Brown v. Chaffee, s. 77-1988

Decision Date26 December 1979
Docket Number78-1072,Nos. 77-1988,s. 77-1988
Citation612 F.2d 497
PartiesRobert BROWN, Plaintiff-Appellant, v. F. T. CHAFFEE, Joseph W. Zima, C. Keith Sayler, Edwin Dudley Smith, David H. Fisher, Donald Patterson, Larry G. Pepperdine, James P. Nordstrom, Dennis R. Taylor, Justice B. King, Herbert A. Marshall, Doral H. Hawks, E. Gene McKinney, J. Roger Hendrix, Michael J. Schenk and William T. Nichols, and United States Fire Insurance Company and Affiliated FM Insurance Company, Defendants-Appellees. Robert BROWN, Plaintiff-Appellant, v. AFFILIATED FM INSURANCE COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Fred W. Phelps, Jr., Topeka, Kan. (Fred W. Phelps, Topeka, Kan., with him on the brief), for plaintiff-appellant.

Fred N. Six, of Barber, Emerson, Six, Springer & Zinn, Lawrence, Kan., for defendants-appellees F. T. Chaffee and Joseph W. Zima.

Robert L. Baer, Topeka, Kan. (Michael J. Grady, Topeka, Kan., with him on the brief), of Cosgrove, Webb & Oman, Topeka, Kan., for defendants-appellees C. Keith Sayler, Edwin Dudley Smith, David H. Fisher, Donald Patterson, Larry G. Pepperdine, James P. Nordstrom, Dennis R. Taylor and Justice B. King.

Thomas L. Theis, Topeka, Kan. (Myron L. Listrom, Topeka, Kan., with him on the brief), of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, Kan., for defendants-appellees Herbert A. Marshall, Doral H. Hawks, H. Gene McKinney, J. Roger Hendrix, Michael J. Schenk, and William T. Nichols.

Monti L. Belot, of Weeks, Thomas, Lysaught, Bingham & Mustain, Kansas City, Kan., for defendant-appellee United States Fire Ins. Co.

Charles D. McAtee, Topeka, Kan. (Ronald W. Fairchild, Topeka, Kan., with him on the brief), of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for defendant-appellee Affiliated FM Ins. Co.

Before SETH, Chief Judge, and DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Robert Brown appeals orders of dismissal in his action brought in federal district court against individuals and insurance companies involved in a prior case in which he was a defendant. Count I, based on diversity jurisdiction, alleges that two insurance companies, United States Fire Insurance Company (USFIC), and Affiliated FM Insurance Company (AFM), defrauded him and breached their contractual duties to defend in good faith in the prior case. Count II is against the two insurance companies and individual defendants F. T. Chaffee (a codefendant with Brown in the prior case), Joseph W. Zima (legal advisor to the sheriff's department), and all the attorneys in two law firms, only some of whom had defended Brown and Chaffee in the earlier suit. This count alleges causes of action under 42 U.S.C. §§ 1983, 1985(2) and (3), 1986, and 18 U.S.C. § 241.

The prior suit, Hiett v. Chaffee, No. 75-225-C5 (D.Kan.), was a civil rights action against Brown for his activities while a member of the Shawnee County Sheriff's Department. Brown was found liable for actual and punitive damages. AFM paid for the defense and the actual damages, but Brown had to pay the punitive damages. Chaffee, Sheriff of Shawnee County and Brown's supervising officer, was a named defendant but was exonerated of liability. USFIC, also a defendant, was granted summary judgment on the ground it insured no one connected with the action.

Brown's unhappiness with the defense of Hiett arises from what he claims was a conflict between his interests and those of Chaffee and the insurance companies. The same attorneys represented Brown and Chaffee until three months before the trial, when independent counsel was provided for Brown. Brown alleges, among other things, that defendants failed to inform him of the conflict, suppressed evidence favorable to his defense, and conspired to deprive him of a fair trial and other constitutional rights.

We divide the discussion of the issues on appeal into four categories as follows: (1) the motion to dismiss in favor of the individual defendants on the 42 U.S.C. §§ 1983, 1985(2) (portion before the semicolon) and 1986 charges; 1 (2) the motion to dismiss in favor of AFM; (3) the grant of summary judgment in favor of USFIC; and (4) USFIC's motion for damages against Brown for taking a frivolous appeal.

I MOTION TO DISMISS IN FAVOR OF THE INDIVIDUAL DEFENDANTS
A. Section 1983

To recover under 42 U.S.C. § 1983 Brown must show defendants acted "under color of law." See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Although pleadings are to be construed liberally, the complaint must contain adequate facts to support this element of the cause of action. See Dewell v. Lawson, 489 F.2d 877, 879-80 (10th Cir. 1974).

The propriety of the Rule 12(b)(6) ruling in favor of the individual defendants turns on whether Sheriff Chaffee was acting under color of state law while defending the prior lawsuit. The attorneys had no connection with state action except for their association with Chaffee and Zima. Lawyers do not act under color of state law solely by engaging in private litigation on behalf of their clients. See, e. g., Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), Cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970).

Acting under color of state law as required by section 1983 is defined as the "(m)isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961) 2 (quoting with approval from United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). We find no allegation in the pleadings of how Chaffee misused the authority granted him as sheriff to injure Brown during the defense in the Hiett case. Chaffee's position as sheriff does not make his every action one under color of law; only when he is using the power granted by the state does it become state action. Defending a personal lawsuit in a way harmful to another is not action made possible because the wrongdoer has state authority. See Taylor v. Nichols, 558 F.2d 561, 564 (10th Cir. 1977) (filing a complaint and testifying at trial is not acting under color of state law). Even though the prior lawsuit arose out of Chaffee's position as sheriff, it was a lawsuit against him individually. Without insurance coverage he would have had to pay for his defense and any damages adjudged against him, just as Brown had to pay punitive damages not covered by the insurance policy.

The complaint asserts Chaffee was Brown's superior officer "with the power to hire and fire him and with the power to jeopardize plaintiff's future as a law enforcement officer." But Brown does not allege any actions by Chaffee that might constitute misuse of these powers. Unexercised authority under state law is not action under color of state law.

We affirm the dismissal of the charge against the individual defendants, and need not decide whether the complaint sufficiently alleges a deprivation of Brown's constitutional rights.

B. Sections 1985(2) (before the semicolon) and 1986

To state a cause of action under 42 U.S.C. § 1985(2) (before the semicolon) it is not enough simply to show a conspiracy; the conspiracy must be one that has the requisite statutory purpose. The purpose language of this part of section 1985(2) is very specific: "conspire to deter, by force, intimidation, or threat, any party . . . in any court of the United States . . . from testifying . . . freely, fully, and truthfully . . . ." This language must be contrasted with the broad language of the part of 1985(2) after the semicolon, which proscribes conspiring "for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws . . . ." Thus, the statute clearly indicates that a conspiracy under the first part must be one directly affecting, in the context of this case, the act of testifying as a witness. See Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976).

Brown's complaint states, "Defendants did conspire among themselves and with others to deter plaintiff by force, intimidation or threat from testifying in this Court in the Hiett matter freely, fully, and truthfully . . . ." To support this allegation Brown alleges the following actions by defendants: hiring one lawyer for Brown and Chaffee even though the two defendants had conflicting interests in the defense of the suit; failing to inform Brown of the conflict or to advise him to seek separate counsel; failing to present evidence at trial that would be favorable to Brown; and declining to provide representation of Brown's interests at a hearing on punitive damages. If proved, these facts may demonstrate a conspiracy to prevent Brown from effectively defending the action, but they do not show any direct deterrence of Brown's testimony.

Brown argues in his brief that he was "intimidated" from testifying freely and fully because the content of his testimony was determined by his attorney's questions, thereby preventing him from presenting certain unspecified information. There were no allegations to this effect in the complaint. But even if they could be inferred from the facts given, a cause of action is not stated.

In defense of the meager allegations on this point the following statement is made in Brown's brief: "Exactly what evidentiary matters, and how Brown felt when he was on the witness stand, and what material he was not able to testify to, are matters for discovery." This sentence goes to the heart of Brown's misunderstanding. A witness who has been directly deterred from testifying knows what evidence he was prevented from presenting, and does not require discovery to ascertain what it was. What Brown is really saying here is that the attorneys did not ask him the right questions to present an effective defense, but ...

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