974 F.2d 1006 (8th Cir. 1992), 89-2863, Gregory v. City of Rogers, Ark.

Docket Nº:89-2863.
Citation:974 F.2d 1006
Party Name:Garner GREGORY, Administrator of the Estate of Joe Edwin Gregory; Beate Gregory, individually and as mother and next friend of Joe Ray Gregory; and Donna Mae Fields, Appellants, v. The CITY OF ROGERS, ARKANSAS; Ptl. Ronnie Howell, individually and in his capacity as a police officer of the City of Rogers, Arkansas; and Imperial Casualty and Indemni
Case Date:September 09, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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974 F.2d 1006 (8th Cir. 1992)

Garner GREGORY, Administrator of the Estate of Joe Edwin

Gregory; Beate Gregory, individually and as

mother and next friend of Joe Ray

Gregory; and Donna Mae

Fields, Appellants,


The CITY OF ROGERS, ARKANSAS; Ptl. Ronnie Howell,

individually and in his capacity as a police

officer of the City of Rogers, Arkansas;

and Imperial Casualty and

Indemnity Co., Appellees.

No. 89-2863.

United States Court of Appeals, Eighth Circuit

September 9, 1992

Submitted May 13, 1991.

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Susan A. Fox, Springdale, Ark., argued en banc, for appellants.

David Harlan White, Hot Springs, Ark., argued en banc, for appellees.

Before LAY, [*] Chief Judge, HEANEY, Senior Circuit Judge, McMILLIAN, RICHARD S. ARNOLD, [**] JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, and LOKEN, Circuit Judges, en banc.

FAGG, Circuit Judge.

Garner Gregory, Beate Gregory, and Donna Mae Fields (the appellants) appeal the district court's order granting summary judgment to the City of Rogers, Arkansas, and Officer Ronnie Howell (the appellees) in this 42 U.S.C. § 1983 action. We affirm.


We review the district court's grant of summary judgment de novo. Gumersell v. Director, Fed. Emergency Management Agency, 950 F.2d 550, 553 (8th Cir.1991). Because this case comes to us on the appellees' motion for summary judgment, the appellants' evidence "[must] be believed, and all justifiable inferences [must] be drawn in [the appellants'] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Viewed in this light, the record reveals the following series of events leading to this lawsuit.

One weekend night in late March 1986, Joe Edwin Gregory, Donna Mae Fields, and Stanley Turner decided to visit several nightclubs together. Turner drove the three of them in Gregory's car and served as Gregory and Fields's "designated driver" for the evening. (Am.Compl. p 11; Fields Dep. at 21.) After the nightclubs closed, Turner started to drive Gregory and Fields home. Officer Howell, a Rogers

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policeman, stopped Turner for running a red light. Turner pulled into a local restaurant's parking lot and got out of the car. Fields, fearing she and Gregory would be arrested for public intoxication, told Gregory to be quiet to avoid drawing attention to themselves. (Fields Dep. at 7, 25.) Despite Fields's admonishment, Gregory got out of the car. Officer Marty Pollock, another Rogers policeman who was present, observed Gregory while he was outside the car. Gregory's behavior, however, did not reveal his intoxication. According to Officer Pollock, Gregory was neither belligerent nor argumentative, he got back in the car when Officer Pollock asked him to do so, and Officer Pollock "did not notice anything peculiar about him." (Pollock Dep. at 20-21.) Fields remained in the car and had no contact with either officer. Although Officer Howell walked up to the car, (Fields Dep. at 7), "[he] was not aware that the passengers in the [car] were intoxicated. They were not unruly. [He] observed no open containers [and] did [not] smell alcohol in the car or on their persons." (Howell Aff. p 9.) Likewise, although Fields stated she had several helium filled balloons in the car, at which she and Gregory were batting "trying to keep them in the back" [of the car when] "they kept coming up over the back of the seat," (Fields Dep. at 37), Officer Pollock could not recall seeing the balloons or hearing any noise coming from the Gregory car, (Pollock Dep. at 20).

Turner talked with Officer Howell while standing at the rear of Gregory's car. During this discussion, Turner told Officer Howell that he, Gregory, and Fields were friends; they had decided "to go out and party" to take Gregory's mind off his marital problems; and they had visited "some nightclubs." Turner also told Officer Howell that Gregory and Fields "had been drinking" and he was "driving them home." (Pollock Dep. at 19, 24.) Turner, however, did not tell Officer Howell that he was driving because Gregory and Fields were intoxicated. For his part, Turner was sober and fit to drive, and Gregory's appearance outside the car did nothing to suggest his condition was any different. Although Fields has little memory about the evening, she does not recall that "she did anything or took any action that would cause a police officer to arrest [her]." (Fields Dep. at 21.)

Officer Howell requested a routine warrant check on Turner, which revealed an outstanding warrant for Turner's arrest. Because the warrant was not of a serious nature, Officer Howell granted Turner's request that he be allowed to drive to the Rogers police station to clear up the outstanding warrant. Gregory and Fields remained with Turner. Turner drove to the police station and parked on a city street in front of the station. As soon as Turner stopped in front of the station, Officer Pollock drove away and resumed his duties elsewhere. Officer Howell parked his patrol car in the police station's parking lot behind the building. Turner left Gregory and Fields in the car and walked into the station where he met Officer Howell. (Howell Dep. at 23.) Howell did not ask Turner about Gregory and Fields, id., and Howell's deposition does not show Turner said anything about Gregory and Fields or expressed any concern about them waiting in the car. It is undisputed that Gregory and Fields were never under Officer Howell's control, taken into custody, or placed under arrest.

Approximately thirty minutes after Turner and Officer Howell met inside the station, "Gregory drove the car away from the police station." (Am.Compl. p 17.) Unlike Turner, Gregory and Fields were quite intoxicated. Regrettably, Gregory and Fields were involved in a single car accident that killed Gregory and injured Fields. Tests later confirmed that Gregory and Fields each had blood-alcohol contents above the Arkansas legal limits for operating a motor vehicle. The record shows that after Gregory had driven off, but before the accident occurred, the police dispatcher sent out a radio bulletin alerting patrolling officers to be on the lookout for the Gregory car because "the driver was probably going to be intoxicated." (Pollock Dep. at 33.) The record does not reveal how the dispatcher obtained this information, but

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Officer Howell first learned Gregory and Fields had driven away after the accident had occurred. (Howell Dep. at 25.)

Fields, together with Gregory's wife, son, and estate, brought this section 1983 action contending Officer Howell and the City of Rogers violated Gregory's and Fields's Fourteenth Amendment substantive due process rights. According to the appellants, Officer Howell placed Gregory and Fields in danger by allowing them to remain in the car in front of the police station while waiting for Turner "in spite of their obviously intoxicated condition." (Am.Compl. pp 15-16.) The district court, however, concluded the appellants' claims sounded in negligence and, thus, were insufficient to state a claim under section 1983. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) (holding a government official's negligent conduct will not support a substantive due process claim under section 1983); Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986) (same). The district court granted the appellees' motion for summary judgment and dismissed the appellants' lawsuit. The appellants appeal from this dismissal.


To prevail under section 1983, the appellants must show that persons acting under color of state law deprived Gregory and Fields "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), overruled on other grounds, Daniels, 474 U.S. at 330-31, 106 S.Ct. at 664-65. The parties do not dispute that Officer Howell and the City of Rogers acted under color of state law. Thus, our threshold inquiry is whether Officer Howell and the City of Rogers deprived Gregory and Fields of a substantive right arising under the Fourteenth Amendment. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Wells v. Walker, 852 F.2d 368, 370 (8th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989).

The Fourteenth Amendment Due Process Clause, like its Fifth Amendment counterpart, protects persons against abusive, arbitrary, or oppressive government conduct. See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989); Daniels, 474 U.S. at 331, 106 S.Ct. at 665; Davidson, 474 U.S. at 348, 106 S.Ct. at 670. Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws. See Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). Indeed, "the [F]ourteenth [A]mendment is not implicated by the lack of due care of an official causing unintended injury to life, liberty, or property." Abernathy v. Perry, 869 F.2d 1146, 1148 (8th Cir.1989) (citing Daniels, 474 U.S. at 328, 106 S.Ct. at 663; Davidson, 474 U.S. at 347, 106 S.Ct. at 670). Thus, to survive a motion for summary judgment, the appellants must show the summary judgment record supports their claim that the appellees' conduct rose to the level of a constitutional tort for which section 1983 provides a remedy.

The appellants contend Officer Howell violated Gregory's and Fields's substantive due process rights by failing to provide for their safety after he detained their designated...

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