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December 13, 1988

JAMES ANDROS, et al., Defendants

The opinion of the court was delivered by: GERRY

 I. Introduction

 Plaintiffs Hannah and Santo Maida have filed a complaint in the District of New Jersey seeking redress under 42 U.S.C. §§ 1981, 1983, 1985(2) and (3), 1986, 1988 and the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution as well as several state claims sounding in tort. The defendant, James Andros, was sued individually and in his capacity as an officer of the Atlantic City Police Department. The complaint alleges that the defendant used excessive force in arresting the plaintiffs, committed an assault and battery upon them, and used the criminal process to prevent them from asserting their rights. Now defendant moves to dismiss the complaint on the ground that plaintiffs have failed to pursue the adequate state remedies that exist to redress their wrongs, thus failing to state a claim for which relief can be granted.

 The question before this court, then, is whether plaintiffs' claims are of such a nature that this court must hear them. We deal with each of plaintiff's claims in turn.

 II. Section 1983

 42 U.S.C. § 1983 provides:

 Section 1983 is purely remedial. In order to determine whether a violation of section 1983 has occurred, this court must determine, first, that the defendant acted under color of state law, and second, whether that action deprived plaintiffs of a constitutional right. Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). Because the defendant in this case was a police officer acting in the course of his duties, we can answer the first inquiry in the affirmative. The answer to the second, however, takes us into deeper waters.

 Plaintiffs' complaint is no model of legal draftsmanship, as each alleged constitutional deprivation should be pled as a different count. Fed.R.Civ.P. 10(b). However, the heart of the complaint seems to be that defendant's use of excessive force in arresting them violated their liberty interests as protected by the due process clause of the Fourteenth Amendment. At this juncture we briefly examine the other amendments cited by plaintiffs before proceeding with analysis of plaintiffs' Fourteenth Amendment rights.

 Plaintiffs' invocation of the Fourteenth Amendment seems to be for the purpose of arguing that defendant's actions constituted an unreasonable search and seizure. It is clear, however, that plaintiffs' complaint is not that defendant lacked a reason to arrest them, but that his method of doing so was excessively forceful, and intentionally so. Thus, plaintiffs' claim does not turn on whether they were the victims of an unlawful arrest, which they have a constitutional right to be free of under the Fourth Amendment, Beck v. Ohio, 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964) and for which a section 1983 action may lie. Dennis v. Warren, 779 F.2d 245 (5th Cir. 1985), McKenzie v. Lamb, 738 F.2d 1005 (9th Cir. 1984). Cases involving the use of excessive force by state authorities are determined under the rubric of the protected liberty interests of the Fourteenth Amendment. Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977); Black v. Stephens, 662 F.2d 181 (3d Cir. 1981) cert. denied, 455 U.S. 1008, 71 L. Ed. 2d 876, 102 S. Ct. 1646 (1982). Therefore, we shall not needlessly wander afield into Fourth Amendment jurisprudence.

 We are frankly at a loss to see what First or Fifth Amendment rights are at stake in this case. Because plaintiffs have neglected to spell them out, we will not speculate. Plaintiffs' Eighth Amendment claims are also meritless, because it has long been established that the constitutional ban against cruel and unusual punishments applies only to those who have been convicted of criminal offenses. Bell v. Wolfish, 441 U.S. 520, 535 n.16, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); United States v. Lovett, 328 U.S. 303, 317-18, 90 L. Ed. 1252, 66 S. Ct. 1073 (1946). Therefore, the only possible constitutional issue arising from defendant's conduct is one of due process under the Fourteenth Amendment.

 Defendant's argument is based upon Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) and Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984). In Parratt, a prisoner bringing suit under section 1983 for the negligent loss of his property through the random and unauthorized acts of prison employees was found not to have alleged a violation of the Due Process Clause of the Fourteenth Amendment. Id. at 543. The Supreme Court found that because the state could not have provided a meaningful predeprivation hearing, the loss of property was beyond the control of the state. Since the state postdeprivation remedies (i.e., the penal tort claims procedure) were adequate, plaintiff was directed to pursue his remedies there. Id. at 543-44. The Court also expressed a fear of "turning every alleged injury which may have been inflicted by a state official acting under 'color of law' into a violation of the Fourteenth Amendment cognizable under § 1983." Id. at 544. In short, section 1983 should not be used "to make of the Fourteenth Amendment a font of tort law to be superimposed upon . . . the States." Id. quoting Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).

 In Hudson v. Palmer the logic of Parratt was extended to require the use of state remedies to show the intentional deprivation of property by state employees: "For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy." Hudson 468 U.S. at 533. This was because "the state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct." Id. Of course, where the state action was conducted under an established procedure, rather than a random and unauthorized act, a plaintiff need not exhaust the state's postdeprivation remedies in order to state a claim under the Due Process Clause and § 1983. Id. at 532; Logan v. Zimmerman Brush Co., 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982); Berlanti v. Bodman, 780 F.2d 296, 301 (3d Cir. 1985).

 Now defendant seeks a further extension of the logic of Parratt and Hudson. Defendant argues that if, under Hudson, a plaintiff must show exhaustion of state remedies in order to demonstrate the requisite state action for a deprivation of property under the Fourteenth Amendment, it follows that the same requirement should apply to a plaintiff alleging a deprivation of liberty. Therefore, no constitutional violation has occurred because plaintiffs in this case have not attempted to press their claims for assault and battery in New Jersey courts, where remedies for willful misconduct ...

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