                  United States Court of Appeals,

                          Fifth Circuit.

                           No. 92-5092.

             Donald M. JOHNSON, Plaintiff-Appellant,

                                v.

     LOUISIANA DEPARTMENT OF AGRICULTURE, Bob Odom, et al.,
Defendants-Appellees.

                          April 12, 1994.

Appeal from the United States District Court for the Western
District of Louisiana.

Before HIGGINBOTHAM, DAVIS and JONES, Circuit Judges.

     W. EUGENE DAVIS, Circuit Judge:

     Donald Johnson appeals the district court's dismissal of his

§ 1983 action.   We affirm in part and reverse in part.

                                I.

     In the early 1980s, Donald Johnson operated a cropdusting

business, the Transylvania Flying Service, in Louisiana.   On four

occasions from 1982 through 1984, the Louisiana Department of

Agriculture brought charges against Johnson and his company for

violating the Louisiana pesticide laws.      On each occasion, the

Louisiana Advisory Committee on Pesticide held hearings on the

charges and then recommended that the Agriculture Commissioner

assess penalties against Johnson.    The Commissioner accepted the

findings and sanctioned Johnson each time.    The penalties became

increasingly severe, and Johnson's cropdusting career ended when

the Department revoked his license and his certification to apply

pesticides. After three of the four hearings, Johnson appealed the


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sanctions   to   a   Louisiana    state   court,   where   the    findings   of

liability were generally affirmed although the sanctions were often

reduced.

     Johnson alleges that the agriculture department continued

citing him because he refused to make a large enough contribution

to the reelection campaign of Agricultural Commissioner Bob Odom.

He claims that the agriculture department fabricated evidence

against him and forced an employee to give perjured testimony in

order to sustain the convictions.           He also alleges that Odom and

other agriculture department officials contacted Commission members

to influence their votes at his hearings. Further, he asserts that

Dale Rinicker, the parish sheriff, helped the department gather

illegal evidence against him.

     When the motion for summary judgment was filed, the complaint

asserted    claims   under   42    U.S.C.    §   1983   against    Bob   Odom,

Commissioner of Agriculture, employees of the Louisiana Department

of Agriculture, members of the Advisory Commission on Pesticides,

and Sheriff Rinicker.     After several requests by the court and the

defendants for specific allegations against specific defendants,

the district court determined that Johnson's complaint alleged

violations of his First Amendment and Fourth Amendment rights, of

procedural due process, and of equal protection.

     The court dismissed the First Amendment and procedural due

process claims because the plaintiff had failed to comply with the

court's orders to plead them more specifically, and alternatively

because the complaint did not state a claim.            The court determined


                                      2
that Johnson's allegations of selective prosecution stated an equal

protection claim with sufficient specificity, but then held that

qualified immunity protected defendants from that claim. The court

also determined that Sheriff Rinicker was entitled to summary

judgment because Johnson had no standing to contest any actions the

sheriff took in violation of the Fourth Amendment.

                           II. FIRST AMENDMENT CLAIM

         We first must determine if the district court erred when it

held that Johnson failed to state a claim                  under § 1983 for

violation of his First Amendment rights.1                Johnson alleges that

"his first amendment rights were violated by the defendants'

coercive attempts to stifle him and his free expression of speech."

Johnson    alleges   that     defendants      targeted   him   for    prosecution

because he "would not shut up and acquiesce to the mistreatment

inflicted upon him by the LDOA."

     If this allegation asserts a claim on any basis, we agree with

the district court that the claim is one for malicious prosecution

in violation of Johnson's First Amendment rights.                     Whether the

Constitution comprehends any such claim is far from clear.                      The

Supreme     Court    has     recently    held     that    malicious      criminal

prosecution,    if   actionable     in       constitutional    law,    should   be

governed by the Fourth Amendment rather than substantive due

     1
      The district court also dismissed Johnson's First Amendment
claim for failure to comply with court orders requiring Johnson
to plead this claim with more specificity. Because we hold that
Johnson does not state a claim under the First Amendment, we do
not address whether the district court was within its discretion
in assessing dismissal as a sanction for violation of its orders.


                                         3
process, with its "scare and open-ended" "guideposts." Albright v.

Oliver, --- U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).

Significantly, the Court expressed no view whether such a claim

would succeed under the Fourth Amendment. Johnson raised no Fourth

Amendment malicious prosecution claim. Further, it is an even more

complex question whether and on what basis a First Amendment claim

of malicious prosecution can be made.     But at the very least, if

the First Amendment protects against malicious prosecution, Johnson

must not only allege a deprivation of a constitutional right, but

must also establish all of the elements of the common law tort

action.   Johnson has failed to satisfy the common law requirement

that "the underlying criminal proceeding2 ... terminate in the

plaintiff's favor."   Brummett v. Camble, 946 F.2d 1178, 1183 (5th

Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2323, 119 L.Ed.2d

241 (1992).

     Johnson appealed five of his administrative penalties, and

four ended in a decrease in punishment.   See, Johnson v. Odom, 470

So.2d 988 (La.App. 1st Cir.), writ denied, 476 So.2d 355 (La.1985)

(Johnson violated the law by using pesticide inappropriately, but

remanded because Commissioner not authorized by statute to impose

     2
      Before Albright, supra, this circuit attempted to
distinguish malicious prosecution claims in criminal proceedings
which generally are serious enough to rise to the constitutional
level, and those based on civil proceedings, which do not usually
raise a constitutional issue. We had not addressed whether
malicious prosecution claims in administrative proceedings that
may result in sanctions rise to the constitutional level.
Because Albright casts a shadow on all our prior cases and
because Johnson in any event fails to satisfy a critical element
of a malicious prosecution claim, we do not address this issue
here.

                                 4
both fine and suspension);         Johnson v. Odom, 536 So.2d 541 (La.App.

1st Cir.1988); writ denied, 537 So.2d 213 (1989) (Johnson violated

the law by flying without a license, but fine excessive;                Johnson

violated   the   law,   but       penalties    unfair;      Johnson     admitted

committing   battery    on    a   Department    worker    trying   to   serve a

subpoena, but the worker did not have the statutory power to serve

subpoena so Johnson did not violate statute penalizing interference

with a Commission representative in performance of his duties).

     However, none of the appeals ended with a finding of not

guilty.    Therefore, even if Johnson's claim is cognizable after

Albright, the district court did not err in dismissing Johnson's

First Amendment claim.

                         III. DUE PROCESS CLAIM

     Johnson alleges that Odom and his employees denied Johnson

procedural due process by engaging in ex parte contacts with

Advisory Committee members and soliciting perjured testimony to

present to them.        The district court held that such actions

constitute the kind of "random, unauthorized" deprivations of

rights that are not actionable under § 1983 if the state has

adequate post-deprivation remedies for them.               Parratt v. Taylor,

451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in

part not relevant here, Daniels v. Williams, 474 U.S. 327, 106

S.Ct. 662, 88 L.Ed.2d 662 (1986);           Hudson v. Palmer, 468 U.S. 517,

104 S.Ct. 3194, 82 L.Ed.2d 393 (1984);          Zinermon v. Burch, 494 U.S.

113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).              Because Johnson had a

right to a rehearing of his adjudication and a right to seek


                                        5
judicial review of the Commissioner's findings, the district court

held that his claim was not actionable.

      This circuit has held that a § 1983 action for deprivation of

procedural    due     process    is    barred       if    a     state   has    adequate

post-deprivation remedies and the following conditions exist:                       1)

the     deprivation     must     truly       have        been     unpredictable     or

unforeseeable;         2)   pre-deprivation         process       would   have    been

impossible or impotent to counter the state actors' particular

conduct;    and 3) the conduct must have been "unauthorized" in the

sense that it was not within the officials' express or implied

authority.    Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir.1991) (en

banc), cert. denied, --- U.S. ----, 112 S.Ct. 1474, 117 L.Ed.2d 618

(1992).

      Defendants argue, as proof of all three elements, that bias,

ex parte contacts, and solicitation are expressly prohibited by

Louisiana law.      See, La.Rev.Stat. § 49:960 (prohibiting regulator

bias;       La.Rev.Stat.        §§    14:122(3),         14:129.1(a),         14:134(3)

(prohibiting perjury). Because Louisiana does not authorize public

officials to taint adjudications through acts of bias, but instead

expressly forbids it, the state could not predict when public

officials might break the law nor could it expect that additional

laws would prevent the acts if existing laws did not.

        Johnson's sole argument on this issue is that our decision in

an earlier opinion in this case established a violation of due

process as law of the case.              The relevant language from that

opinion states:


                                         6
       Johnson's claim for relief rests on the allegations that the
       Department of Agriculture, through the named defendants, 1)
       encouraged perjured testimony to facilitate adjudicating him
       guilty of violating Louisiana's Pesticide Control laws and 2)
       singled him out for prosecution and revocation of his license
       using illegally obtained evidence. Such actions, if true,
       would violate Johnson's due process rights.

Johnson v. Odom, 910 F.2d 1273, 1277 (5th Cir.1990) (per curiam),

cert. denied, 499 U.S. 936, 111 S.Ct. 1387, 113 L.Ed.2d 443 (1991).

       The doctrine of the law of the case "merely expresses the

practice of courts generally to refuse to reopen what has been

decided" and does not limit their power to consider matters that

could have been, but were not, raised and resolved in the earlier

proceeding. Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.1989).

This court's earlier opinion did not consider the Parratt/Hudson

doctrine and whether Louisiana provided adequate post-deprivation

remedies.    Rather, we stated generally that Johnson had alleged

actions inconsistent with due process.                That statement does not

conflict with the district court's ruling in this circumstance

because a plaintiff has no claim under § 1983 for a due process

violation where states provide adequate post-deprivation remedies.

        We recognize that Odom is an elected head of the Department

of Agriculture and enjoys considerable authority.                      However, this

authority    does     not   automatically          make   all     of     his   actions

"authorized" under the Parratt/Hudson doctrine.                  § 1983 should not

be employed to remedy deprivations which occur at the hands of even

high    ranking     state   employees       "who     [are]      acting    in   direct

contravention of the state's established policies and procedures

which have been designed to guarantee the very protections which


                                        7
the employee now has chosen to ignore."               Easter House v. Felder,

910 F.2d 1387, 1404 (7th Cir.1990) (en banc) (emphasis omitted).

The State of Louisiana could not predict that Odom would violate

statutory   provisions      against   bias,      ex     parte    contacts,      and

solicitation, as Johnson alleges he has.          Simply because Odom is a

high    state   official    does   not    mean    that     his     actions      are

automatically considered established state procedure that would

take the case outside of the Parratt/Hudson doctrine.              Id. at 1402.

       The district court did not err in dismissing Johnson's due

process claim in light of the Supreme Court's pronouncements in

Parratt and Hudson.        The actions complained of were "random and

unauthorized," and Johnson had adequate post-deprivation remedies.

                           IV. FOURTH AMENDMENT

        Johnson   argues    next   that   the    district       court   erred    in

dismissing his claim against Sheriff Rinicker.                  Johnson alleged

that the sheriff "drove his vehicle directly into the path of an

airplane that Mr. Johnson was operating to apply pesticides in an

attempt to create a "violation' of the pesticide laws which the

LDOA would (and did) use to prosecute plaintiff."                  Johnson also

alleges that the sheriff drove onto private property without a

warrant to get evidence against him.

       The district court interpreted these allegations as claims

that the sheriff conducted an unreasonable search, and the court

concluded that Johnson did not make out a constitutional violation.

To establish a Fourth Amendment claim, Johnson must show that he

had a legitimate expectation of privacy in the area searched. U.S.


                                      8
v. Ibarra, 948 F.2d 903, 905 (5th Cir.1991).              The sheriff's

affidavit shows that Johnson did not own the field that the sheriff

inspected for evidence of pesticide use.        We doubt that the owner

of property had a reasonable expectation of privacy in the open

field. Oliver v. United States, 466 U.S. 170, 171, 104 S.Ct. 1735,

1737-38, 80 L.Ed.2d 214 (1984).        Johnson, who was not even the

owner of the field, certainly had no standing to assert a Fourth

Amendment violation.

                        V. EQUAL PROTECTION

      The district court concluded that Johnson's complaint stated

a claim for violation of equal protection based on the Department's

selective prosecution of him.    But it was persuaded that qualified

immunity shielded the defendants from liability.          Johnson argues

that the law of the case precludes exonerating the defendants on

qualified immunity grounds.     We agree.

     Our earlier opinion in this case expressly concluded that fact

issues   were   presented   precluding      a   summary   resolution   of

defendants' qualified immunity defense:

     We affirm the district court's determination that 1) the
     defendants are not entitled to absolute immunity status and 2)
     a material issue of fact exists as to the defendants' claims
     for qualified immunity making summary judgment improper.

Johnson v. Odom, 910 F.2d at 1275.       We held that the allegations

that the defendants encouraged perjury and singled out Johnson for

punishment by repeated prosecutions were material to the issue of

qualified immunity and were in dispute.         Id. at 1277-78.

     Thus defendants must present their qualified immunity defenses

to a fact finder for resolution of material issues of fact.

                                   9
                                      VI.

     We affirm the district court's dismissal of Johnson's First

Amendment, Fourth Amendment and due process claims. We reverse the

district court's dismissal of the plaintiff's equal protection

claim on qualified immunity grounds and remand this claim for

trial.    Accordingly the district court's judgment is affirmed in

part,    reversed   in   part   and   remanded   for   further   proceedings

consistent with this opinion.




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