Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. 85 C 1194 -- James E. Noland, Judge.
Cummings, Wood, Jr., and Coffey, Circuit Judges.
Plaintiff Rawleigh C. Wilson filed a pro se complaint pursuant to 42 U.S.C. § 1983 against the Town of Clayton, Indiana and its Trustees, the County of Hendricks and its Commissioners, two town marshals, two deputy sheriffs and the bonding company which indemnified the marshals and sheriffs.*fn1 The meager complaint, attached hereto as an Appendix, alleges that actions by the defendants "violate[d] the plaintiff's civil rights under the United States Constitution." The district court construed the plaintiff's complaint as stating only a procedural due process claim. Then, relying on Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) and Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984), the court dismissed the claim against all seven categories of defendants, in their official and personal capacities, on the ground that the Indiana Tort Claims Act ("ITCA") provides an adequate post-deprivation state remedy.
On appeal, Wilson, now represented by appointed counsel, argues that the district court erred by narrowly construing his pro se complaint as nothing more than a procedural due process claim instead of reading it broadly to allege substantive constitutional violations that state a claim under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. As to the procedural due process claims, Wilson makes two arguments. First, he asserts that Parratt is inapposite because the alleged deprivations were the result of official policy. Second, even if Parratt applies, Wilson argues that the ITCA is a procedural bar to cases against state officials and state units and thus is not the kind of adequate post-deprivation remedy required by Parratt. We agree with the district court's narrow characterization of the complaint as one of procedural due process, but reluctantly disagree with the court's analyses of these claims. We affirm in part, reverse in part and remand for further proceedings because Parratt does not apply to deprivations of property allegedly not due to random and unauthorized acts.
Wilson's pro se complaint makes the following allegations. He owned a business, the Poverty Shop,*fn2 in Clayton, Indiana. On the night of August 3, 1983, Clayton Town Marshals Jim Bennett and Bill Carter and Hendricks County Sheriffs Frank Harris and Larry Dockery evicted the customers and employees then present in the Poverty Shop and told them "to go home and not to come back and if they congregated there the next day or any other night they would be taken to jail because they had no business being there." Eight days later, on August 11, 1983, the Clayton Town Board of Trustees conspired to write a letter to Wilson's landlord demanding that he evict Wilson. Despite the alleged conspiracy, the Board of Trustees never actually wrote such a letter. The complaint alleges that the failure to act on the conspiracy and to send the letter to Wilson's landlord was based on subsequent legal advice from the Clayton town attorney. Nevertheless, Wilson's landlord was contacted. Defendant Clayton Town Trustee Ernest Davis telephoned Wilson's landlord and threatened that if he did not evict Wilson "something would happen to his building." The complaint also includes several general allegations of lies, threats of violence and a cover-up.
The district court dismissed this pro se complaint against all defendants pursuant to a F.R. Civ. P. Rule 12(b)(6) motion to dismiss by the bonding company for the marshals and sheriffs, United States Fidelity & Guaranty Co., Inc. ("USF & G"). In reviewing this action we must follow the well-settled law of this Circuit that pro se complaints are not held to the stringent standards expected of pleadings drafted by lawyers. In contrast, pro se complaints are to be liberally construed. See Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir. 1987); Caldwell v. Miller, 790 F.2d 589, 595 (7th Cir. 1986). We also recognize that Wilson's complaint alleges civil rights violations and that a pro se civil rights complaint may only be dismissed if it is beyond doubt that there is no set of facts under which the plaintiff could obtain relief. Shango v. Jurich, 681 F.2d 1091, 1103 (7th Cir. 1982).
Under this liberal standard, Wilson's complaint still fails to state a substantive constitutional claim. Wilson's appointed counsel argues that a proper examination of the complaint shows that plaintiff's allegations state claims under both the equal protection clause and the First Amendment. Counsel adds that "these legal theories are illustrative, rather than exhaustive." However, upon studying the allegations of the complaint itself, it is clear that the theory of a First Amendment claim is illustrative only of creative appellate advocacy. Plaintiff's complaint simply makes no allegations which in any manner implicate First Amendment concerns.
Similarly, despite the liberality with which civil rights complaints are read, there is nothing in the plaintiff's allegations which supports an equal protection claim. Although no talismanic phrases are mandatory to state such a claim, the complaint fails to mention equal protection, discrimination, differential treatment, preference, prejudice, or any other phrase invoking the Equal Protection Clause of the Fourteenth Amendment. The closest plaintiff comes to stating such a claim is the conclusion "that the above said actions violate plaintiff's civil rights under the United States Constitution." This conclusion, without any facts alleged to support it, is simply insufficient. Therefore the district court's holding that Wilson failed to state an equal protection claim was also correct.
After dismissing Wilson's substantive claims, the district court construed his complaint to allege violation of his right to procedural due process under the Fourteenth Amendment. The court then stated that complaints of procedural due process are governed by the rule of Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) and proceeded to dismiss the complaint against all defendants on this basis. The district court failed to recognize that Parratt applies only to random and unauthorized deprivations.
In Parratt, the plaintiff ordered a hobby kit to be delivered to him at the state prison where he was an inmate. The plaintiff never received the kit. He alleged that it was lost through the negligence of prison officials and filed suit in federal court under 42 U.S.C. § 1983 to recover damages. A state remedy was also available to the plaintiff, for Nebraska had a tort claims procedure which provided a remedy to persons, such as the plaintiff, who suffered tortious losses at the hands of the State. Id. at 530.
Considering whether the plaintiff could make a federal case from the negligent loss of a hobby kit valued at $23.50, 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, id. at 536-537, 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, by post-deprivation remedies such as the right to bring a damage suit in state court, id. at 541, 543-544. The second holding was reaffirmed in another case involving a prisoner's personal property, Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984), but the first holding was overruled in Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986) ("The Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Id. at 663 (emphasis in original)); see also Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986).
Read broadly, Parratt would bar most, if not all, plaintiffs challenging deprivations of property without due process of law from federal court relief under 42 U.S.C. § 1983. If due process is satisfied by the ordinary state judicial remedies for torts, virtually no interference with property would be actionable in federal court under § 1983. Even a classic constitutional-tort case, such 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 federally if the killing was a tort under state law. Tavarez v. O'Malley, 826 F.2d 671, 675 (7th Cir. 1987). The Supreme Court could not have meant to deny every § 1983 plaintiff his or her day in federal court, no matter how egregious the constitutional violation, simply because of the availability of a similar state tort action. Courts have therefore sought to limit Parratt by making principled distinctions between it and the cases before them. See, e.g., id.; Sullivan v. Town of Salem, 805 F.2d 81 (2d Cir. 1986); Sanders v. Kennedy, 794 F.2d 478 (9th Cir. 1986); Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir. 1985) (en banc), certiorari denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. Ed. 2d 654 (1986).
One limiting principle is to confine Parratt to cases where it is not feasible for the state to provide a hearing before the deprivation occurs. Tavarez, 826 F.2d at 675. For example, in Parratt the Supreme Court found that it was not feasible for the state to provide a pre-deprivation hearing because the loss resulted from "a random and unauthorized act" by a state employee. Parratt, 451 U.S. at 541. When a random and unauthorized act causes the loss, a pre-deprivation remedy is ordinarily infeasible, if not impossible, because the officials authorized to grant such a hearing are usually unaware of the deprivation before it occurs.
Officials may be unaware of the deprivation before it occurs for either of two reasons. First, the person committing the unconstitutional act may be employed at such a low level of state or local government that the official authorized to grant a pre-deprivation hearing would be unaware of the person's actions. Second, if the conduct is not the result of some "established state procedure," Parratt, 451 U.S. at 541 the state cannot predict precisely when the loss will occur. And if the state cannot predict when the loss will occur, it cannot provide a meaningful hearing before the deprivation takes place. Id. Thus to determine the feasibility of a pre-deprivation hearing in this case, and therefore the applicability of Parratt, we must consider the position of each defendant in the town and county bureaucracies and the nature of the actions taken.
A. Liability of the Civil Town of Clayton
The district court dismissed the procedural due process claim against the Civil Town of Clayton (the "Town") on the basis of Parratt. However, the susceptibility of any municipality to liability under § 1983 must initially be tested under the requirements of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). In a procedural due process case such as this, resolution of the Monell issue will also resolve the Parratt issue.
In Monell the Supreme Court overruled Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), and held that municipalities and other local government units are included among the "persons" to whom § 1983 applies. Monell 436 U.S. at 663, 690. However, at the same time the Court limited the liability of a municipality to situations in which "action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 691. In other words, the Court held that a municipality cannot be held liable under § 1983 on a respondeat superior theory. Id. at 691.
Because a municipality may only be liable for "acts which the municipality has officially sanctioned or ordered," Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986), its liability can never be premised on the result of a random and unauthorized act. The district court's dismissal of Wilson's claim against the Town on the basis of Parratt misses the point of Parratt. "In Parratt, the Court emphasized that it was dealing with 'a tortious loss of . . . property as a result of a random and unauthorized act by a state employee . . . not a result of some established state procedure.'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-436, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982) (quoting Parratt, 451 U.S. at 541). When it is the Town itself that is being sued, and the suit is allowed under Monell because the action was executed in accordance with "official policy," the tortious loss of property can never be the result of a random and unauthorized act. Therefore, a complaint asserting municipal liability under Monell by definition states a claim to which Parratt is inapposite. See Zimmerman Brush, 455 U.S. at 435-436; Town of Salem, 805 F.2d at 86; Flower Cab Co. v. Petitte, 658 F. Supp. 1170, 1178-1179 (N.D. Ill. 1987); Bandes, Monell, Parratt, Daniels, and Davidson: Distinguishing a Custom or Policy from a Random, Unauthorized Act, 72 Iowa L. Rev. 101 (1986).
Accordingly, although the district court dismissed the procedural due process claim against the Town on the basis of Parratt, the viability of the claim must be examined under Monell. Under that case, the complaint must be dismissed unless the eviction of the employees and patrons of the Poverty Shop and the threats to plaintiff's landlord can be attributed directly to the Town as the result of "official policy."
"Official policy" often refers to formal rules and statements that are intended to establish fixed plans of action to be followed under similar circumstances consistently over time. Pembaur, 106 S. Ct. at 1299. Wilson has not alleged the existence of any such continuing policy. However, "a municipality may [also] be liable under § 1983 for a single decision by its properly constituted legislative body -- whether or not that body has taken similar action in the past or intended to do so in the future -- because even a single decision by such a body unquestionably constitutes an act of official government policy." Id. at 1298; see also Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1188-1189 (7th Cir. 1986) (a single act of a sufficiently high-ranking policymaker is sufficient to establish an entity's policy or custom); Malak v. Associated Physicians, Inc., 784 F.2d 277, 283-284 (7th Cir. 1986) (single act of a sufficiently high-ranking policymaker renders the government entity liable under § 1983).
Wilson alleges actions by the Board of Trustees of the Town that were directed only at him. The Supreme Court has held that when a government chooses a course of action tailored to a particular situation and not intended to control decisions in later situations, under certain circumstances these individualized actions also constitute "official policy." Pembaur, 106 S. Ct. at 1298-1299. See, e.g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981) (city council cancelled license permitting concert because of dispute over content of performance); Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980) (city council passed resolution firing plaintiff without a predetermination hearing). The "certain circumstances" under which individualized actions constitute official policy are those in which the officials who acted had the authority to make policy for the Town. Therefore once the officials who have authority to make policy for the Town are identified, their actions pursuant to that policy are attributable to the Town. Soderbeck v. Burnett County, Wisconsin, 752 F.2d 285, 292-293 (7th Cir. 1985), certiorari denied, 471 U.S. 1117, 86 L. Ed. 2d 261, 105 S. Ct. 2360; Reed v. Village of Shorewood, 704 F.2d 943, 952-953 (7th Cir. 1983).
Read in the light most favorable to the plaintiff, the complaint lists sufficient actions by the Trustees to allege "official policy" and impose liability on the Town under § 1983. Although defendants may establish that the alleged actions did not in fact occur or that they were not within the authority of the Trustees, at this stage in the litigation dismissal is inappropriate. As to the procedural due process claim against the Civil Town of Clayton, we reverse and remand to determine whether the acts alleged in fact occurred and if so whether they were authorized.
B. Liability of the Board of Trustees
As with the claim against the Town, the district court dismissed the procedural due process claim against the Board of Trustees (the "Trustees") on the basis of Parratt. Since these defendants' acts may not have been random and may have been authorized, Parratt is again inapplicable. The Trustees were sued in both their ...