Dean v. Shirer

• Decision Date: 30 August 1976
• Docket Number: No. 75-1145,75-1145
• Citation: 547 F.2d 227
• Parties: Clyde C. DEAN, Appellant, v. Vernon SHIRER and John Dukes Wactor, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 227

547 F.2d 227

42 A.L.R.Fed. 155

Clyde C. DEAN, Appellant, v. Vernon SHIRER and John Dukes Wactor, Appellees.

No. 75-1145.

United States Court of Appeals Fourth Circuit.

Argued Oct. 8, 1975.

Decided Aug. 30, 1976.

Thomas H. Pope, III, Columbia, S. C. (Daniel A. Speights, Glenn, Porter & Sullivan, Columbia, S. C., on brief), for appellant.

Joseph C. Coleman, Deputy Atty. Gen., Columbia, S. C., of S. C., W. Turner Klapman, Orangeburg, S. C. (Daniel R. McLeod, Atty. Gen., Columbia, S. C., of S. C., on brief), for appellees.

Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and WATKINS, Senior District Judge. ^*

WIDENER, Circuit Judge.

Clyde C. Dean appeals the dismissal on motion for summary judgment of his complaint against Vernon Shirer, alleging that he was "deprived of his personal freedom, of the liberty to express his views and to practice his profession, and was embarrassed, humiliated, and put in fear of his life" under color of state law in violation of 42 U.S.C. § 1983. He alleges the same acts are actionable under the law of South Carolina.

Dean was an attorney licensed to practice law in South Carolina. ¹ On February 12, 1974, Dean represented a client in the municipal court of Elloree, South Carolina. Defendant Vernon Shirer was the presiding municipal judge. ² After court had been adjourned, Dean went outside where a crowd had gathered and, in response to an inquiry, said to someone in the crowd, "You should know you can't get a fair trial in Elloree."

Upon hearing this, defendant Wactor, a Deputy Sheriff of Orangeburg County, South Carolina, forced Dean back into the courtroom. Shirer berated Dean with a long string of offensive and threatening epithets, including aspersions as to Dean's ancestry. Shirer threatened Dean with physical abuse and threatened to have him put in jail. Upon the conclusion of this berating, Dean, at Shirer's direction, returned to the crowd and told the people "You can get a fair trial in Elloree if you know how to do it." Dean maintains that he made this statement out of fear.

The courtroom, which is in the Town Hall of Elloree, is also used as the Mayor's office. Thus, the room served both as a courtroom with Shirer as the presiding judge and the office of Shirer as the Mayor of the town.

Because this case was decided on motion for summary judgment, all factual inferences (as we have recited them) are to be taken in the light most favorable to the party opposing the motion, United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), but Dean admits that his remarks outside the courtroom were degrading to the court and intended so to be as he amplifies them in his answers to interrogatories.

I

Shirer moves to dismiss the case here as moot on the ground that Dean died on April 6, 1975, and that his action under 42 U.S.C. § 1983 does not survive. Counsel for plaintiff has moved to substitute Mrs. Clyde C. Dean, administratrix of the Estate of Clyde C. Dean, as the proper party to this action.

The Supreme Court has noted in Moor v. County of Alameda, 411 U.S. 693, 702-03 and n. 14, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), that the question of survivability under 42 U.S.C. § 1983 is an area which is not covered by existing federal law. Although dictum, the Court suggests, "Pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983," and refers to Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921 (1961), 82 S.Ct. 243, 7 L.Ed.2d 136.

Several circuits have stated it is appropriate for federal courts to look to state law to determine whether a § 1983 action survives: Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974). And in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973), in which this court looked to state law to ascertain a sheriff's responsibility in a § 1983 action for the actions of his subordinates, we noted, at page 242, that in questions of survivability of a § 1983 cause of action, federal courts have relied on state law, citing Brazier v. Cherry, supra.

The court, in Brazier, pointed out that while Congress has the "constitutional power to spell out a comprehensive right of survival for civil rights claims," 293 F.2d at 406, Congress has not exercised this power and therefore resort must be taken to state law, by authority of 42 U.S.C. § 1988.

We thus turn to the law of South Carolina to determine if Dean's cause of action survives. At common law, actions in tort did not survive. Carver v. Morrow, 213 S.C. 199, 48 S.E.2d 814 (1948); Mattison v. Palmetto State Life Ins. Co., 197 S.C. 256, 15 S.E.2d 117 (1941); see Moor, 411 U.S. at 702, n. 14, 93 S.Ct. 1785. However, the South Carolina legislature has enacted a provision for survival of injuries to the person.

"Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property shall survive both to and against the personal or real representative, as the case may be, of a deceased person and the legal representative of an insolvent person or a defunct or insolvent corporation, any law or rule to the contrary notwithstanding." S.C.Code § 10-209.

Exceptions to such survivability of actions for personal injuries are actions for malicious prosecution, slander, fraud and deceit. See Brewer v. Graydon, 233 S.C. 124, 103 S.E.2d 767 (1958).

If Dean's case is bottomed on the words used against him, it would be more nearly akin to slander under 42 U.S.C. § 1983 and would not survive under South Carolina law, Carver, supra. And in all events it has recently been held that defamation is not actionable under 42 U.S.C. § 1983. Paul v Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). But, especially since we consider the case as one on summary judgment, we must consider the actionable wrong charged to be allied more closely to false imprisonment or assault. We are of opinion false imprisonment and assault are "injuries to the person" under S.C.Code § 10-209 and as such do survive. Brewer cites malicious prosecution, slander and fraud and deceit as the exceptions to the statute and in the absence of a controlling South Carolina decision, no other exception being called to our attention, we give effect to the literal wording of the statute as we construe it and hold the cause of action survives as it may be equated to assault or false imprisonment.

II

The district court granted summary judgment in favor of Shirer on the ground that he was clothed with judicial immunity. ³ It held that Shirer "had the authority to maintain order and proper procedure in his court by use of the contempt power." It categorized Shirer's acts "only as being in excess of his power, not clearly beyond his jurisdiction."

The doctrine of judicial immunity was first enunciated by the Supreme Court in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). The Court held that judges

"are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgment may depend." 13 Wall. at 352.

In the instant case, Shirer possessed certain contempt power under S.C.Code § 43-134, which states:

"Every magistrate shall have power to enforce the observance of decorum in his court while holding the same and for that purpose he may punish any person who shall, in the presence of ...