Dewell v. Lawson

Citation489 F.2d 877
Decision Date07 January 1974
Docket NumberNo. 73-1157.,73-1157.
PartiesDouglas DEWELL, Plaintiff-Appellant, v. Wayne LAWSON, Individually, and in his capacity as Chief of Police of the City of Oklahoma City, Oklahoma, and the City of Oklahoma City, a municipal corporation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Jim Merz, Oklahoma City, Okl., for plaintiff-appellent.

Robert S. Baker, Oklahoma City, Okl. (Pierce, Couch, Hendrickson, Gust & Short, Oklahoma City, Okl., of counsel, on the brief), for defendant-appellee, Wayne Lawson.

Jerry R. Fent, Oklahoma City, Okl. (Roy H. Semtner, Oklahoma City, Okl., on the brief), for defendant-appellee, City of Oklahoma City.

Before PICKETT, HOLLOWAY and BARRETT, Circuit Judges.*

BARRETT, Circuit Judge.

Douglas Dewell brought this suit against the City of Oklahoma City and Wayne Lawson, its Chief of Police, for alleged violation of his civil rights under 42 U.S.C. §§ 1983 and 1988, in that he was deprived of rights guaranteeed him by the First, Fourth, Eighth and Fourteenth Amendments of the United States Constitution. The trial court sustained the appellees' Motions to Dismiss without any memorandum of its reasons.

In testing the validity of the trial court's order of dismissal, we must assume that the facts alleged in appellant Dewell's Amended Complaint are true. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Franklin v. Meredith, 386 F.2d 958 (10th Cir.1967). Rule 8(a), Fed.R.Civ.P. provides that pleadings are to be construed liberally. The purpose of the rule is to eliminate prolixity in pleading and to achieve brevity, simplicity and clarity. Knox v. First Security Bank of Utah, 196 F.2d 112 (10th Cir.1952). However, where a right or immunity created by the Constitution or laws of the United States is an essential element of the cause of action, it is incumbent upon the plaintiff to adequately and properly allege jurisdictional facts according to the nature of the case. Pan American Petroleum Corp. v. Superior Court of Delaware For New Castle County, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Bowman v. White, 388 F.2d 756 (4th Cir.1968), cert. denied, 393 U.S. 891, 89 S.Ct. 214, 21 L.Ed.2d 172 (1968); Ivey v. Frost, 346 F.2d 115 (8th Cir.1965).

Appellees have, in their respective briefs on appeal, referred this court to three Oklahoma City ordinances, alleged to have been adopted by the City Council. They were in force and effect at all pertinent times relevant to this case. The ordinances refer to the Chief of Police as the chief administrative officer of the Police Department who is not the official directly charged with police training and who, in any event, has been granted broad discretion relative to recommending Police Department rules and regulations. These ordinances were not referred to in the respective Motions to Dismiss or other supporting pleadings and there is nothing in the record on appeal which in anywise indicates that the trial court considered them in relation to granting the respective Motions to Dismiss.

Municipal ordinances may not be judicially noticed by courts of general jurisdiction, but must be pleaded and proven as any other fact except where a statute specifically provides otherwise. The rationale is that such ordinances stand upon the same footing as private laws, the laws of other states and of foreign countries which must be averred and proven like other facts. Tipp v. District of Columbia, 69 App.D.C. 400, 102 F.2d 264 (1939); Roloff v. Perdue, 31 F.Supp. 739 (N.D.Iowa 1939); Drake v. Tims, 287 P.2d 215 (Okl.1955). And it has been held that, lacking statutory authorization, the court cannot take judicial notice of copies of ordinances offered which lack official certification. Broughton v. Brewer, 298 F.Supp. 260 (N.D.Ala.1969).

Thus, we may look only to the facts alleged in Dewell's Amended Complaint to determine whether a civil rights cause of action against the appellees has been stated. Those facts are: Douglas Dewell, plaintiff-appellant, is a diabetic. On November 25, 1970, he suffered a diabetic reaction, became incoherent and disappeared from his home in Oklahoma City. His wife reported his acute medical condition and need for immediate treatment to the Oklahoma City Police Department (hereafter referred to as Department) that same date. The Department issued an all points bulletin relating these facts on the morning of November 26th, specifically describing Dewell, his diabetic condition and his need for immediate medical attention. During the night of November 26th Dewell was arrested by an unnamed member of the Department on the charge of public drunkenness and thereafter incarcerated in the Oklahoma City Jail. Dewell carried personal and diabetic identification on his person. Following Dewell's arrest his wife made repeated calls to the Department. She was advised that Dewell's whereabouts was unknown. Dewell was jailed without medical treatment until found in his cell on November 30th in a diabetic coma. He was then transferred to Baptist Memorial Hospital. As a result of his diabetic condition and the complications resulting from lack of insulin during his incarceration, Dewell suffered a stroke and brain damage. Consequently, he has suffered mental and physical pain, and his nervous system has been permanently impaired. He alleged that he has sustained loss of earnings, medical expenses and other damages in excess of one million dollars.

Dewell alleged that at all times the defendant-appellee, Wayne Lawson, was Chief of Police of the Department and that in said capacity he and the Department (thus, the City) are responsible for the acts complained of. Dewell alleged in his complaint that:

... the defendants, and each of them, failed to establish procedures within the Oklahoma City Police Department whereby jail personnel of the said Department were advised of missing persons listed in all points bulletins with the ... (Department) ... to detect persons suffering from a diabetic condition. Finally, the defendants ... failed to provide medical personnel to examine persons suffering from a diabetic condition and who were confined . .

Dewell contends that: (1) the City of Oklahoma City is a "person" within the provisions of 42 U.S.C.A. § 1983 and therefore subject to suit for damages; and (2) Lawson as Chief of Police is subject to suit under 42 U.S.C.A. § 1983 for breach of duty which caused Dewell to be denied his constitutional rights.

This court may only examine the complaint to determine whether there are factual allegations sufficient to withstand the Motions to Dismiss. The allegations necessary to state a claim will not be insufficient unless it appears beyond question that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Cohen v. Norris, 300 F.2d 24 (9th Cir.1962). Where there is no issue of fact the question of whether a complaint states a cause of action is one of law for the court. Schmidt v. United States, 179 F.2d 724 (10th Cir.1950).

I.

Dewell contends that the City of Oklahoma City is a "person" within 42 U.S.C.A. § 1983 and therefore subject to suit for damages. It is well established that a municipality is not a "person" within the meaning of 42 U.S.C.A. § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961). 11 Okl.St. Ann. (1973 p.p.) § 1755 constitutes a waiver of liability applicable to any city or town to the extent of a claim not in excess of $2,000 arising out of the performance of a governmental function. There is an exemption, however, where the claim is based upon the performance of, or the failure to perform, a discretionary function or duty, whether or not the discretion is abused. 11 Okl.St.Ann. (1973 p.p.) § 1754. A federal court will take judicial notice of the public laws of the states. Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939); Pure Oil Company v. State of Minnesota, 248 U.S. 158, 39 S.Ct. 35, 63 L.Ed. 180 (1918). In Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), the Supreme Court held that all municipalities are excluded from liability under the Civil Rights Act regardless of whether their immunity has been lifted by state law. Therefore, regardless of 11 Okl.Stat.Ann. § 1755, Oklahoma City cannot be liable under the Civil Rights Act. The trial court did not err in granting Oklahoma City's Motion to Dismiss.

II.

We hold that the Court erred in granting Police Chief Lawson's Motion to Dismiss. On the face of the Amended Complaint, Dewell has alleged that Lawson, as Chief of Police, failed to perform a duty imposed upon him which resulted in the deprivation of Dewell's civil rights, i.e., lack of proper identification and medical care constituting cruel and unusual punishment in light of Dewell's diabetic condition and subsequent brain damage and physical impairment by reason of non-treatment or care during his confinement. On the record before us we cannot hold, as a matter of law, that the Amended Complaint does not state a cause of action under 42 U.S.C.A. § 1983. We are not informed of the reasons why the trial court granted the respective Motions to Dismiss. None were set forth in the Order and no memorandum opinion was filed.

Lacking any guidance from the trial court for its justification in law for granting the motions, we deem it helpful to succinctly refer to the reasons advanced by the appellees in their respective briefs in support of the court's Order dismissing the Amended Complaint in favor of Chief Lawson, as follows: (1) Dewell does not plead negligence or intentional tort and fails to plead a deprivation of civil rights under the color of law; (2) certain alleged ordinances of the City of Oklahoma City ...

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