882 F.2d 1101 (6th Cir. 1989), 87-4061, Pembaur v. City of Cincinnati

Docket Nº:87-4061, 87-4130.
Citation:882 F.2d 1101
Party Name:Bertold J. PEMBAUR, M.D., Plaintiff-Appellant, Cross-Appellee, v. CITY OF CINCINNATI, Defendant, Hamilton County, Ohio, et al., Defendants-Appellees, Cross-Appellants.
Case Date:August 18, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1101

882 F.2d 1101 (6th Cir. 1989)

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



Hamilton County, Ohio, et al., Defendants-Appellees, Cross-Appellants.

Nos. 87-4061, 87-4130.

United States Court of Appeals, Sixth Circuit

August 18, 1989

Argued Jan. 31, 1989.

Andrew S. Lipton, Manley, Burke & Fischer, Cincinnati, Robert E. Manley (argued), Cincinnati, Ohio, for plaintiff-appellant, cross appellee.

Jerry F. Luttenegger, Asst. City Sol., and Roger E. Friedmann, Asst. Pros. Atty. (argued), Cincinnati, Ohio, for defendants-appellees, cross appellants.

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Before KRUPANSKY and BOGGS, Circuit Judges, and EDWARDS, Senior circuit judge.

BOGGS, Circuit Judge.

Pembaur appeals a judgment awarding him only nominal damages in this civil rights action, and Hamilton County (the County) cross-appeals. He claims that, once a violation of his rights has been shown, he should be compensated fully for his injuries. The trial judge awarded nominal damages based on his finding that any injuries Pembaur suffered were not proximately caused by the civil rights violations.



Pembaur filed this federal action under 42 U.S.C. Sec. 1983 on April 20, 1981, one day after the Supreme Court issued its opinion in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), which held that an illegal search amounts to a violation of Sec. 1983. After a trial in 1983, the district judge issued findings of fact and conclusions of law, ruling in favor of the defendants. The judge found that the individual defendants were immune from suit, and that the County and City were not liable because Pembaur had not suffered a constitutional deprivation committed pursuant to official policy. On appeal by Pembaur, this court affirmed as to the County, but reversed as to the City. 746 F.2d 337 (6th Cir.1984). Pembaur sought review in the Supreme Court, and the Court reversed as to the County and remanded the case. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Court stated that Pembaur had suffered a constitutional deprivation (a fourth amendment violation stemming from the entry into and search of his medical offices), and that the deprivation was the result of a decision deliberately made by a prosecutor. The Court further stated that "municipal liability can be imposed for a single decision by municipal policymakers under appropriate circumstances." The Court continued by stating that a situation in which an official makes a deliberate choice from among alternatives, when that official is responsible for setting policy on that subject, is one of the situations in which municipal liability is appropriate.

On remand, after a second trial, the court found that the County was liable for its violation of Pembaur's rights, but awarded only $1000 in nominal damages, stating that Pembaur's injuries were not proximately caused by Hamilton County's acts.


Pembaur is a physician licensed to practice medicine by the state of Ohio. He specializes in family medicine, and has been practicing in Cincinnati for over thirty years. Pembaur is the sole proprietor of the Rockdale Medical Center.

On May 19, 1977, two unidentified persons entered the reception area of the office, and sought to enter the inner offices. Pembaur barred the door to prevent their entry. The two people then identified themselves as deputy sheriffs bearing capiases to bring two of the doctor's employees before the grand jury. The capiases set forth the two persons' home addresses, not the medical center's address.

The deputies asked Pembaur to let them into the inner office to search for the two employees. Pembaur refused entry because the deputies did not have a search warrant. Shortly thereafter, Cincinnati police arrived in response to Pembaur's call. They told the doctor to allow the deputies to enter, but he again refused. The police then called for a supervisor and a sergeant arrived, again asking Pembaur to allow them entry. Pembaur continued to refuse without a search warrant ordering him to do so.

Pursuant to department policy, the officers then called the sheriff's execution officer, who advised them to call William Whalen, assistant county prosecutor. They did so, and Whalen spoke with Simon Leis, then Hamilton County Prosecutor. Leis told Whalen to tell the deputies to "go in and get them." The deputies then tried to batter the door down, but failed, and a

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Cincinnati police officer went to a fire station and obtained an axe with which he then chopped the door down. The deputies and police officers then entered the office and searched for the persons named in the capiases, who were not in the office.

After this incident, Pembaur was indicted for obstructing or delaying the deputies in the performance of their duties. Pembaur was convicted, but the conviction was reversed on appeal, the court finding that Pembaur's fourth amendment rights had been violated. State v. Pembaur, No. C-790380 (Hamilton County Court of Appeals Nov. 3, 1982). However, the Ohio Supreme Court reinstated the conviction on the ground that Pembaur may have had a remedy for any constitutional violation in a civil action for damages, but that he had no right to refuse entry even if the entry under the circumstances was unconstitutional. State v. Pembaur, 9 Ohio St.3d 136, 459 N.E.2d 217 (1984), cert. denied, 467 U.S. 1219, 104 S.Ct. 2668, 81 L.Ed.2d 373 (1984).


After remand from the Supreme Court, the parties stipulated that the factual matters in the transcript of the earlier civil trial need not be repeated but would be considered as before the court in the second trial. Testimony at the second trial, in April 1987, was limited to two issues...

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