Campbell v. Buckles

• Decision Date: 01 June 1977
• Docket Number: No. CIV-2-76-84.,CIV-2-76-84.
• Citation: 448 F. Supp. 288
• Parties: Allen C. CAMPBELL, Plaintiff, v. Harry BUCKLES et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

448 F. Supp. 288

Allen C. CAMPBELL, Plaintiff, v. Harry BUCKLES et al., Defendants.

No. CIV-2-76-84.

United States District Court, E. D. Tennessee, Northeastern Division.

Memorandum Opinion and Orders October 29, 1976.

On Addendum to Memorandum Opinion and Orders November 8, 1976.

Memorandum Opinion and Order June 1, 1977.

William L. Small, Barksdale, Whalley, Gilbert & Frank, Nashville, Tenn. and Carleton W. Smith, Burkhard & Smith, Greeneville, Tenn., for plaintiff.

David F. Bautista and Robert E. Banks, Street, Banks, Merryman, Bautista & Banks, Elizabethton, Tenn., for defendants.

MEMORANDUM OPINION AND ORDERS

NEESE, District Judge.

This is an action seeking money damages and injunctive relief for the alleged deprivation of the plaintiff's federally-protected civil rights. 28 U.S.C. § 1343(3). The Court's jurisdiction is also sought to be invoked under 28 U.S.C. § 1331(a) and further under the doctrine of pendent jurisdiction as to certain purported claims arising under the law of Tennessee. The defendants moved for a dismissal on the ground of the plaintiff's failure to state a claim upon which relief can be granted, or alternatively, for a summary judgment. Rules 12(b)(6), 56(b), Federal Rules of Civil Procedure.

It is first contended that the defendant Mr. Harry Buckles, as sheriff of Carter County, Tennessee, cannot be held liable herein for the acts of his deputies. Although this is an accurate general statement of the law, Moore v. Buckles, D.C. Tenn. (1975), 404 F.Supp. 1382, 1383-13843, the complaint herein sufficiently alleges the personal involvement of Mr. Buckles to state a cognizable claim against him. Inter alia, it is alleged that such defendant's deputies "* * * under the direction of sheriff Buckles * * *" used an excessive and unreasonable amount of force in arresting the plaintiff. It is further averred that during his incarceration "* * * the plaintiff and his wife made repeated requests to Mr. Buckles for medical care, * * *" but that the same was unreasonably denied in violation of his civil rights. The affidavit of Mr. Buckles indicates that, although he did not physically participate in the plaintiff's arrest, he was present at the scene¹ and that apparently such arrest was conducted under his general supervision. Under such circumstances the Court cannot say "* * * beyond doubt that the plaintiff can prove no set of facts in support of his claim against sheriff Buckles which would entitle him to relief. * * *" Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80, 84 (headnote 4), quoted with approval in Scheuer v. Rhodes (1974), 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 963-5. The motion of Sheriff Buckles for a dismissal on such ground hereby is

OVERRULED.

The defendants are mistaken in their contention that the complaint fails to state substantively a claim against them upon which relief can be granted for the deprivation of the plaintiff's federally-protected civil rights. The use of an excessive and unreasonable amount of force by state law enforcement officers in effectuating an arrest is a violation of the victim's right to due process of law, Constitution, Fourteenth Amendment. Smartt v. Lusk, D.C. Tenn. (1973), 373 F.Supp. 102, 1031, affirmed sub nom. Smartt v. Stalcup, C.A.6th (1974), 492 F.2d 1244; Moore v. Bishop, D.C.Tenn. (1972), 338 F.Supp. 513, 515. Furthermore, "* * * under some circumstances the denial of medical care to a prisoner may give rise to a violation of Fourteenth Amendment due process. * * * Prison authorities may not be deliberately indifferent to the suffering of prisoners under their care. * * *" Westlake v. Lucas, C.A.6th (1976), 537 F.2d 857, 859-8605, 6. As the late Judge Miller stated:

* * * * * *

* * * Fundamental fairness and our most basic conception of due process mandate that medical care be provided to one who is incarcerated and may be suffering from serious illness or injury. This is not to say that every request for medical attention must be heeded nor that courts are to engage in the process of second-guessing in every case the adequacy of medical care that the state provides. But where the circumstances are clearly sufficient to indicate the need of medical attention for injury or illness, the denial of such aid constitute the deprivation of constitutional due process. Citations omitted. * * *

* * * * * *

Fitzke v. Shappell, C.A.6th (1972), 468 F.2d 1072, 10762, quoted with approval in Westlake v. Lucas, supra, 437 F.2d at 8605, 6; accord: Shannon v. Lester, C.A.6th (1975), 519 F.2d 76, 791; Scharfenberger v. Wingo and Wilson, C.A.6th (1976), 542 F.2d 328, 331. "* * * A prisoner states a proper cause of action under 42 U.S.C. § 1983 when he alleges that prison authorities have denied reasonable requests for medical treatment in the face of an obvious need for such attention where the inmate is thereby exposed to undue suffering or the threat of tangible residual injury. * * *" Westlake v. Lucas, supra, 537 F.2d at 8607-9. Such is substantially what the plaintiff has alleged herein. Thus, the defendants' motion for a dismissal on such ground hereby is

OVERRULED.

The more troublesome question is presented by the motion of the defendant Carter County, Tennessee for a dismissal for failure of the plaintiff to state a claim against it on which relief can be granted herein. A county is not a "person" within the contemplation of that term as it is used in 42 U.S.C. § 1983, Moor v. County of Alameda (1973), 411 U.S. 693, 710, 93 S.Ct. 1785, 1796, 36 L.Ed.2d 596, 6102, rehearing denied (1973), 412 U.S. 963, 93 S.Ct. 2999, 37 L.Ed.2d 1012, even though the county (viz., for these purposes, a municipality) may be subject to vicarious liability under state law (cf.: T.C.A. §§ 8-833, 8-834) for the conduct of certain of its law enforcement officers, ibid., 411 U.S. at 706, 93 S.Ct. at 1794, 36 L.Ed.2d at 60811.

There is some support in the Northern District of Illinois for the proposition that, although 28 U.S.C. § 1343 provides no jurisdictional basis for a claim under 42 U.S.C. § 1983, a prisoner (or former prisoner) may circumvent the rule of Moor, supra, by claiming the requisite amount and asserting jurisdiction as a federal question under 28 U.S.C. § 1331(a) for deprivation of rights under the Constitution, Fourteenth Amendment. Ergo: Jamison v. McCurrie, D.C.Ill. (1975), 388 F.Supp. 990; Gresham v. City of Chicago, D.C.Ill. (1975), 405 F.Supp. 410; but see and cf. also: Collum v. Yurkovich, D.C.Ill. (1975), 409 F.Supp. 557, and Williams v. Brown, D.C.Ill. (1975), 398 F.Supp. 155.

The Supreme Court has reserved the question, whether the Congress has the constitutional power to make counties and other municipalities liable for the acts of its officers which violate the civil rights of individual persons. Monroe v. Pape (1961), 365 U.S. 167, 191, 81 S.Ct. 473, 486, 5 L.Ed.2d 492, 507 (headnote 14). One house of the Congress concluded at one juncture that it lacks such power. Moor v. County of Alameda, supra, 411 U.S. at 709, 93 S.Ct. at 1795, 36 L.Ed.2d at 609-61013, 14.²

With the pertinent judicial interpretations in that state of flux, this Court prefers to follow its consistent course of ruling that a Tennessee county is not subject to suit for monetary damages by an individual person claiming a deprivation of his federal civil rights, State ex rel. Davis v. Hartman, D.C.Tenn. (1969), 306 F.Supp. 610, 612-6136, unless and until additional guidance to the contrary is provided from courts superior to a federal district court. Further, in this situation, the plaintiff faults the defendant-county only for having "* * * provided the individual defendants with an official badge and identification card * * *" and with being "* * * the governmental body in whose name the individual defendants performed all acts and omissions alleged herein. * *" This is merely an adroit manner of undertaking to invoke against the defendant-county the doctrine of respondeat superior. Where, as here, monetary damages are sought³ under the provisions of the Civil Rights Act, the doctrine of respondeat superior does not apply. Moore v. Buckles, supra, 404 F.Supp. at 1383-13843.

Accordingly, the motion of the defendant-county hereby is GRANTED, and this action hereby is DISMISSED as to the defendant Carter County, Tennessee for the failure of the plaintiff to state a claim against it on which relief can be granted herein.

The plaintiff further contends that the Court should exercise its pendent jurisdiction against such county over claims based upon the law of the state of Tennessee. It has generally been the rule that the doctrine of pendent jurisdiction is unavailable to assert the pendent claim against one who is not already a party defendant to a validly-existing federal claim. See e. g.: Wojtas v. Village of Niles, C.A.7th (1964), 334 F.2d 797, 7991, certiorari denied (1965), 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558; Rumbaugh v. Winifrede R. Co., C.A.4th (1964), 331 F.2d 530, 53911-13, certiorari denied (1964), 379 U.S. 929, 85 S.Ct. 322, 13 L.Ed.2d 341; Wasserman v. Perugini, C.A.2d (1949), 173 F.2d 305, 306-3074; New Orleans Public Belt R. Co. v. Wallace, C.A.5th (1949), 173 F.2d 145, 1482. Even after the expansion of the doctrine by the Supreme Court, United Mine Workers of America v. Gibbs (1966), 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, a majority of the courts have continued to apply this rule, although there appears to be a substantial minority viewpoint conversely. See, e. g.: Hymer v. Chai, C.A.9th (1969), 407 F.2d 136, 1371, 2, 3; Williams v. United States, C.A.9th (1969), 405 F.2d 951, 9557, 8; Casey v. Purser, D.C.Okl. (1974), 385 F.Supp. 621, 62411; Jacobs v. United States, D.C.Ariz. (1973), 367 F.Supp. 1275, 12771, 2; Jones v. City of Houma, D.C.La. (1972), 339 F.Supp. 473, 4752, 3; Howmet Corp. v. Tokyo Shipping Co., D.C. Del. (1971), 320 F.Supp. 975, 97910; Rosenthal & Rosenthal, Inc....