Roman S. Tymiak, Appellant, v. Donald J. Omodt, Individually and As Hennepin Countysheriff; Charles P. Wikman, Individually and As Personalrepresentative of the Estate of Lillian Wikman-morse; Annswenson, Guy Wikman, Sharlie Wikman, Jeanne E. Wikman, Terryw. Anderson, Charles P. Wikman, Jr., Michael E. Wikman Andrichard A. Wikman, Appellees, 676 F.2d 306 (8th Cir. 1982)

Roman S. Tymiak appeals from the district court's¹  December 29, 1981, order which dismissed his 42 U.S.C. § 1983 lawsuit.²  We affirm.

Tymiak's section 1983 claims are based on a dispute for ownership of a certain real property located in Hennepin County, Minnesota. The property consists of the premises located at 3524 Fremont Avenue South, Minneapolis, Minnesota.³  Tymiak claims that Lillian Wikman-Morse, the fee owner of those premises, promised him legal title to the property "in consideration of (Tymiak's) personal, domestic and protective services rendered to (Wikman-Morse) and such property until (Wikman-Morse's) death."⁴  Tymiak attempts to buttress his claim to the property by alleging that he and Wikman-Morse, between October 1, 1975, and November 19, 1980, "lived under the same roof * * *, sharing bed and board, in a relationship which was functionally equivalent to a marriage * * *."

However, Wikman-Morse left the real property to Charles P. Wikman, Ann Swenson, Guy Wikman, Sharlie Wikman, Jeanne E. Wikman, Terry W. Anderson, Charles P. Wikman, Jr., Michael R. Wikman and Richard A. Wikman as legatees and devisees under her will.⁵  These nine individuals, hereafter collectively referred to as the "legatees/devisees," commenced an action for ejectment in the Hennepin County, Minnesota, district court on January 7, 1981, in which they sought to gain possession of the property claimed by Tymiak.⁶  On October 23, 1981, Hennepin County District Judge Crane Winton ruled that "the undisputed facts clearly show that the plaintiffs' (the nine legatees/devisees and also Charles Wikman separately as the estate's personal representative) claim to title and right to possession of the property are superior to those asserted by Mr. Tymiak and compel the conclusion that as against defendant (Tymiak), they are entitled to possession of the home." Therefore, Judge Winton: (1) granted summary judgment in the plaintiffs' favor; (2) issued a "writ of restitution" for the premises at 3524 Fremont Avenue South in Minneapolis; and (3) ordered Tymiak to vacate the premises.⁷  Tymiak apparently did not seek review of Judge Winton's October 23, 1981, order in the Minnesota Supreme Court.

On November 6, 1981, Tymiak filed the instant section 1983 action in federal court.⁸  The complaint named as defendants Hennepin County Sheriff Donald J. Omodt, Charles P. Wikman as personal representative of the Wikman-Morse estate and the nine legatees/devisees. Tymiak asserted various constitutional claims which allegedly entitled him to an order enjoining his eviction from the premises at 3524 Fremont Avenue South and an award of monetary damages. In addition, Tymiak filed a separate motion, also on November 6, 1981, for a preliminary injunction which would enjoin his eviction from the home at 3524 Fremont Avenue South. After argument before the district court, the motion was denied.⁹ 

Defendant Sheriff Omodt filed a motion to dismiss for failure to state a claim upon which relief could be granted or, in the alternative, a motion for summary judgment on November 25, 1981. The defendants other than Omodt also filed a motion to dismiss for failure to state a claim upon which relief could be granted on November 25, 1981. On December 21, 1981, these motions, after argument before the district court, was orally granted by Judge Devitt. On December 29, 1981, Judge Devitt entered a written order which held that: (1) because Sheriff Omodt's actions in evicting Tymiak were under the direction of the Hennepin County district court, he was immune from suit under section 1983; and (2) because Tymiak's complaint failed to allege that the remaining defendants acted under color of state law, Tymiak failed to state a claim against those defendants upon which relief could be granted.¹⁰  Judgment dismissing the suit was entered accordingly, and Tymiak filed a timely notice of appeal.

Initially, we note that Tymiak's request for an injunction to enjoin his ejectment from the Wikman-Morse home is moot because the record reveals that he was evicted from those premises by Hennepin County law enforcement officials.

The district court correctly held that Sheriff Omodt was immune from Tymiak's section 1983 claims for damages. This Court previously has held that a sheriff who, pursuant to a state court order, evicted several persons from the homes they occupied was immune from a section 1983 lawsuit which sought damages and injunctive relief based on that eviction. See Hevelone v. Thomas, 423 F. Supp. 7, 9 (D. Neb.), aff'd, 546 F.2d 797 (8th Cir. 1976). See also Farmer v. Lawson, 510 F. Supp. 91, 95 (N.D. Ga. 1981) (a public official acting pursuant to a court directive is generally immune from suit, such as a sheriff seizing property).

The district court's dismissal of Tymiak's allegations against the remaining defendants was also correct. The Fourteenth Amendment protects only against deprivations of a constitutionally protected interest without due process of law. E.g., Parratt v. Taylor, 451 U.S. 527, 537, 101 S. Ct. 1908, 1914, 68 L. Ed. 2d 420 (1981). Even if we assume Tymiak had a constitutionally protected interest in the property which was taken by the remaining defendants under color of state law, the Hennepin County state district court proceedings with respect to the Wikman-Morse property clearly afforded Tymiak due process of law.

Therefore, the district court properly dismissed Tymiak's section 1983 lawsuit.

Affirmed.