Douglas SKOKOS; Tim H. Chapman, Appellants,
v.
Bruce RHOADES, in his individual capacity; City of Fort Smith, doing business as Fort Smith Police Department, a municipality; Steve Tabor, Sebastian County Prosecutor, in his offical capacity; Ed Smally, FSPD, Officer Badge # 4105; J.C. Phillips, FSPD, Officer Badge # 4083; Paul Smith, Officer Badge # 4188; E. Mahan, FSPD, Officer Badge # 4215, Appellees.
No. 05-2374.
United States Court of Appeals, Eighth Circuit.
Submitted: November 14, 2005.
Filed: March 10, 2006.
COPYRIGHT MATERIAL OMITTED Rebekah J. Kennedy, argued, Fort Smith, Arkansas (C. Brian Meadors, on thе brief), for appellant.
Scott Paris Richardson, argued, Assistant Attorney General, Little Rock, Arkansas (Mike Beebe and Jerry L. Canfield, on the brief), for appellee.
Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Douglas Skokos and Tim Chapman appeal the district court's1 dismissal of their action, which was brought under 42 U.S.C § 1983. Mr. Skokos also appeals the denial of his request for attorney's fees under 42 U.S.C. § 1988. For the reаsons stated below, we affirm.
I.
Mr. Skokos and Mr. Chapman each owned a business in Fort Smith, Arkansas, in which he had on the premises a so-called countertop machine, a device upon which customers could play up to seventy different electronic games. While most of those games were not games of chance, the machines did offer poker and blackjack. They did not pay out any winnings.
Defendant Bruce Rhoades, the prosecuting attorney for Sebastian County, Arkansas, sent out letters to several Fort Smith businesses, including those of plaintiffs, stating that their countertop machines violated Arkansas law. When the businesses did not remove the machines, Mr. Rhoades asked the local police to investigate. Relying on Mr. Rhoades's legal opinion that the machines violated Arkansas law, police seized Messrs. Skokos and Chapman's countertop machines from their businesses. These seizures were carried out without the issuance of any sеarch warrants.
Mr. Skokos then brought the present action against the City of Fort Smith and Mr. Rhoades, seeking declaratory, injunctive, and compensatory relief. Soon thereafter, Mr. Rhoades commenced a forfeiture proceeding in state court, and the district court abstained from exercising its jurisdiction pending resolution of the state-court proceeding. The state trial court held that the countertop machines were not illegal under Arkansas law, and the Arkansas Supreme Court, with two justices dissenting, affirmed the judgment. State v. 26 Gaming Machines,
With the forfeiture proceeding concluded, the parties returned to federal court. Once there, Mr. Skokоs amended the complaint to add Mr. Chapman as a plaintiff and four individual police officers and a prosecutor, Steve Tabor, as defendants. After the complaint was amended, Messrs. Rhoades and Tabor asked the court to dismiss the claims against them. The district court largely granted this motion, holding that Mr. Skokos's claims against Mr. Tabor were moot and that any claims against Mr. Rhoades in his personal capacity either failed to state a claim or were barred by qualified immunity. Mr. Skokos then requested the court to award him attorney's fees under § 1988 for the costs that he incurred in the state forfeiture proceeding. The court dеnied the motion on the ground that while Mr. Skokos had prevailed in state court, none of his federal claims was successful. Because of this, the court held, Mr. Skokos was not a "prevailing party" for § 1988 purposes.
The City of Fort Smith and the individual police officers (collectively referred to as the city defendants) then moved for summary judgment. The court granted the motion, holding that the officers had probable cause to believe that the countertop machines were contraband. Because the machines were found in plain view, the court reasoned, the police were justified in seizing them without first obtaining a warrant. The court also held that the city defendants had not violated the plaintiffs' liberty interests in running legitimate businesses because the police officers did not possess an intent to injure and their conduct did not shock the conscience.
II.
A.
Messrs. Skokos and Chapman argue that the seizure of their countertop machines violatеd their fourth amendment rights. Since Mr. Rhoades was acting in an investigatory capacity in advising the police that the machines were illegal under Arkansas law, he is eligible only for qualified immunity, not absolute prosecutorial immunity. See Anderson v. Larson,
While the Arkansas Supreme Court ultimately rejected Mr. Rhoades's position, we believe that his interpretation of Arkansas law was reasonable. When Mr. Rhoades first rendered his oрinion, the Arkansas Supreme Court had not yet ruled on the precise issue involved in this case; Mr. Rhoades therefore looked to analogous, if factually different, cases. In one case, the Arkansas Supreme Court had held that a machine could be a gaming device per se even if it offered no payout. See Stanley v. State,
B
The plaintiffs also contend that the officers' seizures were unreasonable because they seized the items without first obtaining any warrants. As Messrs. Skokos and Chapman point out, there is a general preference in the law for search warrants, see United States v. Leppert,
The plain-view exception permits an officer to make a warrantless seizure when he or she does not violate the fourth amendment in reaching the plaсe from which the object can be viewed, the object's incriminating character is "immediately apparent," and "the officer has a lawful right of access to the object itself." United States v. Collins,
The plaintiffs argue that the illegal nature of the countertop machines was not immediately apparent. They cite to both Arizona v. Hicks,
As the city defendants point out, however, the term "immediately apparent" does not really mean what it seems to sаy. The plaintiffs would have us require near certainty before a plain-view seizure could occur. But the Supreme Court has rejected that proposition, and in fact has said "that the use of the phrase `immediately apparent' was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary." Texas v. Brown,
Here, the police had probable cause to believe that the countertop machines were contraband. They relied on Mr. Rhoades's legal opinion, which, as we noted above, was reasonable when offered. When the officers saw maсhines meeting Mr. Rhoades's criteria, therefore, they were justified in seizing them as contraband.
III.
The plaintiffs also argue that the district court erred in concluding that they failed to state a claim for the denial of substantive due process under § 1983 based on their allegations that Mr. Rhoades and the city defendants seized the сountertop machines and made false statements to the press regarding them and their businesses. These actions, they say, impaired their ability to operate legitimate businesses and harmed their reputations. Relying on San Jacinto Savings & Loan v. Kacal,
In challenging the district court's decision, the plaintiffs contend that the district court erred by requiring the defendants to have had an "intent to injure" when "deliberate indifference" was enough to support the claim. But we need not resolve that question because, having reviewed the record, we are drawn inexorably tо the conclusion that neither Mr. Rhoades nor the Fort Smith police, in seizing the machines and commenting on those seizures to the press, acted with deliberate indifference. As we stated above, Mr. Rhoades's legal opinion about the legality of the countertop machines was reasonable when made, and the officers' seizures did not violate the fourth amendment. For conduct to amount to deliberate indifference, the state actor must have subjectively understood his actions as creating a substantial risk of a constitutional deprivation. See Hart v. City of Little Rock,
IV.
Mr. Skokos also appeals the denial of his motion for attorney's fees. He argues that because his victory in state court led to the return of his countertop machine, he is a "prevailing party" for § 1988 purposes and is therefore entitlеd to such fees. See 42 U.S.C.1988(b). We review this question de novo. See Cody v. Hillard,
We have held that a plaintiff who loses on the merits of his federal claims is not a "prevailing party" for § 1988 purposes, just because he prevails on a related pendent state-law claim. See John T. v. Marion Indep. Sch. Dist.,
Mr. Skokos argues that his case qualifies for one of these exceptions. He contends that his case is like Exeter-West Greenwich Reg'l Sch. Dist. v. Pontarelli,
Once the state-court proceeding was complete in Pontarelli, the district court dismissed the plaintiffs' constitutional claims as mоot. It awarded attorney's fees to the plaintiffs, though, because the answer to the certified question had allowed the district court to avoid deciding the constitutional issue. Id. at 50-51. Although the plaintiffs prevailed only in state court, the First Circuit held that the issue decided by the state court was "in litigation" in the federal case "bеcause the district court determined that under the abstention doctrine . . . the issue had to be decided by the [state supreme court] before the federal court could reach the constitutional issues in the case [before it]." Id. at 51. We believe that by accepting the state supreme court's answer to the certified question the federal court in Pontarelli had in essence decided the state-law claim. We recognized as much when we said that the "federal court [in Pontarelli] actually settled the case, merely relying on the state court for assistance." Quinn v. Missouri,
Despite Mr. Skoko's protestations, we believe that this case is unlike Pontarelli. Although, as in Pontarelli, Mr. Skokos received relief only on a state-law claim, our case differs from Pontarelli in two key respects. First, the state proceeding here was not a necessary part of the § 1983 litigation. In Pontarelli, the district court forced the plaintiffs to litigate in state court as part of their § 1983 action. The district court here did not request the state court's aid and then push the plaintiffs to litigate in the state forum; rather, it was Mr. Rhoades who initiated the separate state forfeiture proceeding. Once the state action was underway, the federal court had to abstain in the nascent § 1983 action under Younger v. Harris,
Second, in Pontarelli, once the state supreme court ruled on the state-law matter, the federal court no longer had to decide the constitutional issue. The federal court dismissed the case as moot because the resolution of the constitutional claims was no longer necessary. In this case, however, the Arkansas Supreme Court's decision did not moot Mr. Skokos's constitutional claims: The district court dismissed the case not because there were no live claims, but because it considered those claims to be without merit. Cf. Reel v. Arkansas Dep't of Correction,
V.
For the reasons stated above, we affirm the district court.
Notes:
Notes
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas