Carney v. White

Decision Date27 January 1994
Docket NumberNo. 91-C-681 (JPS).,91-C-681 (JPS).
Citation843 F. Supp. 462
PartiesPaul CARNEY, individually and Christopher Benson, individually, Plaintiffs, v. Donald K. WHITE, individually, the Village of Darien, Darien Chief of Police Donald Hoppe, Michael Obershaw, President of Village of Darien, Kenneth Blank, Harold Mayer, Curtis Schellhase, Dean Logterman, Wesley Hanson, Village Trustees, Tower Insurance Company, Inc., an insurance corporation now known as GRE Corp., Employers Mutual Casualty Company, a mutual company, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

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Michael J. Cohen, Meissner and Tierney, S.C., Milwaukee, WI, Jerome Wiener, Schain, Firsel, Burney, Ltd., Chicago, IL, for plaintiffs.

Michael J. Cieslewicz, Vicki L. Arrowood, Kasdorf, Lewis & Swietlik, S.C., Milwaukee, WI, for defendants Village of Darien, Donald Hoppe, Michael Obershal, Kenneth Blank, Harold Mayer, Curtis Schellhase, Joseph Moran, Dean Logterman, Wesley Hanson, and Employers Mut. Cas. Co.

Tomislav Z. Kuzmanovic, Hinshaw & Culbertson, Milwaukee, WI, for defendant GRE Corp.

DECISION AND ORDER

STADTMUELLER, District Judge.

Introduction

Plaintiffs Paul Carney and Christopher Benson filed this action under 42 U.S.C. § 1983, alleging that defendant Donald K. White violated their constitutional rights when he harassed and threatened them, and attempted to coerce them into engaging in sexual acts in exchange for dismissing charges levied against them in connection with a traffic stop on July 4, 1985. In addition, plaintiffs' complaint alleges liability on the part of the Village of Darien, Darien Chief of Police Donald Hoppe, Village of Darien President Michael Obershaw,1 and Village of Darien Trustees Kenneth Blank, Harold Mayer, Dean Logterman, and Wesley Hanson (hereinafter referred to as "the Village defendants"), for failing to prevent Officer White from engaging in such conduct despite the fact that they knew or should have known that he had engaged in such conduct in the past.

The action is presently before the court on four motions: (1) a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by the Village of Darien defendants;2 (2) a motion for summary judgment filed by the Village defendants and Empire Mutual Casualty Company (hereinafter "EMCC") seeking a declaratory judgment on the issue of insurance coverage; (3) a motion for summary judgment of dismissal filed by the Village defendants asking the court to dismiss plaintiffs' complaint for failure to state a claim for relief under § 1983, and because Donald White was not acting within the scope of his employment when he committed the offenses alleged; and (4) a motion for summary judgment filed by the Village defendants asking the court to dismiss Donald Hoppe from the action. These motions are now fully-briefed and ready for decision.

Facts and Procedural History

On July 4, 1985, plaintiffs Paul Carney and Christopher Benson were driving on Wisconsin Route 14 in the Village of Darien, when Donald K. White, a police officer with the Village of Darien, effected a traffic stop on the vehicle in which they were travelling. Officer White issued traffic citations and arrested the two for having open intoxicants in the vehicle. The charges were subsequently dropped and the traffic citations voided.

On June 26, 1991, plaintiffs filed an action in this court alleging that Officer White violated plaintiffs' constitutional rights in connection with the aforementioned arrests. Specifically, plaintiffs alleged that Officer White harassed and threatened them, and attempted to coerce them into engaging in sexual acts with him in exchange for his dismissing the charges against them and voiding the traffic citations issued.

Plaintiffs filed a first amended complaint on October 30, 1992, which contained six counts. In Counts I and II, plaintiffs claim violations under 42 U.S.C. § 1983 on behalf of Paul Carney. Count I alleges that Officer White "infringed upon and deprived Paul Carney of his constitutionally protected rights of privacy and his liberty interest in bodily integrity, in violation of his rights under the due process clause, and in violation of his right to be free from unreasonable searches and seizures," all under color of state law and with deliberate, willful, malicious and reckless disregard for Carney's rights. Count II alleges liability on the part of the Village of Darien, Darien Chief of Police Donald Hoppe, Village of Darien President Michael Obershaw, and the Village TrusteesKenneth Blank, Harold Mayer, Curtis Schellhase, Joseph Moran, Dean Logterman, and Wesley Hanson. Specifically, plaintiffs allege that Officer White committed acts of misconduct similar to those alleged in plaintiffs' complaint on numerous occasions prior to and after July 4, 1985, and that the Village defendants, while aware that Officer White was engaging in this type of conduct, took no action to determine whether he was fit to continue to serve as a police officer for the Village of Darien. In particular, plaintiffs allege that defendants knew or should have known that, in 1984, Officer White offered to drop or void a traffic citation issued to Michael M. Rowe, in exchange for sexual favors; Officer White was prosecuted for the alleged offense against Rowe, found guilty and sentenced to a term of imprisonment. Further, plaintiffs allege, after the Police Chief became ill, the Village Officials allowed Officer White to work unsupervised, despite the fact that they were aware of numerous complaints filed concerning Officer White's abusiveness, aggression and misuse of his position as a police officer. Plaintiffs allege that such acts and omissions — performed by defendants as agents of the Village of Darien and under color of state law — caused Carney's constitutionally-protected rights to be violated. Counts IV and V allege that the same facts as set forth in Counts I and II resulted in violations of Christopher Benson's constitutionally-protected rights. Counts I, II, IV and V also alleged liability on the part of Tower Insurance Company, Inc. ("Tower"), and Employers Mutual Casualty Company ("EMCC"). Both of these companies issued insurance policies to the Village of Darien which were in effect at the time of the alleged constitutional deprivations. In Counts III and VI, plaintiffs allege that, pursuant to section 895.46(1)(a) of the Wisconsin Statutes, the Village of Darien is liable as indemnitor for the payment of all damages — including punitive damages and attorneys' fees, awarded against Officer White and the Village defendants. In their complaint, plaintiffs requested compensatory damages in an amount in excess of $50,000.00, punitive damages in an amount not less than $1,000,000.00, and attorneys' fees and costs.

By order dated April 8, 1992, this court entered a judgment of default against Donald K. White with respect to his liability under Counts I and IV of plaintiffs' complaint. The issue of damages was left open, to be assessed and determined by a jury at the time plaintiffs' claims against the nondefaulting defendants are considered.

On May 27, 1992, the Village defendants and EMCC filed a motion for summary judgment asking the court to enter a declaratory judgment on the issue of insurance coverage. Specifically, these defendants ask the court to find that Tower Insurance Company, which is a member of the GRE Corp. group of companies, has a duty to defend this action and to indemnify these defendants in the event plaintiffs prevail and are awarded damages.

On September 3, 1992, the Village defendants and EMCC filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and two additional summary judgment motions — one motion asked the court to dismiss defendant Donald Hoppe from the action for lack of personal jurisdiction; the second asked the court to dismiss plaintiffs' complaint because it cannot sustain a cause of action under 42 U.S.C. § 1983, and because Officer White, to the extent he committed the offenses alleged in the complaint, was not acting within the scope of his employment as a police officer with the Village of Darien.

These motions have all been fully-briefed and are now ripe for consideration.

Discussion
I. Motion To Dismiss

On September 2, 1992, defendants filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion asks the court "to dismiss the Village of Darien and its employees in this action." It is well settled that a complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957), quoted in Means v. City of Chicago, 535 F.Supp. 455, 458 (N.D.Ill. 1982). Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986). On a motion to dismiss pursuant to Rule 12(b)(6), the court accepts as true the factual allegations in plaintiffs' complaint. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, ___ U.S. ___, ___, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Strauss v. City of Chicago, 760 F.2d 765, 766 (7th Cir.1985).

Although plaintiffs' complaint names the Village officials individually, this action is properly characterized as a suit against the Village of Darien, a municipality. See Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985) (a § 1983 claim against an official of a municipality in his or her official capacity is treated as a claim against the municipality itself). Therefore, the issue before the court is whether p...

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