746 F.2d 337 (6th Cir. 1984), 83-3325, Pembaur v. City of Cincinnati

Docket Nº:83-3325.
Citation:746 F.2d 337
Party Name:Bertold J. PEMBAUR, M.D., Plaintiff-Appellant, v. CITY OF CINCINNATI; Hamilton County; Hon. Norman Murdock, County Commissioner; Hon. Robert A. Taft, II, County Commissioner; William P. Whalen, Jr.; and Russell L. Jackson, Defendants-Appellees.
Case Date:October 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 337

746 F.2d 337 (6th Cir. 1984)

Bertold J. PEMBAUR, M.D., Plaintiff-Appellant,

v.

CITY OF CINCINNATI; Hamilton County; Hon. Norman Murdock,

County Commissioner; Hon. Robert A. Taft, II,

County Commissioner; William P. Whalen,

Jr.; and Russell L. Jackson,

Defendants-Appellees.

No. 83-3325.

United States Court of Appeals, Sixth Circuit

October 18, 1984

Argued May 10, 1984.

Page 338

Robert E. Manley (argued), Manley, Jordan & Fischer, Cincinnati, Ohio, for plaintiff-appellant.

Jerry F. Luttenegger (argued), Roger E. Friedmann (LC) (argued), James W. Harper, Cincinnati, Ohio, for defendants-appellees.

Before KENNEDY and JONES, Circuit Judges, and COHN, District Judge. [*]

NATHANIEL R. JONES, Circuit Judge.

This matter is before the Court on the appellant's appeal from the district court's order dismissing his civil rights action under 42 U.S.C. Sec. 1983.

The appellant, Bertold J. Pembaur, a licensed doctor specializing in family medicine, maintains an office known as the Rockdale Medical Center (Center), which is located at 430 Rockdale Avenue in Cincinnati. During the spring of 1977, the Hamilton County Grand Jury indicted Pembaur in a six-count indictment. During the investigation of the charges, subpoenas were issued for the appearance of two of Pembaur's employees before the Grand Jury. These employees failed to appear at the designated time and capiases or writs of attachment were issued for their arrest.

On May 19, 1977, two deputy sheriffs from the Hamilton County Sheriff's Department appeared at the Center without a search warrant to serve the capiases which listed the employees' home addresses and not the Center's address. Upon their arrival,

Page 339

Pembaur refused to let them into the inner offices to search for the employees. In fact, he barricaded the door to those offices, called the press and the Cincinnati Police Department, and continued to refuse access to the inner offices.

Because of Pembaur's actions, one of the deputies called the Sheriff's office who advised him to call William P. Whalen, Jr., an assistant prosecuting attorney for Hamilton County. Simon Leis, prosecutor at the time, told Whalen to instruct the officers to serve the capiases. When the deputies were unsuccessful in their attempt to force the door, a Cincinnati police officer took an axe and chopped the door down which enabled the deputies and police officers to enter the inner offices. The employees, however, were not found.

Subsequently, Pembaur filed a civil rights action in the district court under Sec. 1983 alleging deprivation of his Fourth and Fourteenth Amendment rights. Pembaur named the City of Cincinnati (City), Hamilton County (County), the Hamilton County Commissioners in their official capacity (Commissioners), the Chief of the Cincinnati police department, the Hamilton County Sheriff, William Whalen, six unnamed Cincinnati police officers, two unnamed deputy sheriffs, and Russell Jackson, a Secret Service officer appointed by the county prosecutor pursuant to state law as defendants. After a bench trial, the district court made certain findings of fact and conclusions of law and, as a consequence, dismissed Pembaur's action in its entirety. On appeal, Pembaur raises only the dismissal of his claims against Whalen, the County, and the City as grounds for reversal.

In a case tried to the court, the district court's findings of fact will be set aside only if they are clearly erroneous. Fed.R.Civ.P. 52(a). A factual finding is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Kennedy v. Commissioner, 671 F.2d 167, 174 (6th Cir.1982) (citing United States v. United States Gypsum...

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