Ausley v. Mitchell

HARRISON L. WINTER, Chief Judge, concurring in part: In these two appeals, the principal question to my mind is whether Virginia affords a state-court state-law remedy for the property losses sustained by the two plaintiffs if they can prove their allegations of liability. Certainly Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), teaches that they have no cause of action under 42 U.S.C. § 1983 if they have a state remedy. To my mind also, the question of whether there is a state remedy depends upon a determination of whether Virginia would recognize the defense of sovereign immunity if the defense is pleaded in a state tort action in a state court.1 The very recent decision in Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3204-06, 82 — 228 — L.Ed.2d 393 (1984) strongly suggests that if sovereign immunity is available as a defense, the requirements of Parratt to oust § 1983 jurisdiction would not be met. The majority opinion concludes that Virginia would not recognize sovereign immunity as a defense were these actions pending in a state, and I am inclined to agree. In Palmer itself, the Court accepted the correctness of our statement that Palmer’s claim for intentional destruction of his non-contraband property would not be barred by sovereign immunity if he asserted it in an action in a state court. We have also held in Phelps v. Anderson and Langford, 700 F.2d 147, 149 (4 Cir.1983), that an inmate’s claim for wrongful deprivation of his television receiver, asserted against two prison officials who confiscated it improperly and failed to return it after he proved ownership, would not be barred by sovereign immunity.2 Both in the majority opinion and in Phelps, we have deemed the touchstone of whether sovereign immunity may be successfully pleaded to be a factual determination of whether the state employee was performing a discretionary or a ministerial act when he gave rise to liability. If discretionary, he is immunized from liability by sovereign immunity; if ministerial, sovereign immunity is not available as a defense to personal liability. The state precedents cited and discussed in the majority opinion and in Phelps certainly appear to stand for the proposition for which they are cited. There is, however, a later state decision, not mentioned by the majority, which I think at least raises the specter that we may not have correctly discerned the state of Virginia law. The case is Bowers v. Commonwealth of Virginia, Dept. of Highways & Transp., 225 Va. 245, 302 S.E.2d 511 (1983). That case held that the resident engineer of the highway department was entitled to assert sovereign immunity for his alleged negligence in the construction of a concrete culvert incident to improvement of a state highway. The unsettling aspect of the case is that it appears to scuttle the bright line test that sovereign immunity applies to discretionary acts but is not applicable to ministerial acts. Instead it is but “one of the indicia of entitlement to immunity.” 302 S.E.2d at 515. In this regard, as the dissenters in Bowers point out, that decision gives new life to the conflict between two apparently divergent lines of Virginia authority with regard to the availability of sovereign immunity as a defense in a suit against a state employee for his alleged negligence. 302 S.E.2d at 516. In short, recent developments have rendered the applicable Virginia law difficult if not impossible to predict with certainty.3 — 229 — Unfortunately, Virginia is a state that has no mechanism whereby we can certify the question and obtain an authoritative answer. I am persuaded by some of our past unsuccessful efforts to give authoritative and correct answers as to state law that we ought not overlook the possibility that once again we may not have made a correct prediction. We ought to afford plaintiffs some protection from an erroneous determination on our part. While I would therefore affirm the judgments of the district court, I would require the district court to grant, as a condition of dismissal, leave to plaintiffs to reinstate their cases in the event that sovereign immunity is upheld as a defense to the prosecution in a Virginia court of any claim now pending or hereafter filed arising out of the facts and matters alleged in their complaints under § 1983.4 Judge JAMES DICKSON PHILLIPS and Judge MURNAGHAN authorize me to say that they concur in this opinion. Footnotes [1] The record does not disclose if either plaintiff has instituted any action in a state court. In a companion case, consolidated for argument . with these two appeals — Daniels v. Williams 748 F.2d 229 (4th Cir.1984) — plaintiff sued both in state and federal courts for personal injuries. In the state court action, defendant pleaded sovereign immunity while before us he contends that the defense is not available. Counsel for the defendants in his brief in these two cases argues that sovereign immunity will not be held to bar a state-court suit. Nevertheless, in oral argument he admits that he would advance a sovereign immunity defense in state court. Counsel’s candor does not dispel the uncom-mendable inconsistency in his approach. [2] As an alternative holding, Phelps said that the then Virginia grievance procedure provided a postdeprivation remedy to preclude Phelps’ § 1983 claim for damages for temporary deprivation of the use of his television set. Phelps was decided after the decisions of the district court in the instant cases but well before they were reargued in banc. Phelps was not cited by the Commonwealth as a supplementary authority; and when the court inquired of counsel for the Commonwealth about the scope of relief available under Virginia's grievance procedure, we were told that awards are "a matter of discretion and not a matter of right.” We were also told by counsel for plaintiffs that they had unsuccessfully sought redress for their claims under the Virginia grievance procedure. I would therefore decline to reach the issue of the effect of the Virginia grievance procedure on plaintiffs’ right to maintain their actions in the district court. But even if the Virginia grievance procedure is to be considered, I think that, like the defense of sovereign immunity discussed in the text, the record is not sufficiently complete to hold unconditionally that the grievance procedures provide a postdeprivation remedy in these cases sufficient to foreclose plaintiffs' claims under Parratt. In my view, it is incumbent on the Commonwealth to offer proof demonstrating the availability and the complete efficacy of any postdeprivation remedy relied on to invoke the rule of Parratt. Short of such a showing, any dismissal of plaintiffs’ complaints should be a conditional one. [3] We had occasion to express this conclusion in Fox v. Custis, 712 F.2d 84, 89 (4 Cir.1983). Further evidence of the expansion and confusion of Virginia's sovereign immunity defense is the Supreme Court of Virginia’s recent decision in Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891 (1983). In Hinchey, the court extended the doctrine to cover, not only actions at law for damages but also, suits in equity to compel or re — 229 — strain action by government. Id. 307 S.E.2d at 894. [4] This is essentially the course of action recommended in a thoughtful article, see K. Blum, The Implications of Parratt v. Taylor for Section 1983 Litigation, 16 The Urban Lawyer 363, 380-81 (1984).