814 F.2d 277 (6th Cir. 1987), 83-5683, Nishiyama v. Dickson County, Tenn.

Docket Nº:83-5683.
Citation:814 F.2d 277
Party Name:Ralph E. NISHIYAMA and wife, Gabrielene Nishiyama, as surviving parents and next-of-kin of Kathy Jane Nishiyama, Plaintiffs-Appellants, v. DICKSON COUNTY, TENNESSEE, a political subdivision of the State of Tennessee, Dowell (Doyle) Wall and Carroll Fiser, Defendants-Appellees.
Case Date:March 18, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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814 F.2d 277 (6th Cir. 1987)

Ralph E. NISHIYAMA and wife, Gabrielene Nishiyama, as

surviving parents and next-of-kin of Kathy Jane

Nishiyama, Plaintiffs-Appellants,


DICKSON COUNTY, TENNESSEE, a political subdivision of the

State of Tennessee, Dowell (Doyle) Wall and

Carroll Fiser, Defendants-Appellees.

No. 83-5683.

United States Court of Appeals, Sixth Circuit

March 18, 1987

Argued June 4, 1986.

Page 278

Richard H. Batson, Daniel, Harvill, Batson & Nolan, Clarksville, Tenn., John Conners, Jr., Kenneth H. King, Jr. (argued), Boult, Cummings, Conners & Berry, Nashville, Tenn., for plaintiffs-appellants.

Douglas Fisher, Wall & Fizer, Mary Martin Schaffner (argued), R.B. Parker, Jr. (Dickson County), Nashville, Tenn., Connie Jones (argued), for defendants-appellees.


BOYCE F. MARTIN, Jr., Circuit Judge.

Ralph and Gabrielene Nishiyama, brought this action under 42 U.S.C. Sec. 1983 against Dickson County, Tennessee, Sheriff Doyle Wall and Deputy Sheriff Carroll Fiser as well as Dickson County. The Nishiyamas allege the sheriffs' policy and practice of entrusting fully-equipped official patrol cars to inmate Charles Hartman, a convicted felon, deprived their daughter Kathy of her life without due process of law. Hartman was allegedly cruising alone in a patrol car when he stopped and then murdered Kathy Nishiyama. The district court dismissed the Nishiyamas' complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

A three-judge panel of this Court initially affirmed the district court's order, but on reconsideration, the same panel reversed that decision, 779 F.2d 52. On motion, a majority of the judges in active service voted to rehear the case en banc, thus vacating the panel opinion and the previous opinion of the Court. Rule 14, Rules of the Sixth Circuit.Following supplemental

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briefing the case was argued before the full Court.

A motion under Rule 12(b)(6) tests whether a claim has been adequately stated in the complaint. The basic requirements for a pleading are set out in Rule 8(a) and call for "a short and plain statement of the claim showing that the pleader is entitled to relief...." In considering a Rule 12(b)(6) motion, the court must accept as true all factual allegations in the complaint. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). The court must deny the motion to dismiss unless it can be established beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id.; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

The facts that we must accept as true, as alleged by the Nishiyamas, are that at about 8:30 p.m. on November 16, 1981, Kathy Nishiyama was driving on Lafayette Road in Montgomery County, Tennessee. She responded to the signals of a Dickson County Sheriff's Department patrol car that directed her to pull over to the side of the road. When she did, Charles Hartman, the patrol car's sole occupant, approached her and beat her to death.

Hartman, a convicted felon and an inmate in the custody of the Dickson County Sheriff's Department, was operating the patrol car with the permission and authorization of defendants Sheriff Doyle Wall and Deputy Sheriff Carroll Fiser. These defendants had placed Hartman on "trusty" status following his transfer from state custody to the Dickson County Jail. They were also on notice that Hartman was dangerous and had assaulted a young woman in the past.

Sheriff Wall and Deputy Sheriff Fiser had a policy and practice of several months standing which allowed Hartman to have unsupervised use of Dickson County patrol cars equipped with standard blue flashing lights and official identifying markings. Hartman used the cars to perform official and personal tasks for the two officers and personal tasks for himself. A Dickson County grand jury eventually investigated this policy and recommended that it cease.

On the night of the murder, Hartman drove Deputy Fiser from the jail to Fiser's farm. After arriving, Fiser told Hartman to drive the fully-equipped and clearly marked patrol car back to the jail. From this point onward, he had full unsupervised possession of the car. He then began roaming the highways of Dickson, Houston, and Montgomery Counties, and stopped several motorists by flashing the patrol car's blue lights. When Montgomery County officials learned that a Dickson County Sheriff's car was stopping motorists in their county, they notified the Dickson County dispatcher, who in turn notified Wall and Fiser. Wall and Fiser did nothing. Not until ten hours after he had left the jail did Hartman finally return. The Nishiyamas contend that during the interim he used the patrol car, a clear instrument of law enforcement, to pull over their daughter's car and murder her. They further contend that Wall and Fiser's policy of allowing Hartman unsupervised use of an official patrol car and their actions in accordance with that policy were grossly negligent and proximately caused Kathy Nishiyama's death.

In order to sustain a claim under section 1983, the plaintiffs must satisfy the following requirements: 1) the conduct at issue must have been under color of state law; 2) the conduct must have caused a deprivation of constitutional rights; and 3) the deprivation must have occurred without due process of law. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). After careful review of the claims and assuming the facts as alleged to be true, we hold that the Nishiyamas have successfully stated a claim as required by Rule 8(a) of the Federal Rules of Civil Procedure and that their complaint was improperly dismissed as a matter of law under Rule 12(b)(6).

In considering the first prong of the test, the district court correctly concluded that the defendants' practice of providing Hartman with a marked and fully-equipped

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patrol car was action taken under color of state law. The sole issues left for our consideration then are whether the conduct of the defendants caused a deprivation of Kathy Nishiyama's constitutional rights and if so, whether this deprivation occurred without due process of law.

Kathy Nishiyama's interest in preserving her life is one of constitutional dimension. While the fourteenth amendment does not guarantee life, it guarantees that the state cannot deprive an individual of life without due process. First we consider whether the state deprived Kathy Nishiyama of her life by the conduct of its agents.

The Supreme Court in recent years has considered the limits of liability of government officials under section 1983 for a murder committed by someone other than a government official. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the plaintiffs sought to hold California parole officers liable under section 1983 for the parole board's decision to release a parolee, who five months later murdered plaintiffs' daughter. The Court concluded that the plaintiffs had failed to state a claim. In determining the issue of proximate cause, the Court emphasized three factors: 1) the parolee was in no sense an agent of the parole board; 2) the parole board had no reason to know that the decedent, as distinguished from the public at large, faced any special danger; and 3) the death was too remote a consequence to hold the parole board responsible under the federal civil rights law. Id. at 285, 100 S.Ct. at 559. On similar facts this Court held in Janan v. Trammell, 785 F.2d 557 (6th Cir.1986), that the death of Paul Janan at the hand of a parolee within eight weeks of his release was too remote to support a claim against the parole board under section 1983. The Nishiyamas' claims present a different framework from the situations presented in Martinez and Janan; an analysis of the factors to be considered when determining proximate cause will illustrate why Martinez does not govern the current action and why we decide today that there is an arguable claim that the state deprived Kathy Nishiyama of her constitutional interest in life.

Unlike the released parolees in Martinez and Janan, Hartman remained in the custody of the Dickson County Sheriff's Department before, during, and after the murder. There is no indication that Hartman ever attempted to flee this custody. During Hartman's ten-hour journey from Fiser's farm to the Dickson County Jail, the defendants never reported or otherwise treated him as an escapee. In accordance with established practice, Wall and Fiser authorized Hartman to use and have sole control over the patrol car for his own private purposes. This custodial relationship between Hartman and the Dickson County Sheriffs supports a finding that Wall and Fiser had the power and authority to direct Hartman's actions in a way that was absent in Martinez and Janan.

Further, unlike Martinez and Janan, the Nishiyamas claim that Wall and Fiser should have known that their practice of allowing Hartman to have unsupervised use of the patrol car made motorists like Kathy Nishiyama particularly vulnerable to potentially dangerous situations. This is not a case like Martinez where the parolee had been out of police custody for several months and thus the identity of potential victims was difficult to define. Here the radius of harm is more distinct. When Fiser and Wall allowed Hartman to drive unescorted between the jail and Fiser's farm, persons in the vicinity were at risk, particularly motorists who...

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