United States District Court, Northern District of Illinois, E.D
April 29, 1985
KENNETH LECUYER, PLAINTIFF.
STEVEN L. WEIDENBACH, AND ROBERT B. BENSTEIN, DEFENDANTS.
The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
This action under 42 U.S.C. § 1983 for deprivation of civil
rights is currently before the court on the motion of
defendants Steven L. Weidenbach and Robert B. Benstein to
dismiss for failure to state a claim. Fed.R.Civ.P. 12(b)(6).
For the reasons stated below, the motion is granted.
For purposes of the present motion, the court accepts the
well-pleaded allegations of plaintiff's complaint as true.
Plaintiff Kenneth LeCuyer is an Illinois citizen. Defendants
Steven L. Weidenbach and Robert B. Benstein are conservation
officers employed by the State of Illinois who were at all
times pertinent to the events underlying plaintiff's complaint
acting within the scope of their duties.
On October 4, 1982, at approximately 6:45 p.m., plaintiff was
operating a Kawasaki motorcycle in Silver Springs State Park in
Kendall County, Illinois. As he approached the Fox Road exit,
defendant Benstein intentionally and without justification
stopped his vehicle in front of the exit so as to block
plaintiff's egress out of the park. Nonetheless, plaintiff
turned onto Fox Road and proceeded east in the eastbound lane.
Defendant Weidenbach then, intentionally and without
justification, drove his vehicle in front of plaintiff so as
to cause a collision and inflict personal injury on the
plaintiff. At no time during the course of these events did
either defendant use any official lights or signals to indicate
that they were attempting to stop plaintiff. Plaintiff was
subsequently found guilty, after a jury trial, of reckless
driving for going eastward in the westbound lane of Fox Road.
Plaintiff's complaint states that the above acts of defendants
violated his first, fourth, and fourteenth amendment rights.
Plaintiff has alleged no facts to suggest that defendants
abridged his freedom of expression or subjected him to an
unlawful search and seizure. Perhaps in recognition of this
deficiency. plaintiff's brief ignores these potential claims,
and argues only that the defendants deprived him of liberty
without due process of law by intentionally blocking his path
and causing him personal injury. Accordingly, the court
confines its discussion to this latter allegation.
The defendants' principal argument for dismissal is that
plaintiff has alleged no more than a common law tort for which
state law provides constitutionally adequate post-deprivation
remedies, and that no due process violation can therefore be
shown. Defendants rely on Parratt v. Taylor, 451 U.S. 527,
101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in which a state
prisoner alleged that the negligence of state officials in
losing a hobby kit he had ordered through the mails had
deprived him of property without due process of law. The
Supreme Court reversed a grant of summary judgment in the
prisoner's favor, and held that the due process clause of the
fourteenth amendment is not violated when a state official
negligently deprives an individual of property, provided that
the state makes available a meaningful postdeprivation remedy.
The Court in Parratt reasoned that where a loss of property
is occasioned by the random and unauthorized act of a state
employee, rather than through an established state procedure,
the state cannot predict in advance when the loss will occur.
451 U.S. at 541, 101 S.Ct. at 1916. Since a prior hearing is
either impossible or impracticable under such circumstances,
the Court concluded that postdeprivation remedies provide all
the process that is due.
The decision in Parratt generated conflicting decisions and
scholarly controversy over its applicability to intentional
acts and to deprivations of liberty. Although the Seventh
Circuit has applied Parratt to some state-inflicted liberty
deprivations, State Bank of St. Charles v. Camic,
712 F.2d 1140, 1147 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct.
491, 78 L.Ed.2d 686 (1983); Wolf-Lillie v. Sonquist,
699 F.2d 864, 871 (7th Cir. 1983); Ellis v. Hamilton, 669 F.2d 510,
515 (7th Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488,
74 L.Ed.2d 631 (1982), it has also suggested in dicta that
postdeprivation process may not be constitutionally adequate to
remedy cases involving intentional misconduct of state
officials. Jackson v. City of Joliet, 715 F.2d 1200, 1202
(7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1325,
79 L.Ed.2d 720 (1984); State Bank of St. Charles, 712 F.2d at
1147-48. Plaintiff argues that Parratt has no applicability
to either intentional acts or liberty deprivations, and that
intentional encroachments on liberty by state officers are
constitutionally impermissible no matter what procedural
protections the state provides.
The court cannot accept either of these arguments. Plaintiff's
contention that Parratt has no applicability to intentional
acts, while arguably supported by dicta in this circuit, was
squarely rejected by the Supreme Court last year in Hudson v.
Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
The reasoning of the court is instructive:
While Parratt is necessarily limited by its facts to
negligent deprivation of property, it is evident . . . that its
reasoning applies as well to intentional deprivations of
property. The underlying rationale of Parratt is that when
deprivations of property are effected through random and
unauthorized conduct of a state employee, predeprivation
procedures are simply "impracticable" since the state
cannot know when such deprivations will occur. We can discern
no logical distinction between negligent and intentional
deprivations of property insofar as the "practicability" of
affording predeprivation process is concerned. The State can no
more anticipate and control in advance the unauthorized
intentional conduct of its employees than it can anticipate
similar negligent conduct. Arguably, intentional acts are even
more difficult to anticipate because one bent on intentionally
depriving a person of his property might well take affirmative
steps to avoid signalling his intent.
If negligent deprivations of property do not violate the Due
Process Clause because pre-deprivation process is
impracticable, it follows that intentional deprivations do
not violate that Clause provided, of course, that adequate
state post-deprivation remedies are available. Accordingly,
we hold that an unauthorized intentional deprivation of
property by a state employee does not constitute a violation
of the procedural requirements of the Due Process Clause of
the Fourteenth Amendment if a meaningful postdeprivation
remedy for the loss is available. For intentional, as for
negligent deprivations of property by state employees, the
State's action is not complete until and unless it provides
or refuses to provide a suitable postdeprivation remedy.
Id. at 3203-04.
Neither Parratt nor Hudson dealt with liberty deprivations.
Even were this court not bound by applicable Seventh Circuit
precedent applying Parratt to liberty cases, see, e.g.,
Wolf-Lillie, 699 F.2d at 871, plaintiff's argument would fail.
The reasoning of Hudson indicates without doubt that any
rigid distinction between "liberty" and "property," like that
between negligent and intentional deprivations, is meaningless
insofar as the practicability of affording predeprivation
process is concerned. It would be anomalous, for example, to
uphold a § 1983 claim for a state-caused automobile collision
simply because the accident resulted in death or personal
injury as opposed to mere property damage. The state can no
more anticipate and control random and unauthorized
deprivations of liberty than it can anticipate similarly
unauthorized property deprivations. The difference in injury is
entirely unforeseen, and therefore irrelevant in determining
the degree of procedural protections constitutionally required.
The conclusion that Parratt applies to liberty as well as
property deprivations is further implicit in that opinion's
citation and discussion of Ingraham v. Wright, 430 U.S. 651,
97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In Ingraham, the Court
had held the administering of corporal punishment in schools
without a prior hearing was not constitutionally impermissible
on the ground that the state's common-law postdeprivation
remedies provided all the process that was due. The Court in
Parratt noted that its analysis was "quite consistent" with
that in Ingraham, even though the earlier case had involved
both an intentional act and a deprivation of liberty.
Parratt, 451 U.S. at 542, 101 S.Ct. at 1916. See also
Hudson, 104 S.Ct. at 3204 n. 14. The plaintiff's complaint
therefore fails to state a claim for denial of procedural due
That plaintiff has failed to state a procedural due process
violation does not, of course, end the inquiry, since it is
well established that Parratt does not apply where the
plaintiff asserts a violation of substantive constitutional
guarantees. Guenther v. Holmgreen, 738 F.2d 879, 882 (7th
Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1182, 84
L.Ed.2d 329 (1985); Wolf-Lillie, 699 F.2d at 871-72; Camic,
712 F.2d at 1147 n. 5. Plaintiff argues, in reliance on Anton
v. Lehpamer, 584 F. Supp. 1382, 1385 (N.D.Ill. 1984), that
intentional encroachments of liberty by state officers violate
due process regardless of the state-law procedures available
for redressing those injuries. The cases which support this
line of reasoning, however, have distinguished Parratt not
because the official acted with intent or because that official
inflicted bodily instead of property
injury, but because the government action complained of rose to
the level of a substantive due process violation for which the
availability of postdeprivation process is no defense. See
Begg v. Moffitt, 555 F. Supp. 1344, 1362 & n. 58 (N.D.Ill.
As noted by Justice Powell, Parratt leaves unanswered under
what circumstances the tortious conduct of state officials
might be so inherently impermissible as to fall within the
substantive prohibitions of the due process clause. Parratt,
451 U.S. at 552-53 & n. 10, 101 S.Ct. at 1921 & n. 10 (Powell,
J., concurring in result). Indeed, one of the chief
controversies over Parratt stems from its implicit suggestion
that, outside specific provisions from the Bill of Rights, the
due process clause contains no such substantive dimension.
Fortunately, this court need not resolve the question, since
one prerequisite for such a claim has always been a "[m]isuse
of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law." Id. at n. 10, quoting United States v. Classic.
313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).
The present complaint is void of facts suggesting such misuse
For similar reasons, plaintiff's reliance on Judge Shadur's
opinion in Anton is misplaced. This court shares with Judge
Shadur the concern that Parratt not be mechanistically
expanded "to bar federal relief for the very wrongs . . . that
have so long been viewed as the central focus of section 1983."
Anton, 584 F. Supp. at 1385. Anton, however, concerned a
claim of excessive use of force by police during arrest. Such
claims have long been cognizable under § 1983, see Blake v.
Katter, 693 F.2d 677, 682 (7th Cir. 1982), and it is unlikely
that Parratt was intended to overrule that line of cases sub
In the present case plaintiff makes no allegation that
defendants used excessive force as part of an effort to detain
him, only that defendant Weidenbach intentionally drove in
front of him. There are no allegations that defendants acted in
concert. The most reasonable inference to draw is simply that
defendant Weidenbach drove into plaintiff because one or the
other was driving down the wrong side of the street. Plaintiff
may not, by mere allegations of malice, transform a routine
auto accident involving state officials into a constitutional
claim under § 1983. Cf. Ellsworth v. Mockler, 565 F. Supp. 110,
113 (N.D.Ind. 1983).
Plaintiff argues that it takes no stretch of the imagination to
infer from his complaint that defendants intentionally used
excessive force to detain him by running into him with an
automobile. The court finds that it would indeed take a stretch
of imagination to infer these facts from plaintiff's complaint.
The only "detention" alleged by plaintiff is that which
occurred by reason of the collision. To infer that defendants
were effecting a de facto arrest is implausible, especially
where only Weidenbach is alleged to have infliced the injury,
where neither defendant is alleged to have been acting in a law
enforcement capacity, where plaintiff's complaint nowhere
specifies the degree of force used or the injuries suffered,
and where plaintiff was subsequently convicted by a jury of
driving recklessly down the wrong side of the road. This latter
finding, of course, would collaterally estop plaintiff in this
court, despite the contrary allegations of his complaint.
Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308
Despite the deficiencies of plaintiff's complaint, the
inferences argued in plaintiff's brief are not altogether
patently implausible. Plaintiff might be able to allege that
defendant Weidenbach deliberately drove into and deliberately
injured plaintiff for the purpose of detaining him so as to
state an excessive use of force claim cognizable under § 1983.
While the court has serious doubts about plaintiff's ability to
allege such matters in good faith, plaintiff may seek leave to
amend. Any amended complaint, however, should conform to the
factors set forth in Freeman v. Franzen, 695 F.2d 485, 492
(7th Cir. 1982), cert. denied, 463 U.S. 1214, 103 S.Ct. 3553,
L.Ed.2d 1400 (1983), for delineating why the excessive force
reached unconstitutional proportions. Second, plaintiff should
allege what, if any, injury he suffered at the hands of
Benstein. In the present complaint, plaintiff alleges that
Benstein unsuccessfully attempted to block plaintiff's exit
from the park, but does not allege that Benstein caused any
injuries to him or is somehow responsible for Weidenbach's
The court reminds plaintiff's counsel of his obligations under
Fed.R.Civ.P. 11 to conduct reasonable inquiry for the purpose
of ascertaining whether an amended pleading would be well
grounded in fact and law. Plaintiff's counsel has already been
remiss by alleging first amendment violations where none
reasonably appear, and by alleging that defendants had no
justification in blocking plaintiff's right of way when
previous judicial proceedings have determined that Weidenbach,
not plaintiff, had the right of way. Violations of Rule 11 may
result in sanctions.
Accordingly, defendants' motion to dismiss the complaint is
granted. If plaintiff does seek leave to amend, a proper
motion, accompanied by the proposed pleading, must be presented
to the court on or before May 29, 1985.
It is so ordered.
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