                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0676n.06
                                                                                           FILED
                                           No. 10-1205
                                                                                      Sep 15, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


IN T E R N A T I O N A L M E T A L T R A D IN G          )
INCORPORATED; PAUL TERRAULT,                             )
                                                         )         ON APPEAL FROM THE
       Plaintiffs-Appellants,                            )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE EASTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
CITY OF ROMULUS, Michigan; CHARLES KIRBY,                )                  OPINION
Chief of Police, Romulus, Michigan; JOSHUA               )
MONTE, Detective; MICHAEL ST. ANDRE, Deputy              )
Chief; JOHN LEACHER, Lieutenant; RICK                    )
LANDRY, Detective,                                       )
                                                         )
       Defendants-Appellees.                             )




BEFORE: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge.                Plaintiffs International Metal Trading, Inc.

(“International Metal”), and its owner, Paul Terrault, allege that police officers of Romulus,

Michigan violated their right to procedural due process by taking their property and disposing of it

without a hearing. Plaintiffs sued in federal court, asserting a claim under 42 U.S.C. § 1983.1 The

district court found that plaintiffs could not establish that the police deprived them of a protected

interest and that they had adequate state-law remedies. It therefore granted summary judgment to

defendants. We now affirm.

       1
        Plaintiffs also alleged a state-law cause of action for conversion. The district court
dismissed that claim; plaintiffs do not appeal that decision.
No. 10-1205
Int’l Metal Trading Inc., v. City of Romulus

                                                   I.

        Plaintiff Paul Terrault buys and sells metals, crates, baskets, containers, and automotive parts

for International Metal. According to him, he purchased 50,000 fuel injectors in June 2006. He

intended to store the injectors because he believed there would be a shortage that would enable

International Metal to realize a profit. He also purchased knock down crates2 in the fall of 2006.

Terrault stored these items in separate warehouses, but eventually decided to consolidate them at a

lot in Romulus owned by Nelson Paper Recycling (“NPR”). Terrault claims that he loaded the crates

and fuel injectors into a trailer provided by NPR. Though supplied by NPR, the trailer was registered

to Christopher Mowinski. Terrault first loaded the injectors into the trailer and then loaded the less

valuable crates in front of the injectors to keep them out of sight of anybody who opened the trailer.

        The trailer was transported to the NPR lot in late December. Terrault claims he parked the

trailer in the back of the lot and backed it next to a cement ramp so that the doors could not be fully

opened unless the trailer was moved. He also put a padlock on the trailer’s doors. Terrault asserts

that he checked the trailer once every week and that it remained undisturbed. There is no evidence

that anyone other than Terrault looked inside the loaded trailer before the events that gave rise to this

litigation.

        Sometime in March 2007, Romulus police arrested Christopher Mowinski for possession of

stolen furnaces. Mowinski indicated that he had other property stored at NPR’s lot, and a

confidential informant relayed to the police that NPR’s manager allowed stolen property to be stored



        2
            Knock down crates are simply new or used storage crates.

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No. 10-1205
Int’l Metal Trading Inc., v. City of Romulus

at the lot. The police executed a warrant to search the NPR lot. Among other items, the warrant

directed police to look for stolen property from Lear Corporation and to examine trailers owned by

Mowinski.3 When the search began, the police cordoned off the NPR lot and barred entry. Among

the officers sent to execute the warrant were defendants Deputy Chief Michael St. Andre, Lieutenant

John Leacher, and Detectives Joshua Monte and Rick Landry.

        Terrault arrived at the NPR lot a few hours after the search began. He was not allowed onto

the lot but spoke with Detective Monte at the scene. According to Terrault, he told Monte that he

had valuable property in a padlocked trailer located in the back of the lot. Although the NPR lot

contained 50 to100 trailers and Terrault was denied entry onto the lot, Terrault asserts that he pointed

out his trailer to Monte. Detective Monte remembers speaking with a number of people near the

gate, and recalled that someone claimed to own a trailer full of property.

        During the search, three trailers were seized and later removed from the NPR lot. One was

the trailer in which Terrault claims to have stored his property. Detective Landry found the trailer.

Landry claims it was not at the back of the lot but near the center, did not have a lock, and was not

blocked off by a cement ramp. With Detective Monte present, Landry opened the trailer’s doors.

Monte and Landry only saw crates, which were stamped “Property of Lear Corporation.” In order

to prepare an inventory, Landry entered the trailer and crawled across the top of the crates to see if

there was anything else inside the trailer. He asserts that he did not find anything other than crates

with Lear markings. Landry learned that the crates were stolen, and a representative from Lear



       3
           Lear had previously reported that its crates were stolen.

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No. 10-1205
Int’l Metal Trading Inc., v. City of Romulus

identified the crates as Lear property. The police then released the crates to Lear. Afterward, the

empty trailer was towed to another lot where Terrault discovered it. According to the police, no

attempt was made to contact Terrault because they were unaware that he was claiming a property

interest in the contents of the trailer.

        After discovery, defendants filed a motion for summary judgment, which the district court

granted. The court construed plaintiffs’ §1983 cause of action as a procedural due process claim

under the Fourteenth Amendment. With respect to the knock down crates, the court concluded that

plaintiffs could not establish a property interest in the crates and, in any event, they had adequate

state-law remedies that satisfied due process. The court also found that there was no genuine issue

of disputed fact indicating that the police deprived plaintiffs of their fuel injectors.

                                                  II.

        We review a district court’s grant of summary judgment de novo. Ziegler v. Aukerman, 512

F.3d 777, 781 (6th Cir. 2008). Summary judgment is proper if there is no genuine issue as to any

“material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In

deciding a motion for summary judgment, the district court must view the evidence and draw all

reasonable inferences in favor of the non-moving party. Ziegler, 512 F.3d at 781.

        Plaintiffs must establish three elements for their procedural due process claim:

        (1) that they have a life, liberty, or property interest protected by the Due Process
        Clause of the Fourteenth Amendment to the United States Constitution, (2) that they
        were deprived of this protected interest within the meaning of the Due Process
        Clause, and (3) that the state did not afford them adequate procedural rights prior to
        depriving them of their protected interest.



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No. 10-1205
Int’l Metal Trading Inc., v. City of Romulus

Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999) (citing Zinermon v. Burch, 494 U.S. 113, 125-

26 (1990)). Plaintiffs claim that they were deprived of two types of property: the fuel injectors and

the knock down crates. We will deal with each in turn.

1. Fuel Injectors

       Plaintiffs rely entirely on Terrault’s testimony that the fuel injectors were stored in the trailer.

But defendants deny finding or seizing any fuel injectors. Assuming arguendo that plaintiffs have

produced sufficient evidence that the police found and seized the fuel injectors, they still have not

made out a procedural due process claim because they have produced no evidence that the police

deliberately deprived them of their property. See Daniels v. Williams, 474 U.S. 327, 328 (1986)

(“the Due Process Clause is simply not implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property”) (emphasis in original). As the Supreme

Court explained in Daniels, “ [h]istorically, this guarantee of due process has been applied to

deliberate decisions of government officials to deprive a person of life, liberty or property.” Id. at

331 (emphasis in original).     Because plaintiffs cannot establish what ultimately happened to the

fuel injectors, there is no evidence that there was a non-negligent decision to deprive them of this

property. They cannot show, for instance, that the fuel injectors were not simply lost during

transport or accidently misplaced while being inventoried. Because they are unable to explain what

happened to the fuel injectors, they have failed to show any constitutional violation on their claims

related to these items.




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No. 10-1205
Int’l Metal Trading Inc., v. City of Romulus

2. Knock Down Crates

       Terrault claims that the trailer contained 156 crates. Defendants concede that knock down

crates marked “Property of Lear Corporation” were found in the trailer and returned to Lear.

Because plaintiffs never indicated that their crates had Lear markings, the district court concluded

that plaintiffs failed to establish a protected property interest in the crates. Even if we were to

disagree with the district court and conclude that plaintiffs have produced sufficient evidence to

make out a question of fact concerning whether they were deprived of a protected property interest,

they still must establish that the deprivation occurred without their having been afforded adequate

procedural rights.

       Plaintiffs assert that they were entitled to a judicial hearing after the police seized their

property. The district court held that no hearing was required because plaintiffs had adequate state-

law remedies: a replevin proceeding under Mich. Court Rule 3.105 and a civil tort remedy under

Mich. Comp. Laws § 600.2920(1).            The Supreme Court has clarified that “[i]n some

circumstances . . . a common-law tort remedy for erroneous deprivation[] satisfies due process.”

Zinermon v. Burch, 494 U.S. 113, 128 (1990). We have pointed out that it is the plaintiffs’ burden

to prove that such state remedies are inadequate. See Vicory v. Walton, 721 F.2d 1062, 1063 (6th

Cir. 1983) (“[I]n section 1983 damage suits for deprivation of property without procedural due

process the plaintiff has the burden of pleading and proving the inadequacy of state processes,

including state damage remedies to redress the claimed wrong.”); see also Jefferson v. Jefferson

Cnty. Pub. Sch. Sys., 360 F.3d 583, 585 n.5 (6th Cir. 2004).



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Int’l Metal Trading Inc., v. City of Romulus

        Plaintiffs have not attempted to make this showing, but have insisted that they may file their

§ 1983 claim without first exhausting state remedies. While it is true that there is no exhaustion

requirement under § 1983, plaintiffs must nevertheless show that the process available under

Michigan law is inadequate. In this case, plaintiffs have not addressed the adequacy of the state’s

post-deprivation tort scheme at all. See Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999)

(dismissing § 1983 suit because the plaintiffs failed to present evidence that the same Michigan

statutory remedies were inadequate). Accordingly, plaintiffs’ procedural due process claim related

to these items also fails.

                                                 III.

        The judgment of the district court is affirmed.




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