Bouquett v. Clemmer

• Decision Date: 10 July 1985
• Docket Number: No. C-3-82-146.,C-3-82-146.
• Citation: 626 F. Supp. 46
• Parties: Gaston BOUQUETT, Plaintiff, v. R.H. CLEMMER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

626 F. Supp. 46

Gaston BOUQUETT, Plaintiff, v. R.H. CLEMMER, et al., Defendants.

No. C-3-82-146.

United States District Court, S.D. Ohio, W.D.

July 10, 1985.

Richard Austin, Atty. at Law, Dayton, Ohio, for plaintiff.

Gene W. Holliker, Asst. Atty. Gen., Columbus, Ohio, for defendants Johnson, Young, State Bd. of Pharmacy and State Medical Bd.

Robert A. Burke, Atty. at Law, Dayton, Ohio, for defendants Clemmer, Gentry, Reynolds and City of Dayton.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS' MOTIONS TO DISMISS; INDIVIDUAL DEFENDANTS TO FILE ANSWERS WITHIN STATED PERIOD OF TIME

RICE, District Judge.

This is a civil rights action in which the Plaintiff seeks redress for the alleged malicious prosecution he suffered at the hands of Defendants. The Plaintiff in this case is a black ophthalmologist. There are eight Defendants herein: R.H. Clemmer, Charles E. Gentry and Robert Reynolds, former members of the Organized Crime Unit of the City of Dayton Police Department; the City of Dayton; two agencies of the State of Ohio, the State Board of Pharmacy and the State Medical Board ("state agencies"); and two investigators of the state agencies, David G. Johnson and Charles F. Young. This cause is now before the Court on the Defendants' Motions to Dismiss. See Docs. # 3, # 4. Because the motions to dismiss raise common issues, the Court will discuss them together.

Initially, the state agencies argue that the Eleventh Amendment prohibits imposition of liability upon them. The Court agrees. The Eleventh Amendment applies to state agencies as well as to the state. Hall v. Medical College of Ohio, 742 F.2d 299 (6th Cir.1984). Without question, the State Board of Pharmacy and the State Medical Board are agencies of the State of Ohio, as opposed to political subdivisions. See Ohio Rev.Code § 4729.01 et seq.; § 4731.01 et seq. As such, the Eleventh Amendment is an absolute bar to the imposition of liability upon the state agencies. See, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).

Plaintiff does not seriously argue otherwise. However, Plaintiff asserts that because he has requested the Court to award "such other and further relief as may be just and proper," this case comes within the exception to the Eleventh Amendment for cases seeking prospective injunctive relief. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Court does not agree. Initially, the Court does not accept Plaintiff's basic premise that the above quoted language, along with the remainder of Plaintiff's complaint, is sufficient to state a claim for prospective injunctive relief against either of the state agencies. However, even assuming arguendo that Plaintiff has stated a claim for prospective injunctive relief, there would not be a present case or controversy between the Plaintiff and the state agencies sufficient to invoke the Court's exercise of its subject matter jurisdiction. Therefore, the Court could not grant injunctive relief. Generally, past exposure to unlawful or unconstitutional behavior by the police does not give a person standing to request prospective injunctive relief to enjoin the behavior complained of absent a showing that he or she is likely to be exposed to similar unconstitutional behavior in the future. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Therefore, there would be no case or controversy, sufficient to support a claim for injunctive relief.

The Court concludes that the Eleventh Amendment is an absolute bar to Plaintiff's claims against the state agencies. Accordingly, Plaintiff does not have a viable claim for injunctive relief against the state agencies, and it follows that the state agencies cannot be liable for attorney's fees. The Court hereby orders the State Board of Pharmacy and the State Medical Board dismissed as Defendants to this action.

The City of Dayton argues that Plaintiff's claims against it are barred by Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).¹ In his complaint, Plaintiff alleges:

The City of Dayton, the State of Ohio Medical Board and the State of Ohio Board of Pharmacy are vicariously libel for the wilfull, malicious and negligent action of its employees, Defendants Clemmer, Gentry, Reynolds, Johnson and Young, and were negligent in the manner in which they trained and supervised the said individual Defendants in the performance of their official duties.

Doc. # 1 at ¶ 8. Without question, Monell prevents the Plaintiff from attempting to hold the City of Dayton vicariously liable, under a respondeat superior theory, for his claim arising under 42 U.S.C. § 1983. Additionally, Courts have extended Monell to claims arising under 42 U.S.C. § 1985(3). See, e.g., Bell v. City of Milwaukee, 536 F.Supp. 462 (E.D.Wisc.1982), modified, 746 F.2d 1205 (7th Cir.1984); Vasquez v. City of Reno, 461 F.Supp. 1098 (D.Nev.1978). However, a municipality may be vicariously liable under 42 U.S.C. § 1981. Leonard v. City of Frankfort Electric and Water Plant Board, 752 F.2d 189, 194 n. 9 (6th Cir.1984). Additionally, the Sixth Circuit has consistently held that a municipality or other governmental employer may be held liable for the negligent training and supervision of its employees. Ryman v. Davis, 754 F.2d 158 (6th Cir.1985); Hays v. Jefferson County, 668 F.2d 869 (6th Cir.1982), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1983).

Therefore, this Court concludes that the Plaintiff's claims, under §§ 1983 and 1985, in which Plaintiff seeks to impose vicarious liability upon the City of Dayton, must be dismissed. Otherwise, Plaintiff's allegations against the City of Dayton state claims for relief.

All remaining Defendants move to dismiss Plaintiff's claims under §§ 1981, 1983 and 1985.² The Court will discuss these arguments in order.

(1) 42 U.S.C. § 1981

In asserting that Plaintiff's § 1981 claim must be dismissed, the Defendants raise two arguments. First, it is argued that Plaintiff's complaint is fatally deficient because it does not contain an allegation that he was subjected to the actions complained of because of his race. Second, it is argued that Plaintiff's underlying claim, for malicious prosecution, is not actionable under § 1981.

As to the first argument, the Court agrees with Defendants that allegations and proof of racial discrimination are necessary to recovery under § 1981. However, the Court cannot concur with Defendants' assertion that Plaintiff's complaint fails to allege that he is the victim of racial discrimination. Recently, the Sixth Circuit restated the standard governing the dismissal of civil rights actions:

In civil rights actions, pleadings are to be liberally construed and a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Fitzke v. Shappell, 468 F.2d 1072 (6th Cir.1972).

Leonard, 752 F.2d at 193. In the present case, Plaintiff alleges that he is of African descent and that by the initiation of the malicious, criminal prosecution of him, the Defendants denied him equal protection of laws because of his race or color. While the allegations in Plaintiff's complaint are "bare-bones" to say the least, they are sufficient to meet the standard set forth in Leonard.

The second contention of the Defendants raises a much more perplexing question. Defendants contend that malicious prosecution is not proscribed by § 1981 even if the prosecution is initiated with a racially discriminatory intent.

Section 1981, unlike §§ 1983 and 1985, is substantive rather than remedial. Section 1981 provides that all persons within the United States shall have the same right in every state to make and enforce contracts, to sue, to be parties, to give evidence and "to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."³ The Court does not read § 1981 as narrowly as do the Defendants. Courts have looked to the final two clauses of § 1981 — the "equal benefit" and "like punishment" clauses — and concluded that various types of racially motivated police misconduct is actionable under § 1981. Mahone v. Waddle, 564 F.2d 1018 (3rd Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978); Spriggs v. City of Chicago, 523 F.Supp. 138 (N.D.Ill.1981); Jones v. City of Philadelphia, 491 F.Supp. 284 (E.D.Pa.1980); Raffety v. Prince George's County, 423 F.Supp. 1045 (D.Md. 1976). Likewise, this Court concludes that Plaintiff's claim that he was subjected to a racially motivated, malicious prosecution is actionable under § 1981.

(2) 42 U.S.C. § 1983

The Defendants move to dismiss Plaintiff's claim under § 1983 arguing that he does not allege the deprivation of a constitutional right. In particular, Defendants assert that Plaintiff's claim for malicious prosecution, without more, does not state a claim for relief under § 1983. This Court agrees. Courts have generally held, that with certain exceptions, a valid § 1983 action is not made out simply by alleging that the state tort of malicious prosecution was committed by a person acting under color of law. See, e.g., Cramer v. Crutchfield, 648 F.2d 943, 945 (4th Cir.1981); Bell v. Brennan, 570 F.Supp. 1116, 1118 (E.D. Pa.1983). Cf. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (Every common law tort of false imprisonment committed by a person acting under color of state law does not give rise to a violation of § 1983). However, the Court does not read Plaintiffs' Complaint as narrowly as do Defendants. It is the exceptions to this...