Roy E. DANIELS, Appellant, v. Andrew WILLIAMS, Deputy, Appellee, 748 F.2d 229

ON PETITION FOR REHEARING: WIDENER, Circuit Judge: This case is an appeal from a judgment for the defendant in an action brought under 42 U.S.C. § 1983. We affirm. Roy Daniels was a prisoner in the Richmond city jail on January 23, 1982, when he slipped and fell on a pillow and newspapers negligently left on some stairsteps by the defendant Williams, a deputy sheriff. The fall resulted in injuries to Daniels’ back and ankle, for which he received medical treatment.

While the facts surrounding Daniels’ fall may be disputed, the district court found a common law negligence remedy available to Daniels and dismissed the case for failure to state a cause of action. Thus, for the purposes of this opinion, we assume that Daniels fell and that his fall was caused by Williams’ negligence. Daniels’ suit must fail for two alternate reasons, either of which is fatal to his claim. The first is that we are of opinion Daniels’ bodily injury occasioned by simple negligence was not a liberty interest protected by the due process clause.

Second, even if Daniels had a liberty interest violated by the negligence of Williams, then he had a remedy under the law of Virginia which satisfied the requirements of procedural due process. I. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), decided that the negligent loss of two packages of hobby materials, belonging to one prisoner, and lost by a prison employee and another prisoner, was a deprivation of property under the Fourteenth Amendment. Parratt at p. 536-537, 101 S.Ct. at p. 1913-1914.

The Court went on to decide, however, that because Nebraska provided a tort remedy as a means of redress for property deprivation, the deprivation was not without due process of law. Until Parratt was decided, in this circuit a claim of mere negligence did not give rise to a cause of action under § 1983. We decided that explicitly in Jenkins v. Averett, 424 F.2d 1228 (4th Cir.1970), in which, however, we granted relief in a case where the defendant’s actions were variously described to be gross and culpable, wanton and a raw abuse of power, but falling short of an intentional act.

So our decision in Jenkins so far as property is concerned now gives way to Parratt. We do not believe the Court intended Parratt to be applied automatically in a per se manner in every instance in which

an act of negligence can also be stated as a § 1983 claim. The Court itself noted, at p. 534, 101 S.Ct. at p. 1912, quoting Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), that “[T]he question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush.

It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action.” In Parratt, the concluding paragraph of the opinion of the Court took pains to explicitly disavow construing its decision so that it might 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.” 451 U.S. at 544, 101 S.Ct. at 1917.

The Court continued: “It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning ‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever circumstance may already be administered by the States.’ Paul v. Davis, 424 U.S. 693, 701 [96 S.Ct. 1155, 1160, 47 L.Ed.2d 405] (1976).

We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.” 451 U.S. at 544, 101 S.Ct. at 1917. Thus, the Court, by explicitly rejecting a construction of its opinion which would permit maintaining a § 1983 claim for bodily injuries based on the negligent operation of an automobile by a state official acting under color of law, has limited its decision.

Because we doubt that the Court intended to convey the impression that a prisoner suffering bodily injury from the negligence of a state official stands on a better footing than an ordinary citizen so injured, we think the Court intended to limit its decision to claims for the deprivation of property asserted by a prisoner, and we so hold. The difference in treatment between a prisoner’s property and his person may easily be justified.

The demands of prison safety, life, and discipline make it obligatory for prison officials to have possession of, and search at some time or another, all of the property belonging to every prisoner. Prisons could be operated in no other fashion. Because the state of necessity has such complete control of the prisoner’s property, calling it to account for the unexplained loss thereof is not inconsistent with demands of the Fourteenth Amendment. No such reasons exist, however, to set the prisoner above the ordinary citizen in the protection of his person.

If the ordinary citizen may not sue under § 1983 a state employee who has negligently deprived him of a liberty interest by injury to his person, then the prisoner should not be allowed to prosecute a similar claim. The Supreme Court has expressed the same thought in a different context. Just as “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner,” neither should negligent injury to the person.

We are thus of opinion the negligent injury to the plaintiffs person is not a protectable liberty interest under the due process clause and the complaint does not state a cause of action under § 1983 on that account. II. It is not disputed that in Virginia at all times here pertinent a common law tort action for negligence might have been maintained against a state employee performing ministerial duties. While the State is immune, see James v. Jane, 221 Va. 43, 267 S.E.2d 108, 113 (1980), the employee is not. First Virginia Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8 (1983).

The sovereign immunity which may attach to employees performing discretionary duties does not attach to those performing ministerial acts. This was made clear in our recent case of Phelps v. Anderson, 700 F.2d 147 (4th Cir. 1983), and most recently, as we have noted above, by First Virginia Bank-Colonial in the state courts. In Phelps, prison employees had negligently deprived a prisoner of the use of his television set for a period of time. A prison adjustment committee had decided that the plaintiff owned the set and the prison employees’ negligent failure to return the set to the rightful owner, we held, was

an act in which they had no discretion, and accordingly, because that prisoner had the right to proceed under Virginia law, we held that Parratt barred his § 1983 claim. In First Virginia Bank the suit was against the clerk of a court whose deputy had negligently indexed a deed of trust on the wrong page of the index book. The Virginia court held that act to be ministerial and allowed a suit to proceed against the clerk on account of the negligence of the deputy.

In the case at hand, there is no claim that the deputy sheriff, Williams, was exercising any discretionary duty when he left the pillow on the stairsteps, so his actions at the most, looking at the case in the best light from Daniels’ side, were merely ministerial. Because Williams’ duties were ministerial, it was possible for Daniels to maintain an action in the Virginia courts on account of his injury without being met with the defense of sovereign immunity.

Thus, even if Daniels were deprived of a liberty interest protected by the Fourteenth Amendment, the deprivation was not without due process of law under Parratt because a post-deprivation remedy was available in the state courts. The plaintiff argues that sovereign immunity is available to Williams as a defense, and it follows, the argument goes, that if sovereign immunity is available as a defense, any remedy he may have under state law may be inadequate and not in fact a remedy.

The defendant argues that any immunity which may exist under state law is little different from the immunity afforded state officials in the federal courts in suits under § 1983, and continues that since the immunities involved are akin, even if not the same, then the existence of immunity should not serve to permit the suit to be maintained.

Because we believe there is no significant difference in the duties of the deputy sheriff in this case, the pi’ison officials in Phelps, and the deputy clerk of the court in Baker, we think the duties of Williams were ministerial and do not reach the question of whether or not the existence of a possible immunity defense should permit the action to be maintained under § 1983. The judgment of the district court AFFIRMED. is . There is no claim of any substantive due process violation. The facts here are not nearly aggravated enough to even make the proposition arguable. See, generally, Hall v.

Tawney, 621 F.2d 607 (4th Cir.1980). . While the dissenting opinion's analysis of the majority's position, that of extraordinary reluctance to change circuit precedent, may have been helpful in staking out its position, it sets up a strawman to disagree with. Of course the reasoning of Jenkins is not consistent with Par- ratt, as Parratt makes mere negligence actionable, while Jenkins requires more, and, of course, circuit precedent must give way to the superior authority of the Supreme Court. Even the suggestion that these propositions are not acknowledged by the majority is too far fetched to merit more than

summary denial. But recognition of the fact that the result which Jenkins would obtain when applied to a negligent injury to the person happens to agree with the result required by Parratt in the same situation, indicates not a reluctance on the part of the majority to change circuit precedent, rather the failure of the dissent to acknowledge that Parratt and Jenkins require similar results on the same fact situation but for different reasons as the majority opinion indicates. We follow Parratt. . Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). .

Virginia recently enacted a Tort Claims Act, Va.Code § 8.01-195.1 et seq, (Supp.1982), which applies to acts occurring on or after July 1, 1982, and which surrenders the immunity of the Commonwealth for certain torts under specified conditions. That statute, of course, would have no effect in this case. . We have grave doubt that the immunity question, whether the acts complained of were discretionary or ministerial, has any proper place in this case in any event, since the case involves a sheriff and not some other public employee or officer. In Dabney v.

Taliaferro, 25 Va. (4 Rand.) 256 (1826), the court held that a sheriff was held to a standard of ordinary care (“omission and neglect" was the exact phraseology) in the keeping of a prisoner by a contract jailer. If a suit may be maintained against a sheriff directly, it could probably be maintained against a deputy, and, even if not, the remedy afforded against the sheriff would satisfy the requirements of Parratt.

Our position with respect to this matter is supported by the statement in First Virginia Bank that "... we find no logic in a rule that exempts him [a clerk of the court] from the doctrine of respondeat superior whether the wrong committed by his deputy is discretionary or ministerial in character.” 301 S.E.2d at p. 12. First Virginia Bank also noted with approval Moore’s Adm. v.

Dawney, et al, 13 Va. (3 H. & M.) 127 (1808), and the statement in that case that "[t]he law looks upon the sheriff and his officers as one person; he is to look to his officers that they do their duty; for if they transgress, he is answerable to the party injured by such transgression; and his officers are answerable over to him." 13 Va. (3 H. & M.) at p. 132; 301 S.E.2d at p. 11, n. 3. Because the parties have not approached the case from this angle, we express no opinion on the subject, but, to repeat, whether or not there is necessarily any immunity question in the case seems doubtful.