*1 LEWIS, Petitioner-Appellant, Clifton William YOUNG, Lt. Michael Superintendent, Warren
Paschke, Respondents. Appeals
Court of July April Submitted on 1990. Decided No. 89-2214. briefs 25, 1991. 328.) (Also reported in 470 N.W.2d *2 petitioner-appellant For the the cause was submit- Young, pro se, ted the of on briefs William of Clifton Waupun. respondents For the the cause was submitted on Hanaway, attorney general, briefs of Donald J. John and attorney general. Glinski, J. assistant Dykman Sundby, Gartzke, P.J., Before and JJ. appeals GARTZKE, P.J. William Clifton Lewis judgment dismissing brought from a his action under U.S.C. sec. court 1983.1 trial dismissed the action adequate post-deprivation an because Lewis has alleged. under state law loss he We agree, reject remaining and We contentions. conclude complaint that his fails to a claim we therefore affirm. provides part:
1 42U.S.C. in sec. relevant Every who, statute, ordinance, person any regulation, under color of custom, usage, any subjects, subjected, or State . . to be . or causes any any rights, citizen of the United States ... to the privileges, laws, immunities secured Constitution and shall law, party injured equity, or be liable to the action at suit in proper proceeding for other redress. Waupun Correctional is an inmate at the (WCI),
Lewis prison. brought He this a Institution Young, Superintendent against Warren Waupun, Paschke, a correctional officer at and Michael deprived facility. alleges him He that defendants right of his under violation to the United States Consti- the fourteenth amendment compensatory punitive damages, tution. He seeks declaratory judgment, injunction. and an supervisor alleges Paschke, property department, Waupun created called a document alleges Approved List." his wife for- He the "WCI paper, legal pad, him ream of and enve- warded lopes. Paschke them declared items confiscated they not on "his list." Lewis's because were contraband argued to officials that the materials were wife various Code, Ch. Internal Man- Adm. allowed agement "Wis. *3 Page Young 7." No. ordered Procedure give wife for- Paschke to Lewis items. Lewis's then paper him two more reams of and Paschke con- warded upheld Young fiscated them. Paschke's decision. alleges using after Lewis also electronic typewriter prison months, for four he sent it to a memory expanded by interfacing dealer and had its floppy floppy with drive disk. When the disk prison, machine was returned to the Paschke confiscated separate it because the disk drive was from the machine. again Lewis and wife contacted various officials. typewriter attempting spoke Young, with dealer to clar- ify changed had fell the machine not been provision. code The machine was within the above-cited arrange given its return to Lewis. He had to for memory. expanded the dealer to remove the and enforced a Lewis claims that Paschke created policy deprive knew he or should have known would
576 he was Lewis of which entitled under admin- rules, istrative and that policy Paschke created this in 227, Stats., ch. violation of rule-making procedure. He alleges Young allowed Paschke to and sup- do so ported property. confiscation of Lewis's appeal:
This Lewis's first appeal second resulted from circuit court's dismissal his com- plaint grounds on that Lewis did not file a notice of 893.82, pursuant claim summarily sec. Stats. We reversed, supremacy because the clause of United preempts application States Constitution state notice- of-claim in statutes sec. 1983 actions state brought Young, v. court. (Wis. App. Aug. No. 89-0094 Ct. v. Casey, 8, 1989). Felder (1988) 487 U.S. so 131 held. We for the remanded trial court to determine whether an adequate Lewis has post-deprivation remedy to alleged taking property. address the of his The trial court adequate remedy concluded that Lewis has an form of an action the action. damages dismissed summary disposition Since our did not explain ratio- mandate, nale for complaint our we return to the for a thorough analysis. more
A bemay brought sec. state court. Kolski, Terry 475, 496-97, 78 Wis. N.W.2d 2d plaintiff A may money damages, equi- obtain table declaratory relief or relief a sec. action.
However, necessarily a sec. does lie 1983 action plaintiff when a has the hands suffered loss at employee of a acting under color of law. That when, here, plaintiff is true suffering even the loss *4 claims he has deprived property been without due process, contrary to to the fourteenth amendment the United States Constitution. property deprivation relief for a sec. 1983
To obtain
plaintiff
process
law,
must show a
without due
by
The elements of
the state.
violation
constitutional
(1)
showing
was
that the state
are
such a violation
plaintiff
required
provide
hear
with a due
property
ing
occurred, or, if the state is
loss
before the
(2)
required
so,
that the state cannot
have done
not
remedy
adequate
plaintiff
provide
with
not
will
principles were established
occurred. Those
after the loss
(1981),
Taylor,
v.
and Hudson
he had been negligently prop- prison lost his officials law when erty, bring automatically an action entitled was not that if he lost The court said under U.S.C. sec. 1983. property unauthorized act of a random and because employee, of established and not as a result a state deprived prisoner procedure, not the state had way practical process, no since without him with a could which the state exists predeprivation hearing. 541, 543. 451 U.S. at process held that due
The Parratt court provided prisoner, the state had to the since accorded deprivation occurred, after him with a procedure prisoners. The court said: claims may provide the remedies Although the state may been respondent relief which have with all the proceeded under if he could have available [sec.] the state remedies are that does not mean that requirements process. adequate satisfy of due fully compensated provided could have The remedies suffered, respondent loss he for the *5 they satisfy hold are require- we that sufficient to the process. of ments prisoner
Id. 544. The court concluded that the in the appeal bring before it could not action U.S.C. sec. 1983. Supreme Hudson,
In the United States holding prisoner Hudson, extended its Parratt. In the brought against prison a sec. 1983 action a He officer. intentionally destroyed claimed that the officer had personal property during non-contraband a "shake- down" of his locker and cell and he therefore had deprived property process. been of without due prisoner bring Hudson court held that the could not a damages property. for sec. 1983 action for of the loss anticipate The court said: "The state can no more control advance random and inten- unauthorized employees anticipate tional conduct its of than it can negligent similar conduct." U.S. at 533. Accordingly, we hold an unauthorized inten- employee tional a state procedural does not constitute a of the violation requirements Due Process Clause of the Four- meaningful postdeprivation teenth if Amendment intentional, for loss is available. For deprivations negligent complete state's employees, until provides and unless it suitable refuses postdeprivation remedy. (footnote omitted) added). (emphasis Id. con- court prisoner common that the cluded had several state law compensation remedies to recover for his loss and that they adequate. were Id. court at 534-36. The added prisoner might whether not be able to recover under might state remedies "the full he amount which receive . . . determinative action is [sec.] 1983 adequacy Id. at 535. state remedies." *6 apply holdings the Hudson and
We complaint he has stated a to determine whether Lewis's complaint alleges Paschke his and claim. While systematic Young engaged in a "concerted and were plaintiff constitutionally deprive of secured specific effort... rights," the inference from the most reasonable Young misinterpreted alleged is that Paschke and facts prison gravest poorly or informed about rules. were they intentionally disregarded is that those inference misinterpretation ignorance or Acts on of rules. based disregard rules, with for established state or intentional by policy, are actions state officials and are unauthorized unpredictable. reason, under Par- For that random provide Hudson, ratt and the state's failure to remedy resulting predeprivation for losses from such acts is not a without due of law.
Nothing complaint Lewis's indicates that adequate will him with an state cannot or contrary, On for his loss. law provides post-deprivation adequate Wisconsin remedies prisoners in Lewis's If Paschke vio- circumstances. prison paper, he lated the rules when confiscated Lewis's replevin against a suit Lewis Paschke for ch. adequate remedy paper. Stats., 810, is an to recover the may money it, If Paschke cannot return recover replevin damages in his action for loss. Sections prohibit 810.14, If the rules do not 810.13 Stats. improved typewriter, receiving Lewis from Paschke duty may interfere, had a not to and Lewis recover money damages from him under state tort law. Lewis's
580 complaint fails to show that the state has refused to him permit pursue those remedies. Declaratory Judgments Uniform Act is in effect 806.04, Injunctive Wisconsin. Section Stats. relief
may granted declaratory judgment. be aid of a Town Madison, Blooming City 328, 336, Grove v. 275 Wis. 713, 717 permanent 81 N.W.2d Temporary injunctions may sought also independent be 813.02, action. Sections 813.01 and Stats. Lewis does not declaratory injunctive claim that relief under this inadequate. Felder, laws state's See Easter House v. (7th 1990) denied, F.2d Cir. cert. 111 S. (1991) (sec. Ct. 783 injunc- action dismissed when relief deceptive tive under state law for practice trade among meaningful post-deprivation remedies); Wil Georgetown, marth Town 555 N.E.2d (Mass. 1990) (sec. App. Ct. 1983 action dismissed when *7 declaratory judgment adequate remedy). state complaint Lewis's fails to show that state has refused permit him seek declaratory or injunctive relief. argues Lewis that trial court violated his due process rights remedy because used statutes "as a overriding federally protected device for constitutional in" authority 42 correctly vested U.S.C. sec. 1983. He exist, observes that because state remedies 1983 sec. is action unavailable. But is because the United Supreme determined, States with respect has if property, that no constitutional violation occurs there adequate post-deprivation compen- are state remedies to taking property. sate for the of the state's This remedies are not "devices." Paschke, assent, argues Young's with policy
established a de facto led to a violation Hudson, process right. of his due See U.S. 468 at 531-33 (post-deprivation preclude state remedies sec. 1983
581
pursuant
only
wrong was
when the
not
to estab-
policy).
reject
argument
his
as self-con-
lished state
We
complaint
alleges
tradictory. Lewis's
also
that Paschke
prison system
Young violated
rules that would have
only
property. Since
one
allowed Lewis to receive the
policy
time,
can
defendants cannot
official
exist at
policy.
have
made and failed to follow state
both
Lewis is
entitled
relief
We conclude that
not
complaint
under 42
sec. 1983. Since his
U.S.C.
does
way
replevin, declaratory judgment
seek relief
injunction
complaint
Wisconsin,
the law
properly
does
state a claim. The trial court
dismissed
complaint.
By
Judgment
affirmed.
Court.—
(dissenting).
Increasingly,
SUNDBY, J.
defend-
subject
§
defend,
ants
to claims under U.S.C. 1983
ground
plain-
here,
have
on the
that the
defendants
done
adequate
postdeprivation
tiff has
and thus
seemingly
claim.
The
are
does not state
defendants
However,
stated.
indifferent to
nature of
claims
adequacy-of-a-postdeprivation-remedy
is a
defense
principles
"special application[
] of the settled
expressed
Pape,
(1961)]
[v.
in Monroe
It is no answer that the State has a law which give sup- The is enforced would relief. federal plementary remedy, latter to the and the need sought not refused one be first and before federal is invoked.
582 Pape, (1961). Monroe v. 365 "Thus, U.S. 183 over- lapping generally state remedies are irrelevant to the question of the existence of a cause action under Zinermon, 1983." S. 110 Ct. at 982. § Mathews, principle expressed settled is the
weighing procedural which determines pro- what tections the requires case, Constitution in particular a follows:
[F]irst, private interest that will be affected action; second, the official the risk anof erroneous through procedures of such interest used, probable value, and any, if of additional or procedural safeguards; substitute finally, and interest, including Government's function involved and the fiscal and administrative burdens procedural the additional or require- substitute ment would entail. v. Eldridge, (1976). Thus,
Mathews 424 U.S. emphasizes Mathews procedural concerned with the trivial. principles expressed Monroe Mathews
have been obscured v. Tay- such decisions as Parratt lor, (1981) Palmer, 451 U.S. 527 Hudson v. U.S. Parratt held that a 1983 action did lie § random, against state officials for their unauthorized negligent prisoner's act in a losing hobby $23.50 kit. Hudson Parratt's extended random-unauthorized doctrine to the prison guard intentional act who allegedly deliberately maliciously destroyed pris- personal oner's property during prisoner's a search cell.
A number of appeals of federal courts have found inapplicable where the defendant state official had the state-clothed authority deprivation, effect *9 plaintiff hearing power provide awith to and had the they Zinermon, n.2. so. See 110 S. Ct. did before applies appeals Parratt have held that Other courts by very deprivations effected state officials to even predeprivation process. charged providing Id. with pro- Probably no the Court has decision decided uncertainty controversy as Parratt. much voked as sharply Recognizing Zinermon, this, divided Court a attempted place proper Hudson their presented Zinermon the ideal fact situation context. so. do brought § Zinermon,
In
a
Darrell Burch
Hospital,
against
of the Florida State
officials
liberty,
they deprived
alleging
others,
him of
that
admitting
law,
him to the
without due
"voluntary"
patient,
hospital
a
mental
when he
incompetent
give
consent to his admission.
informed
argued
citing
Hudson,
defendants,
that
Parratt and
complaint
state a claim because
Burch's
failed to
only
alleged
random,
unauthorized violation of
patients.
governing
mental
Florida
admission of
statutes
complaint
held, however,
Burch's
did
The Court
Zinermon,
§
1983.
However, the due clause also a type protection, guarantee procedure. third of a of fair Zinermon, 110 S. Ct. 983. at
The constitutional violation actionable under 1983 § occurs; is complete when the it is not complete unless and until the State fails to process . . .. necessary is to ask what [I]t provided, the State and whether it was constitution- ally adequate. inquiry proce- This would examine the safeguards statutory dural built into the or adminis- procedure trative effecting deprivation, any deprivations remedies for provided by erroneous statute or tort law. fair-procedure applying
Id. case, In a v. the Mathews Eldridge "usually test, the has Court held that the Con- requires hearing stitution some kind of a the State before deprives person liberty property." Id. at 984 (emphasis original). See v. Cleveland Bd. Educ. Loudermill, 470 U.S. 542 continued,
The Zinermon court "In some circum- statutory stances, however, the Court has held provision postdeprivation hearing, for a or a common- remedy deprivation, law tort for erroneous satisfies due process." (citing Logan Zinermon, 110 S. Ct. (1982)) Co., Zimmerman Brush 455 U.S. "(" necessity quick 'the the State or the impracticality providing any predeprivation pro- " postdeprivation may
cess,' is con- mean that stitutionally adequate, quoting Parratt, U.S. at 539 . . Id. said: Parratt play. rule comes into
This is where the special Parratt and Hudson represent a case of the Eldridge analysis, general Mathews v. which postdeprivation are all the tort remedies due, simply they only remedies the because are is expected provide. could be State explained Parratt, that in ”[t]he Id. very The Court at 985. impos- negligent of a loss of made nature deprivations pro- predict sible for the State to such predeprivation process." Id. vide exception
The Court said that not an *11 balancing application test, the Mathews "but rather an in of test to unusual case which one of the the equation in Mathews value of variables the —the negligible preventing predeprivation safeguards in —is deprivation Id. the kind of at issue." The State "cannot constitutionally impossible by pro- required be do the to process." viding predeprivation Id. explained
The Court that Hudson is consistent with doctrine, the Parratt that the state could antici- pate random, and control in advance the unauthorized guard. prison the Id. at The intentional conduct of 985. wrongful depriva- guard fact could "foresee" consequence" proper inquiry tion no was "of because the position provide is the state is in a to for whether process. predeprivation Id. at 985-86. upon which
The focus of those courts
have seized
way
disposing
§
as a
of
of 1983
and Hudson
erroneously,
availability
has,
claims,
on the
of a
been
remedy,
ability
postdeprivation
not on
provide predeprivation
state to
process. That is the mis-
majority.
take of the
An act of a state official is "random
if
only
impossible
and unauthorized"
it
the state
predict
provide
to
the action and
predeprivation process.
"In
feasibly
situations where the State
can
predeprivation hearing
taking property,
before
gener-
ally must
so regardless
adequacy
do
of a
postdeprivation
tort
compensate
to
for the tak-
Zinermon,
ing."
exception
Applying principles to Burch's provided Court concluded that the state could have predeprivation safeguards prevented which would have hospital officials making from random and unautho- Zinermon, rized errors the admission process. 110 S. explained: Ct. at 988-89. delegate petitioners
Florida chose to a broad F.S.H., i.e., power patients what, admit to effect consent, in the absence of informed is a substantial deprivation liberty. petitioners had Because authority deprive persons liberty, the Constitu- imposed duty tion on them the State's concomitant adequate to see no occur without procedural protections.
Id. at 988. that, pointed simply
The is not out "Burch attempting by blame State for its to the misconduct He seeks hold employees. state officials accountable broadly delegated, their abuse their uncircum- deprivation power Id. at at issue." to effect the scribed 989. it not the case before was Court found that
The by Hudson, Parratt and for three basic controlled reasons: depriva- the
First, not claim that the officials could unpredictable. liberty Zinermon, 110 was tion Burch's predicted any have Ct. state could S. at 989. specific, deprivation occur, all, if at at a would erroneous point predictable in the admission —when sign. patient given Id. admission forms to predeprivation providing Second, was impossible. in In the Parratt and contrast to situations petitioners' guided Hudson, power the limited and "had State patients, deprivation might have admit Id. been averted."
Third, was not "unauthorized" the officials' conduct in and Hudson. the term used the sense delegated Zinermon, had 110 S. Ct. 990. authority very power "effect the officials complained deprivation here." Id. "The only in the that was not here is 'unauthorized' sense law, but, instead, was a an act sanctioned rights 'deprivation] . . . of constitutional official's " position.' (quoting Monroe, U.S. at abuse of his Id. 172). principles explained Zinermon,
Under by the existence of states claims which are not satisfied postdeprivation remedies, if, fact, such remedies exist. presented obligation reviewing It is court when prisoner's seeking pro relief to deter- with a se document any petitioner may mine be entitled to whether Israel, 514, 521, 335 113 Wis. 2d relief. bin-Rilla facts, must look to the N.W.2d We pro pleadings. Id. The facts are undis- se inmate's *13 puted. legal assists Lewis other inmates their work. purchased retail His wife and outlets forwarded to him paper, typing legal pad envelopes, and a box of which supervisor prop- Paschke, defendant erty department, as the of the WCI Through complaints confiscated. his Superintendent Young, get prop- Lewis able to this erty However, from Paschke. his wife then sent him two paper, typing additional reams of which Paschke confis- through cated. Lewis went the same but this upheld Young time Paschke's decision. memory typewriter has an electronic which expanded. memory
he sent out to have its When the typewriter WCI, was returned to Paschke confiscated it and claimed was contraband because the added disc part integral typewriter. drive was not an of the Paschke permitted typewriter Lewis's wife to return the to the expanded memory retail and store have its removed. The typewriter was then returned to Lewis. operated time,
At the defendant Paschke Management Sep- Internal No. Procedure effective procedure provided that, tember 1984. That "Under personal permit- conditions, certain inmate through ted to enter institutions the mail from retail family outlets, and friends and on visits where author- permitted purchase ized." Section 1-B inmates to typewriter. electronic Personal which could be through obtained mail from retail outlets included stamped envelopes, stationery, typing paper, and carbon paper. denying right purchase
Lewis claims that him the typing paper, legal pads from receive retail outlets envelopes equal right protection violated component free, to be process under the substantive of the due arbitrary clause, from the access denial personal property. such Thus, Lewis two states protection pro- equal and substantive claims— cess—which existence of are unaffected *14 opinion remedy. express postdeprivation I no to the began after he merits of his claims or others which arose simply proposition action, but demur from the this existence of ade- he not state claims because of the does quate postdeprivation remedies. right
Further, his claims the denial of right pro- acquire personal property such violated I under fourteenth amendment. cedural due perimeters in within the outlined find that his claim falls First, that the Zinermon. deprivation the defendants cannot claim property unpredict-
of Lewis's interest deprivation Any occur, all, if at at a able. erroneous will acquisition pro- specific, predictable point in the property property is received at WCI's cess—when department. impossible Second, it was predeprivation Paschke before defendant confis- possession him cated Lewis's and denied procedure. management internal Third, their conduct the defendants cannot characterize is used the sense that the term as "unauthorized" here is "unautho- Parratt and Hudson. only was not sanc- rized" the sense that Paschke's act law, was, instead, but an abuse of tioned position. official reasons, I Lewis states
For these conclude that existence of claims which are not satisfied postdeprivation I remedies. dissent.