589 F.2d 335 (8th Cir. 1978), 76-1758, Owen v. City of Independence, Mo.

Docket Nº:76-1758, 76-1799.
Citation:589 F.2d 335
Party Name:George D. OWEN, Appellant, v. The CITY OF INDEPENDENCE, MISSOURI, Lyle W. Alberg, City Manager, Richard A. King, Mayor, Charles E. Cornell, Dr. Ray Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A. Overman, and E. Lee Comer, Jr., Members of the Council of the City of Independence, Missouri, Appellees. George D. OWEN, Appellee, v. The CITY OF IND
Case Date:December 01, 1978
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 335

589 F.2d 335 (8th Cir. 1978)

George D. OWEN, Appellant,

v.

The CITY OF INDEPENDENCE, MISSOURI, Lyle W. Alberg, City

Manager, Richard A. King, Mayor, Charles E. Cornell, Dr. Ray

Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A.

Overman, and E. Lee Comer, Jr., Members of the Council of

the City of Independence, Missouri, Appellees.

George D. OWEN, Appellee,

v.

The CITY OF INDEPENDENCE, MISSOURI, Lyle W. Alberg, City

Manager, Richard A. King, Mayor, Charles E. Cornell, Dr. Ray

Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A.

Overman, and E. Lee Comer, Jr., Members of the Council of

the City of Independence, Missouri, Appellants.

Nos. 76-1758, 76-1799.

United States Court of Appeals, Eighth Circuit

December 1, 1978

Rehearing and Rehearing En Banc Denied Jan. 29, 1979.

Page 336

Irving Achtenberg, Kansas City, Mo., filed briefs for George Owen.

Richard G. Carlisle and Thomas D. Cochran, Independence, Mo., filed brief for City of Independence, Mo.

Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and ROSS, Circuit Judges.

OPINION ON REMAND

BRIGHT, Circuit Judge.

In Owen v. City of Independence, Mo., 560 F.2d 925 (8th Cir. 1977), this court, relying on Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961), determined that appellant George D. Owen could not bring an action under 42 U.S.C. § 1983 (1970) against the City of Independence because it was not a "person" within the meaning of that statute, but that the municipality was subject to suit under an implied right of action arising directly from the fourteenth amendment of the Constitution. The Supreme Court granted the petition for writ of certiorari by the City of Independence, vacated the judgment, and remanded the case to us "for further consideration in light of Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)." City of Independence, Missouri v. Owen, --- U.S. ----, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978). Monell modified Monroe v. Pape and permits section 1983 actions against local governing bodies.

On this remand we consider these questions: (1) under Monell, supra, does Owen demonstrate that official municipal policy deprived him of constitutional rights, in violation of section 1983; and (2) under the particular circumstances of this case with the narrow issue presented, is the City immune from damages. We answer both questions affirmatively. Our decision upon the second question requires a dismissal of the action.

I. Section 1983 Action.

The pertinent facts are set forth in our prior opinion. Owen, supra at 927-31. In Monell, the Supreme Court held that municipalities and other local government units could be sued as "persons" under section 1983 when

the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. (Monell, supra, 436...

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