No. 05-214

II'n tlte

$ulrunrt @ourt of tbe @ntte! $tutrg

RUSSELL J. ABRAMSON.Petitioner,

v.

JOSEPH F. MCSWEENEY, in his individualand official capacity as Sheriff of

Pembroke County, Massachusetts, et al.Respondents.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals For

The First Circuit

BRIEF FOR RESPONDENTS INOPPOSITION TO THE PETITIONFOR A WRIT OF CERTIORARI

MARKC, GILDEAFAINP.GILDEACIARK BALBONI & GILDEA LLP126 Belmont StreetBrockton, Massachusetts 023 0 1

THOMAS DRECHSLERFINNERAN, BYRNE &

DRECHSLER, LLPEastern Harbor Office ParkB o ston, Massachusetts 02122

September 14,2005

KEVIN F. MOLONEY(Counsel of Record)

ROGER T. MANWARINGBARRON & STADFELD,100 Cambridge Street.,

Suite 1.310Boston, Massachusetts 02ll 4T el.:617 .7 23.9800/53 1 .6569

QUESTION PRESENTED

Whether the United States Court of Appeals for the FirstCircuit correctly ruled that the Pawatt-Hudson doctrine barsPetitioner's procedural due process claim where petitionerdoes not allege any flaw in the state's statutory pre-terminationof employment process requirements but does allege that theconduct causing the alleged deprivation was intentional andviolated the established, non-discretionary state law which, iffollowed, would have provided adequate pre-deprivationprocess, and where the state has provided an adequate post-deprivation remedy.

ii

PARTIES TO THE PROCEEDINGS BELOW

In addition to the parties identified in the caption,defendants in the district court included Matthew Ramsey,individually and as Special Sheriff of Pembroke County;Jeremy McSweeney and Charles B. Randall, individually andin their official capacities at the Pembroke County SheriffsDepartment; John P. Hutchins, Robert J. Brown, and Peter G.Gteen, Jr., as County Commissioners of Pembroke County;and John F. Morrison, as Treasurer of Pembroke County.

All claims against defendants Charles B. Randall andJeremy McSweeney were dismissed voluntarily in thedistrict court, and the procedural due process claimsagainst Special Sheriff Ramsey also were dismissedvoluntarily in the district court.

a1l-

TABLE OF CONTENTS

Page

QUESTTON PRESENTED . .. iPARTIES TO THE PROCEEDINGS BELOW... ...... iiTABLE OF CONTENTS ........... iiiTABLE OF AUTHORITIES ....... ivRELEVANT CONSTITUTIONAL PROVISION AND

STATUTES............. ........ 1

STATEMENT OF THE CASE ........... 1

REASONS FOR DENYING THE WRIT ,.,,,,,,,.,,,,, 7

1. The circuit court's application of Parratt-Hudson in this case is consistent with thisCourt's precedent ........7

1.1 This Court's decisions in Parratt, Logan,Hudson, Loudermill and Zinermon ........... ..., .,,,. 7

L2 The circuit court's reliance on the Parratt-Hudsondoctrinewascorrect.....,.....,... 13

2. There is no split among the circuits regard-ing any issue relevant to the application ofthe Parratt-Hudsondoctrine to this case....... 17

2.I The Fifth Circuit .............. 18

2.2 The Second Circuit.. ... 20

2.3 The Ninth Circuit .... 22

2.4 The Fourth Circuit ........ 25

3. Massachusetts G.L. c. 35, $ 51 provides anadequate post-deprivation remedy.... .". 28

CONCLUSION . ....... .. ... 30

iv

TABLE OF AUTHORITIES

Pase

CASES

Abdullah v. Kennet, 104 Fed. Appx. 750,2004 WL I 57 5064 (1 st Cir. July 1 5, 2004)......,............... 1 5

Albright v. Oliver,510 U.S. 266 (t994) ...............9

Armendariz v. Penman, 3I F.3d 860(9th Cir. 1994) ,..,.,......24

Bogart v, Chapell,396 F"3d 548(4th Cir. 2005) 25,26,27

Bursonv. State of Nevada Dept. of Human Re-sources, 42 F .3d 1398, 1994 WL 68105 1

(Dec.6, 1994) (unpublished)............. ,............23

Caine v. Hardy, 943 F.2d 1406 (5th Cir. 1991)........,.......... 19

Cathey v. Guenther, 47 F.3d 162 (Sth Cir. 1995) ................19

Charbonnet v. Lee, 951 F.2d 638 (5th Cir. 1992)................ 19

City of St. Louis v. Praprotnik,48s U.S. 112 (1988) ......,.,.,........,,2r

Cleveland Board of Education v. Loudermill,470 U.S. 532 (198s) ......,.......passim

Corcoran v. Olson, 102 Fed. Appx. 522(9th Cir. 2004) (unpublished)...,........ .............23

Dwyer v. Regan,777 F.2d825 (2d Cir. 1985) ......,..............20

Easter House v. Felder, 9I0 F.2d 1387(7th Cir. 1990) (en banc) . 15,29,30

Fields v. Durham, 909 F.2d 94(4th Cir. 1990) 25,26,27

Findeisen v. North East Independent SchoolDistrict,749F.2d234 (5th Cir. 1984). .... 18, 19

V

TABLE OF AUTHORITIES - Continued

Pase

Frock v. United States Railroad Retirement Bd.,68s F.2d I04I (7thCir. 1982). ......29

Gilbert v. Homar,520 U.S. 924 (1997) .................7

Givens v. United States Railroad Retirement Bd.,720F.2d 196 (D,C. Cir. 1983) ,.....29

Hartwickv. Board of Trustees of JohnsonC ounty Community College,

782 F.Supp. 1507 (D. Kan. 1992) .........,......... 30

Haygood v. Younger, 769 F.2d 1350(9th Cir. 1985)......... ....24

Hellenic American Neighb orhood ActionCommittee v. City of New York,101 F.3d 877 (ree6................:. ....20

Herwins v. City of Revere,l68 F.3d 15(lst Cir. 1998) ,...,.......... 6

Hodgson v. Waters, 958 F.2d 377,1992WL 55856 (9th Cir, March 23,1992)(unpublished) ..,......... .................,.,23

Honey v. Distelrath, 195 F,3d 531(9th Cir. 1999)......... ... 22,23,24,25

Hudsonv. Palmer,468 U.S. 5I7 (1984) .......passim

Isaacs v. Bowen, 865 F.2d 468(2dCir.1989) ..............29

Juffut v, Barnes, 208 F.3d 49(2d Cir.2000) ..............22

Johnsonv. Louisiana Dept. of Agriculture,18 F.3d 318 (5th Cir.1994). ... 15, 19

Katz v. Klehammer, 902F.2d204(2d Cir.1990) 15,20

Vi

TABLE OF AUTHORITIES - Continued

P aseKrmencik v. Town of Plattekill 1989 WL

114307 G\f.D.N.Y. August 25,1989) ....,........20

Logan v. Zimmerman Brush Co,,4ss u.s. 422 (1982) ......,,..,...passim

Looby v. City of Hartford,152 F,Supp.2d 181 (D. Conn. 2001) ..............22

Looney v. Flynn, 1990 WL 252170(D. Mass, December 21, 1990).. ......................,5

Lowe v. Scott, 959 F.2d 323(lst Cir. 1992)......,., ..................4, 15

Mard v. Town of Amherst,350 F.3d 184(lst Cir. 2003)......,. .....15

Matthews v. Eldridge, 424 rJ,5. 319(1976) .... g, g, 13,16,29

Meyers v. Klevenhagen, 97 F.3d 91(5th Cir. 1996) ............ t9

Monell v. Dept. of Social Services,436 U.S. 658 (1978) ..........,.,.20,2r

O'Neill v. Baker,210 F.3d 41(1st Cir. 2000)........ ,... 15

Parrattv. Taylor,451 U.S. 527 (I9BI) .....,..passim

Pembaur v. City of Cincinnati,47s U.S. 469 (1986) ...........,..2r,22

Piatt v. MacDougall, 773 F.2d 1032(9th Cir. 198s) ............24

Plumer v. State of Maryland, 9I5 F.2d927(4th Cir. 1990) 25,26,27

v11

TABLE OF AUTHORITIES - Continued

Puorro v. Commonwealth,5g Mass. App,

Page

ct,6t,794 N.E.2d 624 (2003) ..3,28Raditch v. United States, 929 F.2d 478

(9th Cir, 1991) ..,.,......,.24

Ritter v. Cohen, 797 F.2d II9(3d Cir, 1986) ..............29

Smith v. City of New York,2005 WL 10265 51 (S.D.N.Y. May 3, 2005).... .,.,...,.,..,.... 20

Sorrels v. McKee, 290 F.3d 965(9th Cir. 2002)...,,... ,.,..23

Sullivan v. Town of Salem,805 F,2d 81(2d Cir. 1986) .,.,.,.,.,..,.20

Verri v. Nanna, 972 F.Supp. 773 (S.D.N .Y. 1997)..,.,,.,.,.,,..,20

Veterans Legal Defense Fund v. Schwartz,330 F.3d 937 (7th Cir. 2003). .....,.. 15

Weimer v. Amen,870 F,2d 1400(8th Cir. 1989)......... ...................... 15

Williams v. Norton, 185 F.3d 872,1999 WL 386955 (9th Cir. March ll,1999)(unpublished) ............ ....................23

Zinermonv. Burch,494 U.S. 113 (1990) ......passim

CONSTITUTION AND STATUTES

U.S. Const. amend. XIV.......... 1,4,9,30

42 U.S.C. $ 1983 ........passim

Massachusetts G.L. c,35, $ 51........... ............passim

Massachusetts G.L. c. 126, $ 8A......... .......passim

1

RELEVANT CONSTITUTIONALPROVISION AND STATUTES

U.S. Const. amend.

42 U.S.C. $ 1983

Massachusetts G.L.

Massachusetts G.L.

XIV

c.35, $ 51

c. 126, $ 8A

STATEMENT OF THE CASE

Several months before the November 2000 election ofrespondent Joseph F. McSweeney ("Sheriff McSweeney") as

Sheriff of Pembroke County, Massachusetts, petitioner Russell

J. Abtamson ("Abramson"), in May 2000, resigned voluntarilyfrom his position at the Pembroke County Sheriff s Department("PCSD" or the "department") as Captain-Field Serices, inorder to accept an appointment by then Sheriff Charles Smith(" Smith") as Assistant D eputy Superintendent-Training ("ADS-Training"). At the tirne, Abramson expressly achnowledged inwliting' his "agree[rlent] and understand[ing]" that in the newposition, he would not have any rights under MassachusettsG.L. c. 35, S 51'z to, among other things, termination for "justcause," notice and a pre-termination headng, because the ADS-Training position was subject, instead, to Massachusetts G.L. c.

Letter, dated Apdl 28, 2000, from the PCSD Director of HumanResources to, and on May 11,2000, endorsed and returned by, Abramson,Court of Appeals Jt. Appendix ("C.A. Jt, App.") p, 567; Affidavit of JohnHavorford, 13, C.A. Jt. App. 563-64.

, Respondents' Appendix ("Resp. App.") 4.

L

126, S 8A,3 which provides that persons subject to $ 8Aserve "at [the] pleasure" of the county sheriff.

In February 2001, soon afret Shedff McSweeney hadassumed office, the PCSD conducted a series of interviewsof the senior staff of the department, including, amongothers, all PCSD Ditectors and Assistant Depury Superin-tendents, which resulted in the retention of numerous pCSDoffrcials and employees despite their support for Smithagainst Sheriff McSweeney in the recent election campaign.'After Abramson's interview by the PCSD Chief of Staff andthe PCSD Directot of Human Resources, Abramson'semployment was terminated on February 22,2001,,5 because,as Sheriff McSweeney testified, he "lacked confidence" inAbtamson due to his poor performance in what evenAbtamson himself admitted had been a "bad interview.i6' 7

There is no evidence in the recotd that the tesDondentcounty commissionets patticipated in any way in SheriffMcSweeney's tetmination of Abramson as ADS-Ttatntngwithout a pre-termination hearing.

Resp. App.7,

" Sheriff McSweeney dep,, April 28,2003,p.178,11.22-24; CA, Jt, App.282; Sheriff McSweeney's answ. to int. No. 2.3, C.A. Jt App. 432-33.

'Abramson dep., April 9,2003,p.293,11.12-14; C.A. Jt. App. 334.

3

By letter, dated February 28, 2OOI,8 Abramson re-quested a hearing before the comrnissioners. They rejectedhis request on the grounds that he was an at-will employeeserving at the pleasure of the sheriff, whose status, asAbramson had acknowledged on May 11, 2OOO, wasgoverned by Massachusetts G.L. c. 126, S BA, and undertlrat statute, the commissioners lacked jurisdiction toconduct a hearing.'

The denial of a post-termination hearing by thecomrnissioners triggered arry right Abramson may havehad to proceed in state court to seek "reinstatement" to hisposition "without loss of compensatioh," 4 as he claims, hewas entitled to the protection of Massachusetts G.L. c. 35,$ 51. See htorro u. Commonutealth 59 Mass. App. Ct. 61,794 N.8.2d 624 (2OO3l. He did not do so.

Instead, even thouglr Sheritr Mcsweeney had retainednumerous PCSD officials and employees who had supportedSmith in the election campaign,"'Abramson and three formercivil process deputy sheriffs, brougfut suit in the district courtunder 42 U.S.C. S 1983 claiming that their First Amendmentrigfuts had been violated when the plaintiff civil processdeputies had been decommissioned by Sheriff McSweeneyand when Abramson's emplo5rment as ADs-Tfaining hadbeen terminated, allegedly because of their election campaignsupport for Smith. They also alleged violations of theirFourteenth Amendment procedural due process riglrts whentlrey were decommissioned or terminated, as the case maybe, without a pre-termination hearing to which they allegedthey were entitled under Massachusetts G.L. c. 35, g 51.

a C.A. Jt. App.2l7,e Letter, March 20,2OOl, to Abramson, C.A. Jt. App. 218.ro See note 4, supra.

4

Abramson did not allege, and there is no evidence inthe record, that there had been an established formal orinformal state, county or PCSD procedure, policy orcustom of denying a pre-termination hearing to a pCSDemployee entitled to the protection of Massachusetts G.L,c. 35, $ 51. Nor did Abramson allege that the pre-termination requirements of GI. c. 35, $ 51 were constitu-tionally deficient.

The district court allowed respondents' motions forsummary judgment on Abramson's First Amendmentclaims" and, on the procedural due process claims, thedistrict court ruled:

Assuming, without deciding, that plaintiffs wereentitled to the protections of fMassachusetts G.L. c.35, $ 511 and had a constitutionally-protectedproperty interest in continued employment,plaintiffs' due process claims fail under the paruattHudson doctrine, See Lowe v. Scott, 959 F.2d 323.340 (1st Cir,1992).t2

Abramson appealed the district court's rulings on bothhis First and Fourteenth Amendment claims to the United

" The district coufi held t a legitimate jobrequirement for the position of Jt. App. 1259:60,but denied the motion as to the mendment claims

tzC.A. Jt. App. 12 andHudson teach that if a dies

- either by statute or ablein its courts

- no claim ofa violation ofprocedural due process can bebrought under $ 1983 against the state officials whose random andunauthorized conduct occasioned the deprivation.,, Id.

5

States Court of Appeals for the First Circuit, C.A. A. App.1300, which affirmed the district court's decisions on bothclaims. 407 F .3 d at 2I . The other plaintiffs did not appeal.

The circuit court held that Abramson's procedural dueprocess claim was barred by the Parratt-Hudson doctrine,and, accordingly, did "not decide Abramson's proper em-ployment classification under Massachusetts law." 407 F.3daI 19.13 Instead, it assumed, arguendo, thatAbramson had aproperty interest in continued emplovment underMassachusetts G,L. c. 35, S 5l.Id.

The circuit court summarized the holdings of thisCourt tn Parratt v. Taylor,451 U.S. 527 (I981) and Hud-son v. Palmer, 468 U.S. 517 (1984), stating that the par-ratt-Hudson doctrine,

shields a public entity from a federal due processclaim where the denial of process was caused bythe random and unauthorized conduct of govern-ment officials and where the state has providedadequate post-deprivation remedies to correct theofficials' random and unauthorized acts.

407 F.3dat19-20.Our cases establish that a government officialhas committed a random and unauthoized actwhen he or she misapplies state law to deny anindividual the process due under a correct appli-cation of state law. fCitations omitted.l In otherwotds, conduct is "random and unauthorized"

'' Sheriff McSweeney and the commissioners contended below thatAbramson was an at will employee covered by Massachusetts G.L. c. 126,$ 8A, andtherefore didnothave G.L. c.35, $ 51 rights to termination forcause and a pre-termination hearing. See Looney v. Flynn, 1990 WL252170 (D. Mass. December 21, 1990) (An Assistant Deputy Superin-tendent in a Massachusetts county sheriffs department serves "at theSheriffs pleasure" under Massachusetts G.L. c. 126, S 8A.)

6

within the meaning of Parratt-Hudsonwhen the challenged state action is a flawin the official's conduct rather than aflaw in the state law itself. [Footnoteomitted.l

Id. (Emphasis added.) The court restated what it had said inHerwins v, City of Revere, 168 F.3d 15, lg (1st Cir. 1998),that "but for" the Parratt-Hudson doclr;ine,

"federal suits might be brought for countless localmistakes by officials in administering the endlessarray of state laws and local ordinances,"

Id.

The circuit court distinguished Zinermon v. Burch, 494U.S. 113, 136-138 (1990), finding that, unlike the Floridaoffrcials in Zinermon, Sheriff Mcsweeney had no "statesanctioned discretion" whether to grant Abramson a pre-termination hearing. The circuit coufi said,

Abramson was denied a hearing because the dueprocess defendants ened (if they erred at all) bymisapplying Massachusetts civil service law. Thisdetermination was not discretionary or governedby a formal or informal policy. fFootnote omit-ted.l Cf. Zinermon v. Burch,494 U.S. ll3, 136-138 (1990) (holding that the Parratt-Hudson doc-trine does not apply where the denial of prede-privation process resulted from the state-sanctioned discretion of the official to decidewhat process is necessary). . . , Rather, if error, itwas simply a misapprehension of state law. Thisis the sort of random and unauthorized conduct towhich P aruatt-Hudson applies...

407 F.3dat20. (Emphasis added.)

Because Massachusetts G.L. c. 35, $ 51 provides a

"suffrcient postdeprivation remedy," the circuit court heldthat the district court's entry of summary judgment

7against Abrarnson and in favor of tespondentsAbtamson's procedural due process clatmwas coffect.tr.3d at21.

REASONS FOR DENYING THE WRIT

Petitioner Abramson claims that the circuit court'sapplication of the Parratt-Hadson doctttne to dismiss his $1983 procedural due process clairn is at odds with thisCoutt's rulings tn Ckueland Board of Education u. I-oaderrnill,470 U.S. 532 (1,985) and Zinerrnon, which he claims is"indistinguishable" from the present case. In addition,Abramson argues that this Court should gt^nt certiorad inordet to resolve a spJit among the circuits in the way theyapply the Pamatt-Hadson doctttne. He also argues that thepost-termination remedy under Massachusetts G.L. c. 35, $51 is not adequate.

This Court should deny the Wdt because the FirstCircuit's application of the Pamatt-Hudson doctnne in thiscase is entirely consistent with this Court's precedent andthere is no split of authoriry among the circuits regatdingany issue releuant to the application of the Panatt-Hudsondoctine to this case. Moreover, Massachusetts G.L. c. 35,

$ 51 ptovides an adequate post-termination remedy.

L. The circuit courtrs application of Panatt-Hudsonrn this case is consistent with this Courtf s prece-dent.

1.1 This Courtrs decisions in Paratt, Logan,Hudson, Loudermill and Zinermon.

Ptocedural due process usualfu requires that a publicemployee, dismissible only for cause, be given some kind ofpte-tetmination headng. Gilbert u. Hornar,520 U.S. 924,929

on407

8

(1997); I-,owderrzi//,470 U.S" at 542. There is no disagreementon this point" Although tespondents matntatn that

Massachusetts G.L. c. 35, $ 51, Sheriff McSweeney violatedthat statute by terminating him without

^prrot heating.

This Court has recognized that while substantive dueprocess violations occur at the time of the deprivation,procedutal due process violations are not complete at thetime of the deptivatlofl, but only when the state fails toprovide due process (because it is the lack of apptopri^teprocess, not the deprivation which is unconstitutional^Zinermon, 494 U.S. at L25-26. The cdtical inquiry is whatprocess the state provided and whether it was adequate. Id.

In detetmining what process is due, a court mustweigh several factors:

First, _the private interest that will be affected by

the official action; second, the dsk of an.rrorr.-

Zinerrzon,494 U.S. at 1.27, quoting Matthews u. Eldridge, 424u.s. 319, 335 (1.976).

In Iaudenzill, the Court appJied this balancing test to aclaim that a school district violated its employees' proceduraldue ptocess dghts when it tetminated their employmentwithout a prior hearing. Although the terminated employeeshad a statutolT right to appeal the termination, the statutemade no provision fot a pre-termination hearing. Conclud-ing that due process normally tequires at least a minimal

9

pre-deprivation hearing, this Court held that the terminatedemployees had stated a due process claim.

Like Loudermill, this Court's decisions in paruan,Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982),Hudson and Zinermon all apply the factors outlined inMatthews to determine what procedural protections areconstitutionally required. In Zinermon, this Court stated:

... Parratt is not an exception to the Matthewsbalancing test, but rather an application of that testto the unusual case in which one of the variables inthe Matthews equation the value ofpredeprivation safeguards - is negligible in pre-venting the kind of deprivation at issue,

Id. at 128-29.

Under the Parratt-Hudson doctrine, when circum-stances are such that is impossible or impractical for thestate to provide pre-deprivation process, then no suchprocess is required, and due process is satisfied if the stateprovides an adequate post-deprivation remedy. The par-ratt-Hudson doctrine embodies important concepts offederalism and protects the federal courts from beingswamped with lawsuits better resolved in state courts.14

,, "The collmonsense teaching of Parratt is that some questions of

of the Fourleenth Amendment cognizable under $ 1983 ... l.' ... TheParyatt principle respects the delicate balance between state and federalcoutls. . . ." Albright v. Oliver,5l0 U.S, 266,284 (1994) (Kennedy, J.,concurring), quoting P anatt, 45 1 U.S. at 53l-532.

10

In Parratt, a state prisoner brought a $ 19g3 actionbecause prison employees negligently had lost matedals hehad ordered by mail. While recognizing that a prc-deprivation hearing usually is required, this Court stressedthe special situation in Parratt, noting that the loss was notdue to "some established state procedute and the statecannot predict precisely when tire loss will occur. It isdifficult to conceive of how the state could provide ameaningful hearing before the deprivation takes place."451 U.S.

^t 541,. In Par.ratt the Court pointed out that the

depdvation in that case,

occurred as a rewlt of the waauthoriqed faiture ofagents of the //ow established tite procedari.There is no that the procedaret^

-themrelues

are inadequate nor is there anf contention that iswas practicable for the State to provide aptedeprivation hearing.

Id. at 543. @,mphasis added.)In l-ngan, an employee filed a clatm with the Illinois

Fair Employment'Practices Commission but the Commis-sion, through inadvertence, failed to commence a factfinding conference within 120 days as required by statuteand thereby lost judsdiction to heat the case. The em-pioyee claimed that the state's established procedure, whichdivested the Commission of jurisdiction to hear the claim,vioiated his procedural due process rights. This Courtagreed, holding that Parratt drd not apply because theemployee was challenging not the random and unau-thorized conduct of a state employee but the establishedstate procedute itself.

In Hudson, the Court extended the reasoning ofParratt to intentional deprivations of ptopetty, explainingthat "[t]he state can rro more antrcrpate the random and

11

unauthorized intentional conduct of its employees than it cansimilar negligent conduct," 468 U.S. at 533.

Zinermon, on which Abramson relies, is fully consistentwith Parratt, Logan and Hudson, but involved circumstancesthat rendered the Parratt-Hudson doctrine inapplicable. InZinermon, Burch had been admitted to a psychiatric institutionas a "voluntary" patient but alleged that hospital staff had failedto obtain his informed consent and therefore, wrongfully haddeprived him of his liberty. The defendants claimed that theParratt-Hudson doctrine applied, but this Court disagreed,stressing the distinction made in prior cases between lossescaused by random and unauthorized conduct (to which parratt-Hudson applied) and losses resulting from established stateprocedure (for which a g 1983 claim could be brought). 494U.S. at 130, Applying that distinction, the Court concluded thatthe loss suffered by Burch resulted because Florida's statutesdelegated broad power to hospital staff to admit psychiatricpatients (depriving them of their liberty), but failed tocircumscribe that power by requiringthat a member of the staffdetermine whether the prospective voluntary admittee wasmentally fit to give informed consent to a voluntary admission:

The Florida statutes" of course. do not allowin-competent persons to be admitted as "voluntaty"patients. But the statutes dc not direct any memberof the facility staff to determine whether a person iscompetent to give consent, nor to initiate theinvoluntary placement procedure for everyincompetentpatient. . . .

Florida chose to delegate to petitioners a broadpower to admit patients to FSH, i.e., to effectwhat, in the absence of informed consent, is asubstantial deprivation of liberty. . . .

Burch is not simply attempting to blamethe State for misconduct by its employees.He seeks to hold state officials accountablefor their abuse of their broadly delegated,uncircumscribed power to effect thedeprivation at issue.

Id. at 135. (Emphasis added.)The Court in Zinermon distinguished Parratt and

Hudson in three ways. First, due to the special nature ofmental illness, it was foreseeable that under Florida'sstatutory scheme, which did not require a procedure todetermine the competency of a patient before their volun-tary admission, a patient seeking treatment for mentalillness might not be competent and might be admitteddespite a lack of informed consent. Moreover, the statecould predict precisely when that deprivation of libertywould occur. In contrast, the Court noted that while thestate in Parratt and Hudson might anticipate that onoccasion a prison employee negligently or intentionallywould lose or destroy an inmate's property, the state couldnot predict when those deprivations would occur. Id. at136.

Second, the Court in Zinermon concluded that, unlikein Paruatt and Hudson, pre-deprivation process waspossible and would have been of value in avoiding thedeprivation complained of. The Court noted thatZinermon was not a case Iike Hudson in which theemployee was "bent upon effecting the substantivedeprivation and would have done so despite any and allpredeprivation safeguards." Id. at 131. Had the state inZinermon established procedures for obtaining informedconsent, there was no reason to believe that the staffwould not have followed those rules.

Finally, in Zinermon, the Court said that the conductof the hospital staff in that case was not "unauthorized"within the meaning of Paruatt and Hudson. Instead, theCourt noted that the hospital staff had been delegated

13

broadto the

ad not been delegatedor Hudson The depri-vation was ,, ,unauthorized.,

only in the sense that it was not an act sanctioned bvstate law." Id. at I3Z-3g.

1.2 The circuit court's reliance on theParratt-Hudson doctrine was correct.

Loudermill did not displace or limit apprication of theParratt-Hudson doctrine in appropriate cases and is not

significant value in preventing the deprivation, Trre parratt-Iludson doctrine also is based upon a Matthews balancingtest, only it applies to situations where, because the stateactor's conduct is random and unauthoized, and thus un-foreseeabie, predeprivation process is impracticable andwould have no value in preventing the deprivation.

All of the cases discussed above recognznthe distinctionbetween losses caused by estabrished, state procedures andlosses resulting from random and unauthorized conduct inviolation of established rules. rn Logan and. Zinermon, theParralt-Hudson doctrine did not apply because the lossesresulted from flaws in the procedures while in panatt andHudson the claims were that employees had acted in violatronof rules that, if followed, would have been sufficient. Thepresent case strong[y resembles Hudsonin that Abramson

I4

alleges that Sheriff Mcsweeney, for purposes of political retribution,intentionally disregarded the pre{ermination hearing required byMassachusetts G.L. c. 35, $ 51, rdrich Abramson claims govemed hisemployment statr,s. According to Abramson, the deprivation resultednot from any flaw in the state's established pretermination procedures,but from Sheriff McSweeney's violation of them.

Loudermill properly is distinguishable from the present case, as

are Logan and zinermon, because the claimed deprivations resultedfrom a flaw in established state procedrnes, not from a violation ofthem. In Louder-mill, the state procedures made no provision at allfor pre-deprivation process. Massachusetts G.L. c. 35, $ 51 requiresa pre-termination hearing, the very protection to which Abramsonclaims to be entitled.

Nor does Zinermon render Parratt-Hudson tnapplicable toAbramson's claim. The deprivation in Zinermon resulted from aflaw in state procedure and the Court assumed that had theprocedures been adequate, the hospital officials would havefollowed them and the deprivation would not have occurred. In thepresent case, Abramson alleges that Sheriff Mcsweeney was bentupon political retribution and intentionally violated predeprivationprocedures which themselves were adequate.

In addition, none of the three factors relied upon by the Court inzinermon to distinguish Pawatt and Hudson exist in the present case.First, unlike the deprivation in Zinermon, the conduct at issue in thiscase was not predictable and could not have been foreseen by the state.In Zinermon it was foreseeable under Florida's statutory scheme,which did not require determination of competency before voluntaryadmissions, that a patient seeking treatrnent for mental illness mightnot be competent yet might still be

15admitted despite a lack of informed consent. In the present case,the Commonwealth of Massachusetts had no reason to expectthat Sheriff McSweeney would violate a state law that required apre-deprivation hearing; nor could it predict when such adeprivation would occur. In that respect, this case is on all fourswrth Hudson.

Indeed, a state employee's acts must be considered randomand unauthorized when they effect a deprivation by violating,rather than conforming to, established, non-discretionaryprocedures designed to protect an individual,s constitutionalrights,"

The second Zinermon factor, that pre-deprivationprocess was possible and would have been of value inavoiding the deprivation, also is absent in the present case.Pre-deprivation process was not possible precisely becausethe alleged conduct of Sheriff Mcsweeney was unforeseeableand in violation of established procedures. As this Courtmade clear in Hudson, and again in Zineymon, the mere factthat the particular employee whose intentional conduct causesthe deprivation can foresee his or her own conduct isimmaterial. It is the state that must be in a position to foreseethe deprivation. Hudson, 468 U.S. at 533-34; Zinermon, 494U.S. at 137.

More fundamentally, because Abramson alleges thatSheriff McSweeney deprived him of pre-deprivation

's Abduilah v, Kennet,l04 Fed. Appx. 750, 2004WL 1576064, *l (lst Cir.July 15, 2004) (unpublished opinion; Mard v. Town of Amhersl, 350 F.3d184,193-94 (1st Cir, 2003); Veterqns Legal Defense Fundv. Schwartz,330F,3d 931,940 (7th Cir, 2003); O'Neill v. Baker, 210 F.3d 41, 49-50 (lstCir. 2000); Johnson y. Louisiqna Dept. of Agriculture, l8 F.3d 3lB,322(5th Cir, 1994); Lowe, 959 F.2d at 343; Easter House v. Felder,910 F.2d1387 (1ft Cir. 1990) (en bane); Katz y. Klehammer, 902F.2d204,206-07(2d Cir. 1990); Weimer v. Amen, 810 F.2d 1400, 1405 (8th Cir. 1989).

I6

process in violation of state law intentionally and in orderto exact political retribution, this case is hke Hudson inwhich the prison employee was pursuing a personalvendetta against the inmate whose property he destroyed. Insuch circumstances, no additional state proceduralsafeguards could have prevented the deprivation. Thepresent case is very different from Zinermon, where thisCourt assumed that, had the state required appropriateprocedures, they would have been followed by the hospitalstaff and prevented the deprivation. The Matthews barancefavors application of the Pa*att-Hudson d,octrine in thiscase because additional or improved procedures would havebeen of no value, if, as alleged by Abramson, SheriffMcSweeney intentionally violated the existing procedures.

Finally, Sheriff Mcsweeney's alleged conduct in thiscase was "unauthorized" as that term is used tn parratt,Hudson and Zinermon. ln Zinermon, the state "broadlydelegated, uncircumscribed power" to the hospital staff toadmit psychiatric patients, thereby depriving them of theirliberty, but it had provided no requirement that a prospec-tive voluntary admittee be evaluated for competency togive informed consent to admission, and did not specifyany procedure by which that was to be done. Thus, thestate delegated to the hospital staff the state's duty toprovide procedures to prevent the very type of deprivationthat ultimately occurred. The Court held in Zinermon thaLthe state could not use Paruatt-Hudson to avoid liability if,under those circumstances, the staff failed to properlyexercise their broad delegated authority.

The present case bears no resemblanc e to Zinermon,Here, Sheriff Mcsweeney was delegated no authoity ordiscretion whatsoever as to when or whether to affordemployees entitled to the protection of G.L, c. 35, $ 51 a

L7

pre-termination hearing. State law required a pre-termination hearing and left nothing to SheriffMcSweeney's discretion.

Relying on the statement in Zinermon that the depri-vation rn Zinermon was " 'unauthorized' only in the sensethat it was not an act sanctioned by state law," 494IJ.5. atl3l-38, Abramson argues that Sheriff Mcsweeney'sconduct was not "unauthorized" simply because it violatedmandatory, non-discretionary state procedures. However,Abramson ignores a crucial difference between Zinermonand the present case. In Zinermon, the conduct was"unauthorized" only because it had not been affirmativelysanctioned under state law. The state's procedures wereinadequate precisely because they failed to requireevaluation for informed consent and left the issue entirelyto the discretion of the hospital staff. In contrast, thealleged conduct of Sheriff Mcsweeney in the present casewas prohibited by state law. While conduct not explicitlypermitted may not be "unauthorized" for purposes ofParratt-Hudson, as interpreted in Zinermon, conduct inviolation of mandatory state law clearly is unauthoized..

The circuit court, therefore, properly relied upon theP ar r att - Huds on doctrrne in dismis sing Abramson's proceduraldue process claim.

2. There is no split among the circuits regardingany issue relevant to the application of the par-rqtt-Hudson doctrine to this case.

Abramson claims that there is a split of authorityamong the circuit courts as to "the breadth of the parratt-Hudson doctrine in general and its application to denial ofpre-deprivation hearings in the employment context inparticular." Petition at 6. Specifically, he claims that the

18

circuits disagree as to whether the terminatio n of a tenuredgovernment employee without ^rr adequate pre_tetmination hearing gives dse to a $ 1983 procedutal dueprocess claim where the official tesponsible for the termi-naLion violated established pro..dr'rr. and state lawptovides an adequate post-depdvation remedy. Abramsonasserts that while the First and Seventh Circuits applyParratt-Hudson to bar due pfocess claims in such .ur.r, th.Second, Fourth, Fifth and Ninth Circuits have decidedthat Parratt-Had,ron does not apply.

As set forth in the following four subsections, there isno split of authodty on this issue. In arguing that thecitcuits ate diverging, Abrarnson misapplies the law andfails to refet the court to recent decisions in each of thecircuits involved that undermine his corrrenuon.

At the outset, there is no justification fot Abramson's

^pp^tent position that due process claims arising from

employrnent decision arc ni generh, atleast in deterrniningwhether conduct is random and unauthonzed. \)Thetherconduct is tandorn and unauthonzed depends on thetelationship between the conduct and the applicable statelaw and ofl the extent of discretion, if any, delegated bythe state to the actor. The same analysis applies toemployment related conduct as to any other proceduralque pfocess case.

2.L The Fifth Circuit.Abramson cites a single Fifth Circuit case, Findeircn u,

North E,att Independent School District,749 F.2d 234 (Sth Cu.1,984), decided more than 20 years ago, while he ignotesmultiple Fifth Circuit cases since that time that showcleatly that the Fifth Circuit agrees with the First, Seventhand other circuit courts that conduct bv an official

19

in violation of established state procedures is randorn andunauthodzed, thus triggering application of pa*att-Hudsonif an adequate post deprivatiomemedy exists. For

9xample, tn Johnson u. Louisiaaa Dept, of Agriculture, Ig F.3d318 (5th Cft. 1,994), decided ten years aiter Findeisen, thetrifth Circuit stated;

S- 1983 should not be ernployed to temedydeptivations which occur at-the hands of evei.\tgh te ernployees 'direct n of the itote,,oyd p ich haue been dethe ueryt protectiorrc which the enploye now hat chosento ignore." . . . Simply becauie-Odom is a highstate official does not mean that his actio"nsare automattcally considere d e s tablished s tateprocedure that would take the case outside ofthe Parcattf Hudson docttine.

Id. at322. (Emphasis added.)rc

In sum, the Fifth Circuit appl_ies the same law as theFirst Circuit did in the Present case.

20

2.2 The Second Circuit.

Abramson contends that there is split of authoritybetween the First and Second Circuits regarding applica-tion of Parratt-Hudson, citing Dwyer v. Regan, 777 F.2d825 (1985) to support his argument. Dwyer recognizes aspecial exception to the Parratt-Hudson doctrine and holdsthat conduct that otherwise could be considered randomand unauthorized, including conduct in violation of estab-lished state law, is not random and unauthorized if theactor is a "high-ranking official having final authority overthe decision-making process." 1d at 832. Notably, theSecond Circuit continues to apply Parratt-Hudson wherethe exception set forth in Dwyer is not applicable!'

However, Sheriff Mcsweeney is not a high-rankingofficial within the meaning of Dwyer. Courts in the SecondCircuit equate a high-ranking offlrcial for Parratt-Hudsonpuposes with a final policymaker under Monell v, Dept. ofSocial Services,436 U.S. 65S (1978).18 Sheriff Mcsweeney

" In Hellen Neighborh ttee V. Cifl of NewYork, 1,07 F.3d , a case d.e Dw1er, the SecondCircuit applied dnn to

^ claim that its due

process rights had been violated when a city official "de facto" baued itfrom city procurements, stressing that the contractor, ',makes no claimthat the due process violation was caused by an established stateprocedure. . To the contrary, lthe contractor] argues that state officialsacted in flagratt violation of the City Charter and the PPB rules," I/. at881.. See also l(atq u. Klehammer,902 F.2d 204,206-07 (2d Cir. 1990)(applying Parratt-Hadsoz because conduct complained of was violationof state law rather than pursuant to established procedures).

Sruith u. Citl of New York,2005 WL 1026551, x8 (S.D.N,Y, NIay 3,2005); Verri u, Nanna,972 F.Supp, 173,793-94 (S.D.N.Y. 1997) (citingSulliuaa u, Toun of Salern,805 F,2d 81, 86 (2d Ch. 1986) for theproposition that "question of policymaker status for the purposes ofmunicipal liability under $ 1983 is helpful for the purpose of 'randomand unauthorized' inquiry under due process analysis"); IGnencik u. Townof Plattekill,1989 !7L 114307, t4 (N.D,N.Y, August 25,1989).

21,

is not a ftnal policymaker for municipal liabiJity purposeswith tespect to employment-petsonnel decisions within themeaning of Mone//. His hiring and firing decisions

^reconsttained by state law such as Massachusetts G.L, c. 35, $51 and county poJicies not of his own making. Moreover,undet that statute, his decisions are subject to teview andtevetsal by the respondent cornmissioners.' Even if ShedffMcSweeney exercised discretion as to hiring and firing, andeven if he had abused that discretion, he did not makecounty poJicy with regard to employment matters. Ci4t (St.I-owis u" Praprotnik,435 U.S. 11,2, 127 (1988).

The status of a county shedff was specifically discussedby this Court tn Pembaur u, Cigt of Cincinnati, 475 U.S. 469(1e86):

tional manuer; the decision to act unlawfully wouldrcot be a deciion of'the Board.

LL

Id. at 483 n. 12. (Emphasis added.) Indeed, tn Jffi: u. Barnes,208 F'.3d 49,60-61 Qd Cir.2000), the Court of Appeals forthe Second Cfucuit, while holding that a shedff was apolicymaker on other issues, made clear that a sheriff ts nota poJicymaker on employment-personnel matters.zo

Shedff McSweenel, when engaged in employment-petsonnel matters, as in the present case, is not a "high-tanking official" for purposes of the Second Circuit'sspecial exception to Parratt-Hudson. Since the Second

ranking official exception does not apply tose, and the Second Circuit otherwise appliesin the same manner as the First Circuit

when a violation of state law is involved, there is no split ofauthodty between the Second and First Circuits.

2.3 The Ninth Circuit.Citing to the Ninth Circuit's decision tn Honelt u.

Di.rtelrath,195 F.3d 531 (9th Cft. |999),Abramson claims asplit in authority between the Ninth and First Circuits.However, Honel does not support Abramson's claim that asplit of authority exists, as the Ninth Citcuit also agreeswith the First Circuit that conduct in violation of state lawor established procedutes is random and unauthortzed forpufposes of Parratt-Hudnn. Abramson cites Hone1,4 andonly Honey for the proposition that in the Ninth Circuit,"even acts in violation of established law may not beconsideted 'authodzed'," Id.

^t 534. However, Abramson

both ignores more recent Ninth Circuit case law indicating

20 See aho Loobl u. Ci{t of Harford,152 F.Supp.2dConn. 2001) (holding that fue chief was not finalDersonnel issues).

181, 188-89 (D.poJicymaket as to

23

that a violation of established law is "random and unau-thodzed," and misinterprets the meanin g of Honeltitself.

According to the Ninth Circuit rn Corcoran u. O/s0n,102tred. Appx. 522,523-24 (9th Cir. 2004) (unpublished),

A..state fficia/'s failare to abide b1 constitution-alfu adeqwate procedares does not, under the cir-carn:tance.r of this case, giue rise to a caase ofacti / 98J of procedurildue znedn iiiation rem-edJ

Since Corcoran does not argue that the state'sptocedures are themselves inadequate, Corcoran'sremedy is to seek relief under stat'e law,,. .

(Emphasis added.) In like tnar\net, the Ninth Circuit Courtsaid in Sorrels u. McIQq 290 tr.3d 965,972 eOO2):

It was not the prison's rejection of thepublication that makes out a

'procedural due

process claim; it is the lack of notice of thattejection under Procunier. Oo0" tf the failure toprouide rcotice was pursuant to prinn poliEt does thisconstitute a due process uio/ation actionable under $1983. Thete is no evidence that this failure waianything other than a random mistake.Defendants maintain that the lack of notice was"a tare and inadveftent action," and Sottelsadmits that he does not "a/lege orpresent any euidencethat there is a wide:pread refanl oi a custon ir prarticeflot to issue mail rejections."

@,mphasis added.;zt Thus, thete is no question, based onits decisions before and after Honey that the Ninth Circuit

"Se x1(9th Cir. 2d377, 199 .t\.Burton ,. ""

(Continued on following page)

24

applies the same Parratt-Hudson rules as do the First andother circuits.

Nor does the Ninth Circuit,s decision in Honeysupport Abramson's claim that a split of authority exists.The Honey Court declined to apply paruatt-Hudsonbecause the conduct complained of was alleged to be "inaccordance with the policies, practices and customs of'the defendant police department and city, and to haveformed a pattern, all of which the court regarded asevidence that the acts were "deliberate, considered, [and]planned" so as to fall outside the application of parratt,195 F.3d at 534. Although the Honey court did say that"even acts in violation of established law may beconsidered 'authorized'," it meant only that when conductis in accordance with de facto policies, practices orcustoms, it is not random or unauthorized even if thosepolicies, practices or customs are contrary to state Iaw.r2

1994 WL 681051, x2 (Dec. 6, t994) (unpublished); Raditch v, Uniteclstates, 929 F.2d 478, 4s0 (9th cir. l99r) ("intentional deprivation of aproperty right by a government official, in violation of establishedprocedure, is a random and unauthorized act that cannot be preventedby predeprivation process").

,' As support for its decision, the Honey court cited other cases inwhich the conduct at issue was pursuant to policy or custom even if

unauthorized, even though illegal, because it was done "throughestablished interpretations of the regulations" and was "de factogovernment pol man, 3l F,3d 960, g63 (9th Cir.1994) (conduct accordance with city policy toengage in a ser down low income housins unitsand expel gang

Neither Honey nor the cases it cites bear any resemblance to thepresent case. There is no evidence in the record in the present case thatthere had been an established forrnal or inforrnal state, county or pcsDprocedure, policy or custorn of de'ying a pre-termination hearing to aPCSD employee e'titled to the protection of Massachusetts G,L, c. 35,

$ 51' In the present case, Sheriff Mcsweeney is not alleged to haveacted pursuant to any established procedure or defacto policy, but in asingle incident as an act of political retribution,

As the forgoi'g analysis indicates, the Ni'th circuit would findthat the conduct cornplained of i' this case is random andunauthorized, consistent with the First circuit's decision in this case.

2.4 The Fourth Circuit.

Abramson cites Plunter v. State of Marytand, 915 F .2d,927 (1990), and,Fields v. Durham, 909 F .2d 94 (1990), in sLrpport of his claim that the Fourthcircuit is in conflict with the First circuit on flre application of p&yatt-IIudson. Abramson contends tliat in tlie Fourflr circuit an offrcial's conduct inviolation of established state law is not "random and unauflrorizra', forpurposes of the Pcvratt-Hudson analysis. However, Abramson fails to refertlris courtto Bogartv. chapell,396 F.3d 548 (2005) the mostrecent decisionof the Fourlh circuit on flris issue, and one in which that court makesabsolutely clear flrat it regards conduct in violation ofestablished state law as

random and rurauthorized.

In Bogart, an anjrnal owner of numerous dogs and cats, brought a $1983 action against the courity and certain of its officials and employeeswho, after receiving complaints about maltreahnent of the animals andaruesting her, had seized the animals and immediately euthanized almostall

26

of them, in violation of a South carolina statute which requiredofficials who seize animals to care for them pending theoutcome of civil or criminal court proceedings. Id. at 554 n.3.The district court dismissed Bogart's procedural due processclaim, ruling that the conduct of the officers responsible foreuthanizing the animals was random and unauthorized,becauseit violated nondiscretionary procedures set forth in the SouthCarolina statute.

After recognizing Plumer and Fields, the Fourth Circuitaffirmed. The court rejected Bogart's assertion that her dueprocess claim was saved by Zinermon, noting that, unlikethe broad delegation of authority to the hospital staff inZinermon,

de prescribed precisely pro achr:.r: u., once they seized

Id. at 56r. Therefore, because the defendants "lacked authorityto destroy the animals immediately upon their seizure . . . thestate could not predict this deprivation.,' Id.

While in Zinermon, if the state had provided moreguidance and delegated less discretion to the hospital thestaff, the deprivation might have been avoided, the Bogartcourt said that in the case before it the state had given thedefendant officers no discretion. The court likened the casebefore itto Hudson where the deprivation was intentionar andno amount of predeprivation process would have avoided thedeprivation. Id. at 562.

If, as Abramson claims, the decisions in plumer and,Fields stand for a rule in the Fourth circuit that conduct inviolation of established state procedures is not random and

27

unauthorized, a debatable proposition in the first place,23Bogart, decided 15 years later, clearly rejects that rule andbrings the Fourth Circuit in line with the First Circuit andthe others. Nothing makes this more clear than the languageof the dissent in Bogart (Williams, J.), who identified twopossible approaches to "random and unauthorized" underParratt-Hudson: the "legalist" approach under whichconduct is deemed random and unauthorized, precluding $1983 liability, if such conduct violates state law, and the"governmental" approach under which even conduct inviolation of state law can give rise to government liability.Id. at 564. According to Judge Williams, Plumer and Fieldsadopted the governmental approach but the Bogart majorityabandoned that approach in favor of the legalist approachunder which conduct in violation of state law is deemedrandom and unauthorized. Id, at 566.

Thus, Bogart establishes that, under Fourth Circuitlaw, conduct in violation of established state proceduresis deemed to be random and unauthorized; and provesthat there is no conflict between the First Circuit and theNinth on the application of the Parratt-Hudson d,octrineto the facts of this case.

As the foregoing analysis establishes, there is no splitof authority among the circuits regarding any issuerelevant to the application of the Parratt-Hudson doctrineto this case.

" Both the Plumer and Fields courts ruled that the plaintiffs' $1983 procedural due process claims failed because adequate predepri-vation process had in fact been given, Thus, those courts did not need toapply Parratt-Hudson and any other views expressed in those cases aredicta.

28

3. Massachusetts G.L. c.35, $ 51 provides an adequatepost-deprivation remedy.

The Commonwealth of Massachusetts providedAbramson an adequate post-deprivation remedythrough Massachusetts G.L. c. 35, $ 51 and judicial reviewby the Massachusetts courts. The Massachusetts AppealsCourt held in Puorco v. Comm., 59 Mass. App. Ct. 61,794N.E.2d 624 (2003), that an employee denied the pre-terminationprocess required by $ 51 has a right to usethe appeal procedures set forth in $ 51 to challenge thedenial. The fact that Abramson chose not to pursue thisremedy is immaterial, In his petition. Abramsonclaims that his post-deprivation remedy under $ 51 is inadequate because hewould "face the prospect of months or years of litigation tosecure a post-termination remedy in state court," citingBureau of Labor Statistics data, Petition at p. 28, which heclaims indicates that the average employment litigation ina "sample of state courts" lasts20.2 months. There is nomerit to this claim.

First, recently enacted time standards for the Massa-chusetts state District Court, which would hear Abramson'sappeal under G.L. c, 35, $ 51, require that court to render adecision within four months of filing, certainly not a longdelay, District Court Standing Order 2-04, part II andappendix.' The enactment of these standards is a clearindication that the Massachusetts state court system iscapable of hearing such claims promptly.

Although this Court has recognized that "at somepoint, a delay in the post-termination hearing would

Resp, App, 8.

29

become a constitutional violation," Loudermilt, 470 IJ.S.at 547, normal delays associated with litigation in the

[W]e . reject [the] characterization of the state

complete." 468 U.S. at535,104 S.Ct. at3205.

[W] " should not reject the application of parratt

unless the remedy which an-injured party maypursue in state court can readily be characierized,as inadequate to the point that it is meaninglessor nonexistent and, thus, in no way can

30be said to provide the due process reliefguaranteed bythe Fourteenth Amend ment.24

In any event, if the parratt-Hudson doctrine did not barhis procedural due process claim, Abramson would be leftwith pursuing his $ r983 in the federar courts, which, asnoted in Easter House, is a lengthy process in itself.

CONCLUSIONFor the foregoing reasons, the Writ should be denied.

Respectfully submitted,

KEVIN F. MOLONEY(Counsel of Record)

ROGER T. MANWARINGBARRON & STADFELD, P.C.100 Cambridge Street, Suite 1310Boston, Massachus etts 02174T el.: 617 .7 23.9800 I 53 t.65 69

MAzu< C. GILDEAFAIN P. GILDEACLARK, BALBONI & GILDEA. LLP126 Belmont StreetBrockton, Massachusetts 0230 I

THOMAS DRECHSLERFINNERAN, BYRNE & DRECHSLER. LLPEastern Harbor Office park50 Redfield StreetBoston, Massachus etts 02122

26 See also l{artivich vCollege,782 F.Supp. . !:gr4 of Trustees of Jghnson County Contmunity

I 507, 151 5 (D. Kan, 1992\.