938 F.2d 693 (6th Cir. 1991), 89-5679, Cassady v. Tackett

Docket Nº:89-5679.
Citation:938 F.2d 693
Party Name:Lorna CASSADY, Plaintiff-Appellant, v. Thurman TACKETT, Individually and in his Capacity as Johnson County Jailer, Defendant-Appellee.
Case Date:July 24, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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938 F.2d 693 (6th Cir. 1991)

Lorna CASSADY, Plaintiff-Appellant,


Thurman TACKETT, Individually and in his Capacity as Johnson

County Jailer, Defendant-Appellee.

No. 89-5679.

United States Court of Appeals, Sixth Circuit

July 24, 1991

Argued April 30, 1990.

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Ned B. Pillersdorf (argued), Stumbo, Derossett & Pillersdorf, Prestonsburg, Ky., for plaintiff-appellant.

Michael J. Curtis (argued), Ashland, Ky., Pamela Todd Robinette, Stratton, May & Hays, Pikeville, Ky., for defendant-appellee.

Before KENNEDY, Circuit Judge, and ENGEL and WELLFORD, [*] Senior Circuit Judges.


Lorna Cassady, Executive Director of a multi-county jail located in Johnson County, Kentucky, brought this 42 U.S.C. Sec. 1983 action against Thurman Tackett, the Johnson County jailer, for deprivation of her substantive due process rights under the fourteenth amendment. Cassady alleges that she was forced to barricade herself in her office after Tackett and his deputies threatened to kill her. Her complaint also included pendent state claims of false imprisonment and outrageous conduct. The District Court granted defendant Tackett's motion for summary judgment on the section 1983 claim, finding that his alleged behavior had not violated any of Cassady's constitutional rights. The court then declined to accept jurisdiction over the pendent state claims and dismissed them without prejudice. We REVERSE.


The Big Sandy Regional Jail, located in Paintsville, Johnson County, Kentucky, was constructed through the joint efforts of Martin, Lawrence, Magoffin and Johnson Counties. Not long into the venture, a dispute arose over whether the facility would be operated by the Regional Jail Authority or Johnson County authorities, principal among them Tackett, the elected county jailer. The Regional Jail Authority initially prevailed in state court litigation on this dispute, but Tackett appealed. While the appeal was pending, the Authority agreed to employ Tackett in the jail, apparently to supervise the incarceration and handling of prisoners. Meanwhile, in the fall of 1987, the Regional Authority had appointed Lorna Cassady Executive Director of the jail.

This arrangement proved ill-advised from the start. Cassady alleges that Tackett continually contested her authority to manage the jail and that their dispute grew increasingly bitter. According to Cassady, Tackett frequently ignored her, and on one occasion stated that she had no business at the facility and that his wife should have her position. In early January 1988, in response to the latest skirmish in their administrative turf dispute, Tackett allegedly shouted at Cassady that she was restricted to a certain area of the jail and dared her to venture further. Cassady claims that Tackett emphasized the order by drawing back his coat to reveal a holstered gun. The two apparently also clashed over whether Regional Jail Authority policy prohibited Tackett and his deputies from carrying guns within the jail.

The events giving rise to this cause of action occurred on January 13, 1988, when the smoldering cinders flared. By Cassady's account, Tackett stormed into her outer office, shouting and cursing at her over the latest clash in their running conflict. Tackett was accompanied by several of his deputies, including his son Dewayne who, like Tackett, was allegedly armed that day

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as usual. Cassady claims that Tackett's son and then others threatened to kill her and her husband, who was present at the time. 1 Fearing for their safety, Cassady and her husband locked themselves in her inner office, where they remained for forty-five minutes until the county sheriff summoned by Cassady escorted them from the building.


The initial inquiry in an action under 42 U.S.C. Sec. 1983 focuses on two essential elements: (1) was the defendant official acting under color of state law? and (2) did the official's conduct deprive the plaintiff of a right secured by the Constitution or federal statute? See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). We consider these questions in turn.

A public official has acted "under color of state law" when he has "exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). "It is firmly established that a defendant in a Sec. 1983 suit acts under color of state law when he abuses the position given to him by the State." West, 487 U.S. at 49-50, 108 S.Ct. at 2255-56 (citing Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961)). 2 Thus, "before a defendant may be held liable under section 1983, that defendant must first possess power by virtue of state law, then misuse that power in a way that violates federal constitutional rights." Christian v. Belcher, 888 F.2d 410, 414 (6th Cir.1989) (emphasis in original).

Our Circuit has held that an off-duty police officer's use of his gun could be action under the color of state law because he had authority under state law to carry the gun only by virtue of being a police officer, and because the dispute in which he used the gun originated in the performance of his official duties. Layne v. Sampley, 627 F.2d 12, 13 (6th Cir.1980). Other courts have also held that various official actions in the work place are taken "under color of state law." In Ruhlman v. Barger, 435 F.Supp. 447, 448 (W.D.Pa.1976), the court ruled that a state police commissioner and officers acted under color of state law in ordering the punitive transfer of another officer, even though such transfers were forbidden under department regulations.

Here, we are obliged to conclude that in allegedly flourishing and threatening to use his gun against Cassady, Tackett acted under color of state law. As in Layne, Tackett had authority or power to carry the gun in the jail only because he was the elected jailer of Johnson County. That Tackett acted against a fellow public employee is of no matter, as Ruhlman demonstrates.


The District Court disposed of Cassady's claim of constitutional injury by relying principally on Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The Court in Baker concluded that an allegedly negligent arrest based on mistaken identity could not support a section 1983 action for deprivation of liberty. While

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generally relevant in holding that not all state tort claims rise to the level of federal constitutional deprivations, Baker does not speak directly to Cassady's claims, which are based on intentional, not negligent, action under color of state law.

  1. Fourth Amendment 3

    The fourth amendment's protection against unreasonable seizures is triggered " 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " United States v. Rose, 889 F.2d 1490, 1493 (6th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). "What constitutes a restraint on liberty prompting a person to conclude that [she] is not free to leave will vary with the police conduct at issue and the setting in which the conduct occurred." Rose, 889 F.2d at 1493. Coercive or intimidating behavior supports a reasonable belief that compliance is compelled. United States v. Collis, 766 F.2d 219, 221 (6th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 150, 88 L.Ed.2d 124 (1985).

    While nearly all seizure cases involve the arrest of a private person by a police officer, this family of precedent includes some interesting cousins. These atypical cases suggest several potentially relevant principles of law. First, it is apparent that the fourth amendment protects public officials such as Cassady from unreasonable government searches and seizures. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989) (drug testing of public employees constitutes a search under the fourth amendment); O'Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 1496, 94 L.Ed.2d 714 (1987) (plurality) (public hospital psychiatrist suspected of professional improprieties is protected against unreasonable search of his office by supervisors); Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489 (9th Cir.1986) (search of police officer to investigate alleged work-related misconduct must meet reasonable suspicion standard of the fourth amendment); Security & Law Enforcement Employees v. Carey, 737 F.2d 187, 203-04 (2d Cir.1984) (search of prison employees to investigate work-related misconduct falls under the fourth amendment); Biehunik v. Felicetta, 441 F.2d 228, 230 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971) (the compelled appearance of 62 police officers in a lineup for possible identification as wrongdoers could be considered a "seizure" under the fourth amendment).

    Secondly, Cassady need not have been accused of wrongdoing to enjoy the protections of the fourth amendment. "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). See also Lessman v. McCormick, 591 F.2d 605, 612 (10th Cir.1979) (plaintiff stated a 1983 claim in alleging that a police officer arrested her for a minor infraction solely to intimidate her...

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