or misuse it.” Monroe v. Cape, 365 U.S. 167, 172

(1961); cf. Lugar v. Edmundson Oil Co., —— U.S. ___ , 73

L.Ed.2d 482, 495 (1982) (recognizing the same principle under its

analysis of state action). Moreover, as an intentional act it can

more meaningfully be prevented. Parratt, supra, at 546 (Black-

mun, J., concurring).

It is no new notion that abuses of power are at the very heart of

the civil rights acts. Monroe v. Pape, supra, says as much. /d. at

172; cf. Screws v. United States, 325 U.S. 91, 109( 1945) (plurality

Opinion) (discussing criminal counterpart of §1983). More

recently, in Briscoe v. Lahue, ___ U.S. ____ . 75 L.Ed.2d 96

(1983), this Court had occasion to recognize again that 42 U.S.C.

$1983 is “a section designed to provide remedies for abuses under

color of law.” /d. at ___ , 75 L.Ed.2d at 111. This notion has

wound, often subtly, throughout many of the civil rights deci-

sions of this Court, serving as an often silent beacon for treatment

of civil rights issues and application of the civil rights statutes.

See Paul v. Davis, 424 U.S. 693 (1976). Thus, deprivation as a

result of an intentional abuse of power has reasonably contrasted

with simple negligent, accidental deprivation. See Parratt v. Tay-

lor, 451 U.S. $27 (1981); Baker v. McCollan, 443 U.S. 137 (1979).

Five years before Parratt, forexample, this Court decided Paul

v. Davis, supra. The majority held that the case involved simple

defamation, not a constitutional violation. The dissent specu-

lated that the majority was simply fearful of transforming negli-

gent torts into §1983 violations. /d. at 717. But, as the dissent

pointed out, such concern in “groundless” because “{t]he essen-

tial element of this type of §1983 action is abuse of [one’s] official

position.” Id. (Brennan, J., joined by Marshall and White, JJ.,

dissenting) (emphasis in original).

This abuse of power concept thus anticipated Baker v. McCol-

lan, supra, and Parratt v. Taylor, supra, in both of which cases

intentional deprivation was similarly recognized in separate

5

opinions as distinguishable. In Baker v. McCollan, Mr. Justice

Blackmun, writing separately, emphasized the lack of evidence of

intent by the sheriff and on that basis concurred. Three Justices

dissented because the case involved at least reckless abuse of

power. !

In Parratt, Mr. Justice Powell addressed the abuse of power

concept perhaps most overtly, stating, “[Section 1983] was

enacted to deter real abuses by state officials in the exercise of

governmental powers.” 451 U.S. at 549 (Powell, J., concurring)

(emphasis in original). In expounding on this point, Mr. Justice

Powell explained, “Actionable deprivations must be based on

misuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed wit . the authority

of state law.” /d. at 552 n. 10 (quotations omittcu). This is so

because the Constitution protects against deprivations “by a state

officer who takes[{ ] by abuse of his office and its power.” Id.

(quoting Screws v. United States, 325 U.S. 91, 134 (1945)

(Rutledge, J., concurring)) (emphasis by Powell, J.).

It is consistent with the fundamental nature of the abuse of

power concept that four Justices wrote separately in Parratt v.

Taylor to emphasize the distinction between the facts of that case

and an intentional deprivation. Yet the Fourth Circuit Court of

Appeals, together with a number of other Circuits since Parratt,

has failed to recognize this fundamental distinction. See, e.g.,

Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.

1981), aff'd sub nom Kush v. Rutledge, ___ U.S. ——_ , 51

U.S.L.W. 4356 (1983); Gilday v. Boone, 657 F.2d | (Ist Cir.

1981). But see, e.g., Brewer v. Blackwell, 692 F.2d 387 (Sth Cir.

1982); Weiss v. Lehman, 676 F.2d 1320 (9th Cir. 1982). Focusing

| This Court has, of course, recognized that such an abuse of power can be

found in a state procedure which violates due process as well as in an action

by an official who abuses his authority. See Lugar v. Edmondson Oil Co.,

____ U.S. —_. , 73 L.Ed.2d 482 (1982); Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982). As reflected in the dissenting opinions m Baker v.

McCollan, 443 U.S. 137, the two concepts can merge into one where the

procedure is a matter of faulty practice by an official such as a sheriff.

6

instead on the “random and unauthorized acts” notion in

Parratt, the Fourth Circuit reasoned below that, because inten-

tional abuses of power are also random and unauthorized in

some sense, they too follow the Parratt analysis, and the question

turns to the existence of a state remedy. However, while it is true

that systematic but deficient state procedures can violate due

process, see, e.g., Lugar v. Edmundson Oil Co., supra, so can the

isolated abuse of official power, see Monroe v. Pape, 365 U.S.

167 (1961). The Fourth Circuit's analysis overlooks the fact that

many of the types of civil rights violations targeted by Congress

in the passage of the civil rights acts were no doubt equally

random, isolated, and unauthorized. A sheriff's direction to a

posse to lynch a black man would be considered random and

unauthorized. But a theoretical state court postdeprivation

remedy would make it no less a civil rights violation, and no less

the type of act which the civil rights acts were most clearly

designed to prevent.

In the present case, Plaintiff has alleged an intentional, abusive

taking of property. Such allegation of abuse of power states a due

process claim and the Court of Appeals decision was in error.

B. The intentional deprivation of property by a prison guard in

Virginia constitutes a due process violation because Virginia

provides no certain postdeprivation remedy.

Even if the holding of Parratt v. Taylor, 451 U.S. 527 (1981),

does apply to an intentional, abusive, official taking of property,

it would not apply to the facts of this case. This Court, in Parratt,

held that negligent loss by an official does not in and of itself

constitute a due process violation. Concluding that no predepri-

vation hearing could be expected in connection with an acciden-

tal loss, this Court turned its attention to whether reasonable

postdeprivation relief was provided by the State of Nebraska.

That question was answered in the affirmative and, as a result,

this Court held that no due process violation was involved in the

facts of Parratt.

-

Unlike the State of Nebraska, however, Virginia does not

provide a reliable postdeprivation remedy. Virginia’s civil law is

still heavily infested with large pockets of immunity often barring

relief and sheltering abuses by officials from the light of account-

ability. Scylla and Charybdis hardly presented greater naviga-

tional obstacles than Virginia’s immunity decisions present to

many litigants attempting to chart a path between “ministerial”

and “discretionary” on their journey to postdeprivation relief.

Compare First Virginia Bank-Colonial v. Baker, Clerk, 225 Va.

___ 225 V.R.R. 62 (1983), with Banks v. Sellers, 224 Va. ——,

224 V.R.R. 152 (1982), with James y. Jane, 221 Va. 43 (1980),

with Lawhorne vy. Harlan, 214 Va. 405 (1973). At the least, the

law is unsettled. As a result, there is no certain postdeprivation

remedy against official deprivation in fact in Virginia. The hold-

ingin Parratt v. Ta} lor, supra, accordingly. does not apply to this

case.

II.

LOWER COURTS ARE IN NEED OF GUIDANCE FROM

THIS COURT IN THE APPLICATION OF PARRA TT F.

TAYLOR.

The lower federal courts have given this Court’s decision in

Parrati v. Taylor, 451 U.S. §27 (1981), fundamentally varying

application. Parratts holding has been interpreted as applying to

intentional as well as negligent deprivations of life, liberty, and

property, see Rutledge v. Arizona Board of Regents, 660 F.2d

1345 (9th Cir. 1981), aff'd sub nom Kush v. Rutledge, _— US.

___ 51 U.S.L.W. 4356 (1983); as applying to intentional as well

as negligent deprivations of property, see Gilday v. Boone, 657

F 2d 1 (Ist Cir. 1981); as applying to negligent taking of property

but not intentional taking of property, see Wright v. Dallas

County Sheriff Dept., 660 F.2d 623 (Sth Cir. 1981); as applying to

negligent taking of property but not life, see Madyun v. Thomp-

son 657 F.2d 868 (7th Cir. 1981); as applying only to negligent

taking of property and when in the presence of an adequate state

remedy, see Hirst v. Gertzen, 676 F.2d 1252 (9th Cir. 1982), and

8

as applying only to negligent taking of property and only in the

presence of an adequate state remedy and only if a predeprivation

hearing is shown to have been impractical, see Weiss v. Lehman,

676 F.2d 1320 (9th Cir. 1982).

Application of the decision has divided the Circuits. Compare

Gilday v. Boone, 675 F.2d | (Ist Cir. 1981), and Palmer vy.

Hudson, F.2d (4th Cir. 1983), with Weiss v. Lehman,

676 F.2d 1320 (9th Cir. 1982), and Brewer v. Blackwell, 692 F.2d

387 (Sth Cir. 1982).

It has also resulted in inconsistent opinions within the Circuits

themselves. Compare Weiss v. Lehman, 676 F.2d 1320 (9th Cir.

1982), with Rutledge v. Arizona Board of Regents, 660 F.2d 1345

(9th Cir. 1981), and Flower Cab Co. v. Petitte, 685 F.2d 192 (7th

Cir. 1982), with Evans v. City of Chicago, 689 F.2d 1286 (7th Cir.

1982).

Because of the unquestionable importance of Congress’ civil

rights acts and their correct and complete usage, federal courts

are in need of guidance as to the extent of this Court’s opinion in

Parratt so that it can be applied with consistency.

CONCLUSION

For the reasons set forth above, Cross-Petitioner urges this

Court to grant the Writ of Certiorari and to reverse this holding

of the Court of Appeals.

DfBORAH C-WYATT®

STEVEN D. ROSENFI

D. BROCK GREEN

917 East Jefferson Street

Charlottesville, Virginia 22901

(804) 296-4138

Attorneys for Cross- Petitioner

*Counsel of Record

May 5, 1983