Alice Frisby v. Jim Crow ( 1997 )


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  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 96-2798
    ___________
    Alice Frisby; Laquestia Frisby,            *
    *
    Appellees,                   *
    *
    v.                                  *
    *
    Jim Crow, Individually and in his          *
    official capacity as the Sheriff of Ashley * Appeal from the United States
    County, Arkansas; Greg Sanson,             * District Court for the
    Individually and in his Official Capacity * Western District of Arkansas.
    as a Deputy Sheriff of Ashley County,      *
    Arkansas, and; Randy Padgett,              * [UNPUBLISHED]
    Individually and in his Official Capacity *
    as a Deputy Sheriff of Ashley County,      *
    Arkansas,                                  *
    *
    Appellants.                  *
    ___________
    Submitted: July 21, 1997
    Filed: July 29, 1997
    ___________
    Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
    ___________
    PER CURIAM.
    Defendants appeal the district court's1 denial of qualified immunity in plaintiffs'
    42 U.S.C. § 1983 action. We affirm.
    Alice Frisby and her daughter, Laquestia Frisby, filed this action against Jim
    Crow, the Sheriff of Ashley County, Arkansas, and Deputy Sheriffs Greg Sanson and
    Randy Padgett, in their official and individual capacities. During a search of the
    Frisbys' residences, defendants Sanson and Padgett seized a small amount of marijuana
    and drug paraphernalia from Laquestia's residence, prescription drugs belonging to
    another family member from Alice's residence, and cash from both residences. Both
    women were arrested and held for five hours; Alice was charged with intent to deliver
    and unlawful possession of a narcotic drug, but the charges were later dropped. The
    Frisbys have not challenged the constitutionality of the searches or their arrests. The
    Frisbys alleged, however, that defendants tampered with the money they seized by
    contaminating it with drug residue in an effort to confiscate their property and assure
    their conviction on drug charges. The money has not been returned. The Frisbys
    claimed that defendants' conduct violated the Fifth and Fourteenth Amendments by
    depriving them of their liberty, privacy, and property interests without due process.
    Defendants moved for summary judgment, arguing they had not violated the
    Frisbys' constitutional rights, because the money was seized after the officers
    discovered drugs pursuant to valid search warrants, and the Frisbys had not been
    injured by the evidence tampering, as the charges against them were dropped.
    Defendants also argued that they were entitled to qualified immunity. The district court
    denied summary judgment.
    In an appeal from the denial of a motion for summary judgment based on
    qualified immunity, we have jurisdiction to review, de novo, the abstract issues of law
    1
    The Honorable Harry F. Barnes, United States District Judge for the Western
    District of Arkansas.
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    relating to the existence of qualified immunity. See Sisneros v. Nix, 
    95 F.3d 749
    , 753
    (8th Cir. 1996) (denial of qualified immunity reviewed de novo); Eagle v. Morgan, 
    88 F.3d 620
    , 624 (8th Cir. 1996) (whether facts constitute constitutional violation is
    abstract issue of law over which this court has jurisdiction). Looking at the conduct
    that the district court deemed adequately supported for purposes of summary judgment,
    see Allison v. Department of Corrections, 
    94 F.3d 494
    , 496 (8th Cir. 1996), we must
    determine whether plaintiffs asserted a violation of a federal right, whether that right
    was clearly established, and whether a reasonable official in defendants' position would
    have known that his conduct violated that right, see Heidemann v. Rother, 
    84 F.3d 1021
    , 1028 (8th Cir. 1996).
    If, as the Frisbys alleged, the evidence tampering resulted in the deprivation of
    the Frisbys' property, the officers' conduct could amount to a violation of the Frisbys'
    clearly established due process rights. Cf. Mahers v. Halford, 
    76 F.3d 951
    , 954 (8th
    Cir. 1996) (inmates entitled to due process for deprivation of money received from
    outside sources). Defendants did not show otherwise. Although it appears that
    adequate state post-deprivation remedies would satisfy due process, see Parratt v.
    Taylor, 
    451 U.S. 527
    , 541-44 (1981) (post-deprivation remedies adequate when loss
    is result of random, unauthorized act by state employee); Hudson v. Palmer, 
    468 U.S. 517
    , 533 (1984) (Parratt applies to intentional deprivations), defendants have not
    demonstrated the existence of such a remedy. Thus, the denial of summary judgment
    based on qualified immunity was appropriate.
    We may not address in this interlocutory appeal appellants' arguments that Crow
    was not liable in his individual or official capacity, or that the Frisbys' pendent state tort
    claims should fail. See Veneklase v. City of Fargo, 
    78 F.3d 1264
    , 1270 (8th Cir.)
    (denial of summary judgment on claim against city for failure to train not appealable on
    officers' appeal of denial of qualified immunity), cert. denied, 
    117 S. Ct. 178
    (1996);
    Smith v. Arkansas Dep't of Correction, 
    103 F.3d 637
    , 649-50 (8th Cir. 1996) (in appeal
    from denial of qualified immunity, no jurisdiction to address issues not immediately
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    appealable unless inextricably intertwined with qualified immunity determination).
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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