Bennett v. City of Slidell, 81-3236

Decision Date02 April 1984
Docket NumberNo. 81-3236,81-3236
Citation728 F.2d 762
PartiesHenry J. BENNETT, Jr., Plaintiff-Appellee, v. CITY OF SLIDELL, Gerry Hinton, B.E. McDaniel, Nunzio Giordano, and Patrick J. Berrigan, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Frank M. RePass, III, New Orleans, La., for City of Slidell, Gerry Hinton, et al.

R. Gordon Kean, Jr., Pamela C. Walker, Baton Rouge, La., for amicus-Louisiana Municipal Assoc.

David W. Oestreicher, II, New Orleans, La., Fernando J. Estopinal, III, Slidell, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, BROWN, GEE, GARZA, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS,

GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges *.

REAVLEY, Circuit Judge:

Our question is whether the City of Slidell has 42 U.S.C. Sec. 1983 liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the conduct of two of its employees. The City has been held liable for damages to Henry Bennett caused by prejudicial treatment at the hands of the city attorney and building inspector. We hold that the City is not liable.

1. The Case Below

Bennett's complaint is the delay of a liquor license and an occupancy permit, which were required for the operation of his lounge, the Club Rustique, in Slidell. Under Louisiana law liquor licenses are issued by the city council. The Slidell city attorney, Patrick J. Berrigan, was slow to complete his review of the liquor license application and then advised council delay because of a legal question. The city building inspector, Bill Dugas, refused to issue the certificate approving premise compliance with city standards until Bennett had blacktopped a parking area of proper size, a city code requirement which was not uniformly enforced. At the instance of Berrigan and Dugas the electric service to the premises was discontinued for a time. The motivation for this unfair treatment was the opposition to Bennett's lounge from the owner of the adjacent property, who was also the city auditor and who boasted openly of his influence.

Bennett sought monetary damages by this suit under 42 U.S.C. Secs. 1983 and 1985, contending that the City and its officers deprived him of constitutionally protected rights to due process and equal protection. A jury found no conspiracy among the defendants but did find that the City acted outside lawful authority and deprived Bennett of a property interest without due process of law. The same findings were made against Berrigan and three members of the city council. Dugas was not sued. The city was assessed $20,000 and the individuals $1,000 each. The district judge denied the post-trial motions of defendants. Bennett v. City of Slidell, 518 F.Supp. 59 (E.D.La.1981). A panel of this court upheld the liability of the City and Berrigan but reversed as to the council members. Bennett v. City of Slidell, 697 F.2d 657 (5th Cir.1983). At the outset we reinstate the panel holding on all issues except that of the liability of the City.

2. City 1 Liability And The Unsettled Contour

Section 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that a municipal corporation was not a "person" within the meaning of this act. This holding was overruled in Monell, and now the governmental entity itself may be subjected to monetary as well as declaratory and injunctive relief. The Court in Monell held that local governments may be the targets of a Sec. 1983 action where official policy or governmental custom is responsible for a deprivation of rights protected by the Constitution, but it rejected governmental respondeat superior liability under Sec. 1983. The Court summarized its holding:

We conclude, therefore, that a local government may not be sued under Sec. 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Sec. 1983.

436 U.S. at 694, 98 S.Ct. at 2037-38. The Court repeated this statement in Owen v. City of Independence, 445 U.S. 622, 633, 100 S.Ct. 1398, 1406, 63 L.Ed.2d 673 (1980), where the Court held that a municipality may not assert the good faith of its officials as a defense to its own liability.

In both Monell and Owen there was no question but that the objectionable conduct was city policy. No one challenged the assertion, in Monell, that the City of New York had maintained a policy which compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. In Owen official actions of the city council itself injured plaintiff's reputation without due process of law. There has been no occasion for the Court to address "what the full contours of municipal liability under Sec. 1983 may be," as it said in Monell, 436 U.S. at 695, 98 S.Ct. at 2038. One of the unsettled questions is the identification of "those whose edicts or acts may fairly be said to represent official policy." Where the governing body itself does not commit the act or promulgate the policy or countenance the custom, under what circumstances will the conduct or policy or custom of an agent subject the city to liability? When that question is answered, the disposition of the present case as well as many others will be altered and perhaps simplified.

3. Contours Under Veil

The district judge indicated during the trial that the City of Slidell would be bound if Dugas was acting pursuant to his city authority. No instructions were given the jury relative to the proof required to find the City liable, as distinguished from the elements of plaintiff's case against each of the individual defendants. In his order denying the City's post-trial motions, the judge justified the City's liability on two grounds: that unequal application of the building code by Dugas was pursuant to municipal custom or usage, and that the denial of the occupancy permit by Dugas represented official policy inasmuch as his decisions were never questioned. 518 F.Supp. at 60. The judge's difficulty at this point is easily understood when the various writings of this and other courts of appeals are considered. The panel of this court, in affirming the City's liability, said that Monell was satisfied because Dugas and Berrigan acted as officials within their authority. The court quoted an often cited article that seems to equate the policies of a city employee, if within the authority of his employment, with city policy. 697 F.2d at 661 n. 11, citing Schnapper, Civil Rights Litigation After Monell, 79 Colum.L.Rev. 213 (1979).

We stated in Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir.1980), that in those areas where a city officer "is the final authority or ultimate repository of [city] power his official conduct and decisions must necessarily be considered those of one 'whose edicts or acts may fairly be said to represent official policy' for which the [city] may be held responsible under Sec. 1983." Id. at 920. The Schneider court was quoting from Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980), where the governmental officer in mind was one elected directly by the people and whose authority was derived by office and state law and not from another governing body. 2 In Bowen v. Watkins, 669 F.2d 979, 989-90 (5th Cir.1982) however, citing Schneider, the court again emphasized the matter of final authority (though subject to that of the governing body) as the touchstone of government policymaking. Other circuits have followed this rationale: E.g., Rookard v. Health And Hospitals Corp., 710 F.2d 41, 45 (2d Cir.1983); McKinley v. City of Eloy, 705 F.2d 1110, 1116 (9th Cir.1983); Berdin v. Duggan, 701 F.2d 909, 914 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983); Williams v. City of Valdosta, 689 F.2d 964, 969 (11th Cir.1982); Hearn v. City of Gainesville, 688 F.2d 1328, 1334-1335 (11th Cir.1982). See Goode, The Changing Nature of Local Governmental Liability Under Section 1983, 22 Urb.L.Ann. 71, 90 (1981). Still other courts have attributed to the city government the conduct of its senior employees. Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980) ("where senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but fail to take remedial steps, the municipality may be held liable for a subsequent violation if the superior's inaction amounts to deliberate indifference or to tacit authorization of the offensive acts"), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); Hays v. Jefferson County, 668 F.2d 869, 975 (6th Cir.1982) (failure of chief of police or assistant chief would be failure of county).

4. Contours Better Defined

If a city may be liable only where the injury is inflicted in the execution of city policy, the complainant must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy. Plaintiff must, of course, prove that his injury was caused by city policy. We deal here with how policy may be attributed to the city.

a. City Policy (of City's Governing Body)

The interference with the rights of the plaintiff must be due to a violation for which the city government itself is responsible. Usually a council or commission will be the governing body to which responsibility...

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