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Tavarez v. O'Malley

decided: August 13, 1987.

NYDIA TAVAREZ AND MANNY TAVAREZ, D/B/A LA NYDIA GROCERY, PLAINTIFFS-APPELLANTS,
v.
MICHAEL O'MALLEY, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 C 4238, Marvin E. Aspen, Judge.

Bauer, Chief Judge, and Wood, Jr., and Posner, Circuit Judges.

Author: Posner

POSNER, Circuit Judge

The proprietors of a grocery store in Schiller Park, a town in Cook County, Illinois, brought a damage suit under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983, claiming that the defendants -- Cook County, and various employees of the county and of Schiller Park -- had deprived them of property without due process of law. The district judge granted summary judgment for the defendants, 635 F. Supp. 1274, so we must construe the facts as favorably to the plaintiffs as the record will permit.

On November 21, 1983, a gas heater in the Tavarezes' grocery store malfunctioned and gave off carbon monoxide that injured several people in the store, including Mrs. Tavarez. Defendant O'Malley, an inspector employed by the Cook County Department of Environmental Control, arrived on the scene shortly, as did the Schiller Park defendants -- three police officers and the town's health officer, McCampbell. After shutting off the malfunctioning heater, one or more of the defendants (it is unclear, and probably irrelevant, which ones) placed Cook County coroner seals on the doors of the store, although no one had died. Each seal states, "Any person breaking or mutilating this seal or entering these premises will be prosecuted to the full extent of the law." It took more than four weeks for the Tavarezes to regain access to the building. During that time water pipes burst because of freezing temperatures, causing damage to fixtures and equipment; and perishable inventory perished -- either spoiled, or damaged by water, or both. The long shutdown also impaired the store's goodwill. The Tavarezes lease rather than own the grocery store, and the nature of their interest in the contents of the store is undisclosed; but the defendants do not dispute that the injuries of which the Tavarezes complain are the result of a deprivation of property within the meaning of the Fourteenth Amendment.

On the day the store was sealed, Mr. Tavarez asked McCampbell how he could get into the store and McCampbell replied that Tavarez would have to speak to the Director of the Cook County Department of Environmental Control, Mr. Mole, another defendant. The Tavarezes went to see Mole the next day. O'Malley was also present at the meeting. After emphasizing to the Tavarezes that they would be committing a crime if they entered the store while the seals were on it, Mole told them they could enter once O'Malley finished his investigation. O'Malley chimed in that he wasn't the fastest investigator in the world -- a statement not motivated by false modesty. Mole told the Tavarezes that he would get back in touch with them in a week.

The week came and went, without word from Mole. The Tavarezes tried to call him, but he neither took nor returned their calls. Another week went by. Finally Mrs. Tavarez went to Mole's office, where he told her that she and her husband could enter the store when they got a statement from the landlord promising that he would fix the heater. Mole even called the landlord and asked him to write the letter, which the landlord agreed to do. Mrs. Tavarez fetched the letter from him and took it to Mole's office -- all on the same day. The next day Mole told her that the letter was no good because it didn't say when the repairs would be completed. Mrs. Tavarez went back to the landlord and asked him to specify a completion date, but he refused.

Three weeks had elapsed since the sealing of the store. Mr. Tavarez went to Mole and asked him again what the Tavarezes had to do to be allowed to reenter it. Mole said the decision was not his, but Schiller Park's. (The landlord had also gone to Mole to find out how he could get into the store to repair the heater, but Mole had said, "At this point I really don't know what to tell you. It is still under investigation. I cannot authorize you to get in there.") A week later the Schiller Park police gave Mr. Tavarez the keys to his store back.

The district judge granted summary judgment for Cook County because there is no county policy of sealing dangerous premises without notice and an opportunity for a hearing in advance, neither of which was provided here. The only Cook County ordinance we have found that governs the sealing of dangerous premises requires these procedural safeguards, see Cook Cty. Ill. Ordinances, ch. 16, § 16-5.5-3(b), and neither Mole nor any of the other defendants was authorized to omit them. Schiller Park has no ordinance relating to the sealing of dangerous premises, so while the Schiller Park employees were not acting with any explicit legal authority, neither were they acting in violation of an explicit rule, as the Cook County employees may have been ("may have been," not "were," because the ordinance we cited may be limited to hazards resulting from air pollution). The district judge dismissed the individual defendants precisely because their acts were unauthorized, which in the judge's view made notice and a predeprivation hearing infeasible.

The Tavarezes were deprived of the use of their property for a month, and all agree that the deprivation, although not permanent (except with regard to the spoilage and the water damage), was sufficient to trigger the Fourteenth Amendment's requirement of due process of law. See Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir. 1982). However, the malfunctioning of the heater was an emergency, and nothing in the Constitution forbade the defendants to evacuate the store, and to prevent anyone from entering it until the source of the potentially lethal fumes was found and corrected, without going through the formality of notice and a hearing, see, e.g., Board of Regents v. Roth, 408 U.S. 564, 570 n. 7, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) -- an obviously ridiculous suggestion which the Tavarezes do not make. The constitutional problem arises from the inexplicable bureaucratic delays after the heater was turned off. It may well have been prudent to keep customers out of the store until the heater was fixed, but to keep out the Tavarezes and the landlord -- the people with the strongest interest in getting the heater fixed as soon as possible -- was not only unreasonable but stupid and even dangerous. Even more clearly, there was no reason not to give the Tavarezes a prompt opportunity to show that they were entitled to reenter the premises because the emergency had passed and no state or local law authorized the defendants to keep them out once it had passed. The argument that the Schiller Park defendants were authorized to seal the premises is thin; they acknowledge that Schiller Park has no ordinance authorizing sealing and no seals and that the seals affixed were Cook County seals. Anyway the issue is not the initial sealing of the premises but the refusal to let the Tavarezes in after the emergency ended. The Cook County defendants' argument that as they had no authority to emplace the seals in the first place, a fortiori they had no authority to remove them even to the extent of allowing only the Tavarezes and the landlord to enter, is an effective parody of legal reasoning but is otherwise unworthy of comment.

Some kind of hearing could have been provided to the Tavarezes shortly after the premises were sealed, and if it had been it would have quickly demonstrated the utter lack of authority for the defendants' blocking the Tavarezes from entering their store and would thereby have averted substantial property damage. Perhaps no more need be said to show that there was a denial of due process, though whether any of the defendants is liable in damages is a separate question, of which more in due course.

The ground on which the district judge nevertheless dismissed the individual defendants derives from Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). A state prisoner owned a hobby kit of small value that the defendants -- prison officials and guards -- lost, allegedly through negligence. The Supreme Court held that (1) a deprivation of property can violate the due process clause of the Fourteenth Amendment even if caused by mere negligence, but (2) the requirements of due process can be satisfied, at least where the deprivation is the "result of a random and unauthorized act by a state employee," id. at 541, by postdeprivation remedies such as the right to bring a damage suit in state court. The first holding was later overruled. The second was reaffirmed in another case involving a prisoner's personal property. See Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984).

Read broadly, Parratt would greatly restrict the scope for suits under 42 U.S.C. § 1983 challenging deprivations of liberty or property without due process of law. If due process is satisfied by the ordinary state judicial remedies for torts, then not only would virtually no interference with property be actionable under section 1983, but even such classic constitutional-tort cases as that of the policeman who kills a suspect in order to bypass the cumbersome procedures of the criminal justice system would not be actionable, provided the killing was a tort under state law. These results have seemed unpalatable and various limiting principles have emerged. One is to emphasize the extent to which the due process clause of the Fourteenth Amendment has become a vehicle for the protection of substantive rights, as well as the right to fair procedure. If, for example, objections to police brutality are grounded in the Fourth Amendment's prohibition of unreasonable searches and seizures, the availability of postdeprivation procedure is irrelevant; it is not a procedure case. This approach is implicit in Hudson v. Palmer, which, in discussing the plaintiff's Fourth Amendment claim, does not mention Parratt.

Another limiting principle, of particular relevance to the present case, is to confine Parratt to cases (well illustrated by the facts of Parratt itself) where it just is not feasible for the state to provide a hearing before the deprivation occurs. We expressed support for this principle in Greco v. Guss, 775 F.2d 161, 170-71 (7th Cir. 1985), but we did so in dictum, and we relied heavily on Parratt and Hudson, which hold only that predeprivation hearings are not required when they would be infeasible -- not that they are always required when they would be feasible. In other cases, illustrated by Brown v. Brienen, 722 F.2d 360, 365-66 (7th Cir. 1983); Altman v. Hurst, 734 F.2d 1240, 1242 (7th Cir. 1984) (per curiam), and Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1348-49 (7th Cir. 1986), we have declined to hold that a predeprivation hearing is always required if feasible, pointing out that the Supreme Court has not always insisted on a predeprivation hearing in such circumstances. See Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). (Greco cites neither of these cases, nor Brown nor Altman.) We thought in Brown v. Brienen that the proper method ...


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