can be granted. As grounds for this motion, she argues that revocation of a locally-created right to a hearing is "a local matter not a federal claim"; that she did not arrest plaintiff, but rather Colorado Security agents took him into custody; and that plaintiff cannot demonstrate any actual compensable injury. While the Court finds none of these arguments persuasive, it nevertheless agrees that plaintiff has failed to state any legally cognizable claims.
Plaintiff predicates part of his due process claim on defendant's revocation of his right to a hearing on his parking ticket. That this right is a creature of municipal rather than federal law is not in and of itself dispositive of the question of whether plaintiff can state a section 1983 claim for its loss. The relevant inquiry is whether the right to a hearing plaintiff was allegedly denied is a property right protected by the fifth and fourteenth amendments' due process clauses. The hallmark of such property rights "is an individual entitlement grounded in state law, which cannot be removed except 'for cause.'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982). As plaintiff points out, under local law a person receiving a parking ticket has a right to a hearing at the District of Columbia's Bureau of Traffic Adjudication, D.C. Code Ann. § 40-625(b) (1986). The Supreme Court has held that the due process clause "prevent[s] the States from denying potential litigants use of established adjudicatory procedures when such an action would be 'the equivalent of denying them an opportunity to be heard upon their claimed right[s].'" Logan, 455 U.S. at 429-30 (quoting Boddie v. Connecticut, 401 U.S. 371, 380, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971)). Certainly it appears here that plaintiff has established an entitlement to a hearing on his ticket -- state law creates a right to such a hearing, and to allow a hearing examiner to revoke that right would permit the city to impose fines without providing any opportunity to be heard.
Plaintiff's allegations that he was deprived of a protected interest by one acting under color of law, however, do not by themselves state a claim for relief under section 1983. As the Supreme Court made clear in Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), "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." Here plaintiff has not claimed that the city failed to provide an adequate post-deprivation remedy, nor does it appear that he could, since he received a hearing on his ticket on December 11, 1985.
Accordingly, plaintiff's complaint must be dismissed with respect to this claim.
His claim of unlawful arrest stands on a slightly different footing, but is similarly deficient. Plaintiff alleges that defendant ordered him arrested even though she lacked the authority to do so. While defendant claims that she did not actually take plaintiff into custody and further suggests that the Court "may assume" that the security guard who did arrest him "had his own independent reasons" for doing so, Defendant's Motion at 3, the Court is obliged when entertaining a motion to dismiss to treat the allegations of the complaint as true, and may not indulge assumptions favorable to the defendant. The complaint states quite clearly that defendant ordered his arrest. Complaint at para. 17. Treating that statement as true for present purposes, plaintiff has again demonstrated that he was deprived of a protected interest, his liberty, by one acting under color of state law. Once again, however, because adequate post-deprivation remedies are available to plaintiff -- namely state tort actions for false imprisonment or false arrest -- he has failed to state a claim for relief under section 1983.
In Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), the Supreme Court ruled that a state's negligent deprivation of property did not offend the fourteenth amendment's due process clause where the deprivation occurred as a result of random, unauthorized conduct, such that a pre-deprivation hearing was impossible or impractical, and where the state provided adequate post-deprivation remedies such as those commonly available in tort actions. In Hudson v. Palmer, the Court extended the reasoning of Parratt to intentional deprivations of property. 104 S. Ct. at 3202-04. This past term, in Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986), the Court partially overruled Parratt and held that negligence cannot give rise to a due process deprivation; the case itself involved a negligent deprivation of liberty, and the Fourth Circuit, applying Parratt, had concluded that there had been no deprivation because state tort laws provided adequate post-deprivation remedies. The Supreme Court has yet to decide whether Parratt applies in cases of intentional deprivations of liberty, and the circuits have struggled with the question since.
In Parratt itself, Justice Blackmun stated in a concurring opinion joined by Justice White, that he did not believe that the availability of adequate post-deprivation remedies was relevant in cases involving deprivations of life or liberty. Parratt, 451 U.S. at 545 (Blackmun, J., concurring). Relying on that concurrence, the Fifth Circuit ruled in Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982), that Parratt did not apply to an intentional deprivation of liberty caused by defendants' unlawful arrest, trial, and detention of plaintiffs.
The Seventh and Eleventh Circuits have taken a contrary view, holding that Parratt does apply to cases in which a plaintiff alleges a procedural due process violation based on an intentional deprivation of liberty. Gilmere v. City of Atlanta, 774 F.2d 1495, 1499 (11th Cir. 1985) (en banc), cert. denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. Ed. 2d 654 (1986); Guenther v. Holmgreen, 738 F.2d 879, 882-83 (7th Cir. 1984), cert. denied, 469 U.S. 1212, 84 L. Ed. 2d 329, 105 S. Ct. 1182 (1985); Johnson v. Miller, 680 F.2d 39 (7th Cir. 1982). The Ninth Circuit, after initially agreeing with the positions taken by the Seventh and Eleventh Circuits, see Bretz v. Kelman, 722 F.2d 503 (9th Cir. 1983), withdrawn, 729 F.2d 613 (1984), on rehearing, 773 F.2d 1026 (1985) (en banc); Haygood v. Younger, 718 F.2d 1472 (9th Cir. 1983), withdrawn, 729 F.2d 613 (1984), on rehearing, 769 F.2d 1350 (1985) (en banc), cert. denied sub nom. Cranke v. Haygood, 478 U.S. 1020, 106 S. Ct. 3333, 92 L. Ed. 2d 739 (1986); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir. 1981), aff'd on other grounds sub nom. Kusk v. Rutledge, 460 U.S. 719, 75 L. Ed. 2d 413, 103 S. Ct. 1483 (1983), more recently appears to have arrived at what might be considered a middle ground, weighing the plaintiff's liberty interest against any competing state interest in order to determine whether a post-deprivation hearing can adequately compensate the plaintiff for his or her loss. Haygood v. Younger, 769 F.2d 1350, 1456-58 (9th Cir. 1985).
In a series of pre-Daniels decisions, several courts concluded that Parratt applied in cases involving negligent deprivations of liberty, finding no basis for distinguishing between liberty and property interests. Wilson v. Beebe, 770 F.2d 578, 584 (6th Cir. 1985) (en banc); Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir. 1984); Daniels v. Williams, 720 F.2d 792 (4th Cir. 1983); Holmes v. Ward, 566 F. Supp. 863 (E.D.N.Y. 1983); Juncker v. Tinney, 549 F. Supp. 574 (D. Md. 1982); Irshad v. Spann, 543 F. Supp. 922, 927 n.1 (E.D. Va. 1982); Eberle v. Baumfalk, 524 F. Supp. 515, 517-18 (N.D. Ill. 1981); Meshkov v. Abington Township, 517 F. Supp. 1280, 1286 (E.D. Pa. 1981).
All circuits that have addressed the question agree that Parratt is inapplicable where a plaintiff claims a deprivation of a substantive constitutional guarantee, such as those secured by the fourth or eighth amendment, or a deprivation of substantive due process rights, such as the right to be free from the use of excessive force by law enforcement officials. Gilmere v. City of Atlanta, 774 F.2d at 1499, 1502 (11th Cir.); Wilson v. Beebe, 770 F.2d at 585-86 (6th Cir.); Guenther v. Holmgreen, 738 F.2d at 882 (7th Cir.); Thibodeaux v. Bordelon, 740 F.2d at 333 (5th Cir.); Daniels v. Williams, 720 F.2d at 796 n.3 (4th Cir.). In such cases, it is the governmental conduct itself, rather than the absence of procedural safeguards, that violates the Constitution. The violation is complete the moment the harm occurs, and no amount of pre- or post-deprivation process can remedy the wrong. This treatment of substantive due process violations is consistent with the Supreme Court's landmark decision in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), where it held that a violation of a substantive fourth amendment right may be challenged under section 1983 regardless of the availability of any state law tort remedies. However, where a plaintiff challenges random, unauthorized governmental conduct on the ground that it deprived him or her of liberty without due process, the consensus of the circuits is that such procedural due process cases are governed by Parratt, and that no cognizable constitutional claim can be stated where adequate post-deprivation state remedies are available. The due process clause of the fourteenth amendment does not categorically prohibit any and all takings of life, liberty or property; rather, it proscribes such takings accomplished without due process. Baker v. McCollan, 443 U.S. 137, 143, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). The essence of a procedural, as opposed to a substantive, due process claim, therefore, is not that the deprivation itself violates the Constitution, but that the state's failure to provide adequate process in connection with the deprivation does. Thus, as the Supreme Court made clear in Hudson v. Palmer, a state's violation of the fourteenth amendment's procedural due process guarantees "is not complete until and unless it provides or refuses to provide a suitable post-deprivation remedy." 468 U.S. at 532, 104 S. Ct. at 3204.
Here plaintiff has alleged only that defendant deprived him of his due process rights. While he states in his complaint that the security guards who arrested him used excessive force, Complaint at para. 18, he chose not to name these individuals as defendants. Thus, even if this allegation were sufficient to raise a substantive due process claim, the responsible parties are not before this Court.
The only allegations pertaining to defendant are that she acted under color of authority, but in excess of her actual authority, in ordering plaintiff's arrest, thereby depriving him of "rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, the laws of the United States, or the laws of the District of Columbia." Id. at paras. 25-28. Plaintiff, who is represented by counsel in this action, has neither cited the fourth amendment as a source of his rights nor alleged that defendant's actions violated those rights. Instead, he rests his cause of action exclusively on a violation of his fifth and fourteenth amendment rights to due process. As he has neither alleged that the District of Columbia fails to provide adequate post-deprivation remedies,
nor in any way challenged defendant's assertion that such remedies are in fact available to him, plaintiff's procedural due process claim must be dismissed for failure to state a claim upon which relief can be granted. Cf. Guenther v. Holmgreen, 738 F.2d at 882-883 (where plaintiff claimed defendant's bad faith arrest violated both his fourteenth and fourth amendment rights, he stated a valid claim under section 1983). Accordingly, defendant's motion is granted and this case is dismissed in its entirety.
IT IS SO ORDERED this 26th day of November, 1986.