Bennett v. Pippin

• Decision Date: 16 November 1992
• Citation: 74 F.3d 578
• Parties: Ellen Gail BENNETT, Plaintiff-Appellee, v. Presley PIPPIN Jr., Individually and as Sheriff of Archer County, in his official capacity (as Sheriff of Archer County, in his official capacity deleted as per Order dated
• Court: U.S. Court of Appeals — Fifth Circuit

Page 578

74 F.3d 578

Ellen Gail BENNETT, Plaintiff-Appellee, v. Presley PIPPIN Jr., Individually and as Sheriff of Archer County, in his official capacity (as Sheriff of Archer County, in his official capacity deleted as per Order dated 11/16/92--leaving Presley Pippin, Jr. Individually as dft) (Presley Pippin, Jr., as Sheriff of Archer County, in his official capacity, reinstates as per oral order of Judge Joe Kendall during non-jury trial 2/10/95), Defendant-Appellant and Archer County Texas, Movant-Appellant.

No. 95-10380.

United States Court of Appeals Fifth Circuit.

Jan. 24, 1996.

Rehearing Denied March 1, 1996.

Thomas Lee Kolker, Greenstein & Kolker, Austin, TX, Edward J. Tuddenham, Wiseman, Durst, Tuddenham & Owen, Austin, TX, for plaintiff-appellee.

Rosendo Rodriguez, Jr., Wichita Falls, TX, Catherine Lee Kyle, James Norman Ludlum, Ludlum & Ludlum, Austin, TX, for defendant-appellant.

Darrell Gerard-Marc Noga, Peter Mark Roossien, Cooper & Aldous, Dallas, TX, for movant-appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this case, a Texas sheriff and a county appeal a judgment awarding damages to a murder suspect that the sheriff raped. We affirm the award against the sheriff individually, reverse the judgment against the county, and remand for a new trial.

I

We describe the pre-trial proceeding in some detail, given the unusual procedural posture that this case has reached. In a complaint filed in June of 1992, Ellen Bennett sued Presley Pippin in the Western District of Texas under 42 U.S.C. Sec. 1983 and Texas common law and demanded trial by jury. The complaint named Pippin in his individual capacity and in his official capacity as Sheriff of Archer County, Texas. It alleged that the Sheriff raped Bennett in the course of a homicide investigation. It further alleged that the Sheriff was "the final policy maker for the county for matters of law enforcement" and that the Sheriff's acts were "the official policy and/or custom of Archer County, Texas."

Three weeks later, attorney William W. Krueger, III, of the law firm of Ludlum & Ludlum, filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) on behalf of the Sheriff individually and in his official capacity. A colloquy between defense counsel and the court at the eventual trial established that the Sheriff and Archer County had agreed initially that Krueger would represent them both at least through the filing of motions and that any conflict of interest in that joint representation would be waived.

The case was transferred to the Northern District of Texas and initially assigned to Judge Belew. Judge Belew denied all motions except the motion to dismiss with regard to the Sheriff in his official capacity. Referring to this court's heightened pleading standard for claims under section 1983, Judge Belew held that the complaint failed to state facts sufficient to allow a court to find that the Sheriff's alleged rape was pursuant to a policy or custom of Archer County as required by Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Judge Belew reasoned that a single, isolated incident could not constitute a policy under Monell.

Shortly after discovery began with problems of insurance coverage in the background, Krueger and Ludlum & Ludlum withdrew as the attorney for the Sheriff and the Sheriff's personal attorney appeared for him. After various continuances and further discovery, Judge Belew granted leave to James Ludlum, also of Ludlum & Ludlum, to replace the Sheriff's personal counsel. Ludlum then moved to reopen discovery on behalf of "Presley Pippin, Jr., Individually and as Sheriff of Archer County, Texas, in his Official Capacity." As we will explain, however, Archer County was not at this time a party and no one thought that they were.

Five days before trial was to have begun, the court entered an order, agreed to by the parties, that the case proceed to arbitration under 28 U.S.C. Secs. 651-58. The order stated that the parties waived their rights to a jury trial if either requested a trial de novo under 28 U.S.C. Sec. 655. The arbitration panel returned an award against "Defendant, PRESLEY L. PIPPIN, JR." Pippin requested a trial de novo under section 655. There was no mention of Archer County. By this time, a portion of Judge Belew's docket had been assigned to Judge Kendall, who set the case for trial on Friday, February 10, 1995.

On the morning of February 10, Judge Kendall began the proceedings by announcing his inclination to reconsider the 12(b)(6) dismissal of Archer County. Judge Kendall stated that Judge Belew's dismissal had been based upon this circuit's heightened pleading standard for section 1983 cases, and that the Supreme Court had held this standard could be inapplicable to a claim against a county. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Judge Kendall then asked the parties for comment on his proposed course of action. Ludlum conceded that the court was correct regarding the effect of Leatherman upon the case but stated that he had an ethical obligation to inform Archer County that it was now potentially liable for a damage judgment. Ludlum further stated that the interests of the Sheriff individually and the County might conflict on the issue of Monell policy or custom. Ludlum also stated on several times that he was representing the Sheriff only in an individual capacity. Ludlum suggested that the court continue the case for a week to allow the County time to consider whether it wanted a separate attorney.

Judge Kendall responded by expressing a desire to begin testimony that morning. While agreeing that a conflict of interest was possible in this type of lawsuit, the court saw no possibility that such a conflict would arise because the defense's pretrial filings had announced an intention to defend on the grounds that the sexual intercourse between Bennett and Pippin had occurred outside the scope of Pippin's duties as Sheriff. Finally, Judge Kendall concluded that Ludlum did represent both the Sheriff and Archer County, highlighting that Ludlum & Ludlum had initially filed the 12(b)(6) motion on behalf of the Sheriff individually and in his official capacity. ¹

After this exchange, Judge Kendall made the following rulings from the bench. First, he stated that the plaintiff would begin her case that day. Second, he would grant a 30 minute recess to allow Ludlum to notify Archer County officials of the reinstatement of the lawsuit against the Sheriff in his official capacity. Third, the judge stated that, because this was a bench trial, he would continue the case, reopen discovery, and recall witnesses for later cross-examination, should the County wish to do so. The judge reemphasized that the trial was to the court, and that he could be flexible as a result, but that trial would begin that morning.

The district court then granted a recess. When Ludlum returned from the recess, the trial commenced. ² Testimony from various witness established the following undisputed facts. Ms. Bennett shot her husband in the chest after a violent domestic dispute in which Mr. Bennett had ripped the phone out of the wall, assaulted Ms. Bennett, then pointed a gun at her. At the time, the Bennetts were renting a house in Archer County. Ms. Bennett drove her pickup truck to a nearby convenience store located across the county line in Wichita Falls and called the Wichita Falls authorities. The Wichita Falls authorities arrested and handcuffed Ms. Bennett at the store, impounded the pickup truck, and notified the Archer County Sheriff's Office of the incident. Sheriff Pippin radioed Wichita Falls and instructed them to hold Ms. Bennett until he arrived to take custody of her.

After retrieving Ms. Bennett from Wichita Falls, the Sheriff drove her back to the house. By this time, Archer County Deputy Sheriffs had arrived to secure the scene and to take Mr. Bennett to the hospital. After receiving a tour of the site from a Deputy, the Sheriff left to attend to a brush fire. A Deputy Sheriff drove Ms. Bennett to the Archer County Sheriff's Office, where she was fingerprinted, photographed, and given Miranda warnings. After Ms. Bennett described Mr. Bennett's assault and the subsequent shooting to the Deputy, she signed a statement. The Deputy asked Ms. Bennett not to leave the County without the authorization of the Sheriff's Office and drove her home. Ms. Bennett then left briefly in her husband's truck to find a phone to call a friend in Austin for consolation.

The Sheriff, in the meantime, attended to the brush fire, then traveled to the hospital and learned that Mr. Bennett would not be released from the hospital that evening. He returned to the Bennett household, found no one there, and sat on the porch until Ms. Bennett returned. The Sheriff testified that he had at least two reasons for returning to the house. The first was that he wanted to assuage Ms. Bennett's previously expressed concern that Mr. Bennett's friends would attack her as a result of the shooting. The second was that he was mildly aroused by the manner in which Ms. Bennett had touched him as he lit a cigarette for her during the drive from Wichita Falls to her house. At the time of his return to the house, the Sheriff was wearing his badge and gun.

At this point, the testimony of Ms. Bennett and the Sheriff diverged. According to Ms. Bennett, when she returned to the house, the two sat on the porch drinking coffee while the Sheriff questioned her about the shooting incident. After a while, the Sheriff touched her on the leg in a way that made her feel uncomfortable. In response, Ms. Bennett stated that she was tired and that she wished to answer...