Hughes v. City of North Olmsted

• Decision Date: 20 August 1996
• Docket Number: No. 95-3655,95-3655
• Citation: 93 F.3d 238
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1185, 68 Empl. Prac. Dec. P 44,242, 11 IER Cases 1813 Ralph and Sharon HUGHES, Plaintiffs-Appellees, v. CITY OF NORTH OLMSTED, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 238

93 F.3d 238

71 Fair Empl.Prac.Cas. (BNA) 1185,

68 Empl. Prac. Dec. P 44,242, 11 IER Cases 1813

Ralph and Sharon HUGHES, Plaintiffs-Appellees, v. CITY OF NORTH OLMSTED, et al., Defendants-Appellants.

No. 95-3655.

United States Court of Appeals Sixth Circuit.

Argued June 13, 1996.

Decided Aug. 20, 1996.

Dennis J. Niermann (argued and briefed), Francis R. Krajenke, Jr., Kramer & Tobocman, Cleveland, OH, for Plaintiffs-Appellees.

Hilary S. Taylor (argued), Glenn D. Southworth (briefed), Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, for Defendants-Appellants.

Before: MERRITT, Chief Judge; KEITH and SUHRHEINRICH, Circuit Judges.

KEITH, Circuit Judge.

Defendants appeal from an order of the district court denying them qualified immunity on plaintiffs' claim that defendants violated their constitutional rights to privacy and free association during a police department investigation. Because we find that the investigation did not violate a clearly established constitutional right of the plaintiffs, we REVERSE the district court and hold that the defendants should have been granted qualified immunity.

I. BACKGROUND

In 1993, the City of North Olmsted Police Department conducted an internal affairs investigation of Ralph Hughes, who at the time was a probationary employee. ¹ The department investigated Hughes because of allegations that he had (1) sexually harassed co-workers, (2) dated a gang member's mother and (3) bragged to women while on duty that he maintained an open marriage and a "swinging" lifestyle.

The investigation was conducted by police lieutenant Frank Viola. During the course of the investigation, Viola claims that he informed Ralph Hughes of the allegations against him and of his departmental rights. Viola asserts that when he interviewed Ralph Hughes, Hughes denied making advances to female co-workers or dating a gang member's mother but told him that he was separated from his wife and had been under a great deal of stress. Viola contends that Ralph Hughes gave him permission to talk to his wife, Sharon Hughes.

Soon thereafter, Viola interviewed Sharon Hughes to verify Ralph Hughes' statements. Sharon Hughes claims that Viola asked her whether her husband dated anyone because there were rumors circulating that she and her husband were "swingers" and had an open marriage.

Viola also interviewed a female security officer who complained about Ralph Hughes, an alleged gang member and his mother, and four female co-workers. The security officer indicated that Ralph Hughes had asked her out one evening and that he had been very persistent. When she refused his advances, she claims that Hughes asked her whether she had any friends who would go out with him. The alleged gang member and his mother both denied having any involvement with Hughes. The first female co-worker stated that Hughes had made passes at her, in a joking manner, but that she had felt he was serious. She claimed that Hughes had made references to his "open marriage," and stated that it was "too bad that she was married." The second female co-worker stated that she did not like Hughes but that he had never said anything provocative to her. The third female co-worker claimed that she was not bothered by Hughes. The fourth female co-worker said that in the past Hughes had said something about "swinging."

Based on this information, the department determined that the allegations of sexual harassment and improper conduct on the part of Ralph Hughes were not substantiated. The department files pertaining to the investigation were then destroyed. As a result, a sworn affidavit of Viola was the only evidence admitted at trial that described the above-mentioned details of the investigation.

The Hugheses filed a complaint in the United States District Court for the Northern District of Ohio on June 27, 1994. In the complaint, the Hugheses alleged that their marital privacy and rights to free association were invaded by the department's investigation. In particular, the Hugheses asserted that: (1) the City of North Olmsted Police Department improperly trained its officers and improperly permitted a wrongful investigation to take place; (2) Dennis Sefcek (North Olmsted Chief of Police) did not properly train the department to conduct the investigation and was irresponsible in initiating the investigation; (3) George Ruple (Captain of North Olmsted Police Department) improperly approved the internal investigation; (4) Barry O'Toole (police lieutenant) did not properly supervise the persons conducting the investigation or control its scope; (5) Frank Viola (police lieutenant) improperly conducted the investigation; and (6) Robert Flynn (police sergeant) improperly requested the investigation.

On October 5, 1994, the defendants moved for summary judgment. The district court granted summary judgment to the City of North Olmsted but denied it as to the individual defendants--Dennis Sefcek, George Ruple, Barry O'Toole, Frank Viola and Robert Flynn. On appeal, these defendants argue that the district court erred in not finding them entitled to qualified immunity. Upon review, we agree with the defendants and find that they were entitled to qualified immunity. Accordingly, the decision of the district court is reversed and the plaintiffs' complaint is hereby dismissed.

II. DISCUSSION

The Hugheses contend that the police investigation violated their clearly established rights to privacy and free association. They claim that the most violative portion of the investigation occurred when Viola asked Sharon Hughes whether she had an open marriage and whether she and her husband were "swingers." The individual defendants respond that they are all entitled to summary judgment based on qualified immunity because they did not violate a clearly established constitutional right. The district court denied the defendants' motion for summary judgment.

Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Since the question of whether defendants are entitled to qualified immunity is a question of law, we review the district court's determination on the issue de novo. Daugherty v. Campbell, 935 F.2d 780, 783 (6th Cir.1991), cert. denied, 502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110.

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Reiterating this standard, the Supreme Court stated in Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984), "[w]hether an official may prevail in his qualified immunity defense depends upon the 'objective reasonableness of [his] conduct as measured by reference to clearly established law.' "

In determining whether a constitutional right was clearly established we look first to the decisions of the Supreme Court, then to decisions of this Court and other courts within our Circuit, and finally to the decisions of other Circuits. Daugherty, 935 F.2d at 784. However, as a general rule, a district court decision by itself cannot ordinarily clearly establish a law even of its own circuit, much less that of other circuits. See Woodward v. City of Worland, 977 F.2d 1392, 1397 (10th Cir.1992), cert. denied, 509 U.S. 923, 113 S.Ct. 3038, 125 L.Ed.2d 724 (1993); see also Davis v. Holly, 835 F.2d 1175, 1182 (6th Cir.1987) (noting that a decision from another circuit is insufficient to clearly establish a constitutional right); Lojuk v. Johnson, 770 F.2d 619, 631 (7th Cir.1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986) (concluding that a circuit court case and a district court case from another circuit, along with several other distantly related cases were insufficient to clearly establish a constitutional right).

Moreover, it is the plaintiff's burden to convince the court that the law was clearly established at the time of the offensive conduct. Daugherty, 935 F.2d at 783. In doing so, a plaintiff cannot simply identify a clearly established right in the abstract and allege that the defendant has violated it. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Instead, the plaintiff must show a substantial correspondence between the conduct in question and prior law allegedly establishing the defendant's actions were clearly prohibited. See Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990). Although the plaintiff need not show that the action at issue has previously been held unlawful, the alleged unlawfulness must be "apparent" in light of preexisting law. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. In other words, the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id.

In the present case, the defendants should have been granted qualified immunity because there is no evidence that the investigation violated a clearly established constitutional right. Although a constitutionally guaranteed right to free association has been inferred by the Supreme Court from the Due Process Clause of the Fourteenth Amendment, NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958), and a right of privacy has been found in several provisions of the Constitution, Griswold v. Connecticut, 381 U.S. 479, 484-86, 85 S.Ct. 1678, 1681-82, 14 L.Ed.2d 510 (1965), the Supreme Court has not definitively answered the difficult question whether and to what extent the...