might be in dispute are not material to the resolution of the motion.
B. Plaintiff's Causes of Action
Plaintiff's amended complaint against defendants Stratford and Zerbe contains three counts. In Count I, plaintiff alleges that defendants used excessive force in making the arrest, in violation of the eighth amendment and the due process clause of the fourteenth amendment. He also alleges that defendants convinced the Lehigh County magistrate to set high bail and to refuse the proffered security, in violation of the due process clause and the equal protection clause of the fourteenth amendment. In Count II, plaintiff alleges that defendants used excessive force in making the arrest, in violation of their obligation to exercise due care under state law. In Count III, plaintiff alleges that defendants' conduct in making the arrest constituted assault and battery under state law.
1. The Eighth Amendment Claim.
Plaintiff claims that defendants' conduct in making the arrest constituted cruel and unusual punishment in violation of the eighth amendment. Plaintiff's claim is without merit. The law on this issue is well settled. The constitutional ban against cruel and unusual punishment applies only to those who have been convicted of criminal offenses. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 n.16 (1979); United States v. Lovett, 328 U.S. 303, 317-18, 90 L. Ed. 1252, 66 S. Ct. 1073 (1946); Romeo v. Youngberg, 644 F.2d 147, 156 n.8 (3d Cir. 1980) (en banc), vacated on other grounds, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982); Patzig v. O'Neil, 577 F.2d 841, 847 (3d Cir. 1978). In the case before me, plaintiff was only under arrest when the alleged unconstitutional conduct occurred; he had not been convicted of any criminal offense and was not incarcerated. The eighth amendment ban, therefore, does not protect him. The only possible constitutional issue arising from defendants' conduct in making the arrest is one of due process under the fourteenth amendment which I shall discuss below.
2. The Equal Protection Claim.
Plaintiff claims that defendants' conduct in making the arrest and in attempting to have his bail increased deprived him of the equal protection of the laws in violation of the fourteenth amendment. This claim is without merit. An equal protection claim must be based on some allegation of invidious discrimination or discriminatory intent. Washington v. Davis, 426 U.S. 229, 238-48, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). Plaintiff has offered no evidence whatsoever that defendants' conduct involved either invidious discrimination or discriminatory intent, and plaintiff has offered no legal argument or authority in support of the allegation.
3. The Due Process Claim and the Setting of Bail.
Plaintiff claims that following his arrest, defendants convinced the magistrate to raise his bail and to refuse the security offered by his family, in violation of his right to due process under the fourteenth amendment. In support of this allegation, plaintiff states only that the magistrate's actions "were taken at defendants' instigation." Plaintiff admits that there is no direct evidence on this issue; he merely argues that the inference should be drawn that defendants "somehow convinced" the magistrate that plaintiff should have been transferred back to Union County rather than posting bail in Lehigh County. Plaintiff's claim is without merit. In order to defeat defendant's motion for summary judgment on this issue, plaintiff, as the opposing party, must come forward with some evidence, by affidavit or otherwise, to show the existence of a material issue of fact. He cannot rest on the allegations of this complaint or on the conclusory arguments of counsel. Robin Constr. Co. v. United States, 345 F.2d 610 (3d Cir. 1965); Hollinger v. Wagner Mining Equip. Co., 505 F. Supp. 894 (E.D. Pa. 1981), vacated on other grounds, 667 F.2d 402 (3d Cir. 1981). Plaintiff has failed to come forward with any facts to support his allegation and has failed to articulate how defendants' conduct, even if true, constitutes a violation of his due process rights under the fourteenth amendment.
4. The Fourth Amendment Claims.
Plaintiff claims that defendants have violated his rights under the fourth amendment because the arrest warrant and the arrest itself were invalid. In support of this claim, plaintiff states that the warrant did not show the correct address and defendants executed it at an address different from the one shown. Plaintiff also claims that his fourth amendment rights were violated by defendants in forcing their way into the house after being refused entry by his sister. Both of these claims are without merit.
In an arrest warrant, unlike a search warrant, the listed address is irrelevant to its validity and to that of the arrest itself. An arrest may take place at any location so long as there is probable cause to support the arrest. United States ex rel. Moore v. Russell, 330 F. Supp. 1074, 1078 (E.D. Pa. 1971); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). Plaintiff admits that he took his tractor from the repair shop without paying, and he does not deny that the defendants had telephoned his sister at the place of the arrest shortly before going there, and had confirmed that he would be there. Thus, there was probable cause for making the arrest. The error in the address was of no significance.
Further, plaintiff's claim of forceable entry into the house is not a basis for a fourth amendment violation because, given the fact that the arrest warrant was valid and based on probable cause, the defendants were entitled to enter the premises in order to carry out the arrest. Permission of the occupant or owner was not required. Commonwealth v. Stanley, supra.
5. The Due Process Claim and the Use of Excessive Force.
The heart of plaintiff's complaint is that the defendants used excessive force in making the arrest, causing injuries to him. Plaintiff claims that defendants' conduct constitutes a violation of his right to due process of law under the fourteenth amendment. For the reasons which I will explain below, defendants are entitled to prevail on this issue because state law provides adequate postdeprivation remedies for the alleged deprivation and plaintiff has, therefore, not been deprived of a protected interest under the fourteenth amendment without due process of law.
The fourteenth amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." (emphasis added) Section 1983 of Title 42 of the United States Code, in turn, provides a cause of action for a fourteenth amendment violation:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Section 1343 of Title 28 of the United States Code confers jurisdiction on federal district courts to hear civil actions brought under § 1983.
A plaintiff suing under § 1983 must establish that some person has deprived him of a federal constitutional or statutory right and that the person acted under color of state law. Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Cohen v. City of Philadelphia, 736 F.2d 81 slip op. at 5 (3d Cir. 1984). In this case, there is no dispute that defendants were acting under color of state law; they were both constables of Union County, Pennsylvania, empowered under state law to make arrests, and at issue in this case is their conduct in making an arrest. There is no allegation that plaintiff was deprived of any federal statutory right or privilege; the focus of plaintiff's claim is an alleged violation of the fourteenth amendment to the constitution. Plaintiff's claim is a pure procedural due process claim; it is not based on any specific constitutional provision other than the fourteenth amendment itself.
A proper identification of the interest involved in plaintiff's claim is essential for a valid disposition of the claim. In a series of recent decisions, the Supreme Court has begun to clarify the meaning of the "liberty" interests and "property" interests which are protected by the due process clause. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). In Ingraham, the Court stated that when state authorities bodily restrain or punish a person, as in the infliction of corporal punishment on school students, the liberty interests of the due process clause are implicated. See also Black v. Stephens, 662 F.2d 181, 188 (3d Cir. 1981) (use of excessive force in making arrest implicates liberty interest), cert. denied, 455 U.S. 1008, 71 L. Ed. 2d 876, 102 S. Ct. 1646 (1982); Everett v. City of Chester, 391 F. Supp. 26, 28 (E.D. Pa. 1975) (excessive force by policeman is deprivation of liberty interest without due process). Other courts have assumed, without deciding, that a liberty interest is implicated where the allegation is one of excessive force or infliction of bodily injury by a state officer. See, e.g., Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir. 1981), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S. Ct. 1483, 75 L. Ed. 2d 413 (1983); Dandridge v. Police Dept. of Richmond, 566 F. Supp. 152, 155 (E.D. Va. 1983); Barnier v. Szentmiklosi, 565 F. Supp. 869, 877-78 (E.D. Mich. 1983). Under the analyses of the above decisions, plaintiff's claim in the case before me involves a deprivation of a liberty interest under the fourteenth amendment, allegedly without due process. I assume, because plaintiff has not claimed otherwise, that the alleged deprivation is one of procedural due process, not of substantive due process. I also assume, from the language of the complaint, that plaintiff is claiming intentional conduct by defendants, not merely negligent conduct.
The Supreme Court decision in Parratt v. Taylor, supra, is the starting point in the analysis of plaintiff's claim. In Parratt, a prisoner had sued state prison officials under § 1983 for the negligent loss of hobby materials that he had ordered through the mail. In ruling that the plaintiff had not sufficiently alleged a violation of the due process clause, the Court stated:
Nothing in [the fourteenth] amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations "without due process of law." (citation omitted) Our inquiry therefore must focus on whether the [plaintiff] has suffered a deprivation . . . without due process of law. In particular we must decide whether the tort remedies which the State . . . provides as a means of redress for property deprivations satisfy the requirements of procedural due process.
Id. at 537.
The Court held that although conduct by defendants clearly constituted a deprivation of a property interest under the due process clause, the plaintiff did not have a claim under § 1983 because postdeprivation state tort claims procedures were available to him to compensate for his loss. On this basis, the Court concluded that the plaintiff had not been denied his property interest without due process. See also Holman v. Hilton, 712 F.2d 854 (3d Cir. 1983) (negligent loss of prisoner's personal property by officials in prison fire constitutes deprivation of property interest under due process clause).
In concluding that the state remedies available in Parratt satisfied the requirements of due process, the Court stated:
To accept [plaintiff's] argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in 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. It is hard to perceive any logical stopping place to such a line of reasoning. . . . Such reasoning "would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701 [47 L. Ed. 2d 405, 96 S. Ct. 1155] (1976). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.