945 F.2d 716 (4th Cir. 1991), 90-1070, Temkin v. Frederick County Com'rs

Docket Nº:90-1070.
Citation:945 F.2d 716
Party Name:Sharon TEMKIN; Bruce M. Temkin, Plaintiffs-Appellants, v. FREDERICK COUNTY COMMISSIONERS; Glen Marion Selby, Jr., Defendants-Appellees.
Case Date:September 12, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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945 F.2d 716 (4th Cir. 1991)

Sharon TEMKIN; Bruce M. Temkin, Plaintiffs-Appellants,




No. 90-1070.

United States Court of Appeals, Fourth Circuit

September 12, 1991

Argued June 5, 1991.

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Philip Bogart Allen, Coale, Kananack & Murgatroyd, Los Angeles, Cal., argued (John P. Coale, on brief), for plaintiffs-appellants.

John Michael Quinn, Quinn & McAuliffe, Rockville, Md., argued (Michael J. McAuliffe, on brief), for defendants-appellees.

Before PHILLIPS, MURNAGHAN, and SPROUSE, Circuit Judges.


MURNAGHAN, Circuit Judge:

Appellant Sharon Temkin was severely injured when the car she was driving was struck by the vehicles of a fleeing misdemeanant and the police officer pursuing him. Temkin and her husband (the Temkins) subsequently brought an action pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of Maryland, against both the driver of the police car, appellee Deputy Sheriff Glen Selby (Selby), and the appellee Frederick County Commissioners (the Commissioners). 1 The complaint also alleged pendent state claims for negligent operation of a motor vehicle, negligent supervision, and loss of consortium.

After considerable discovery, the County moved for summary judgment on the section 1983 counts. The Temkins filed an affidavit in opposition to the summary judgment motion pursuant to Federal Rule of Civil Procedure 56(f), claiming that summary judgment would be inappropriate until

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the Temkins had conducted further discovery. Nevertheless, the district court granted the County's motion and entered summary judgment in their favor on the section 1983 counts, then dismissed the state claims, declining to retain pendent jurisdiction over them.

The Temkins then moved to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) together with an extension of time within which to file a memorandum in support of the motion to alter or amend. The district court denied both motions. The Temkins appeal from both the entry of summary judgment in the County's favor and from the denial of their motion to alter or amend the judgment.


The facts, taken in the light most favorable to the Temkins, are as follows. At approximately 10:00 p.m. on July 14, 1987, Selby, a Frederick County Deputy Sheriff, observed a car spinning its wheels as it left a Texaco gas station on Route 85 in Frederick County. Selby gave chase with his lights and siren activated. Both cars proceeded along Maryland Route 355 at a high rate of speed. While the chase was in progress, an attendant at the Texaco gas station called 911 to report that approximately $17.00 worth of gas had been stolen. The information was relayed to Selby over his radio.

Both vehicles continued along Route 355 at speeds ranging from 65 to 105 miles per hour. Route 355 is a narrow, two-lane highway traversing an area of varying population. At the time of the chase, a carnival was taking place in the area and cars were parked along both sides of the road. At some point, the pursued vehicle failed to navigate a curve in the road, lost control, crossed over the double yellow line, and struck the car in which Sharon Temkin was driving, causing it to spin in a clockwise direction. Selby immediately "stood on the brakes" in an attempt to stop, which resulted in Selby's car skidding out of control, crossing the double yellow line, and hitting Temkin's car broadside on the driver's side. At the moment of impact, Selby's vehicle was traveling at approximately 60 miles per hour. As a result of the collision with Selby's cruiser, Temkin suffered severe and permanent injuries.

At the time the chase took place, the Frederick County Sheriff's Department had in force General Order # 204, which governed the conduct of officers engaged in pursuits. The order required the "onduty supervisor" to monitor all pursuits and granted him the authority to halt any pursuit "if warranted." At the time the chase began, the onduty supervisor was responding to another call. He could not monitor Selby's pursuit because his own radio was inoperative; although he could have monitored the pursuit from the car of the officer accompanying him, he chose not to do so.

On appeal, the Temkins have urged that neither Selby nor the Commissioners were entitled to judgment as a matter of law, and that the district court's entry was premature in light of the Temkins' Rule 56(f) affidavit opposing summary judgment on the ground that further discovery was necessary.


We review a district court's grant of summary judgment de novo, employing the same standards applied by the district court. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir.1987). With Federal Rule of Civil Procedure 56 as our guidepost, we will affirm a grant of summary judgment if, after reviewing the pleadings, depositions, interrogatories, and affidavits, we are satisfied that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). The party moving for summary judgment bears the initial burden of pointing to the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Higgins v. Scherr, 837 F.2d 155, 157 (4th Cir.1988). The burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of

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fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 101 (4th Cir.1987). Summary judgment may only be entered after "adequate time for discovery." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

Turning first to the question of whether Selby was entitled to judgment as a matter of law, 2 Temkin's assertion of error on the point focuses upon the standard of care applied by the district court in determining whether a section 1983 constitutional deprivation on the basis of the "substantive due process" aspects of the Fourteenth Amendment was made out.

The district court below adopted the standard of care set out in Smith v. Bernier, 701 F.Supp. 1171 (D.Md.1988), in which then district Judge Niemeyer wrote that a section 1983 claim alleging a violation of substantive due process can be made out only when the conduct alleged "shock[s] the judicial conscience," id. at 1177, language taken directly from the Supreme Court's opinion in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The Temkins have asserted that the district court erred in adopting the "shocks the conscience" standard. We disagree.

It is axiomatic that "in any § 1983 action the initial inquiry must focus on whether the two essential elements of a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981).

When the constitutional deprivation concerns governmental misconduct implicating the guarantees of life, liberty, and property under the Due Process Clause of the Fourteenth Amendment, additional elements come into play. In Daniels v. Williams, 474 U.S. 327, 334, 106 S.Ct. 662, 666, 88 L.Ed.2d 662 (1986), the Supreme Court held that such a deprivation must flow from conduct amounting to more than mere negligence, but reserved the question as to what types of conduct short of intentional acts rose to the level of a constitutional deprivation. Id. at 334 n. 3, 106 S.Ct. at 666 n. 3. Daniels overruled that part of Parratt v. Taylor which had suggested that mere negligence was sufficient to make out a claim under section 1983 and the Due Process Clause. The part of Parratt that survived Daniels, however, continues to set forth an additional consideration: where a claim is made alleging negligent deprivation of property, and where an adequate post-deprivation remedy exists in state law, the requirements of due process are satisfied. Parratt, 451 U.S. at 544, 101 S.Ct. at 1917.

The Parratt Court defined "adequacy" by balancing the costs associated with imposing

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additional procedural safeguards as a constitutional requirement against the probability that the safeguards would reduce significantly the abuse of official power at issue. Id. at 542-43, 101 S.Ct. at 1916-17 (citing Ingraham v. Wright, 430 U.S. 651, 682, 97 S.Ct. 1401, 1418, 51 L.Ed.2d 711 (1977)).

Because Parratt concerned only conduct characterized as "mere negligence," one troubling question its holding left unanswered was whether the Court had concluded that due process analysis of any official misconduct resulting in a deprivation, no matter what the character of the conduct, was henceforth to be effected in a "strictly procedural" context. Justice Powell in particular was concerned that the majority's analysis had "avoid[ed] entirely the question of whether the Due Process Clause may place substantive limitations on this form of governmental conduct." Id. at 553, 101 S.Ct. at 1922 (Powell, J., concurring).

Such concerns appear to have been substantially alleviated in Daniels. Indeed, a fair reading of Daniels and its companion case, Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), renders as highly doubtful the position that Parratt can be read so broadly as to hold that even intentional or malicious abuses of governmental power do not rise to the level of a violation of due process so long as some adequate state post-deprivation remedy exists. Indeed, the Court later noted there, after citing a long line of...

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