United States Court of Appeals,

Eleventh Circuit.

No. 94-6889.

Joel TINNEY, Lisa Tinney, Plaintiffs-Appellees,

v.

Edith SHORES, Defendant,

Bill Franklin, as Sheriff of Elmore County and in his individual

capacity, Paul Henderson, as Deputy Sheriff of Elmore County and in

his individual capacity, Defendants-Appellants,

Elmore County, Alabama, Defendant.

March 8, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV 93-A-762-N), W. Harold Albritton, III,

Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON,

Senior Circuit Judge.

PER CURIAM:

In this appeal from the Middle District of Alabama, Bill

Franklin, Sheriff of Elmore County, and Paul Henderson, Chief

Deputy Sheriff of Elmore County (collectively, "Appellants"),

appeal the district court's denial of their motion for summary

judgment with respect to the claims of Joel and Lisa Tinney under

the Due Process Clause of the Fourteenth Amendment and 42 U.S.C.A.

§ 1983 (West 1994) and under various state laws. We reverse the

denial of summary judgment on the substantive and procedural due

process claims. We also reverse the denial of summary judgment on

the state law claims, based on Appellants' sovereign immunity.

I. STATEMENT OF THE CASE

A. Factual Background

Joel and Lisa Tinney lived in their house-trailer with their
two young children on land leased from Edith Shores. On or about

July 13, 1991, Shores told the Tinneys that their rent was

approximately $400 in arrears. After they failed to pay, the

Tinneys received an eviction notice, and the landlord instituted

eviction proceedings.

On August 8, 1991, Appellants served Mr. Tinney with eviction

papers. Mr. Tinney told them that the house-trailer would be moved

by noon that day. Shortly thereafter, however, Henderson returned

and informed the Tinneys that, over the telephone, a bank had given

Shores a lien on the house-trailer and that the Tinneys were not

permitted to move it. The Tinneys were not served with any

official attachment papers. Nevertheless, they were told that they

would have until noon to remove their personal possessions from the

house-trailer. After moving one load of possessions in a small

automobile, the couple returned to find the house-trailer

padlocked; they were unable to remove any more of their

possessions.

Soon thereafter, the Tinneys received a letter from Shores'

attorney, informing them that the house-trailer would be sold

unless they paid the rent in arrears. Shores did not file suit to

recover either the unpaid rent or payments on the house-trailer.

Nonetheless, Shores sold the house-trailer and the Tinneys'

possessions were not returned.

B. Procedural History

In June 1993, the Tinneys filed this action in federal

district court naming as defendants Shores, Appellants, and Elmore

County. The Tinneys asserted state law claims for conversion and
trespass and Section 1983 claims based on deprivations of their

14th Amendment substantive and procedural due process rights and

their Fourth Amendment right to be free from unreasonable searches

and seizures. In July 1993, the Tinneys amended their complaint to

sue Appellants in both their individual and their official

capacities.

In December 1993, the district court dismissed all claims

against Elmore County and all claims against Appellants in their

official capacities. In June 1994, Appellants moved for summary

judgment on the remaining claims, both on the merits and on

qualified, quasi-judicial and state sovereign immunity grounds. In

August 1994, the district court granted Appellants' motion with

regard to the Fourth Amendment claim but denied it with regard to

the due process claims and the state law claims. Appellants timely

filed their notice of interlocutory appeal.

II. DISCUSSION

On appeal, Appellants contend (1) that the district court

erred in denying summary judgment based on Appellants' qualified

immunity from the Tinneys' substantive due process and procedural

due process claims, and (2) that the district court erred in

denying summary judgment on the state law claims based on state

sovereign immunity.

A. Qualified Immunity

 Because qualified immunity provides the right not to be

burdened by trial, and not simply a defense to liability, this

Court has jurisdiction to review interlocutory appeals from orders

denying summary judgment based on qualified immunity. Mitchell v.
Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411

(1985). Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir.1991).

We review this question of law de novo. Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1487 (11th Cir.1992), cert. denied, 507

U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993). In so doing, our

inquiry is confined to whether the record, viewed in the light most

favorable to the party opposing summary judgment, reveals

violations of clearly established law. Rogers v. Miller, 57 F.3d

986 (11th Cir.1995).

 Qualified immunity protects government actors in their

individual capacities from civil damage claims, provided that their

conduct does not violate clearly established constitutional rights.

Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146,

1149 (11th Cir.1994). The Supreme Court has stated that "[a]

necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is "clearly

established' at the time the defendant acted is the determination

of whether the plaintiff has asserted a violation of a

constitutional right at all." Siegert v. Gilley, 500 U.S. 226,

232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Accordingly, we

first examine whether the Tinneys have asserted a cognizable

constitutional claim. See Wooten v. Campbell, 49 F.3d 696, 699

(11th Cir.1995). Jordan v. Doe, 38 F.3d 1559, 1564 (11th

Cir.1994).

1. The Substantive Due Process Claim

 Relying on Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865,

104 L.Ed.2d 443 (1989), Appellants contend that the district court
erred by denying them summary judgment on the Tinneys' substantive

due process claim, arguing that the Fourth Amendment provides

whatever protection, if any, the constitution guarantees in a

seizure case like this one. In Graham, the Supreme Court held that

where a particular amendment "provides an explicit textual source

of constitutional protection" against a particular sort of

government behavior, "that Amendment, not the more generalized

notion of "substantive due process' must be the guide for

analyzing" the claim. Id. at 395, 109 S.Ct. at 1871. Graham

involved a claim that law enforcement officers used excessive force

during an investigatory stop. The Court held that all cases

involving allegations of the use of excessive force in an arrest,

an investigatory stop, or any other seizure, should be analyzed

under the Fourth Amendment. Id.

More recently, in Albright v. Oliver, the Supreme Court held

that an allegation of prosecution without probable cause must also

be analyzed under the Fourth Amendment, without reference to the

more general considerations of substantive due process. --- U.S.

----, ----, 114 S.Ct. 807, 817, 127 L.Ed.2d 114 (1994). "The

protections of substantive due process have for the most part been

accorded to matters relating to marriage, family, procreation and

the right to bodily integrity ..." Albright, --- U.S. at ----, 114

S.Ct. at 812.

Soldal v. Cook County makes clear that the Fourth Amendment is

the textual source of the Tinneys' constitutional protection. In

Soldal, the Supreme Court held that police officers' participation

in the seizing and carrying away of a family's mobile home was a
seizure under the Fourth Amendment. 506 U.S. 56, ----, 113 S.Ct.

538, 549, 121 L.Ed.2d 450 (1992). Thus, the Tinneys' substantive

due process claim is foreclosed by Albright and Soldal. Because

the Tinneys have failed to assert a cognizable constitutional

claim, the district court erred by denying Appellants summary

judgment.

2. The Procedural Due Process Claim

 The Tinneys assert, and the district court held, that

Appellants' failure to adhere to Alabama's pre-deprivation takings

procedure constituted a procedural due process violation.

Conversely, Appellants contend that the district court erred in

denying them summary judgment on the procedural due process claim

because adequate post-deprivation remedies were available under

state law. In other words, Appellants maintain that the

deprivation in this case was not complete because a property

deprivation does not occur until the state has been given the

opportunity to remedy the state employees' error and has failed to

do so.

Appellants' contention rests on Parratt v. Taylor, 451 U.S.

527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part not

relevant by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct.

662, 664-65, 88 L.Ed.2d 662 (1986). Parratt involved a prisoner's

loss of property due to the random, negligent act of a state

employee. The Supreme Court held that the state tort remedies

available to the prisoner satisfied the prisoner's due process

rights because due process does not require a pre-deprivation

hearing where such a hearing would be impracticable—i.e., where the
deprivation results from an employee's negligent act. In Hudson v.

Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393

(1984), the Court extended Parratt 's reasoning and held 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 14th Amendment if a

meaningful post-deprivation remedy for the loss is available." The

state's action is not complete unless and until it refuses to

provide a post-deprivation remedy. Id.

The Tinneys contend that application of the Parratt rule in

cases like this one amounts to a requirement that a Section 1983

plaintiff seeking to redress a violation of procedural due process

must exhaust his or her state remedies before suing in federal

court. The Supreme Court rejected such a requirement in Patsy v.

Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172

(1982). However, the Tinneys' contention lacks merit. In a recent

public employment case brought under Section 1983, this Court,

sitting en banc, explained the difference between Patsy 's import

and Parratt 's:

In Patsy the Supreme Court held that section 1983 plaintiffs

were not required to avail themselves of available state

remedies before suing in federal court; the Court's holding

presumed the presence of a valid constitutional claim. In

this case, McKinney cannot state a valid constitutional claim

under Parratt and Bishop because Florida provides an adequate

process to remedy McKinney's alleged injury....

McKinney v. Pate, 20 F.3d 1550, 1563 n. 20 (1994) (en banc ), cert.

denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995).

As in McKinney, Patsy is inapplicable here. Under Parratt and

Hudson, the Tinneys have failed to state a valid procedural due
 1

In holding that Parratt was inapplicable to the instant

case, the district court relied upon Fetner v. City of Roanoke,

813 F.2d 1183, 1185 (11th Cir.1987), wherein we wrote "[t]he

touchstone in Parratt was the impracticability of holding a

hearing prior to the claimed deprivation." On the basis of this

language, the district court held: "[a]ttachment is a daily

occurrence and because the State has pre-deprivation procedures

in place, [Appellants] cannot maintain that pre-deprivation

process was impracticable." The district court misconstrued the

notion of "impracticability" as it is used in Parratt. The

question is whether the state can anticipate and therefore

control the action of a state employee. See Hudson, 468 U.S. at

533, 104 S.Ct. at 3203. Once a state has established procedures

for the effectuation of an attachment—which Alabama undisputedly

has—it cannot predict whether or not, in a given situation, those

procedures will be followed or ignored. Thus, as with an

employee's negligence or an employee's intentional wrongful act,

Appellants' actions in this case were not preventable beforehand

by the state. Therefore, under Parratt and Hudson, no procedural

due process violation occurs unless the state fails to provide

the opportunity to redress the situation after the fact. The

Tinneys argue only that the due process violation was complete at

the time of the attachment, without regard to the availability of

post-attachment remedies, and thus they have failed to establish

a procedural due process violation. Because the Tinneys have not

challenged the adequacy of Alabama's post-deprivation remedies,

we have no occasion to decide whether Alabama law does in fact

provide adequate avenues for making the Tinneys whole. 

 2

Appellants also challenge the district court's denial of

summary judgment on the basis of absolute quasi-judicial

immunity. Because we decide that summary judgment was proper on

other grounds, we need not reach this issue. 

process claim because they have not alleged that Alabama law

provided them with an inadequate post-deprivation remedy.1 Thus,

the district court erred by denying summary judgment.2

B. State Sovereign Immunity

Appellants also contend that the district court erred in

denying them summary judgment on the state law claims. Appellants

maintain that they are entitled to state sovereign immunity under

Alabama law. Both parties invoke this Court's jurisdiction under

Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.1992), which held

that denials of sovereign immunity under Georgia law are
 3

Alabama law affords § 14 immunity to state officers sued in

both their official and individual capacities. See Phillips v.

Thomas, 555 So.2d 81, 83 (Ala.1989). Gill v. Sewell, 356 So.2d

1196, 1198 (Ala.1978). 

immediately appealable. See also, Cummings v. DeKalb County, 24

F.3d 1349, 1352 (11th Cir.1994). Griesel reasoned that sovereign

immunity in Georgia is immunity from suit, not merely a defense

from liability. Id. This same rationale applies equally to a

claim of sovereign immunity under Alabama law.

 Alabama grants sovereign immunity to its state executive

officers pursuant to Article I, Section 14 of the Alabama

Constitution of 1901. Section 14 states that "the State of Alabama

shall never be made a defendant in any court of law or equity."

Under Alabama law, both sheriffs and deputy sheriffs are considered

executive officers of the state, immune from suit under Section

14.3

 See Parker v. Amerson, 519 So.2d 442, 443 (Ala.1987). Parker

v. Williams, 862 F.2d 1471, 1475 (11th Cir.1989). Drain v. Odom,

631 So.2d 971, 972 (Ala.1994). Like Georgia, then, Alabama

intended for its state officers to be immune from suit. As such,

the denial of summary judgment based on sovereign immunity is

properly before us on interlocutory appeal.

 Sovereign immunity is a question of law we review de novo.

Cummings, 24 F.3d at 1353. Under Alabama law, sheriffs and deputy

sheriffs, in their official capacities and individually, are

absolutely immune from suit when the action is, in effect, one

against the state. Phillips v. Thomas, 555 So.2d 81, 83

(Ala.1989). The district court noted, though, that Phillips and

Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978) identify a number
 4

The court stated:

Under Article I, Sec. 14, of the Alabama

Constitution of 1901, the only exceptions to the

sovereign immunity of sheriffs are actions brought

(1) to compel him to perform his duties, (2) to

compel him to perform ministerial acts, (3) to enjoin

him from enforcing unconstitutional laws, (4) to enjoin

him from acting in bad faith, fraudulently, beyond his

authority, or under mistaken interpretation of the law,

or (5) to seek construction of a statute under the

Declaratory Judgment Act if he is a necessary party for

the construction of the statute. (citations omitted). 

of exceptions to Section 14 immunity. Specifically, the district

court held that sovereign immunity does not protect state officials

who act under a mistaken interpretation of law. Based on this

exception, the district court found that Appellants were not

entitled to sovereign immunity.

 Recent Alabama case law makes it clear, however, that the

exception relied upon by the district court is inapplicable in this

case. In Alexander v. Hatfield, 652 So.2d 1142, 1143 (Ala.1994),

the plaintiff sued the sheriff for negligence and bad faith service

of process. The Alabama Supreme Court explained that under Article

I, § 14, the only exceptions to a sheriff's immunity from suit are

actions brought to enjoin the sheriff's conduct. Id. at 1143.4

See also Carr v. City of Florence, 916 F.2d 1521, 1525 (11th

Cir.1990). Because the sheriff in Alexander was being sued for

damages and not injunctive relief, the court held that the

exceptions to Section 14 were inapplicable and therefore the

sheriff was immune from suit. Id.

Like Alexander, Appellants in this case are being sued for

damages, based upon claims of conversion and trespass, and not for
injunctive relief. Therefore, Appellants are entitled to sovereign

immunity from the state law claims. Accordingly, we reverse the

district court's denial of summary judgment on these claims.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court's

denial of summary judgment on the Tinneys' substantive due process

and procedural due process claims. We also REVERSE its denial of

summary judgment based on Appellants' sovereign immunity from the

state law claims.