Gazette v. City of Pontiac

• Decision Date: 08 December 1994
• Docket Number: No. 93-1827,93-1827
• Citation: 41 F.3d 1061
• Parties: Cheriee GAZETTE, Individually and as Personal Representative of the Estate of Pamela Kay Bandy, Plaintiff-Appellant, v. CITY OF PONTIAC, a Michigan Municipality; Pontiac Police Department, a Division of the City of Pontiac; Raymond Sain, Detective; Gary D. Bass, Sergeant and other members of the City of Pontiac Police Department, jointly and severally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1061

41 F.3d 1061

Cheriee GAZETTE, Individually and as Personal Representative of the Estate of Pamela Kay Bandy, Plaintiff-Appellant, v. CITY OF PONTIAC, a Michigan Municipality; Pontiac Police Department, a Division of the City of Pontiac; Raymond Sain, Detective; Gary D. Bass, Sergeant and other members of the City of Pontiac Police Department, jointly and severally, Defendants-Appellees.

No. 93-1827.

United States Court of Appeals Sixth Circuit.

Argued Sept. 9, 1994.

Decided Dec. 8, 1994.

Barry S. Fagan (argued and briefed), Michael J. Littleworth (briefed) and Nadia Ragheb Dib & Fagan, Detroit, MI, for plaintiff-appellant.

T. Joseph Seward and Marcia L. Howe (argued and briefed), Cummings, McClorey, Davis & Acho, Livonia, MI, for defendants-appellees.

Before: BROWN, MARTIN and BOGGS, Circuit Judges.

BOYCE F. MARTIN, JR., Circuit Judge.

Claiming that her decedent's rights of due process and equal protection under the Fourteenth Amendment, and her decedent's rights under the Federal Rehabilitation Act were deprived, Cheriee Gazette appeals the dismissal of her 42 U.S.C. Sec. 1983 claims. We affirm the dismissal.

Accepting Gazette's statement of the facts as true, the relevant events surrounding the tragic death of Pamela Bandy, Gazette's mother, are as follows. On September 18, 1990, Bandy was abducted from a car wash in Pontiac, Michigan by one of the car wash employees. At the time of the abduction, Bandy was a recovering alcoholic and recently had been released from an alcohol treatment program. Bandy's abductor placed Bandy in the trunk of her car, a white 1981 Fleetwood Cadillac, and drove around for six days until he was stopped by Pontiac police officers on an unrelated outstanding bench warrant on September 24. The police officers found Bandy's body in the trunk. She had died from starvation, dehydration, and methanol poisoning from drinking windshield fluid in the trunk. Bandy allegedly died twelve to thirty-six hours before her body was found.

On the morning of Bandy's abduction, Gazette called the City of Pontiac Police Department to report her mother's disappearance. The police knew Bandy prior to this incident and told Gazette that Bandy was an alcoholic and that she would come home when she had finished "bingeing." The police also told Gazette they had investigated the car wash for evidence of Bandy's disappearance when apparently they had not. Gazette asserts that had the police investigated the car wash they would have found obvious and conspicuous evidence of a physical and sexual assault. Also, Bandy's abductor drove Bandy's Cadillac, in which she was trapped, to the car wash and to police headquarters between September 18 and 24, and even engaged police officers in conversation concerning Bandy's disappearance, the status of the investigation, and identifiable features of her car. Gazette also gave the police Bandy's bank account information, but the police did not check to see if any withdrawals had been made from Bandy's account. Sometime between September 18 and 24, a bank camera videotaped Bandy's abductor withdrawing all the funds from her account.

Based on the foregoing events, Gazette filed a three-count complaint on September 23, 1992, against the City of Pontiac, its Police Department, and the named police officers in their individual capacities. The complaint contained federal civil rights claims alleging denial of due process, equal protection and violation of the Federal Rehabilitation Act as well as state law claims. Specifically, Gazette claimed that the defendants had a "special relationship" with Bandy because the police officers had made Bandy's situation much worse by their actions (and inaction). Gazette further claimed that the defendants deprived Bandy of her federal rights by their official policy, custom or practice of refusing, failing or neglecting to investigate missing persons and by lying and misleading the general public, and relatives of a missing person.

On April 26, 1993, the district court granted in part the defendants' Motion to Dismiss and for Judgment on the Pleadings with Sanctions, Fed.R.Civ.P. 12(b)(6), issuing an order dismissing the federal claims and remanding the state claims. For reasons stated at a hearing on the 12(b)(6) motion, the district court dismissed the claims as to the Police Department because it is not a "person" for Section 1983 liability. Next the court dismissed the due process claim against the City on the ground that the state has no affirmative duty to protect citizens from the actions of third parties. DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1002, 103 L.Ed.2d 249 (1989). The district court found that no "special relationship" existed between the City and Bandy giving rise to liability and that Gazette failed to plead facts sufficient to identify the City's custom, policy or practice that resulted in reckless indifference to Bandy's rights. City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Vinson v. Campbell County Fiscal Ct., 820 F.2d 194, 200 (6th Cir.1987). As to the individual police officers, the district court found that they retained their qualified immunity because they did not violate a clearly established constitutional right. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Eugene D. v. Karman, 889 F.2d 701, 706 (6th Cir.1989) cert. denied, 496 U.S. 931, 110 S.Ct. 2631, 110 L.Ed.2d 651 ("the right the official is alleged to have violated must be 'clearly established' in a more particularized ... sense: the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."). Finally, the district court held that the Federal Rehabilitation Act, 29 U.S.C. Secs. 701-797, is inapplicable to Bandy's situation because the City's decisions concerning how to conduct law enforcement activities are not a "program" under the Federal Rehabilitation Act. The court held that the Police Department's law enforcement activities were not covered by the Federal Rehabilitation Act which outlaws discrimination in a treatment, education or training program receiving federal funds.

On May 6, 1993, Gazette filed a Motion for Reconsideration. The district court denied the motion. This timely appeal followed. On appeal, Gazette renews her due process, Federal Rehabilitation Act, and qualified immunity arguments. Gazette also argues that Bandy was deprived of equal protection by the police because they treated Bandy differently due to her status as an alcoholic. Gazette did not explicitly plead an equal protection claim, but rather chose to list a claim under "Amendment[ ] ... XIV." The district court did not address the substance of Gazette's equal protection claim at the 12(b)(6) hearing other than to proceed to dismiss all federal claims.

The district court's dismissal of a civil rights complaint on a 12(b)(6) motion is scrutinized with special care. Kent v. Johnson, 821 F.2d 1220, 1223 (6th Cir.1987); Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985). The Supreme Court has stated that 12(b)(6) motions should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir.1987) (en banc). Further, this Court, in reviewing the dismissal, must construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). While we have stated that "a complaint need not set down in detail all the particularities of a plaintiff's claim," Westlake, 537 F.2d at 858, the complaint must give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. at 103. Thus, a 12(b)(6) motion tests whether the plaintiff has stated a claim for which the law provides relief. For Gazette to succeed on appeal, we must find that the district court erred in its determination that Gazette failed to allege federal claims.

On appeal, Gazette insists that she has alleged federal claims against the defendants on two theories: 1) that the defendants, having created the danger, or made Bandy more vulnerable to danger, were required to take special actions on Bandy's behalf, and 2) that the actions and inaction of the police officers prove that the training and supervision they received was "so reckless and grossly negligent" that misconduct was "almost inevitable" or "substantially certain to result."

First, we observe that it is well established that a municipality may be held liable under Section 1983 only for its own unconstitutional or illegal policies. Monell, 436 U.S. at 691, 98 S.Ct. at 2036. A municipality may not be held liable for the actions of persons not acting under color of state law, such as private citizens. 42 U.S.C. Sec. 1983. In this case, Bandy's abductor, a private citizen, brutalized Bandy and placed her in the trunk of her car where she suffered a horrible death. We now turn to whether the City or the police officers can be liable for Bandy's death on either of Gazette's theories.

It has been recognized that a duty to protect a citizen may arise if the state has a special relationship with a person, such as when it takes a person into custody. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (involuntary commitment of a mental patient); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (incarcerated person). Outside of the custodial...