APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNA. (Civil Action No. 74-1262).
Hunter, Biggs and Garth, Circuit Judges.
This is an appeal by the plaintiff, Ethel Hazo, from a judgment of the United States District Court for the Western District of Pennsylvania dismissing her action under 42 U.S.C. §§ 1983, 1985(3) and 28 U.S.C. § 1343. On March 14, 1973, Hazo and Geltz, private citizens, entered into an agreement whereby Geltz agreed to invest three thousand dollars in the Moses Hazo Company with the understanding that Geltz could request that her investment be returned at the end of six months. Geltz eventually made a request for refund and, failing to have her investment returned, minus expenses as stipulated in the contract, she filed an action in assumpsit on November 8, 1973, in the Court of Common Pleas of Allegheny County, claiming the sum allegedly due her. On December 27, 1973, Geltz's attorney, Burkardt, obtained judgment by default against Hazo for the full sum, viz., three thousand dollars and costs. Under this judgment, Burkardt caused to be executed a levy upon the personal property of Hazo. The executions and levies were made by Deputy Sheriff Telford under Pa. R. Civ. P. 3102, 3128, 42 P.S. It would appear that a previous levy was made on a judgment obtained by ITT and that the property was put up for sale for execution under both levies on April 17, 1974.
Since the complaint was dismissed, we must assume that the following three factual allegations made by Hazo are correct: First, that service by an unspecified person was made on a tenant of Hazo and not on her; second, at the sale, Deputy Sheriff Telford refused to take a check from Hazo, thus preventing her from bidding on the property, but did take a check from Burkardt. As a result, Burkardt was the only bidder, paying a little more than ninetynine dollars for a property that Hazo's complaint valued at thirty-five thousand dollars. Third, public notice of the sheriff's sale failed to inform as to the precise nature of the Hazo items sold. Hazo contends that only a partial listing of her property was made.*fn1
The complaint is an example of inartistic and careless*fn2 pleading. The plaintiff specifically states as a cause of action: "Moreover, the defendants above-named [Geltz, Burkardt and Telford] conspired to deprive Hazo of her constitutional right to due process of the law and equal treatment under the laws in violation of Title 42, United States Code, § 1985." As the District Court pointed out, the appellant's counsel was apparently then unaware of the Supreme Court's ruling in Griffin v. Breckenridge, 403 U.S. 88, 98, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), for no "massive and effective" class-based private conspiracy is alleged. The remedy originally sought under section 1985(3) has been abandoned in this Court. Despite all the deficiencies in pleading, the substance of the complaint appears to be that Deputy Sheriff Telford joined in a conspiracy with the other named defendants to deprive Mrs. Hazo of her property in contravention of the Fourteenth Amendment by abusing a state-court procedure and writ of execution. All of the defendants moved to dismiss the complaint: Burkardt on the ground that he was acting in a purely private capacity as an attorney and not under color of state law; Geltz on the ground that no cause of action had been stated against her; and Telford on the ground that he was at the time of the sale cloaked with a judicial immunity. The District Court granted the motions and dismissed the complaint finding that Telford in executing the levy was immune from suit; and there being no other state actor liable, there could be no one for Burkardt and/or Geltz to conspire with. Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974); Melo-Sonics Corporation v. Cropp, 342 F.2d 856, 858-59 (3d Cir. 1965). The complaint also seeks damages and injunctive relief.
Succinctly, do the factual averments and the state of immunity law justify this dismissal? We think not. A sheriff or his deputies are not necessarily immune from civil suit under section 1983. See, e.g., Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971) (under state law). However, some Circuits have held that a sheriff or his deputies are not liable under section 1983 unless they misuse their power or act in bad faith. Tucker v. Maher, 497 F.2d 1309, 1313 (2d Cir. 1974), cert. denied, 419 U.S. 997, 95 S. Ct. 312, 42 L. Ed. 2d 271 (1974); Nelson v. Hall, 368 F.2d 103, 107 (9th Cir. 1966). Here, the case must be deemed to turn upon the liability of Deputy Sheriff Telford. Before this Court, Hazo contends that Burkardt is liable only insofar as he conspired with state official Telford, not in his capacity as attorney-officer of the court.*fn3 Given the posture of the case, we treat Burkardt as a private person. If suit cannot be maintained against Telford under section 1983, then the conspiracy allegations with regard to Burkardt and Geltz must also fail.
The District Court has relied in large part upon Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir. 1969), cert. denied, 396 U.S. 941, 24 L. Ed. 2d 244, 90 S. Ct. 378 (1969), and Gigliotti v. Redevelopment Auth. of the City of New Castle, 362 F. Supp. 764 (W.D. Pa. 1973), aff'd., 492 F.2d 1238 (3d Cir. 1974).*fn4 In Lockhart the Prothonotary was acting under a direct instruction from a Judge of the Pennsylvania Superior Court. In Gigliotti the Sheriff was apparently acting pursuant to 26 P.S. § 1-407(a) of the Pennsylvania eminent domain statute, executing a writ of possession issued by a Judge. In the case at bar there was a default judgment and an ordinary execution pursuant thereto by the Deputy Sheriff under Pa. R. Civ. P. 3102, 3128, 42 P.S.
More recent decisions of the Supreme Court such as Wood v. Strickland, 420 U.S. 308, 313-22, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975), indicate that public school officials acting in good faith and without malice in their sphere of official responsibility are entitled to a "qualified good-faith immunity . . . from liability for damages" under section 1983. See also O'Connor v. Donaldson, 422 U.S. 563, 576-77, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975).*fn5 In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), Mr. Justice Powell makes reference to the fact that each of the respondent's challenged activities was "an integral part of the judicial process." The respondent was a prosecuting attorney who was being sued for unlawful prosecution under section 1983 and was accorded absolute immunity. Mr. Justice Powell went on to say, however: "The purpose of the Court of Appeals' focus upon the functional nature of the activities rather than respondent's status was to distinguish and leave standing those cases, in its circuit and in some others, which hold that a prosecutor engaged in certain investigatory activities enjoys not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman's. See Pierson v. Ray, 386 U.S. 547, 557, [18 L. Ed. 2d 288, 87 S. Ct. 1213] (1967). We agree with the Court of Appeals that respondent's activities were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." Id., 424 U.S. at 430 (notes omitted). See also Wisconsin v. Constantineau, 400 U.S. 433, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1971), distinguished, Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976); Monroe v. Pape, 365 U.S. 167, 182, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). This immunity distinction was an essential part of the holding in Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976).
It can be plausibly argued that an official acting under a direct order of the court is in a stronger position as an adjunct of the court than if he were merely effecting execution pursuant to Rules 3102, 3128, as in the case at bar. See Waits, supra, 516 F.2d at 206, stating that if a "defendant is directly involved in the judicial process, he may receive immunity in his own right for performance of a discretionary act or he may be covered by the immunity of the judge because he is performing a ministerial function at the direction of the judge." Bauers v. Heisel, 361 F.2d 581, 589 (3d Cir. 1966) (en banc).
Of the two cases relied upon by the District Court, Lockhart involved an official, a Prothonotary under the direct supervision of the bench. In Gigliotti it is unclear how closely the Sheriff was directed by judicial mandate and procedure. The Supreme Court's new immunity language, Brawer, and Waits require a factual determination of how direct the judicial supervision before the absolute immunity can be accorded. Such a determination must be made in the case at bar. Cf. United States v. Branch Coal Corporation, 390 F.2d 7, 9-10 (3d Cir. 1968), cert. denied, 391 U.S. 966, 88 S. Ct. 2034, 20 L. Ed. 2d 878 (1968), citing, Yazoo & M.V.R. Co. v. City of Clarksdale, 257 U.S. 10, 66 L. Ed. 104, 42 S. Ct. 27 (1921) (differing degree of judicial direction over execution versus judicial sale).
As the record now stands, we cannot assess whether Deputy Sheriff Telford's alleged conduct could sustain a cause of action. We do not know to what extent the procedures requiring or allowing the refusal of the check, the type of sale notice, and the service of process are directly supervised and sanctioned by the bench. It may be that these procedures have been developed as a matter of administrative convenience, not under direct judicial supervision. In short, this case could be a qualified immunity case.
The distinguished District Judge has granted absolute immunity to the Deputy Sheriff despite his alleged illegal conduct. We think Imbler, supra, raises the possibility of only qualified "good faith" immunity. See and compare Wood, supra. In this light the conduct of the Deputy Sheriff consists of a series of acts, completely unproven, for there was no evidentiary hearing or basis for summary judgment. We observe that it is alleged that the Deputy Sheriff was acting as a member of a conspiracy. See note 4, supra. We note also that it is alleged that no service of process was made upon Hazo. A judgment against a person without service has been subject to collateral attack and held to be invalid. See D'Arcy v. Ketchum, 52 U.S. (11 Howard) 165, 13 L. Ed. 648 (1850). We reiterate what we observed as to Wood, supra, 420 U.S. at 576-77, that some public officials acting in good faith and without malice in their sphere of official responsibility, are entitled to "qualified good faith immunity." Certainly if the Deputy Sheriff is engaged in a conspiracy he is not acting in good faith.*fn6
The Supreme Court, as we have indicated, has stated repeatedly that we should not act on constitutional issues except on a full record. See Honeyman v. Hanan, 300 U.S. 14, 25-26, 81 L. Ed. 476, 57 S. Ct. 350 (1937); Villa v. Van Schaick, 299 U.S. 152, 155-56, 81 L. Ed. 91, 57 S. Ct. 128 (1936) (per curiam); Government of the Virgin Islands v. Testamark, 528 F.2d 742 (3d Cir. 1976); Bauers v. Heisel, supra, 361 F.2d at 594 (dissenting opinion). We must have an adequate record. We cannot properly decide this case upon the present inadequate record. The District Court should permit Hazo to amend her complaint upon reasonable terms. An evidentiary hearing should be had ...