581 F.2d 1187

BEKER PHOSPHATE CORPORATION, a Florida Corporation, and Beker Industries Corporation, a Delaware Corporation, Plaintiffs-Appellants, v. William A. MUIRHEAD, Larry Rhodes, John M. Saba, Jr., Beverly Clay and Andrew Sandegren, Defendants-Appellees.

No. 76-4046.

United States Court of Appeals, Fifth Circuit.

Oct. 13, 1978.

John P. Harllee, III, Richard H. Bailey, Bradenton, Fla., for plaintiffs-appellants.

Richard E. Nelson, Sarasota, Fla., for defendants-appellees.

*1188Before RONEY, TJOFLAT and HILL, Circuit Judges.

PER CURIAM:

We must decide whether an allegation of the systematic misuse of legal procedure,1 based on an unsuccessful state administrative appeal and an unsuccessful state judicial review of a state development of regional impact, is a federally cognizable cause of action under Title 42, United States Code, Section 1983. Since we conclude that the allegation here does not establish a wrong for which Section 1983 provides a remedy, we affirm.

I.

The facts are not in dispute, and we need not detail all that has happened in order to decide the issue which controls this appeal. Plaintiffs-Appellants, Beker Phosphate Corporation and Beker Industries Corporation,2 filed a complaint against Defendants-Ap-pellees, William A. Muirhead, Larry Rhodes, John M. Saba, Jr., Beverly Clay and Andrew Sandegren, which alleged a violation of the Civil Rights Act of 1871, 42 U.S.C.A. § 1983.3 Plaintiffs appeal a summary judgment suffered in the District Court.

In October of 1974, Beker Phosphate Corporation purchased approximately eleven thousand acres of real property in Manatee County, Florida for the sole purpose of mining phosphate. Pursuant to the Florida Environmental Land and Water Management Act,4 Fla.Stat.Ann. §§ 380.012-380.12, Beker Phosphate Corporation applied for an approval of a “development of regional impact,” Fla.Stat.Ann. § 380.06, which was granted by the Manatee County Board of County Commissioners. In addition, Beker Phosphate Corporation applied for a special exception in Manatee County zoning regulation which also was granted by the Board.

Defendants, the individual members of the Board of County Commissioners of nearby Sarasota County, Florida, filed a Notice of Appeal to the Florida Land and Water Adjudicatory Commission and sought review of both decisions of the Manatee County Board of County Commissioners. This appeal was dismissed for lack of standing since the applicable Florida statute allowed appeals to the Adjudicatory Commission only by “the owner, developer, an appropriate regional planning agency or the state land planning agency.” Fla.Stat. Ann. § 380.07(2) (1972). See also Fla.Stat. Ann. § 380.07(2) (Supp.1978). Defendants then petitioned the First District Court of Appeal of Florida for a writ of certiorari to the Adjudicatory Commission. The First District Court of Appeal denied the petition and agreed that Defendants lacked standing to appeal to the Adjudicatory Commission. Sarasota County v. Beker Phosphate Corporation, 322 So.2d 655 (1st D.C.A.Fla. 1975). See also Sarasota County v. General Development Corp., 325 So.2d 45 (2d D.C.A. Fla.1976).

Plaintiffs then brought this suit in the United States District Court for the Middle District of Florida and alleged that Defend*1189ants sought to harass Plaintiffs by seeking the two reviews and, as a result, interfered with the lawful use and enjoyment of Plaintiffs’ property since they postponed their project until the two appeals had run their course.5 In essence, Plaintiffs asserted first, that they have been deprived of their property rights without due process of law and second, that they have been denied the equal protection of the law in their right to follow the orderly procedures promulgated with regard to the approval of land use. For these allegedly suffered deprivations, Plaintiffs sought damages under Section 1983.

II.

We need not belabor the point. Plaintiffs base their cause of action on the Defendants’ conduct in seeking state administrative review and state judicial review of the land use decision of the Manatee County Board of County Commissioners. We are constrained to hold that Section 1983 does not provide a remedy for such a claim of misuse of legal procedure.6

Of course, litigiousness which gives rise to a common law tort action for misuse of legal procedure may be so egregious as to constitute a violation of Section 1983 as well, if the tort-feasor, under color of state law, subjects the tort-victim to a deprivation of Constitutional dimension.7 It follows, however, that conduct which merely engenders common law tort liability, without infringing on Constitutionally protected interests, is not a sufficient basis to support a cause of action under Section 1983. Section 1983 simply does not provide a remedy for mere common law torts, even though committed under color of state law.8

More specifically the common law tort of misuse of legal procedure, without more, does not rise to the level of Constitutional wrong remedied by Section 1983. In Curry v. Ragan, 257 F.2d 449, 450 (5th Cir.), cert. denied, 358 U.S. 851, 79 S.Ct. 78, 3 L.Ed.2d 85 (1958), this Court held, inter alia:

Neither the Fourteenth Amendment nor the Civil Rights Acts purported to secure a person against unfounded or even malicious claims or suits in state courts, especially so when the laws and courts of the state are available and furnished adequate remedies to a person aggrieved.
While we sympathize with Appellant’s obvious sincerity, if he has any remedy for the matters complained of, that remedy does not lie within the jurisdiction of the federal courts.

See also Yglesias v. Gulfstream Park Racing Association, Inc., 201 F.2d 817, 818 (5th Cir.), cert. denied, 345 U.S. 993, 73 S.Ct. 1132, 97 L.Ed. 1400 (1953); Lyons v. Baker, *1190180 F.2d 893 (5th Cir. 1950); Whittington v. Johnson, 102 F.Supp. 352, 353 (N.D.Ala. 1952), aff’d, 201 F.2d 810 (5th Cir.), cert. denied, 346 U.S. 867, 74 S.Ct. 103, 98 L.Ed. 377 (1953).

This view has been accepted by other Courts,9 and we accept this view as controlling Plaintiffs’ assignment of error here.10 Plaintiffs simply have failed to allege a deprivation of Constitutional dimension. Therefore, the judgment appealed from must be and is

AFFIRMED.

Beker Phosphate Corp. v. Muirhead
581 F.2d 1187

Case Details

Name
Beker Phosphate Corp. v. Muirhead
Decision Date
Oct 13, 1978
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581 F.2d 1187

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United States

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