Pacesetter Apparel, Inc. v. Cobb County, Georgia , 374 F. App'x 910 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 1, 2010
No. 09-12402
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-01205-CV-HTW-1
PACESETTER APPAREL, INC.,
Plaintiff-Appellant,
versus
COBB COUNTY, GEORGIA,
PATRICK H. HEAD,
Individually and in his official capacity as
District Attorney for Cobb County, Georgia,
ANDREW JASON SALIBA,
Individually and in his official Capacity as
Assistant District Attorney for Cobb County, Georgia,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 1, 2010)
Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
This appeal presents the question whether the district court erred when it
dismissed the complaint of Pacesetter Apparel, Inc. for failure to state a claim of a
deprivation of property without due process. Pacesetter had a perfected security
interest in property seized under a warrant by Cobb County officials, who later
destroyed the property as counterfeit goods, without notice to Pacesetter.
Pacesetter filed a complaint against Patrick Head, the District Attorney for Cobb
County; Andrew Saliba, an Assistant District Attorney for Cobb County; and Cobb
County. We affirm.
I. BACKGROUND
Pacesetter operates a wholesale apparel business in Marietta, Georgia. In
October 2001, Pacesetter sold its assets and rights in its name to Vance Bibb and
Pacesetter Apparel Group, Inc. As partial payment, Pacesetter Apparel Group
executed three promissory notes for $450,000. The promissory notes provided
Pacesetter with a security interest in all “accounts . . . , inventory, proceeds, and
equipment” of Pacesetter Apparel Group, including any after acquired collateral.
Pacesetter perfected its security interest by filing a financing statement with the
clerk of the Superior Court of Cobb County, Georgia.
On July 15, 2003, a state magistrate judge issued an order to seize
counterfeit inventory from Pacesetter Apparel Group, which officers of the Cobb
County Police Department executed on or about July 22, 2003. The police officers
seized about 21,400 articles of clothing.
In September 2003, Pacesetter Apparel Group defaulted on its promissory
note. In January 2004, Pacesetter initiated a civil action in Gwinnett County State
Court to recover the balance owed on the promissory notes. In May 2004, the state
county court issued a writ of possession and turnover order demanding that
Pacesetter Apparel Group, or any party in possession, surrender its inventory to the
Sheriff of Gwinnett County. On August 2, 2004 , after it learned that the Cobb
County Police possessed the inventory, Pacesetter informed Andrew Jason Saliba,
an Assistant District Attorney for Cobb County, of its interest in the seized
inventory.
In May 2005, without notice to Pacesetter, Cobb County destroyed the
inventory that it had seized as counterfeit goods. On December 2, 2005, the office
of the District Attorney for Cobb County informed Pacesetter that the inventory
had been destroyed.
Pacesetter filed a complaint in the district court against Cobb County;
Patrick Head, the District Attorney for Cobb County; and Andrew Saliba, an
Assistant District Attorney for Cobb County. The complaint alleged that the
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defendants had violated the right of Pacesetter to procedural due process by
destroying its inventory without notice. Cobb County, Head, and Saliba filed
motions to dismiss, which the district court granted.
II. STANDARD OF REVIEW
We review an order granting a motion to dismiss de novo. Hoffman-Pugh v.
Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002). We accept all well-pleaded factual
allegations as true and draw all reasonable inferences in favor of the plaintiff.
Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949–50 (2009).
III. DISCUSSION
Although the Due Process Clause requires, at minimum, “notice and the
opportunity to be heard incident to the deprivation of life, liberty[,] or property at
the hands of the government,” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.
2003), the Supreme Court has rejected the notion that a state must always provide a
predeprivation hearing. Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194,
3203–04 (1984); Parratt v. Taylor, 451 U.S. 527, 540–41, 101 S. Ct. 1908,
1915–16 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327,
106 S. Ct. 662 (1986). “[T]he deprivation by state action of a constitutionally
protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what
is unconstitutional is the deprivation of such an interest without due process of
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law.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990). A
“constitutional violation . . . is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due process.” Id. at 126, 110 S.
Ct. at 983. Under the Parratt-Hudson doctrine, when a deprivation of property is
random and unauthorized, “[a]ll that due process requires . . . is a post-deprivation
‘means of redress for property deprivations satisfy[ing] the requirements of
procedural due process.’” McKinney v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994)
(quoting Parratt, 451 U.S. at 537, 101 S. Ct. at 1914). The doctrine extends to both
negligent and intentional deprivations by state officials. Hudson, 468 U.S. at 533,
104 S. Ct. at 3204.
Georgia law provides an adequate postdeprivation remedy for a wrongful
deprivation of property. Georgia law provides a cause of action for conversion of
property, Ga. Code Ann. § 51-10-1, which we have held provides an adequate
postdeprivation remedy. Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991).
Pacesetter argues that this postdeprivation remedy is inadequate because the
district attorney enjoys official immunity, but our precedent forecloses this
argument. Immunity enjoyed by a state actor or county does not render a state
postdeprivation remedy inadequate under the Parratt-Hudson doctrine. Powell v.
Georgia Dep’t of Human Res., 114 F.3d 1074, 1082 n.11 (11th Cir. 1997);
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Rittenhouse v. DeKalb County, 764 F.2d 1451, 1459 (11th Cir. 1985).
IV. CONCLUSION
We AFFIRM the dismissal of the complaint against Cobb County, Head,
and Saliba.
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