# Petition — Palmer v. Hudson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 1206

## Text

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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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
OEE EMIE nono devrcdcccssccsvcccsceses 7

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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1420%3A01. Public record. Not legal advice.