Under the facts of the case at bar, I find more persuasive the cases cited by plaintiff which hold that a cause of action accrues when a plaintiff knows or has reason to know of the injury giving rise to the § 1983 action. Cox v. Stanton, 529 F.2d at 50; Kline v. North Texas, 782 F.2d at 1233. It would be highly inequitable to preclude plaintiff from suing to recover the back pay allegedly owed him because of the Township's continued failure to settle the matter. As plaintiff notes, he was not informed of the Township's refusal to pay him until January 16, 1986. Moreover, he had delayed instituting suit based on the repeated assurances and representations received from various Township officials. Plaintiff could have quite reasonably believed that the Township's letter of October 29, 1984 was not a denial of his claim but only a postponement of the matter until 1985.
I conclude, therefore, that the instant cause of action did not accrue until the date plaintiff became aware of the Township's refusal to pay him on January 16, 1986. He is thus well within the two year statute of limitations, having filed suit on April 3, 1986.
Further, if it were held that the statute of limitations had run there would at least be a factual question whether the Township's conduct estops it from asserting the statute.
Plaintiff's Due Process Claim Under § 1983
This is another in a lengthening series of § 1983 cases in which a defendant seeks dismissal in reliance upon Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). A review of the most recent cases suggests that very little remains of the original Parratt holdings; what little of Parratt does remain is encapsulated in Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); the present case does not present a situation in which Hudson v. Palmer requires dismissal; but, nevertheless, for other reasons this case must be dismissed for failure to state or establish a violation of a Fourteenth Amendment due process right.
One cannot rely on Parratt in isolation. It is necessary to read it in the light of preceding and subsequent Supreme Court cases. Although Parratt asserted that its goal was to end confusion in § 1983 cases and provide clear guidance to district court judges, it has had exactly the opposite result. It is, as noted by one commentator, "among the most puzzling Supreme Court decisions of the last decade, and the lower federal courts have been thrown into considerable confusion in their efforts to implement it", Monaghan, State Law Wrongs, State Law Remedies, and the Fourteenth Amendment, 86 Col. L. Rev. 979 (1986); see this court's attempt to decipher Parratt in Holman v. Hilton, 542 F. Supp. 913 (D.N.J. 1982), aff'd, 712 F.2d 854 (3d Cir. 1983).
Two essential elements must be established in order to assert a § 1983 claim. First, the conduct complained of must have been committed by a person or persons acting under color of state law. There is no dispute in the present case that the Township was acting under color of state law. Second, the conduct must have deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States.
It is the Township's contention that Parratt holds that even if a defendant acting under color of state law deprived a plaintiff of property rights, the plaintiff cannot sue under § 1983 in a federal court if (i) the deprivation was the result of an unauthorized failure of a state agent to follow established state procedure and (ii) the state has provided the plaintiff with a means to obtain redress for the deprivation. In the present case, the Township asserts, plaintiff has no § 1983 claim for which relief can be granted in this court because (i) the action of the Township attorney in denying payment was unauthorized and (ii) the state did provide a procedure whereby plaintiff could obtain redress, namely, the grievance and arbitration procedure available under the collective bargaining agreement.
In Parratt, as has been recited many times, a prison inmate sued prison officials charging that their negligent actions causing the loss of his $ 23.50 hobby kit deprived him of property without due process of law. The Supreme Court held (i) the negligent loss or destruction of the hobby kit by state officials constituted a deprivation thereof for the purposes of the due process clause of the Fourteenth Amendment, but (ii) the deprivation was not without due process of law because there was an adequate state remedy to redress the wrong.
Some feared that Parratt's first holding would open the doors of the federal courts to a flood of state law tort actions against state and local officials. Others feared that whenever the state provided a remedy Parratt's second holding would close the doors of the federal courts to § 1983 claims, regardless of the importance of the federal rights at issue.
Parratt has had neither of these effects. Its murkiness has required the Supreme Court to address once again the dual problem of stemming the flood of trivial § 1983 cases brought in the federal courts while at the same time preserving the role of the federal courts as the guardian of important federal rights.
The Supreme Court overruled Parratt's holding that a state official's mere lack of due care may deprive an individual of due process. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986). This eased the fears that the federal courts would become a forum to resolve all kinds of tort claims against state and local officials.
As for Parratt's adequate state remedy holding, Professor Monaghan urges that the case "is not tenable, and it should be either overruled or recast", Monaghan, supra, at 994. An examination of pre-Parratt and post-Parratt decisions suggests that this is what the Supreme Court is in the process of doing. It would appear that an available state remedy will bar a federal court action for a constitutional deprivation only in limited circumstances. Those circumstances arise when the deprivation is a property loss caused by unauthorized, intentional misconduct of a low-level official. Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). However, if a fundamental constitutional right is concerned a plaintiff still has immediate access to federal courts whether or not the offending conduct is in violation of state law and whether or not there is an adequate state law remedy. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), is still law.
The viable remnant of Parratt is set forth in Hudson, supra. That is, a plaintiff cannot bring a federal action for an intentional deprivation of property when the deprivation is caused by the unauthorized act of a low-level official. Even if Hudson were applicable here, the Township could not rely on this rule because the actions of the Township attorney were neither unauthorized nor were they the actions of a low-level municipal official. He obviously implemented his client's decision to reject plaintiff's claim for payment. He was implementing a policy decision.
I have concluded, however, that Parratt and Hudson are inapplicable to this case. Unlike the situation in those cases where the property at issue was irretrievably lost and where there had already been a deprivation, here plaintiff still has a claim to payment which was only recently rejected by municipal officials. There has not yet been a deprivation. It is true that the Township refused to pay him. However, if the state provides plaintiff with a means to assert his claim and recover if he is entitled to payment, he is not being deprived of any federal right. I know of no case holding that a person having a contractual or statutory claim against a state or local body has the option to enforce his claim in either a state or a federal court. If, by chance, the state, having created such a right, simply refused to honor its obligations and provided no means to enforce the right, then the claimant might well have been deprived of due process of law under the Fourteenth Amendment. In such a situation § 1983 would permit suit in the federal courts. Logan v. Zimmerman Brush Co., 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982).
Thus while the need to decide if there is an available state remedy brings Parratt and Hudson to mind, the question arises in a different context.
Two recent Third Circuit cases support this distinction between the Parratt-Hudson situation and the present case. They considered both the Parratt-Hudson situation where a claimant had actually been deprived of a property right (final termination of employment) and the situation we face here (a claim for payment allegedly erroneously rejected by a state official). Therefore the language and reasoning of both Parratt-Hudson and of Logan v. Zimmerman Brush had to be applied.
Cohen v. City of Philadelphia, 736 F.2d 81 (3d Cir.), cert. denied, 469 U.S. 1019, 105 S. Ct. 434, 83 L. Ed. 2d 360 (1984), concerned a police officer who had been dismissed for suspected participation in a burglary. After being acquitted, he was reinstated but without back pay. Cohen asserted that his right to due process had been violated both for failure to afford him a pre-termination hearing and for failure to honor his claim for back pay.
The Court used Parratt-Hudson language when disposing of both aspects of Cohen's claim. It attempted to determine whether the deprivation resulted from a "random and unauthorized act by a state employee" or as the result of "some established state procedure". It stated:
If we conclude that Cohen's deprivation resulted from the "Commission's error" rather than from "the state system itself," Logan, 455 U.S. at 436, 102 S. Ct. at 1158, we must then consider whether the means of redress provided by the state satisfy the requirements of the Due Process Clause. In such a case, Cohen will have established a section 1983 claim only if the remedies provided by the state do not comport with the requirements of due process.
Id. at 84. The Court concluded that the deprivation was the result of Commission error rather than some established state procedure, because the Philadelphia Home Rule Charter required the Commission to award back pay to a wrongfully discharged employee.
The Court held that "substantive mistakes by administrative bodies in applying local ordinances do not create a federal claim so long as correction is available by the state's judiciary." Id. at 86. Moreover, the state, "by providing 'reasonable remedies to rectify a legal error by a local administrative body,'" had provided Cohen with due process. Id., quoting Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir.), cert. denied, 459 U.S. 989, 74 L. Ed. 2d 385, 103 S. Ct. 345 (1982).
Cohen was subsequently superseded by the Supreme Court's decision in Cleveland Board of Education v. Loudermill and its companion case, Parma Board of Education v. Donnelly, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Donnelly, like Cohen, had been reinstated without back pay and, like Cohen, had chosen to file suit in federal court rather than appeal his adverse administrative decision through the state courts. The issue before the Supreme Court was whether Donnelly was entitled to a pre-deprivation hearing before being terminated from his job. The Court held that he was so entitled, and, therefore, Donnelly's failure to pursue state judicial remedies did not defeat his § 1983 claim. This, of course, is an issue which is not present in the instant case. Plaintiff does not contest his dismissal. Therefore, the question of pre-deprivation hearing does not arise. Plaintiff simply seeks the payment of money claimed to be due.
In Stana v. School District of City of Pittsburgh, 775 F.2d 122, 130 (3d Cir. 1985), the Third Circuit noted that to the extent that Cohen suggests that due process does not require a hearing before termination of employment, that decision is superseded by Donnelly. However, as for Cohen's holding that an administrative body's substantive mistakes in applying a local ordinance providing a right to certain payments do not create a federal claim as long as state remedies are available, that holding still stands. See id. at n.8. That is the situation in the present case where plaintiff seeks payments provided for by ordinance or the collective bargaining agreement and asserts an erroneous denial of these payments by local officials.
Notwithstanding the "random and unauthorized act" language in Stana, its underlying reasoning compels the conclusion that the fact that responsible local authorities denied plaintiff's claim does not give him a federal cause of action unless there are no procedures under state law by which he can adequately present his claim. As noted above, this conclusion is not mandated by Parratt-Hudson, where the plaintiffs were required to pursue federally protected property rights in state courts (a form of abstention). Rather, as long as the state provides plaintiff with an adequate means to pursue his claim no federal right arises in the first place. Thus if a state forum exists in which plaintiff can pursue his claim, he has not asserted a federal claim and this action must be dismissed.
I conclude that plaintiff has the right to pursue his claim to back pay in the New Jersey state courts. Under New Jersey law a municipality can be sued under circumstances which seem to prevail here if there exists a valid cause of action. See N.J.S.A. 59:2-1, et seq.; 59:3-1, et seq. I see no reason why plaintiff would not be entitled to sue the municipality for the back wages he seeks. Thus dismissal of the present action is required.
The order of dismissal will provide that if the state courts hold that plaintiff does not have the right under state law to pursue his claims there he can then move to reopen this case, since in that event he might well have a federal claim and a remedy under 42 U.S.C. § 1983.
I conclude that if plaintiff had a federal cause of action it would not be barred by the statute of limitations. However, plaintiff has adequate means to pursue his claim for money due and owing in the state courts. Under such circumstances he has no federal claim and defendants' motion to dismiss the complaint will be granted. Plaintiff's motion for summary judgment will be denied.
The court will enter its own order.
DICKINSON R. DEBEVOISE, U.S.D.J.