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United States Court of Appeals,
Fifth Circuit.
No. 92-5092.
Donald M. JOHNSON, Plaintiff-Appellant,
v.
LOUISIANA DEPARTMENT OF AGRICULTURE, Bob Odom, et al.,
Defendants-Appellees.
April 12, 1994.
Appeal from the United States District Court for the Western
District of Louisiana.
Before HIGGINBOTHAM, DAVIS and JONES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Donald Johnson appeals the district court's dismissal of his
§ 1983 action. We affirm in part and reverse in part.
I.
In the early 1980s, Donald Johnson operated a cropdusting
business, the Transylvania Flying Service, in Louisiana. On four
occasions from 1982 through 1984, the Louisiana Department of
Agriculture brought charges against Johnson and his company for
violating the Louisiana pesticide laws. On each occasion, the
Louisiana Advisory Committee on Pesticide held hearings on the
charges and then recommended that the Agriculture Commissioner
assess penalties against Johnson. The Commissioner accepted the
findings and sanctioned Johnson each time. The penalties became
increasingly severe, and Johnson's cropdusting career ended when
the Department revoked his license and his certification to apply
pesticides. After three of the four hearings, Johnson appealed the
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sanctions to a Louisiana state court, where the findings of
liability were generally affirmed although the sanctions were often
reduced.
Johnson alleges that the agriculture department continued
citing him because he refused to make a large enough contribution
to the reelection campaign of Agricultural Commissioner Bob Odom.
He claims that the agriculture department fabricated evidence
against him and forced an employee to give perjured testimony in
order to sustain the convictions. He also alleges that Odom and
other agriculture department officials contacted Commission members
to influence their votes at his hearings. Further, he asserts that
Dale Rinicker, the parish sheriff, helped the department gather
illegal evidence against him.
When the motion for summary judgment was filed, the complaint
asserted claims under 42 U.S.C. § 1983 against Bob Odom,
Commissioner of Agriculture, employees of the Louisiana Department
of Agriculture, members of the Advisory Commission on Pesticides,
and Sheriff Rinicker. After several requests by the court and the
defendants for specific allegations against specific defendants,
the district court determined that Johnson's complaint alleged
violations of his First Amendment and Fourth Amendment rights, of
procedural due process, and of equal protection.
The court dismissed the First Amendment and procedural due
process claims because the plaintiff had failed to comply with the
court's orders to plead them more specifically, and alternatively
because the complaint did not state a claim. The court determined
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that Johnson's allegations of selective prosecution stated an equal
protection claim with sufficient specificity, but then held that
qualified immunity protected defendants from that claim. The court
also determined that Sheriff Rinicker was entitled to summary
judgment because Johnson had no standing to contest any actions the
sheriff took in violation of the Fourth Amendment.
II. FIRST AMENDMENT CLAIM
We first must determine if the district court erred when it
held that Johnson failed to state a claim under § 1983 for
violation of his First Amendment rights.1 Johnson alleges that
"his first amendment rights were violated by the defendants'
coercive attempts to stifle him and his free expression of speech."
Johnson alleges that defendants targeted him for prosecution
because he "would not shut up and acquiesce to the mistreatment
inflicted upon him by the LDOA."
If this allegation asserts a claim on any basis, we agree with
the district court that the claim is one for malicious prosecution
in violation of Johnson's First Amendment rights. Whether the
Constitution comprehends any such claim is far from clear. The
Supreme Court has recently held that malicious criminal
prosecution, if actionable in constitutional law, should be
governed by the Fourth Amendment rather than substantive due
1The district court also dismissed Johnson's First Amendment
claim for failure to comply with court orders requiring Johnson
to plead this claim with more specificity. Because we hold that
Johnson does not state a claim under the First Amendment, we do
not address whether the district court was within its discretion
in assessing dismissal as a sanction for violation of its orders.
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process, with its "scare and open-ended" "guideposts." Albright v.
Oliver, --- U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).
Significantly, the Court expressed no view whether such a claim
would succeed under the Fourth Amendment. Johnson raised no Fourth
Amendment malicious prosecution claim. Further, it is an even more
complex question whether and on what basis a First Amendment claim
of malicious prosecution can be made. But at the very least, if
the First Amendment protects against malicious prosecution, Johnson
must not only allege a deprivation of a constitutional right, but
must also establish all of the elements of the common law tort
action. Johnson has failed to satisfy the common law requirement
that "the underlying criminal proceeding2 ... terminate in the
plaintiff's favor." Brummett v. Camble, 946 F.2d 1178, 1183 (5th
Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2323, 119 L.Ed.2d
241 (1992).
Johnson appealed five of his administrative penalties, and
four ended in a decrease in punishment. See, Johnson v. Odom, 470
So.2d 988 (La.App. 1st Cir.), writ denied, 476 So.2d 355 (La.1985)
(Johnson violated the law by using pesticide inappropriately, but
remanded because Commissioner not authorized by statute to impose
2Before Albright, supra, this circuit attempted to
distinguish malicious prosecution claims in criminal proceedings
which generally are serious enough to rise to the constitutional
level, and those based on civil proceedings, which do not usually
raise a constitutional issue. We had not addressed whether
malicious prosecution claims in administrative proceedings that
may result in sanctions rise to the constitutional level.
Because Albright casts a shadow on all our prior cases and
because Johnson in any event fails to satisfy a critical element
of a malicious prosecution claim, we do not address this issue
here.
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both fine and suspension); Johnson v. Odom, 536 So.2d 541 (La.App.
1st Cir.1988); writ denied, 537 So.2d 213 (1989) (Johnson violated
the law by flying without a license, but fine excessive; Johnson
violated the law, but penalties unfair; Johnson admitted
committing battery on a Department worker trying to serve a
subpoena, but the worker did not have the statutory power to serve
subpoena so Johnson did not violate statute penalizing interference
with a Commission representative in performance of his duties).
However, none of the appeals ended with a finding of not
guilty. Therefore, even if Johnson's claim is cognizable after
Albright, the district court did not err in dismissing Johnson's
First Amendment claim.
III. DUE PROCESS CLAIM
Johnson alleges that Odom and his employees denied Johnson
procedural due process by engaging in ex parte contacts with
Advisory Committee members and soliciting perjured testimony to
present to them. The district court held that such actions
constitute the kind of "random, unauthorized" deprivations of
rights that are not actionable under § 1983 if the state has
adequate post-deprivation remedies for them. Parratt v. Taylor,
451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in
part not relevant here, Daniels v. Williams, 474 U.S. 327, 106
S.Ct. 662, 88 L.Ed.2d 662 (1986); Hudson v. Palmer, 468 U.S. 517,
104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Zinermon v. Burch, 494 U.S.
113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Because Johnson had a
right to a rehearing of his adjudication and a right to seek
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judicial review of the Commissioner's findings, the district court
held that his claim was not actionable.
This circuit has held that a § 1983 action for deprivation of
procedural due process is barred if a state has adequate
post-deprivation remedies and the following conditions exist: 1)
the deprivation must truly have been unpredictable or
unforeseeable; 2) pre-deprivation process would have been
impossible or impotent to counter the state actors' particular
conduct; and 3) the conduct must have been "unauthorized" in the
sense that it was not within the officials' express or implied
authority. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.1991) (en
banc), cert. denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618
(1992).
Defendants argue, as proof of all three elements, that bias,
ex parte contacts, and solicitation are expressly prohibited by
Louisiana law. See, La.Rev.Stat. § 49:960 (prohibiting regulator
bias; La.Rev.Stat. §§ 14:122(3), 14:129.1(a), 14:134(3)
(prohibiting perjury). Because Louisiana does not authorize public
officials to taint adjudications through acts of bias, but instead
expressly forbids it, the state could not predict when public
officials might break the law nor could it expect that additional
laws would prevent the acts if existing laws did not.
Johnson's sole argument on this issue is that our decision in
an earlier opinion in this case established a violation of due
process as law of the case. The relevant language from that
opinion states:
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Johnson's claim for relief rests on the allegations that the
Department of Agriculture, through the named defendants, 1)
encouraged perjured testimony to facilitate adjudicating him
guilty of violating Louisiana's Pesticide Control laws and 2)
singled him out for prosecution and revocation of his license
using illegally obtained evidence. Such actions, if true,
would violate Johnson's due process rights.
Johnson v. Odom, 910 F.2d 1273, 1277 (5th Cir.1990) (per curiam),
cert. denied, 499 U.S. 936, 111 S.Ct. 1387, 113 L.Ed.2d 443 (1991).
The doctrine of the law of the case "merely expresses the
practice of courts generally to refuse to reopen what has been
decided" and does not limit their power to consider matters that
could have been, but were not, raised and resolved in the earlier
proceeding. Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.1989).
This court's earlier opinion did not consider the Parratt/Hudson
doctrine and whether Louisiana provided adequate post-deprivation
remedies. Rather, we stated generally that Johnson had alleged
actions inconsistent with due process. That statement does not
conflict with the district court's ruling in this circumstance
because a plaintiff has no claim under § 1983 for a due process
violation where states provide adequate post-deprivation remedies.
We recognize that Odom is an elected head of the Department
of Agriculture and enjoys considerable authority. However, this
authority does not automatically make all of his actions
"authorized" under the Parratt/Hudson doctrine. § 1983 should not
be employed to remedy deprivations which occur at the hands of even
high ranking state employees "who [are] acting in direct
contravention of the state's established policies and procedures
which have been designed to guarantee the very protections which
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the employee now has chosen to ignore." Easter House v. Felder,
910 F.2d 1387, 1404 (7th Cir.1990) (en banc) (emphasis omitted).
The State of Louisiana could not predict that Odom would violate
statutory provisions against bias, ex parte contacts, and
solicitation, as Johnson alleges he has. Simply because Odom is a
high state official does not mean that his actions are
automatically considered established state procedure that would
take the case outside of the Parratt/Hudson doctrine. Id. at 1402.
The district court did not err in dismissing Johnson's due
process claim in light of the Supreme Court's pronouncements in
Parratt and Hudson. The actions complained of were "random and
unauthorized," and Johnson had adequate post-deprivation remedies.
IV. FOURTH AMENDMENT
Johnson argues next that the district court erred in
dismissing his claim against Sheriff Rinicker. Johnson alleged
that the sheriff "drove his vehicle directly into the path of an
airplane that Mr. Johnson was operating to apply pesticides in an
attempt to create a "violation' of the pesticide laws which the
LDOA would (and did) use to prosecute plaintiff." Johnson also
alleges that the sheriff drove onto private property without a
warrant to get evidence against him.
The district court interpreted these allegations as claims
that the sheriff conducted an unreasonable search, and the court
concluded that Johnson did not make out a constitutional violation.
To establish a Fourth Amendment claim, Johnson must show that he
had a legitimate expectation of privacy in the area searched. U.S.
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v. Ibarra, 948 F.2d 903, 905 (5th Cir.1991). The sheriff's
affidavit shows that Johnson did not own the field that the sheriff
inspected for evidence of pesticide use. We doubt that the owner
of property had a reasonable expectation of privacy in the open
field. Oliver v. United States, 466 U.S. 170, 171, 104 S.Ct. 1735,
1737-38, 80 L.Ed.2d 214 (1984). Johnson, who was not even the
owner of the field, certainly had no standing to assert a Fourth
Amendment violation.
V. EQUAL PROTECTION
The district court concluded that Johnson's complaint stated
a claim for violation of equal protection based on the Department's
selective prosecution of him. But it was persuaded that qualified
immunity shielded the defendants from liability. Johnson argues
that the law of the case precludes exonerating the defendants on
qualified immunity grounds. We agree.
Our earlier opinion in this case expressly concluded that fact
issues were presented precluding a summary resolution of
defendants' qualified immunity defense:
We affirm the district court's determination that 1) the
defendants are not entitled to absolute immunity status and 2)
a material issue of fact exists as to the defendants' claims
for qualified immunity making summary judgment improper.
Johnson v. Odom, 910 F.2d at 1275. We held that the allegations
that the defendants encouraged perjury and singled out Johnson for
punishment by repeated prosecutions were material to the issue of
qualified immunity and were in dispute. Id. at 1277-78.
Thus defendants must present their qualified immunity defenses
to a fact finder for resolution of material issues of fact.
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VI.
We affirm the district court's dismissal of Johnson's First
Amendment, Fourth Amendment and due process claims. We reverse the
district court's dismissal of the plaintiff's equal protection
claim on qualified immunity grounds and remand this claim for
trial. Accordingly the district court's judgment is affirmed in
part, reversed in part and remanded for further proceedings
consistent with this opinion.

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