Lewis v. Young , 162 Wis. 2d 574 ( 1991 )

GARTZKE, P.J.

William Clifton Lewis appeals from a judgment dismissing his action brought under 42 U.S.C. sec. 1983.¹ The trial court dismissed the action because Lewis has an adequate post-deprivation remedy under state law for the property loss he alleged. We agree, and reject his remaining contentions. We conclude that his complaint fails to state a claim and we therefore affirm.

Lewis is an inmate at the Waupun Correctional Institution (WCI), a state prison. He brought this action in 1986 against Warren Young, Superintendent of Waupun, and Michael Paschke, a correctional officer at that facility. He alleges that the defendants deprived him of property in violation of his right to due process under the fourteenth amendment to the United States Constitution. He seeks compensatory and punitive damages, a declaratory judgment, and an injunction.

Lewis alleges that Paschke, as the supervisor of the Waupun property department, created a document called the "WCI Approved List." He alleges that his wife forwarded to him a ream of paper, a legal pad, and envelopes. Paschke confiscated them and declared the items contraband because they were not on "his list." Lewis's wife argued to various officials that the materials were allowed under "Wis. Adm. Code, Ch. 309, Internal Management Procedure No. 1, Page 7." Young ordered Paschke to give Lewis the items. Lewis's wife then forwarded him two more reams of paper and Paschke confiscated them. Young upheld Paschke's decision.

Lewis also alleges that after using his electronic typewriter at the prison for four months, he sent it to a dealer and had its memory expanded by interfacing it with a floppy disk drive and floppy disk. When the machine was returned to the prison, Paschke confiscated it because the disk drive was separate from the machine. Lewis and his wife again contacted various officials. The typewriter dealer spoke with Young, attempting to clarify that the machine had not been changed and fell within the above-cited code provision. The machine was not given to Lewis. He had to arrange for its return to the dealer to remove the expanded memory.

Lewis claims that Paschke created and enforced a policy he knew or should have known would deprive Lewis of property to which he was entitled under administrative rules, and that Paschke created this policy in violation of ch. 227, Stats., rule-making procedure. He alleges that Young allowed Paschke to do so and supported confiscation of Lewis's property.

This is Lewis's second appeal: The first appeal resulted from the circuit court's dismissal of his complaint on grounds that Lewis did not file a notice of claim pursuant to sec. 893.82, Stats. We summarily reversed, because the supremacy clause of the United States Constitution preempts application of state notice-of-claim statutes to sec. 1983 actions brought in state court. Lewis v. Young, No. 89-0094 (Wis. Ct. App. Aug. 8, 1989). Felder v. Casey, 487 U.S. 131 (1988) so held. We remanded for the trial court to determine whether Lewis has an adequate post-deprivation remedy to address the alleged taking of his property. The trial court concluded that Lewis has an adequate remedy in the form of an action for damages and dismissed the action. Since our summary disposition did not explain the rationale for our mandate, we return to the complaint for a more thorough analysis.

A sec. 1983 action may be brought in a state court. Terry v. Kolski, 78 Wis. 2d 475, 496-97, 254 N.W.2d 704, 712 (1977). A plaintiff may obtain money damages, equitable relief or declaratory relief in a sec. 1983 action.

However, a sec. 1983 action does not necessarily lie when a plaintiff has suffered a property loss at the hands of a state employee acting under color of state law. That is true even when, as here, the plaintiff suffering the loss claims that he has been deprived of property without due process, contrary to the fourteenth amendment to the United States Constitution.

To obtain sec. 1983 relief for a property deprivation without due process of law, the plaintiff must show a constitutional violation by the state. The elements of such a violation are (1) a showing that the state was required to provide the plaintiff with a due process hearing before the property loss occurred, or, if the state is not required to have done so, (2) that the state cannot or will not provide the plaintiff with an adequate remedy after the loss occurred. Those principles were established in Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984).

The Parratt court held that a prisoner who claimed he had been deprived of property without due process of law when state prison officials negligently lost his property, was not automatically entitled to bring an action under 42 U.S.C. sec. 1983. The court said that if he lost his property because of a random and unauthorized act by a state employee, and not as a result of established state procedure, the state had not deprived the prisoner of property without due process, since no practical way exists by which the state could provide him with a predeprivation hearing. 451 U.S. at 541, 543.

The Parratt court held that due process was accorded to the prisoner, since the state had provided him with a remedy after the deprivation occurred, a claims procedure for prisoners. The court said:

Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under [sec.] 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process.

Id. at 544. The court concluded that the prisoner in the appeal before it could not bring an action under 42 U.S.C. sec. 1983.

In Hudson, the United States Supreme Court extended its holding in Parratt. In Hudson, the prisoner brought a sec. 1983 action against a prison officer. He claimed that the officer had intentionally destroyed his non-contraband personal property during a "shakedown" of his locker and cell and that he therefore had been deprived of property without due process. The Hudson court held that the prisoner could not bring a sec. 1983 action for damages for the loss of his property. The court said: "The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct." 468 U.S. at 533.

Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.

Id. (footnote omitted) (emphasis added). The court concluded that the prisoner had several state common law remedies to recover compensation for his loss and that they were adequate. Id. at 534-36. The court added that whether the prisoner might not be able to recover under state remedies "the full amount which he might receive in a [sec.] 1983 action is not . . . determinative of the adequacy of the state remedies." Id. at 535.

We apply the Hudson and Parratt holdings to Lewis's complaint to determine whether he has stated a claim. While his complaint alleges that Paschke and Young were engaged in a "concerted and systematic effort... to deprive plaintiff of constitutionally secured rights," the most reasonable inference from the specific facts alleged is that Paschke and Young misinterpreted or were poorly informed about prison rules. The gravest inference is that they intentionally disregarded those rules. Acts based on misinterpretation or ignorance of rules, or with intentional disregard for established state policy, are unauthorized actions by state officials and are random and unpredictable. For that reason, under Par-ratt and Hudson, the state's failure to provide a predeprivation remedy for losses resulting from such acts is not a deprivation of property without due process of law.

Nothing in Lewis's complaint indicates that the state cannot or will not provide him with an adequate remedy for his property loss. On the contrary, the law of Wisconsin provides adequate post-deprivation remedies for prisoners in Lewis's circumstances. If Paschke violated the prison rules when he confiscated Lewis's paper, a suit by Lewis against Paschke for replevin under ch. 810, Stats., is an adequate remedy to recover the paper. If Paschke cannot return it, Lewis may recover money damages in his replevin action for his loss. Sections 810.13 and 810.14, Stats. If the rules do not prohibit Lewis from receiving his improved typewriter, Paschke had a duty not to interfere, and Lewis may recover money damages from him under state tort law. Lewis's complaint fails to show that the state has refused to permit him to pursue those remedies.

The Uniform Declaratory Judgments Act is in effect in Wisconsin. Section 806.04, Stats. Injunctive relief may be granted in aid of a declaratory judgment. Town of Blooming Grove v. City of Madison, 275 Wis. 328, 336, 81 N.W.2d 713, 717 (1957). Temporary and permanent injunctions may also be sought by an independent action. Sections 813.01 and 813.02, Stats. Lewis does not claim that declaratory or injunctive relief under this state's laws is inadequate. See Easter House v. Felder, 910 F.2d 1387, 1405 (7th Cir. 1990) cert. denied, 111 S. Ct. 783 (1991) (sec. 1983 action dismissed when injunc-tive relief under state law for deceptive trade practice was among meaningful post-deprivation remedies); Wilmarth v. Town of Georgetown, 555 N.E.2d 597, 602 (Mass. App. Ct. 1990) (sec. 1983 action dismissed when state declaratory judgment was adequate remedy). Lewis's complaint fails to show that the state has refused to permit him to seek declaratory or injunctive relief.

Lewis argues that the trial court violated his due process rights because it used state remedy statutes "as a device for overriding federally protected constitutional authority vested in" 42 U.S.C. sec. 1983. He correctly observes that because state remedies exist, a sec. 1983 action is unavailable. But that is because the United States Supreme Court has determined, with respect to property, that no constitutional violation occurs if there are adequate post-deprivation state remedies to compensate for the taking of the property. This state's remedies are not "devices."

Lewis argues that Paschke, with Young's assent, established a de facto state policy that led to a violation of his due process right. See Hudson, 468 U.S. at 531-33 (post-deprivation state remedies preclude sec. 1983 action only when the wrong was not pursuant to established state policy). We reject his argument as self-contradictory. Lewis's complaint also alleges that Paschke and Young violated prison system rules that would have allowed Lewis to receive the property. Since only one official policy can exist at a time, the defendants cannot have both made and failed to follow state policy.

We conclude that Lewis is not entitled to relief under 42 U.S.C. sec. 1983. Since his complaint does not seek relief by way of replevin, declaratory judgment or injunction under the law of Wisconsin, his complaint does not state a claim. The trial court properly dismissed his complaint.

By the Court. — Judgment affirmed.

1 42 U.S.C. sec. 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.