Davoll v. Webb, Civil Action No. 93-K-2263.

• Decision Date: 10 October 1996
• Docket Number: Civil Action No. 93-K-2263.
• Citation: 943 F.Supp. 1289
• Parties: Jack L. DAVOLL; Deborah A. Clair; and Paul L. Escobedo; on behalf of themselves and a class of persons similarly situated, Plaintiffs, v. Wellington WEBB, in his capacity as the Mayor of the City and County of Denver; The City and County of Denver; David L. Michaud, in his capacity as the Chief of the Denver Police Department; Elizabeth H. McCann, in her capacity as the Manager of Safety for the City and County of Denver; Civil Service Commission, for the City and County of Denver, Defendants.
• Court: U.S. District Court — District of Colorado

943 F.Supp. 1289

Jack L. DAVOLL; Deborah A. Clair; and Paul L. Escobedo; on behalf of themselves and a class of persons similarly situated, Plaintiffs, v. Wellington WEBB, in his capacity as the Mayor of the City and County of Denver; The City and County of Denver; David L. Michaud, in his capacity as the Chief of the Denver Police Department; Elizabeth H. McCann, in her capacity as the Manager of Safety for the City and County of Denver; Civil Service Commission, for the City and County of Denver, Defendants.

Civil Action No. 93-K-2263.

United States District Court, D. Colorado.

October 10, 1996.

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David C. Feola, Denver, CO, Marilee E. Langhoff, Littleton, CO, for Plaintiffs.

J. Wallace Wortham, Jr., Assistant City Attorney, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

KANE, Senior District Judge.

I. Introduction.

Plaintiffs Jack L. Davoll, Deborah Clair and Paul Escobedo bring this action against the City and County of Denver ("the City"), Wellington Webb, in his capacity as Mayor of the City and County of Denver, David L. Michaud, in his capacity as the Chief of the Denver Police Department, Elizabeth H. McCann, in her capacity as Manager of Safety for the City and County of Denver and the Civil Service Commission of Denver.

Plaintiffs seek monetary damages, declaratory and injunctive relief pursuant to:

(A) The Americans with Disabilities Act 42 U.S.C. §§ 12101-12213 ("the ADA"), on the grounds that:

(1) They are "otherwise qualified individuals" within the meaning of the ADA and

(2) As such, the City failed to provide "reasonable accommodation" by not offering Plaintiffs permanent light duty positions and/or by not reassigning Plaintiffs to other positions within the City;

(3) The City has failed to establish policies and procedures to facilitate the implementation of the ADA, thereby denying Plaintiffs the protection afforded by that statute;

(4) The City has engaged in disparate treatment of police officers with disabilities, whereby some remain employed at full salary and others are required to retire; and

(5) The City has inconsistently applied the "essential job functions criteria" in violation of the ADA.

(B) 42 U.S.C. § 1983 and the Equal Protection and Due Process Clauses of the United States Constitution, on the grounds that:

(1) The ongoing disparate treatment of disabled police officers by the City, whereby some are retained at full salary and others are required to retire at reduced benefits and salary, violates the Equal Protection Clause;

(2) The disparate application of the "essential job functions" criteria by the City violates the Equal Protection Clause; and

(3) The City's implementation of policies and procedures pursuant to the requirements of the ADA in other City departments, but not within the Denver Police Department, violates the Equal Protection Clause.

Defendants have filed a motion for summary judgment seeking:

(A) To dismiss Webb, Michaud, McCann and the Civil Service Commission, because the City has been named as a defendant in the action;

(B) Judgment on the ADA claim because:

(1) Plaintiffs have not met the administrative prerequisites to bringing an individual ADA action, and

(2) Plaintiffs are not "otherwise qualified individuals" within the meaning of the ADA;

(C) Judgment on the 42 U.S.C. § 1983 claim, Equal Protection and Due Process claims, because:

(1) There is no evidence of unconstitutional custom and policy (2) Plaintiffs fail to state a due process claim,

(3) Plaintiffs fail to state an equal protection claim, and

(4) The ADA provides the exclusive remedy for Plaintiffs' equal protection claim.

In addition to Defendants' Motion For Summary Judgment, Plaintiffs' Response and Defendants' Reply, the United States has filed an Amicus Curiae brief pertaining to the ADA interpretation issues raised in this case.

II. Background.

Plaintiffs were patrol officers in the Denver Police Department who sustained workrelated injuries which rendered them unable to perform the essential functions of their jobs as police officers, particularly, the ability to make a forcible arrest and to fire a weapon.

Consequently, the Denver Police Department assigned each Plaintiff to a temporary light duty position. When Plaintiffs' eligibility for light duty positions expired, a medical determination was made that they could not return to full duty, and each was given a permanent light duty position for an indefinite period of time. Plaintiffs subsequently sought and were granted occupational disability retirement from the Fire and Police Pension Association.

III. Standard for Summary Judgment.

Under Federal Rule of Civil Procedure 56(c), a court may grant summary judgment where there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The burden of establishing the non-existence of a material fact is initially on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), Thrifty Rent-A-Car Sys., Inc. v. Brown Flight Rental One Corp., 24 F.3d 1190, 1194 (10th Cir.1994). When the moving party has met its initial burden, it then shifts to the non-moving party to establish that there is a triable issue of fact. Id. A triable issue of fact exists where "there is sufficient evidence favoring the non-moving party for a jury to return a verdict in favor of that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). The facts presented, and the appropriate inferences that may be drawn from them, must be construed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10. However, in the face of a properly supported motion for summary judgment, the nonmoving party may not rely on unsupported allegations without "any significant probative evidence tending to support the complaint." Id. at 249, 106 S.Ct. at 2510.

IV. Merits.

A. Dismissal of Individual Defendants.

Defendants assert naming both the City and its employees in their official capacity is redundant, and therefore the City officials should be dismissed as individual defendants in the action. Similarly, Defendants argue naming the Civil Service Commission independently is redundant and this entity should be dismissed as well.

Plaintiffs offer no objection to the dismissal of the Civil Service Commission, which they claim was added as a Defendant "when the Denver Police Department and Career Service Commission w[ere] engaging in some finger-pointing." (Pls.' Resp.Defs.' Mot. Summ.J. at 23.)

However, Plaintiffs assert Webb, Michaud and McCann are being sued in both their official and personal capacities because (1) Plaintiffs are seeking declaratory relief that these individuals violated their constitutional and civil rights, and (2) Plaintiffs are seeking damages against all Defendants under 42 U.S.C. § 1983. Plaintiffs concede the complaint could have been more specific on this issue and the caption could be read as asserting an official capacity claim only.¹ However, Plaintiffs contend damages were clearly sought against all Defendants and there is no heightened pleading standard for these claims.

The Supreme Court recognizes that state officers may be held personally liable for damages under 42 U.S.C. § 1983 based upon actions taken in their official capacities. See Hafer v. Melo, 502 U.S. 21, 22, 112 S.Ct. 358, 360, 116 L.Ed.2d 301 (1991); Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 107, 130 L.Ed.2d 55 (1994). Further, "state officials can be sued in their individual capacities — even if merely performing statutory duties — for injunctive and declaratory relief." Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1571 n. 9 (10th Cir.1995).

Where the capacity in which the official is sued under § 1983 is at issue, one applies the two-part test set forth in Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985). Houston v. Reich, 932 F.2d 883, 885 (10th Cir.1991); Doe v. Douglas County School District RE-1, 775 F.Supp. 1414, 1415 (D.Colo.1991). Under this test, the court first looks to the complaint itself in determining whether a claim is brought against an official in his or her personal or official capacity. If the complaint is clear, the designation of the parties is accepted at face value. If the complaint is ambiguous, the appropriate capacity must be determined by reviewing the "course of the proceedings."

In the present case, the caption of the complaint is clear, rendering consideration of the "course of the proceedings" unnecessary. The caption of the Second Amended Complaint and Jury Demand, like that of the initial complaint, names the individual Defendants as follows: "Wellington Webb, in his capacity as the Mayor of the City and County of Denver ... David L. Michaud, in his capacity as the Chief of the Denver Police Department ... Elizabeth H. McCann, in her capacity as the Manager of Safety for the City and County of Denver." Therefore, under the Kentucky v. Graham test, this is an action against these officials in their respective official capacities, regardless of the manner in which damages were plead. See Doe v. Douglas County Sch. Dist., 775 F.Supp. at 1415 (where the assertions were against a defendant "in his capacity as School Psychologist," the complaint was "clear" under Kentucky v. Graham as being against the defendant in his official capacity).

The Supreme Court recognizes that municipalities and other local government units are "persons" to whom § 1983 applies.² Monell v. Dep't of Social Services, 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 2036 n. 55, 56 L.Ed.2d 611 (1978). A § 1983 claim is properly plead against a...