Triplett v. LeFlore County, Okl.

• Decision Date: 18 July 1983
• Docket Number: No. 81-1066,81-1066
• Parties: Willis Ray TRIPLETT, Plaintiff-Appellant, v. LEFLORE COUNTY, OKLAHOMA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 444

712 F.2d 444

Willis Ray TRIPLETT, Plaintiff-Appellant, v. LEFLORE COUNTY, OKLAHOMA, Defendant-Appellee.

No. 81-1066.

United States Court of Appeals Tenth Circuit.

July 18, 1983.

Jon Tom Staton and Clifford K. Cate, Jr., Muskogee, Okl., for plaintiff-appellant.

Ted A. Knight, Asst. Dist. Atty., for LeFlore County, Poteau, Okl. (Terry L. Amend, Dist. Atty. for LeFlore County, Poteau, Okl., was also on brief), for defendant-appellee.

Before BREITENSTEIN, HOLLOWAY and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Willis Ray Triplett (Triplett) commenced this action under 42 U.S.C. § 1983 against LeFlore County, Oklahoma (County), the sole defendant. The complaint alleged that on June 30, 1980, plaintiff Triplett was incarcerated in the LeFlore County jail; he was known by defendant officials to be a former mental patient and to be having mental difficulties at the time; defendant officials assigned a trusty, a former felon, as jailer in charge of Triplett. The complaint stated further that while under control of the jailer and due to his direct acts, Triplett was injured and totally lost his left eye; ¹ reckless disregard of Triplett's welfare by defendant officials led to his injury and constitutes a loss of liberty rights without due process as guaranteed by the First and Fourteenth Amendments to the United States Constitution.

The complaint averred further that such acts constitute cruel and unusual punishment of Triplett by defendant officials that is contrary to the Eighth Amendment to the Constitution of the United States. Recovery was sought for pain and suffering, mental distress and loss of Triplett's eye, punitive damages, medical expenses, and costs and attorney's fees pursuant to 42 U.S.C. § 1988.

The County moved to dismiss, claiming that Triplett had failed to state a claim under § 1983 and that the County was an improper defendant under § 1983. (I R. 3). The district court granted the County's motion to dismiss for failure to state a claim upon which relief could be granted, see Rule 12(b)(6) F.R.Civ.P., reasoning that Triplett's complaint alleged no more than a tort action against the trusty and that the complaint neither expressly alleged nor fairly implied that Triplett "was injured as a result of defendant executing a policy of LeFlore County," citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). ²

After the dismissal, Triplett filed a motion to reconsider in which he asked the district court to reconsider its findings, to grant a rehearing as to issues raised in the County's motion to dismiss, ³ to set aside the dismissal of the action, to set the matter for jury trial, and to require the County to answer. (I R. 7). With his motion to reconsider, Triplett filed his "BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO RECONSIDER DISMISSAL OF ACTION AND REQUEST FOR LEAVE TO AMEND COMPLAINT." (I Supp. R.) After discussing theories he wished to develop in light of Monell and cases applying it, he concluded the brief with a request for leave to amend his complaint. Part IV of Triplett's brief was captioned "IV REQUEST FOR LEAVE TO AMEND".

In his brief Triplett outlines theories which, with amendment of his complaint, he would develop on the policy or custom necessary in order for the County to be liable under § 1983. (I Supp. R. 1-4). See Monell, supra, 436 U.S. at 690-91, 98 S.Ct. at 2035-36; Smith v. City of Oklahoma City, 696 F.2d 784, 786 (10th Cir.1983); Wise v. Bravo, 666 F.2d 1328, 1335 (10th Cir.1981). Furthermore, it is clear from the authorities discussed in his brief, that Triplett recognizes that a local government may not be held liable under respondeat superior principles for constitutional wrongs committed by its employees, or simply because it employs a tortfeasor. Monell, supra, 436 U.S. at 691, 98 S.Ct. at 2036.

Triplett's brief in the district court on reconsideration and amendment of the complaint cited Monell, Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Turpin v. Mailet, 619 F.2d 196 (2d Cir.1980),cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475; Clappier v. Flynn, 605 F.2d 519 (10th Cir.1979); Owens v. Haas, 601 F.2d 1242 (2d Cir.1979), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407; Harper v. Cserr, 544 F.2d 1121 (4th Cir.1976); Goodman v. Parwatikar, 570 F.2d 801 (8th Cir.1978); and Edmonds v. Dillin, 485 F.Supp. 722 (N.D.Ohio 1980), inter alia. He argues that the policy or custom of the County was one of omission rather than commission in that the County acted with wanton or reckless disregard of its duties resulting in the violation of Triplett's constitutional rights. He points to cases stating that complete failure of training, failure to reasonably foresee unconstitutional acts, and reckless disregard of violations may establish a claim under § 1983. Triplett concluded his brief below with his request for leave to amend to develop his case.

The district judge made no mention of the request for leave to amend in denying the motion to reconsider and we can only treat the order as implicitly denying leave to amend. (I R. 8). On appeal, Triplett's brief again raises the amendment issue, stating that if there was a technical deficiency in his pleading, his request to amend made to the district court should be granted; that the judgment of dismissal should be reversed and on remand he should be allowed to amend since no answer had been filed when he sought to amend, citing Rule 15, F.R.Civ.P. (Brief of Appellant at 10-11).

"Rule 15(a)[F.R.Civ.P.] declares that leave to amend 'should be freely given when justice so requires'; this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (citation omitted). ⁴ The general rule is, of course, that the grant or denial of leave to amend is within the discretion of the trial court and will not be disturbed, absent an abuse of that discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 332, 91 S.Ct. 795, 802, 803, 28 L.Ed.2d 77 (1971); Polin v. Dun & Bradstreet, Inc., 511 F.2d 875, 877 & n. 3 (10th Cir.1975) (collecting cases). In dismissing a complaint for failure to state a claim, the court should grant leave to amend freely "if it appears at all possible that the plaintiff can correct the defect." 3 Moore's Federal Practice, p 15.10 & n. 2 (1983). "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).

In the absence of an apparent reason to refuse leave to amend--such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, futility of an amendment, etc.--"the leave sought should, as the rules require, be 'freely given.' " Foman, supra, 371 U.S. at 182, 83 S.Ct. at 230; 3 Moore's Federal Practice, p 15.08 (1983). Here the record reveals no such reason for the denial of leave to amend and no reason was stated by the court. There had been no prior amendment to the complaint. The request for leave to amend was made within ten days of the order of dismissal. Further we do not believe that granting leave to amend would have resulted in prejudice to the County.

Among other things, Triplett's brief in support of his motion to reconsider and his request to amend dealt directly with the requirements for § 1983 actions against local governments as set forth in Monell ; it discussed the theory of policy statements or decisions by those whose acts may fairly be said to represent official policy and acts which constitute custom, even though such custom has not received formal approval. Reference was made to the reckless disregard by omissions of due process by defendant officials and the assignment of the trusty, alleged by the complaint to have been a former felon, for care of plaintiff who was having mental difficulties, and known by the officials to be a former mental patient. (BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO RECONSIDER DISMISSAL OF ACTION AND REQUEST FOR LEAVE TO AMEND COMPLAINT at 2-4, 7) (I Supp. R. 2-4, 7). Thus the theories Triplett sought to develop were germane and within the area staked out by Monell. We cannot say that Triplett clearly would be unable to allege or prove a claim under § 1983 and the substantive constitutional provisions invoked by him. See e.g., Owens v. Haas, 601 F.2d 1242, 1245-47 (2d Cir.1978), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (holding plaintiff should have been allowed limited discovery and opportunity to amend to state a § 1983 claim against County on similar theory of liability for its own acts of gross negligence or deliberate indifference), and cases there cited.

In Foman, 371 U.S. at 182, 83 S.Ct. at 230, the Supreme Court stated...