Bell v. City of Milwaukee

Citation536 F. Supp. 462
Decision Date30 March 1982
Docket NumberCiv. A. No. 79-C-927.
PartiesPatrick BELL, Sr., Special Administrator of the Estate of Daniel Bell, Deceased, and Special Administrator of the Estate of Dolphus Bell, a/k/a Dock Bell, Deceased, and in his own behalf, Alfonzo Bell, Doffer Bell, Eddie Bell, Ernest Bell, Henry Bell, Jimmy Bell, Joseph Bell, Lawrence Bell, Roosevelt Bell, Silvia White Bell, and Walter Bell, Plaintiffs, v. CITY OF MILWAUKEE, Thomas Grady, Jr., Howard Johnson, and Edwin Shaffer, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

COPYRIGHT MATERIAL OMITTED

Thomas Jacobson, Jerome Krings, Curry First and Walter F. Kelly, Milwaukee, Wis., for plaintiffs.

Rudolph M. Konrad, Asst. City Atty., Milwaukee, Wis., for defendants City of Milwaukee, Howard Johnson and Edwin Shaffer.

Franklyn M. Gimbel, Milwaukee, Wis., for defendant Thomas Grady, Jr.

DECISION AND ORDER

REYNOLDS, Chief Judge.

On December 16, 1981, the jury returned the special verdict submitted to them in this case. Subsequently, this Court ordered the parties to submit proposed forms of judgment and to submit any motions the parties thought the Court should consider in making its judgment. This decision and order decides these motions and sets forth a final judgment.

This decision discusses seriatim the following issues raised by the motions and proposed judgments:

1. Does the 1961 settlement in Bell v. Grady and The City of Milwaukee, No. 286,538 (Milwaukee County Circuit Court 1959), bar this action?

2. Is this action barred by the statute of limitations or by the doctrine of laches?

3. Did any cause of action that Daniel Bell had under the civil rights laws survive his death to the benefit of his estate?

4. Did any cause of action under the civil rights laws arising out of the death of Daniel Bell or the subsequent conspiracy survive the death of Dolphus Bell?

5. Do the brothers and sister of Daniel Bell have a cause of action for the loss of society and companionship of Daniel Bell?

6. Do the brothers and sister of Daniel Bell or the Estate of Dolphus Bell have a cause of action under the civil rights laws arising out of the conspiracy to cover up the true facts of the shooting of Daniel Bell?

7. Is 42 U.S.C. § 1985(2) the exclusive remedy under the civil rights laws for this conspiracy?

8. Do the damage limitations of the Wisconsin wrongful death statute apply to the recovery in this case?

9. Did the plaintiffs fail to join indispensable parties, and may the plaintiffs now amend their complaint to add as defendants the Estates of Leo Woelfel, Rudolph Glaser, and William McCauley?

10. Are the plaintiffs entitled to a new trial as to the issue of punitive damages against Milwaukee County and the Office of the Milwaukee County District Attorney?

11. Is the City of Milwaukee liable for any compensatory or punitive damages under any theory of the federal civil rights law put forth by the plaintiffs?

12. Is the City of Milwaukee liable for any compensatory or punitive damages assessed against its employees under Wisconsin's indemnification statute, Wis.Stats. § 895.46?

13. Are the plaintiffs entitled to prejudgment interest on the damages?

Most of these issues are not new.

1. EFFECT OF THE 1961 SETTLEMENT

The defendants claim that the 1961 settlement and subsequent dismissal order in Bell v. Grady and The City of Milwaukee, No. 286,538 (Milwaukee County Circuit Court 1959) bar this action. This would bar only the claims of the Estate of Dolphus Bell against defendants Grady and the City of Milwaukee for the death of Daniel Bell. It would not bar the claims of the other plaintiffs, nor would it bar the conspiracy claim of Dolphus Bell's Estate. The defendants raised this issue on a motion for summary judgment which the Court decided in its decision and order of June 4, 1981, at 7-9. 514 F.Supp. 1363, D.C.Wis. The facts surrounding the 1959 suit and subsequent settlement are set forth in that decision and order at 4-6. The Court there held that the 1959 suit and settlement would not be a bar to this action if the allegations of fraud, concealment, and a broad-based cover up by the defendants were proven.

The plaintiffs have requested that this Court reconsider its finding made in the decision and order of June 4, 1981, at 8, that Dock Bell entered into a binding settlement agreement with defendants Grady and the City of Milwaukee. This finding was made under Rule 56(d) of the Federal Rules of Civil Procedure, on the state of the record at that time, as a fact existing without substantial controversy. While Dock Bell never signed any settlement agreement or accepted payment, this Court held that the agreement was effective since it was entered into on the record in open court.

Plaintiffs now seek to prove the contrary. They have moved for an evidentiary hearing and have offered an affidavit of Silvia Bell, filed January 15, 1982, wherein she states in paragraph 9 that Dock Bell "never could have or would have agreed" to the settlement. This appears to be mere speculation. Nonetheless, this Court need not decide whether the plaintiffs may now contest facts established on summary judgment or whether the affidavit of Silvia Bell creates a material issue of fact as to whether Dock Bell agreed to the settlement on the record. The jury by its special verdict has found the allegations of fraud, concealment, and a broad based cover up to be true. Therefore, regardless of whether there was or was not an effective settlement in 1961, the dismissal of the 1959 suit is no bar to this action. The plaintiffs' motion for an evidentiary hearing will therefore be denied.

Acknowledging the importance of finality in judicial proceedings, this Court is nonetheless convinced that the fraud in this case is sufficient to nullify an otherwise valid settlement and dismissal. This is not a case in which the defendant simply lied and thereby made the plaintiff's proof of his case difficult. Rather, this is a case of a massive conspiracy by high ranking Milwaukee officials to prevent the disclosure of the true facts of the shooting of Daniel Bell. Given the monopoly on force held by the government, this conspiracy prevented the proper functioning of the judicial system. Seeing no reason to alter the legal conclusion on this issue reached in the June 4, 1981, decision and order, this Court concludes that the 1961 settlement and the dismissal order which followed in the case of Bell v. Grady and The City of Milwaukee, No. 286,538 (Milwaukee County Circuit Court 1959), is no bar to this action.

2. STATUTE OF LIMITATIONS

The defendants argue that the statute of limitations bars this action. The bar would only apply to the claims arising immediately from the death of Daniel Bell and not to the conspiracy claims, since the conspiracy continued until 1978. This issue was also raised on motion for summary judgment and decided in the June 4, 1981, decision and order at 9-14. There the Court concluded that the "allegations of a broadly based, racially motivated conspiracy by public officials and employees designed to conceal and cover-up the wrongful acts of a City of Milwaukee police officer, if true, are allegations of conduct so unfair, misleading, and outrageous as to outbalance the public interest in setting a limitation on bringing an action and thus carves an exception out of the statute of limitations." Decision and order of June 4, 1981, at 14.

The jury by its special verdict has found that these allegations were in fact true. The unique character of the fraud in this case, as noted above in discussing the effect of the 1961 settlement, indicates that the legal conclusion reached on this issue in the June 4, 1981, decision and order was correct. While the Bells may have suspected wrongdoing, mere suspicion cannot maintain a lawsuit. A claim cannot be said to arise until some evidence of its existence appears. Therefore, this Court concludes that the statute of limitations is no bar to this action.

3. SURVIVAL OF DANIEL BELL'S ACTIONS

The defendants raised the issue of the survival of Daniel Bell's actions on a motion to dismiss which was decided in the decision and order of October 20, 1980, at 3-4. 498 F.Supp. 1339, D.C.Wis. That decision and order held that only damages suffered by Daniel Bell before his death can survive to the benefit of his estate. It held that a cause of action for the death of Daniel Bell may be brought only by the deceased's family on their own behalf under Wisconsin's wrongful death statute, Wis.Stats. § 895.04. I have reconsidered that holding and have concluded that it was wrong.

The decision and order of October 20, 1980, stated at 3 that 42 U.S.C. § 1988 means that in a § 1983 action, where federal law is silent as to the appropriate rule of decision, a Court should turn to the law of the forum state in analogous areas and apply that as the rule of decision unless the state rule is inconsistent with the federal policy behind § 1983. Thus, to determine whether a federal tort cause of action under § 1983 that occurred prior to death survives the deceased, we must examine whether the state survival statute provides for survival of analogous state tort causes of action.

Because the common law did not provide a tort cause of action for death, the states created such an action through wrongful death statutes. These statutes provide the closest tort analogy to a § 1983 claim based on the wrongful deprivation of a person's life. Under Wisconsin's wrongful death statute, Wis.Stats. § 895.04, the personal representative of the deceased may bring an action to recover for the loss of life. Thus, the Estate of Daniel Bell may recover for the loss of Daniel Bell's life.

A wrongful death statute that fails to allow recovery by the estate of the deceased is inconsistent with the compensatory and deterrent purposes of § 1983 where the § 1983 violation caused the death. In Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991,...

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