Bettio v. Village of Northfield, No. 91-CV-1383.

Decision Date18 October 1991
Docket NumberNo. 91-CV-1383.
Citation775 F. Supp. 1545
PartiesDonald J. BETTIO, Plaintiff, v. VILLAGE OF NORTHFIELD, Defendant.
CourtU.S. District Court — Northern District of Ohio

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John R. James, Fairlawn, Ohio, for plaintiff.

Robert D. Archibald, McNeal, Schick, Archibald & Biro, Joseph W. Diemert, Jr., Joseph W. Diemert, Jr. & Associates, Alan E. Johnson, Leo R. Ward, Ward & Associates, Mark J. Valponi, Kelley, McCann & Livingstone, Walter A. Rodgers, Timothy G. Sweeney, Quandt, Giffels, Buck & Rodgers, Cleveland, Ohio, for defendants.

ORDER

SAM H. BELL, District Judge.

Currently pending before the court in the above-captioned matter are motions to dismiss the complaint on the basis of qualified immunity filed by all of the individual defendants herein: Charles A. Greenlee, Barbara L. Blankenship, Mike Fugo, Bruce Dobbins, Thomas Stetka, Shelli Niederle, Michael L. Satola, L. James Juliano, and James Varga.1 Plaintiff Donald J. Bettio has filed a brief in opposition to the motions to dismiss and defendants Greenlee, Blankenship, Fugo, Dobbins, Stetka, Niederle, and Varga have filed a reply brief.

In the motions to dismiss defendants challenge the legal sufficiency of the complaint, which is premised upon 42 U.S.C. § 1983, by arguing that the allegations contained therein do not state a claim which overcomes the defense of qualified immunity. The court's duty is to determine whether the defendant officials are entitled to this defense based solely upon the factual allegations contained in the complaint. These allegations, for purposes of the subject motion, must of course be regarded as true. See Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062, 1065 (6th Cir.1984). Each of the averments contained in the complaint is pleaded with an abundance of breadth. Thus, to properly rule on the motion now before the court, it is necessary to discuss individually the claims of plaintiff. Any attempt to resolve the issues raised by the motion demands an expansive discussion of those issues. Thus, the length of this opinion is regrettable; it is so not because of desire but rather because of necessity.

I. QUALIFIED IMMUNITY

The standard for deciding the issue of qualified immunity has been set forth in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In that case the Eighth Circuit Court of Appeals reversed the trial court's grant of summary judgment relief in a Bivens2 action.

In vacating the Court of Appeals's decision, the Supreme Court reaffirmed the objective test for qualified immunity established in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow, the Court had stated 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." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

The Court in Creighton not only reaffirmed but expanded upon Harlow by holding that in a qualified immunity analysis, the Court must determine whether a reasonable person could have believed that defendants' actions were lawful in light of clearly established law and in light of the information the defendants possessed at the time of the incident. Creighton, 483 U.S. at 641, 107 S.Ct. at 3039-40. The Creighton Court clearly places more emphasis on the objective reasonableness of an officer's actions as based upon the information he or she possesses, whereas the Harlow Court focused more upon whether or not the right asserted is clearly established. In his opinion in Martin v. City of Eastlake, 686 F.Supp. 620, 626 (N.D.Ohio 1988), Judge Krenzler states in part:

Under the Creighton standard, an officer may be able to successfully assert the qualified immunity defense even though he violated a clearly established constitutional right. The focus of the qualified immunity defense in Creighton is not on whether the constitutional right was established or not, but is on whether a reasonable police officer would have believed that the actions violated clearly established constitutional rights.

A right is "clearly established" when the contours of that right are sufficiently clear that a reasonable officer would understand that what he is doing violates that right. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039. See also Poe v. Haydon, 853 F.2d 418, 423 (6th Cir.1988) ("The relevant inquiry focuses on whether a reasonable official in the defendant's position could have believed his conduct to be lawful, considering the state of the law as it existed when the defendant took his challenged actions."); Good v. Dauphin County Social Services, 891 F.2d 1087, 1091-92 (3d Cir.1989); Yerardi's Moody St. Rest. v. Board of Selectmen, 878 F.2d 16, 19-20 (1st Cir.1989); Osabutey v. Welch, 857 F.2d 220, 223 (4th Cir.1988).

While the immunity issue in Creighton centered about the conduct of police officers, Harlow teaches that the defense is available to government officials in general. Where the official is not engaging in judicial or quasi-judicial activities, the defense applies.

Nonjudicial officials, who need protection from claims or harassment which would interfere with their duties, ordinarily are accorded qualified immunity ... when the nonjudicial official undertakes action on his own initiative or when he carries out administrative or investigatory functions of the prosecutor, he can only claim the affirmative defense of qualified immunity.

Joseph v. Patterson, 795 F.2d 549, 560 (6th Cir.1986), cert. denied 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987).

Proper analysis of the application of the qualified immunity doctrine directs the court to begin by making a twofold inquiry into the sufficiency of the complaint held to the light of a motion to dismiss. First, the court must ask whether the constitutional rights alleged to have been violated were clearly established at the time of the alleged incidents. This inquiry involves a threshold determination, for "concomitant to the determination of whether the constitutional rights asserted by plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. ___, ___, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277, 287 (1991). In this regard, a motion to dismiss on the basis of qualified immunity also serves as an argument that the plaintiff's complaint fails to allege the deprivation of a constitutional right. In making the determination of whether the right was clearly established, the district court must look to decisions of the Supreme Court or those of the Sixth Circuit. See Hall v. Shipley, 932 F.2d 1147, 1150 (6th Cir.1991); Eugene D. v. Karman, 889 F.2d 701, 706 (6th Cir.1989), cert. denied ___ U.S. ___, 110 S.Ct. 2631, 110 L.Ed.2d 651 (1990).

Finally, in determining whether the right was clearly established at the time of the alleged violation, the court should not focus on the right in a generalized, abstract sense. Rather, the court should focus upon the factual allegations in the complaint and examine the allegations regarding the defendant officials' misconduct in determining whether the right was clearly established in a "particularized" sense.

The right in question, however, cannot be simply a generalized right, like the right to due process. Anderson, 107 S.Ct. at 3038. It must be clearly established in a "particularized" sense, so that "the contours of the right" are clear enough for any reasonable official in the defendants' position to know that what the official is doing violates that right. Id. at 3039. This particularity requirement does not mean that the very action in question has been held unlawful; it does mean, though, that in the light of the preexisting law, the illegality of the action must be apparent. Ibid.

Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir.1989), cert. denied ___ U.S. ___, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990).

As one can ascertain from this discussion, the second inquiry under the qualified immunity analysis is inextricably intertwined with the first. Under the second inquiry, the court must examine the allegations of the complaint which relate to the alleged misconduct of the defendant officials; in the context of a motion to dismiss, the court must accept these allegations as true. The court must then ask and answer the following question: would any reasonable official in defendants' position have known that what defendants did, as expressed in the allegations, violated plaintiff's clearly established rights? In formulating its answer to this question, the court must keep in mind the fact-specific, "particularized" nature of the first inquiry, and determine whether, under the allegations of the complaint, the defendant officials should have known that what they were doing, specifically, was illegal in light of preexisting law.

The preceding discussion is but another way of stating that, "where a § 1983 action has been asserted against public officials who may be entitled to ... qualified immunity, the complaint must state with factual specificity the bases upon which the potentially immune defendant will be unable to successfully maintain the defense of immunity." Scarso v. Cuyahoga County Department of Human Services, 747 F.Supp. 381, 386 (N.D.Ohio 1989), aff'd in part rev'd in part 917 F.2d 1305 (1990). Put in another fashion: "where a plaintiff fails to allege sufficient allegations to withstand the qualified immunity defense, it is proper to grant a motion to dismiss." Id., citing Dominque v. Telb, 831 F.2d 673, 676 ...

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