Nathaniel REVIS, Plaintiff-Appellant,
v.
April C. MELDRUM, Katherine A. Young, Dale J. Montpelier, Traci A. Waldo, Laschinski T. Emerson, Joyce Graves, Larry Eaton, Roane County, Tennessee, And Anderson County, Tennessee, Defendants-Appellees.
No. 06-5197.
No. 06-5399.
United States Court of Appeals, Sixth Circuit.
Argued: January 31, 2007.
Decided and Filed: April 19, 2007.
ARGUED: Stephen G. Anderson, Baker, Donelson, Bearman & Caldwell, Knoxville, Tennessee, for Appellant. Linda J. Hamilton Mowles, Lewis, King, Krieg & Waldrop, Knoxville, Tennessee, W. Mitchell Cramer, Norton & Luhn, Knoxville, Tennessee, Kristen B. Amonette, Dodson, Parker & Behm, Nashville, Tennessee, Frank Q. Vettori, O'Neil, Parker & Williamson, Knoxville, Tennessee, for Appellees. ON BRIEF: Stephen G. Anderson, Andrew L. Colocotronis, Baker, Donelson, Bearman & Caldwell, Knoxville, Tennessee, for Appellant. Linda J. Hamilton Mowles, Lewis, King, Krieg & Waldrop, Knoxville, Tennessee, W. Mitchell Cramer, Norton & Luhn, Knoxville, Tennessee, Donald Capparella, Dodson, Parker & Behm, Nashville, Tennessee, Frank Q. Vettori, O'Neil, Parker & Williamson, Knoxville, Tennessee, for Appellees.
Before: GILMAN and SUTTON, Circuit Judges; TARNOW, District Judge.*
OPINION
RONALD LEE GILMAN, Circuit Judge.
Laschinski T. Emerson obtained a money judgment in a sexual-harassment lawsuit from a Tennessee trial court against her former employer Nathaniel Revis and his company, Oak Ridge Research, Inc. (ORRI). Revis appealed, but failed to post an appeal bond. Emerson subsequently sought and obtained two writs of execution for Revis's real and personal property in Roane County, Tennessee to satisfy the judgment. Roane County Deputy Sheriff Larry Eaton, accompanied by Tracy Waldo, a paralegal from the law firm representing Emerson, appeared at Revis's house to serve the writs. Under Eaton's direction, private contractors seized Revis's personal property and changed the locks on his residence. Deputy Eaton also ordered Revis to leave the residence and inquired about any cash that Revis was carrying on his person.
Revis filed suit pursuant to 42 U.S.C. § 1983 against the persons and entities involved in executing the writs, alleging that the seizure of his residence and the search of his person pursuant to the writs violated his constitutional rights. The district court granted summary judgment to some of the defendants, dismissed all claims against the rest, and further ordered Revis to pay the private-party defendants' costs of litigation. For the reasons set forth below, we AFFIRM in part, VACATE in part, and REMAND the case for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual background
Emerson filed a lawsuit in the Circuit Court of Anderson County, Tennessee against Revis and ORRI, alleging sexual harassment, assault and battery, and retaliatory discharge. The law firm of Montpelier & Young, along with solo practitioner April Meldrum, represented Emerson. A jury awarded Emerson $175,800 in actual damages, including $18,000 from Revis himself and $157,800 from ORRI, in addition to $500,000 in punitive damages. Judgment was entered in November of 2003, but an amended judgment was filed in August of 2004 that remitted the punitive damage award to $150,000, but also added $282,964.50 in attorney fees and $12,000 in discretionary costs. The total amended award amounted to $620,764.50.
Revis and ORRI were held jointly and severally liable for the punitive damages, the attorney fees, and the costs, meaning that Revis was personally liable for a maximum of $462,964.50. The amended judgment also specified that 10% interest would accrue on the judgment beginning on July 22, 2003, the date that the jury verdict was announced. Furthermore, the amended judgment stated that "execution may issue" unless Revis filed an appeal bond within 30 days from the date of entry.
After filing postjudgment discovery requests in August of 2004 that sought financial information from Revis, Emerson lodged two applications for writs of execution with the Anderson County Circuit Court on October 8, 2004. The applications sought permission to sell both real and personal property owned by Revis in Roane County, Tennessee. Because Revis had not yet posted an appeal bond, Anderson County Deputy Court Clerk Joyce Graves promptly issued the writs. Both writs were addressed "to any lawful officer to execute and return." The writs provided, in pertinent part, as follows:
You are hereby commanded to take from the property of Nathaniel Revis including in [sic] property listed below the sum of $678,807.32 . . . to satisfy the judgment obtained by the plaintiffs . . . . You are further commanded to pay such monies, when collected, into the Court and you shall make return as to how you have executed this writ within the time allowed by law.
Both writs thus overstated Revis's actual judgment debt by roughly $200,000, though this misstatement has little bearing on the issues before us. Under the "description of property," the first writ listed "Residence located at [Revis's home address]." The second writ described "all personal property (and asset [sic] including furnishings, automobiles, cash, etc.) located on the premises of [Revis's home address]." Both writs were delivered to the Sheriff's Department in Roane County.
Deputy Larry Eaton received the writs and reviewed them. Unsure how to proceed, he took them to the Roane County Attorney for review. Eaton stated in his affidavit that the County Attorney advised him that the writs were valid court orders and were "to be obeyed as stated on their faces." Eaton did not ask—and the County Attorney apparently offered no advice —about whether actual seizure of the residence was appropriate or necessary. Revis has moved on appeal to submit deposition testimony on this issue given by Eaton in a parallel state-court proceeding, but this testimony does no more than confirm the facts as described and therefore need not be considered.
At 6:25 a.m. on October 18, 2004, Deputy Eaton served the writs on Revis at Revis's residence. Several other Sheriff's Department employees accompanied Eaton, as did Waldo on behalf of Montpelier & Young. After Eaton notified Revis of the writs, several employees of a private moving company hired by Montpelier & Young began packing Revis's personal property and moving it to a storage facility. This included removing allegedly valuable "artwork and furnishings."
Revis claims that, in addition to removing his personal property, Deputy Eaton caused the locks to be changed at his residence. According to Revis, K & K Lock and Key changed the outside locks on Revis's home pursuant to a contract arranged for by Montpelier & Young and approved in writing by Waldo. At least one set of the new keys was given to Eaton. According to Revis, Eaton escorted him out of the residence at 10:00 p.m. that night and advised Revis that he could not return.
Finally, Revis claims that he was unconstitutionally searched by Eaton. Waldo allegedly requested, at some point during the execution, that Eaton check to determine whether Revis was removing cash from the premises. Revis stated in his affidavit that Eaton "demanded that I submit to a search of my person" and that Revis "complied under duress." He added that Eaton "was armed" and "made it apparent that force would be used if I resisted." Eaton explained in his affidavit that he simply asked Revis if he had any cash on him, and that Revis responded by showing him his wallet, which contained three dollars. Both parties agree that no money was taken from Revis during this interaction.
Revis posted an appeal bond seven days later. At that point, all of his property, both real and personal, was returned to him.
B. Procedural background
As noted above, Emerson had prevailed against Revis in her sexual-harassment lawsuit in Tennessee state court. Revis's current lawsuit stems from the actions taken to collect the judgment obtained in that litigation. Revis filed this action in federal district court in November of 2004, claiming violations of his civil rights pursuant to 42 U.S.C. §§ 1983 and 1985(3). "Section 1983 provides a federal cause of action for civil damages against an individual acting under color of state law who deprives another of rights, privileges, or immunities secured by the Constitution and laws." Jones v. Reynolds,
During the course of the ensuing litigation, all of the defendants other than Anderson County and Deputy Clerk Graves moved for either summary judgment or dismissal, and Revis responded by moving for partial summary judgment against Eaton and Roane County and by opposing the other defendants' motions. Two orders that disposed of the various motions were ultimately issued by the district court. The first granted the private-party defendants' motions to dismiss Revis's federal claims. Revis's § 1983 claim against them was dismissed because the complaint failed to show that the private-party defendants' actions were fairly attributable to the state, and his § 1985(3) claim was dismissed because the asserted equal protection violation was insufficiently alleged. The second order granted Deputy Eaton's and Roane County's motions for summary judgment on the same federal claims. Dismissal of these two County defendants was based on the court's determination that no constitutional violation had occurred and, alternatively, that Eaton was entitled to qualified immunity.
Having disposed of the federal claims against the above defendants, the district court declined to exercise supplemental jurisdiction over Revis's related state-law claims. The court ultimately dismissed the remaining claims in the case against Anderson County and Deputy Clerk Graves after issuing an order for Revis to show cause why they should not be dismissed.
Thereafter, the private-party defendants moved for an award of attorney fees pursuant to 42 U.S.C. § 1988, seeking $86,911.47 in fees. Section 1988 gives the district court discretion to award reasonable costs and attorney fees to the prevailing parties in a civil rights action. In the case of prevailing defendants, the court may award fees where "the plaintiff's action was frivolous, unreasonable, or without foundation." Wilson-Simmons v. Lake County Sheriff's Dep't,
Revis filed a timely notice of appeal. His challenges on appeal are limited to the district court's grant of summary judgment in favor of Deputy Eaton and Roane County on the § 1983 claim, its dismissal of the § 1983 claim against the private-party defendants, and its award of attorney fees to the latter group.
II. ANALYSIS
A. Standard of review and legal framework
The analysis of each issue raised by Revis involves a different standard of review. These standards are set forth below.
1. Summary judgment and qualified immunity
We review de novo a district court's grant of summary judgment. Int'l Union v. Cummins, Inc.,
Evaluation of the claim against Deputy Eaton also entails an analysis of the doctrine of qualified immunity. That doctrine serves to protect government officials who perform discretionary functions from both suit and liability, provided that "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
2. Dismissal under Rule 12(b)(6)
We review de novo a district court's dismissal of a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sistrunk v. City of Strongsville,
3. Award of attorney fees under 42 U.S.C. § 1988
The grant or denial of attorney fees by a district court is reviewed under the "abuse of discretion" standard. Berger v. City of Mayfield Heights,
B. The § 1983 claim against Deputy Eaton
Although the district court granted summary judgment in favor of Deputy Eaton as to all of Revis's claims, Revis appeals the court's judgment only with respect to his § 1983 claim. According to Revis, the court erred in determining that Eaton was entitled to qualified immunity regarding Eaton's eviction of Revis from his residence and the alleged search of his person. Revis argues that the eviction violated his Fourth and Fourteenth Amendment rights and that the search of his person violated his Fourth Amendment rights. He concedes that his personal property was constitutionally seized in executing the writs; he contests only his eviction and the search of his person.
The State's exercise of physical control over a residence that results in eviction can implicate both Fourth and Fourteenth Amendment protections. See, e.g., Soldal v. Cook County,
1. Revis's Fourteenth Amendment claim
Revis does not challenge the constitutionality of Tennessee's levy and execution procedures; rather, he alleges that Eaton did not properly follow them, and in so doing deprived Revis of his due process rights. The first step in the qualified-immunity analysis requires us to determine whether Revis's assertion in this regard is correct. See Charvat,
a. Due process generally requires notice and an opportunity to be heard prior to eviction
Initially, we must consider whether the interest asserted by Revis is a protected liberty or property right under the Fourteenth Amendment. See Thomas,
Furthermore, in the specific context of eviction, the Fourteenth Amendment has particular import. This court has held that "[d]ue process generally requires notice and a hearing prior to eviction." Thomas,
b. The underlying litigation and judgment did not provide constitutionally adequate process for Revis's eviction
The district court held that Revis's eviction pursuant to the writ of execution did not violate his right to due process because the judgment awarded against him in the underlying litigation was "an award of execution" upon which the state court could issue "writs of possession and execution." Because Deputy Eaton had a lawful writ of execution for Revis's residence, the district court reasoned, Eaton was entitled to take immediate possession of it. The court, however, cited no authority to support its determination, and the issue appears to be one of first impression in this circuit.
Revis correctly points out that the underlying sexual-harassment lawsuit established nothing beyond his financial obligation to Emerson. This materially distinguishes the judgment against Revis from a judgment for possession upon which a writ of possession may issue. The money judgment against Revis is silent concerning who is entitled to possess Revis's residence, and it provides no notice to Revis that he was subject to summary eviction. Rather, the judgment simply notified Revis that, unless he posted an appeal bond within 30 days, "execution may issue" to satisfy the judgment. In addressing a similar argument that the underlying merits hearing served as adequate notice for a postjudgment seizure, the Third Circuit expressed skepticism, noting that the "judgment represents only an adjudication of [the judgment debtor's] liability on a monetary debt, not a transfer to [the judgment creditor] of title to any particular item of [the judgment debtor's] property." Finberg v. Sullivan,
Of course the underlying litigation also did not adjudicate the right to possess Revis's "artwork and furnishings" either, but Revis concedes that these items were constitutionally seized pursuant to the writ of execution. Eviction, however, has traditionally involved greater procedural safeguards than those related to less severe deprivations. An individual's immediate loss of possession of his or her home plainly has greater adverse consequences than the loss of artwork or even a portion of an individual's wages. See, e.g., United States v. James Daniel Good Real Prop.,
An owner's strong possessory interest in his or her residence is just one of the Mathews due process balancing factors weighing against the constitutionality of summary eviction pursuant to a writ of execution. See id. The risk of an erroneous deprivation is also significant. First, although Revis has not argued that it applies here, Tennessee provides a homestead exemption, which has been interpreted to permit the owners to occupy their designated homesteads pending receipt of the exempted amount from the repossessing party. See Tenn. Const. art. XI, § 11; In re Rolfes,
In addition, seizing a judgment debtor's residence and evicting him might serve no valid purpose of the judgment creditor where the debtor possesses no equity interest in the home with which to satisfy the judgment. Moreover, in the case of a judgment debtor who leases his residence to tenants, the underlying trial and judgment could not be said to satisfy the tenants' due process rights prior to their summary eviction. Additional predeprivation process, such as notice and an opportunity to be heard, would permit an owner or tenants to raise these concerns and thereby decrease the risk of an erroneous deprivation. Nor would employing long-established state eviction procedures unduly harm the competing interest of efficient postjudgment remedies. Cf. Davis v. Mansfield Metro. Hous. Auth.,
We recognize that exigency concerns can justify the seizure of personal property without advance notice, but such concerns typically do not arise in connection with real estate. See James Daniel Good Real Prop.,
Thus, while personal property may be levied upon through seizure, a writ of execution for real property is generally levied by formally noting on the writ a legal description of the property and giving notice to the owner and the public that the property is subject to sale. See, e.g., Hammock v. Qualls,
These authorities support the principle that an execution levied upon real estate does not result in the immediate eviction of the judgment debtor. As a Pennsylvania state-court judge explained in analyzing that state's execution procedures,
the issuance of a writ of execution against the debtor's real estate does not work as an immediate seizure of the property. Before the creditor or sheriff's sale purchaser can take possession of the debtor's real estate, the debtor must voluntarily vacate the premises or eviction proceedings must be brought against the debtor. The debtor, by this time, has already been advised in writing repeatedly that he should contact a lawyer, that he may lose valuable property rights unless he acts promptly.
Scott v. Adal Corp.,
Eaton relies on Endicott-Johnson Corp. v. Encyclopedia Press, Inc.,
the established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment. Thus, in the absence of a statutory requirement, it is not essential that he be given notice before the issuance of an execution against his tangible property; after the rendition of the judgment he must take notice of what will follow, no further notice being necessary to advance justice.
In Agg v. Flanagan,
But Agg dealt with materially different circumstances than those in the present case. First, like Endicott-Johnson, Agg addressed only garnishment, not eviction from one's home. Furthermore, the underlying hearing in Agg essentially determined the rights of the parties regarding the property levied upon—namely, the payor's wages. The underlying trial in the present case, by contrast, simply adjudicated a tort claim, not the right to possess Revis's residence.
In short, no authority cited by Deputy Eaton has permitted levying an execution upon a residence by evicting the owner without postjudgment notice and the opportunity to be heard. This lack of authority permitting Eaton's actions, combined with both the longstanding due process requirements of notice and the opportunity to be heard before eviction and the Mathews balancing considerations outlined above, lead us to conclude that Eaton violated Revis's Fourteenth Amendment rights. We reiterate this court's holding in Thomas,
c. Eaton is entitled to qualified immunity for the violation
Having determined that Deputy Eaton did in fact violate one of Revis's constitutional rights, we next evaluate "whether the right is so `clearly established' that a reasonable official would understand that what he is doing violates that right." Charvat,
Recent changes in Tennessee procedural law also support Deputy Eaton's qualified-immunity argument. Three months prior to the seizure at issue, Tennessee amended its law concerning executions on judgments by consolidating existing rules, statutory law, and caselaw into Rule 69 of the Tennessee Rules of Civil Procedure. The change lessened any textual distinction between the manner prescribed for levying executions against realty as opposed to personal property. Rule 69.06, titled "Execution on Personalty," states that a "levy is effective when the sheriff with a writ of execution exercises control over the judgment debtor's personalty." Similarly, Rule 69.07, titled "Executions on Realty," provides that "a levy occurs when the sheriff exercises control over the judgment debtor's realty." With regard to realty, however, the new rule requires 20-days' notice to the judgment debtor and all other persons having an interest of record in the realty prior to any sale. Id.
No Tennessee court has yet interpreted Rule 69 in the context of executions on realty. But historical Tennessee caselaw, combined with the commentary to the new rule stating that it was simply meant to "consolidate procedures" and "does not radically change current law," militate in favor of determining that Tennessee did not intend to begin permitting judgment creditors to summarily evict judgment debtors from their homes in the course of levying an execution. See, e.g., Crutsinger,
The United States Supreme Court considered an analogous scenario in James Daniel Good Real Property,
The language of the writs themselves further supports Eaton's qualified immunity argument. Both writs given to Deputy Eaton, which he was required to execute under Tennessee law, ordered that he was "hereby commanded to take from the property of Nathaniel Revis including in property listed below" the sum of $670,807.32. Under "Description of property," the first writ listed "Residence located at" Revis's address. This operative language was identical to the wording in the second writ, except that under "Description of property," the second writ listed "all personal property . . . on the premises of" Revis's address.
Revis acknowledges that the second writ authorized the actual seizure of the property described, but argues that the first did not. This distinction, however, is far from obvious from the face of the writs. The County Attorney further advised Eaton that the writs were "to be obeyed as stated on their faces," but gave him no specific instructions regarding the residence. These facts distinguish this case from Audio Odyssey, Ltd. v. Brenton First Nat. Bank,
Here, the advice from the County Attorney, combined with the language of the writs themselves, the newly promulgated Rule 69 of the Tennessee Rules of Civil Procedure, and the absence of clearly established federal caselaw governing the postjudgment deprivation of real property, all support the proposition that Deputy Eaton's actions were not such that a reasonable officer would have understood that what he was doing violated Revis's rights. See Charvat,
Having concluded that Eaton acted under a reasonable misapprehension of the applicable law, we next address Revis's allegations that Eaton acted in bad faith and as part of a conspiracy to deprive Revis of his constitutional rights. We first note that subjective intent is ordinarily not relevant to the qualified immunity analysis. See, e.g., Blake v. Wright,
Furthermore, although Revis's complaint alleges a "conspiracy" between Eaton and the private-party defendants, he asserts no facts either in his pleadings or affidavit that support the conclusion that Eaton formed a plan or objective to deprive Revis of his constitutional rights. The record instead reflects that Eaton acted according to his reasonable misunderstanding of what the writs of execution required him to do under Tennessee law. As noted above, Revis has moved to enlarge the record on appeal to include Eaton's deposition testimony taken in the parallel state-court proceedings. We decline to do so, however, not only because Rule 10 of the Federal Rules of Appellate Procedure generally bars such a substantive expansion of the record, but because Eaton's testimony is on balance of no help to Revis and actually bolsters our conclusion that no conspiracy occurred. Revis's claim that Eaton knowingly violated Revis's rights or that he conspired with the private-party defendants to do so, therefore, lacks merit as a matter of law.
2. Revis's Fourth Amendment claims
a. The seizure of Revis's residence
Revis asserts, in addition to his due process claim, that his eviction violated the Fourth Amendment as an unreasonable seizure of his residence. In light of Soldal,
Deputy Eaton's reliance on dicta in Soldal is misplaced. There, the Court noted that "had the ejection in this case properly awaited the state court's judgment it is quite unlikely that the federal court would have bothered with a § 1983 claim alleging a Fourth Amendment violation." Soldal,
In Part II.B.1. above, we answered that question in the negative and determined that, under Tennessee law, the writ of execution for Revis's residence commanded Deputy Eaton only to give notice that the property was subject to sale. Eaton's physical seizure of Revis's residence was therefore in violation of the Fourth Amendment. For the same reasons addressed in assessing Eaton's claim of qualified immunity under the Fourteenth Amendment, however, Eaton is entitled to qualified immunity for the reasonable mistake of law that occurred.
b. Eaton's alleged search of Revis
Revis also raises a separate Fourth Amendment claim concerning the alleged unlawful search of his person that took place at some point during the course of the levy. Rather than describing the attendant facts, Revis's complaint and his affidavit on the subject contain only conclusory legal assertions. He states that Deputy Eaton "demanded that I submit to a search of my person" and that Revis "complied under duress" because Eaton was "armed and made it apparent that force would be used if I resisted."
While we are mindful that the summary judgment standard requires construing all facts and drawing all inferences in favor of Revis, the conclusory assertions in his complaint and affidavit set forth no specific facts concerning the alleged search. Deputy Eaton explains more fully that he "asked [Revis] if he had any money on him (at the request of the law firm representative who was present) and Revis pulled out his billfold, opened it and showed me that he had only $3.00 in it." Revis's pleadings and affidavit raise no factual dispute regarding this relatively innocuous account of the events. In fact, Revis's complaint similarly asserts that "Revis was obliged to empty his [own] pockets, revealing three dollars ($3.00), which he was allowed to keep."
The district court properly concluded that this verbal exchange did not amount to a search, and therefore did not violate Revis's Fourth Amendment rights. See United States v. Oliver,
C. Roane County's alleged failure to properly train Deputy Eaton
In conjunction with Revis's constitutional claims against Deputy Eaton, he also asserted a claim against Roane County for failing to properly train Eaton. The district court dismissed this claim because it found that no constitutional violation had occurred. Although we disagree with the district court's rationale on this issue, we agree with the conclusion that it reached.
This court has held that "[o]nly when the failure to train amounts to `deliberate indifference' on behalf of [the state entity] toward its inhabitants . . . will failure to train lead to [that entity's] liability under § 1983." Gregory v. City of Louisville,
D. The private-party defendants
In addition to claiming that the County defendants violated his constitutional rights, Revis named various private-party defendants in his 42 U.S.C. § 1983 and § 1985(3) claims. The group of private-party defendants consists of Emerson, the prevailing plaintiff in the underlying tort litigation, as well as four members of her legal team: Meldrum, Montpelier, Waldo, and Young. Revis focuses on their participation in his eviction. After concluding that none of the private-party defendants qualified as state actors in this case, the district court dismissed all claims against them. Revis has appealed the dismissal only with respect to his § 1983 claim.
The Fourth and Fourteenth Amendment rights at issue secure protection only against infringement through state action. See, e.g., Flagg Bros., Inc. v. Brooks,
Whether the conduct may in fact be "fairly attributed" to the state requires a two-part inquiry. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible." Id. "Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor." Id. The Court in Lugar explained that the two prongs merge when analyzing a state official's conduct, whereas they remain distinct when analyzing the conduct of private parties. Id. at 935,
This circuit utilizes three tests to evaluate state action: (1) the public-function test, (2) the state-compulsion test, and (3) the symbiotic-relationship or nexus test. Lansing v. City of Memphis,
One such line of authority deals with the liability of private parties in the context of challenges to state prejudgment attachment procedures. In Lugar, Edmondson had obtained a writ of attachment from a state court against Lugar's property, and the county sheriff had executed the writ.
Later decisions by this court have expressly declined, however, to extend the relatively low bar of Lugar's so-called "joint action" test outside the context of challenged prejudgment attachment or garnishment proceedings. See Hill v. Langer,
Another relevant line of cases deals with the flip side of a related issue: the § 1983 liability of public officials in the context of aiding private parties undertaking private repossession remedies. See Barrett v. Harwood,
Finally, a third relevant group of cases deals broadly with allegations of concerted action between state and private actors that is not undertaken pursuant to any challenged state procedure. One such case is American Postal Workers Union, Local 96 v. City of Memphis,
To determine whether state action arose in the context of such allegations, the court first set forth the general definition of a civil conspiracy: an agreement between two or more persons to injure another by unlawful action. Id. The court concluded, by applying that definition, that the union plaintiffs had successfully pled a § 1983 conspiracy by alleging that (1) a single plan existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of their constitutional rights, and (3) an overt act was committed. Id. at 905-06; see also Dennis v. Sparks,
The district court properly concluded that Deputy Eaton's eviction of Revis constituted state action. In examining the private-party defendants' liability, however, the court determined that no "overt, significant" state assistance occurred because Eaton was "there merely to make sure that the law was complied with and [to] keep the peace while defendants carried out their private remedies." This analysis, however, misconceives the nature of Tennessee's execution procedure in a crucial way by conflating it with private repossession actions.
Unlike a private repossession action, a writ of execution requires a state official— not the judgment creditor—to sell the judgment debtor's property and pay the net proceeds into the court. See Tenn. R. Civ. P. 69.06 ("A levy is effective when the sheriff with a writ of execution exercises control over the judgment debtor's personalty. . . . The sheriff shall sell personalty by auction."); Tenn. R. Civ. P. 69.07 ("[A] levy occurs when the sheriff exercises control over the judgment debtor's realty. . . . The sheriff shall sell the debtor's interest in realty by auction"). This is made plain by the writs themselves, which "command" any "lawful officer to execute and return" the writ by taking the listed property from the judgment debtor, and then paying the proceeds into the court.
The proper question thus becomes not—as we ask in the private repossession context—whether a state official's standby role in a private party's remedy gives rise to state action, but rather just the reverse: whether the private party's role in the alleged constitutional violation by a state official renders the private party's actions fairly attributable to the state. Based on the reasoning of the first line of cases addressed above, Revis's claim that the private-party defendants applied for the writs maliciously or without cause—such as by overstating the judgment amount owed—does not give rise to state action. Significantly; he does not challenge the constitutionality of Tennessee's execution procedures. The private-party defendants' invocation of presumptively valid state procedures therefore amounts, at most, to the sort of statutory misuse or abuse that Lugar specifically instructs does not give rise to state action. See
In addition to arguing that the private-party defendants improperly obtained the writs of execution, Revis asserts that his rights were violated by the eviction that occurred in the course of levying the writs. An argument that the private-party defendants applied for the writs and that Deputy Eaton simply executed them improperly, however, presents even less compelling grounds for attributing the private-party defendants' actions to the state than the claim that Eaton executed the writs properly but in accordance with allegedly flawed state-created procedures. As addressed above, Hill determined that even this latter degree of "joint action" did not give rise to state-actor liability for private parties in the postjudgment context.
Similarly, Revis's allegations that the private-party defendants indemnified Deputy Eaton for the expenses associated with the execution, sent Waldo to the scene of the execution, and arranged for hiring the locksmith do not suffice to render them state actors. Tennessee law provides that judgment creditors "shall pay the cost incurred" in levying writs of execution. Tenn.Code Ann. § 26-3-117. Waldo's presence at the scene when Eaton evicted Revis, moreover, no more served to "deputize" her than, for example, the private locksmith. Regarding the indemnity agreement, this court has held that "[t]he mere existence of a contract between a governmental agency and a private party is insufficient to create state action." Simescu v. Emmet County Dept. of Soc. Services,
Revis attempts to reach one step further, however, by asserting that the private-party defendants conspired with Deputy Eaton by forming a common plan to violate Revis's constitutional rights. Such claims of conspiracies between private and state actors, if adequately alleged, generally suffice to establish state action on the part of the private actors for the purpose of deciding a motion to dismiss. See Local 96,
Our holding does not imply that Deputy Eaton's qualified immunity extends to the private-party defendants, nor does it establish that a private party can never be liable for conspiring with an official held to be qualifiedly immune. Cf. Wyatt v. Cole,
E. The district court's award of attorney fees
The final issue on appeal concerns the district court's award to the private-party defendants of $65,183.61 in fees, representing 75% of the legal expenses for which they sought reimbursement. Although the district court's discretionary award of fees is entitled to deference, this court has held that an award of attorney fees against a losing plaintiff in a civil rights action is "an extreme sanction" that should be limited to "truly egregious cases of misconduct." Jones v. Cont'l Corp.,
The district court set forth several considerations in its order that it viewed as supporting an award of attorney fees against Revis. Regarding the § 1985(3) claim, the court pointed out that Revis essentially alleged without evidentiary support that Emerson, an African-American, conspired with her legal representatives to discriminate against Revis, who is also an African-American, on the basis of race. Revis did not appeal the district court's dismissal of that claim, and we find no basis on which to conclude that the district court abused its discretion in determining that this claim was frivolous.
As to Revis's § 1983 claim, however, the district court explained that
Revis sued the private individuals knowing that a critical element of his case was that these defendants were state actors. A close relationship (nexus) between the individuals and the sheriff's deputy who executed on the plaintiff's property, however, was absent, and these individuals' actions could not be fairly attributed to the state.
While we ultimately agree that the acts of the private-party defendants in this case did not amount to state action, our analysis above casts significant doubt on whether this determination was so obvious as to render the claim frivolous. See Gallagher v. Neil Young Freedom Concert,
We are thus uncertain as to how the district court would have evaluated the private-party defendants' request for attorney fees under § 1988 if it had had the benefit of our analysis. Although we have no reason to question its findings regarding Revis's frivolous § 1985(3) claim and his "aggressive and often unnecessary multiplication of filings . . . to harass the defendants," the court's evaluation of Revis's § 1983 claim was in part erroneous for the reasons set forth above. We therefore vacate the district court's award of attorney fees and remand that issue for reconsideration.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM in part, VACATE in part, and REMAND the case for further proceedings consistent with this opinion.
Notes:
Notes
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation