Opinion
Civil Action No. 3:01-CV-0953-M.
April 30, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
By Order of Reference dated April 12, 2002, the United States District Court referred Defendant Ray Hicks's Motion to Dismiss Pursuant to Fed R. Civ. P. 12(b)(6), filed April 10, 2002, to the undersigned United States Magistrate Judge for findings and recommendation.
Background
This lawsuit principally arises out of the state court litigation of various matters to which Plaintiff has been or is currently a party. The instant case names several public and private parties that have been involved in the aforementioned state court litigation in some capacity. Defendant Ray Hicks is a former Dallas County Sheriff's Department Deputy whom Plaintiff alleges "willfully violated the Federal Securities Act of 1934 and 1970." Plaintiff also alleges that Defendant Hicks refused to supply an official bill of sale for property, constituting a breach of "a ministerial duty upon the clearly stated and foregoing cited Rule 672" of the Texas Rules of Civil Procedure. Plaintiff has stated that Defendant Hicks's "ignorance of such statutes is no excuse [sic] for the harm that he had objective reason to know would result," and that the "willful acts of the Sheriff (deputy) of Dallas County (who Liptak has not previously sued) further facilitated the crime of oppression by refusing to deliver transfer documents [upon the Sale of the subject matter property in 1998] that are mandated by rule 672 Tex. R. Civ. Proc."
Plaintiffs First Amended Complaint, p. 2.
Id. at 41.
Id. at 2.
Id. at 5.
The District Court has, to date, dismissed Plaintiff's claims against several other named defendants including state judges, law firms, and private individuals.
Standard of Review
A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the face of the pleadings. Baker, 75 F.3d at 196; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). Nevertheless, "the complaint must contain either direct allegations on every material point necessary to sustain recovery . . . or contain allegations from which an inference may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). Further, a plaintiff must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
Analysis
I. Due Process
Under the Parratt/Hudson Doctrine, a state actor's random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy. Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995); see Hudson v. Palmer, 468 U.S. 517, 529-37, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 535-45, 101 S.Ct. 1908, 1913-17, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The doctrine rests on the premise that because the state is unable to predict random and unauthorized conduct, pre-deprivation remedies are infeasible. See Zinermon v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 985-86, 108 L.Ed.2d 100 (1990). In such a case, the provision of adequate state law post-deprivation remedies provides all the due process that is required. Id. Additionally, the burden is on the plaintiff to show that the state's post-deprivation remedy is inadequate. Hudson, 468 U.S. at 539, 104 S.Ct. at 3206-07.
Here, Plaintiff complains that Defendant Hicks failed to provide a bill of sale for property purchased by Plaintiff. In his First Amended Complaint, Plaintiff indicates that he "has exhausted any potential remedy to mandate such actors to follow the law they are sworn to uphold." In his Response, Plaintiff also states that he "alleges with particularity that there was, and continues to be no post-deprivation remedy, and sufficiently pleaded that the corrupt state courts are stripping Liptak of property he purchased at the Sheriff's Auction, without jurisdiction nor authority to do so under any law, and that by doing so, it implicates the express and implied warranties and representations of Defendant Hicks, that Liptak is powerless to enforce anywhere in state courts." Further, Plaintiff states that he has "exhausted any potential remedy by: a) complaints to the State Court Judge Sheehan (who he sued in federal court, to stop the Sale, that Judge Fish dismissed without motion or hearing), b) seeking mandamus or prohibition from the highest State Court but denied, c) taped telephone complaints to the District Attorney's Office regarding the refusals of such officers to perform their duties and to provide Liptak equal protections of the laws, and, d) telephone and written complaint with evidence to the Securities and Exchange Commission, who to this day has failed to respond." Allegations of unsuccessful complaints and an unfavorable result in state court do not allow for an inference that no sufficient post-deprivation remedy exists. To the contrary, according to Plaintiffs Response, he has had an opportunity to litigate his claims as to Defendant Hicks, therefore indicating that an adequate remedy is in place. In short, Plaintiffs remarks are hardly sufficient to demonstrate that the state's post-deprivation remedy is inadequate.
Id. at 41.
Plaintiffs Response, p. 7.
Id. at 11.
III. Qualified Immunity
Qualified Immunity is designed to shield from civil liability "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). In determining whether an official is entitled to qualified immunity, the Court must first determine whether Plaintiff has alleged the violation of a constitutional right by Defendant. Second, if the Court determines that Plaintiff has indeed alleged such a violation, it must decide whether Defendant's conduct was objectively reasonable. Nerren v. Livingston Police Dept., 86 F.3d 469, 473 (5th Cir. 1996). The objective reasonableness of allegedly illegal conduct is assessed in light of the legal rules clearly established at the time the conduct occurred. Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir. 1992). A right is considered clearly established only when its contours are sufficiently clear so that a reasonable official would understand that his actions would violate that right. White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992). Once qualified immunity is raised by a government official, the plaintiff must come forward with specific facts to defeat the claim of immunity. Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995). Abrogation of the qualified immunity defense is properly the exception and not the rule. Brady v. Fort Bend County, 58 F.3d 173, 174 (5th Cir. 1995).
Even if the Court assumes arguendo that Plaintiff is indeed capable of demonstrating that state's post-deprivation remedy was inadequate, the fact remains that Defendant Hicks is eligible for qualified immunity from suit. Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). As mentioned previously, Defendant Hicks was employed as a Dallas County Sheriff's Department Deputy at the time the allegedly illegal conduct took place. Therefore, Defendant Hicks can be considered a governmental official entitled to qualified immunity from civil damage claims under 42 U.S.C. § 1983 if his actions were taken within the scope of his discretionary authority and if he did not violate clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Although the facts in this case are to be viewed in the light most favorable to the plaintiff, the Court cannot ignore that the pleadings are devoid of allegations from which an inference may be drawn that Defendant acted outside of the scope of his authority in allegedly refusing to provide a bill of sale, or that Defendant's actions violated a clearly established constitutional right of which a reasonable person would have known. Campbell v. City of San Antonio, 43 F.3d at 975. As such, it is not clear that Defendant's actions constitute a violation of Plaintiffs rights in a manner sufficient to overcome an assertion of qualified immunity, and Plaintiffs claims against Defendant Hicks should therefore be dismissed.
Conclusion
Plaintiff has not demonstrated that the state's post-deprivation remedy is inadequate to satisfy the requirements of due process. Moreover, for the reasons stated above, Defendant Hicks is entitled to qualified immunity. Therefore, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. at 45-46; Blackburn v. City of Marshall, 42 F.3d at 931. Accordingly, this Court is of the opinion that Defendant's Motion should be granted.
RECOMMENDATION
This Court recommends that the Defendants' Motion be GRANTED, and that the plaintiffs claims against Defendant Hicks be DISMISSED WITH PREJUDICE.