Doe v. Vigo Cnty.

• Decision Date: 03 October 2018
• Docket Number: No. 17-3155,17-3155
• Citation: 905 F.3d 1038
• Parties: Jane DOE, Plaintiff-Appellant, v. VIGO COUNTY, INDIANA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

905 F.3d 1038

Jane DOE, Plaintiff-Appellant,

v.VIGO COUNTY, INDIANA, et al., Defendants-Appellees.

No. 17-3155

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2018

Decided October 3, 2018

Gregory Bowes, Attorney, GREG BOWES LEGAL SERVICES, P.C., Nashville, IN, for Plaintiff-Appellant.

David P. Friedrich, Attorney, Sarah L. Wachala, Attorney, WILKINSON, GOELLER, MODESITT, WILKINSON & DRUMMY, Terre Haute, IN, for Defendant-Appellee.

Before Wood, Chief Judge, and Bauer and Sykes, Circuit Judges.

Wood, Chief Judge.

Jane Doe seeks to hold Vigo County, Indiana, liable for the sexual misconduct of its employee, David Gray. Gray allegedly confined and sexually assaulted Doe while she volunteered at the park where he worked. The district court granted summary judgment in favor of Vigo County, finding that it was neither vicariously liable for Gray's wrongs nor directly liable for permitting them to occur. We too conclude that the law does not permit Doe to pursue this action against the County.

I

Gray worked as a maintenance specialist for the Vigo County Parks and Recreation Department. That job required him to perform various maintenance and groundskeeping duties at one of the county's parks. Notably for the present case, his tasks included cleaning restrooms and directing volunteers. At least some of those volunteers were completing court-mandated community service, and Gray was responsible for signing off on their time-logs. Gray performed his job with a high degree of autonomy, especially in the off-season when supervisors might visit the park only once every two to three weeks. Gray also worked independently of the other maintenance specialist assigned to his park.

Doe volunteered at the park where Gray worked to complete her court-ordered community service. She alleges that Gray brought her to the park's restroom area and told her that the facility required cleaning. After locking the door behind them, Gray allegedly forced Doe to perform oral sex and digitally penetrated her vagina. Gray ultimately was charged with rape, criminal confinement, and official misconduct; he pleaded guilty to the latter two offenses.

The record lists a handful of prior incidents of misconduct by employees of Vigo County over the past two decades. Some of these episodes involved sexual misconduct; as far as we can tell, however, none of them resulted in coerced sexual activity, nor does the record suggest that employee misconduct met with impunity. We detail them below when we discuss Doe's direct claim against the County. The record also reflects two prior incidents involving Gray himself. The first was a vague comment made by a park visitor, perhaps motivated by a belief that Gray had attempted to pick up his wife; Vigo County was unable to substantiate the allegation. The second involved inappropriate comments that Gray had made to a coworker. That time Gray received a written reprimand, which caused him to correct his behavior (at least at that time).

Doe sued both Gray and Vigo County for damages under 42 U.S.C. § 1983 and various state-law theories that fell within the court's supplemental jurisdiction, 28 U.S.C. § 1367. Her complaint accused Gray of violating her rights under the Fourth and Eighth Amendments to the Constitution (made applicable to the states through the Fourteenth Amendment), and it asserted that Vigo County had a custom or policy that violated her constitutional rights. She also contended that Gray committed a number of state torts, and that Vigo County was both directly liable under state law for its own negligent retention and supervision of Gray and vicariously liable for Gray’s torts as his employer.

Gray failed to appear, and the clerk of the district court entered a default against him. See FED. R. CIV. P. 55(a). The court, apparently awaiting the outcome of this appeal, has not yet granted a default judgment. It granted summary judgment in favor of Vigo County with respect to all claims against it. "[F]inding no just reason for delay," the court entered "partial final judgment in favor of" the county. See FED. R. CIV. P. 54(b). Doe appealed the judgment in favor of the County.

II

Before reaching the merits of Doe's case, we consider the propriety of considering her appeal at this time. In most circumstances, courts of appeals have jurisdiction only over appeals from final judgments of the district court. A final judgment is defined as one that resolves "all claims against all parties." Chessie Logistics Co. v. Krinos Holdings, Inc. , 867 F.3d 852, 856 (7th Cir. 2017) (quoting Dale v. Lappin , 376 F.3d 652, 654 (7th Cir. 2004) ); see also 28 U.S.C. § 1291. Rule 54(b) of the Federal Rules of Civil Procedure recognizes a partial exception to the completeness rule, however, authorizing the district court to enter final judgment with respect to fewer than all claims or parties "if the court expressly determines that there is no just reason for delay."

In the current case, the district court did not invoke Rule 54(b) by number, but it did state that there was "no just reason for delay" in entering "partial final judgment" for Vigo County. That satisfies the express determination requirement of Rule 54(b). United States v. Ettrick Wood Prods. , 916 F.2d 1211, 1217 (7th Cir. 1990). Moreover, while we strongly prefer the district court to explain its decision to enter judgment under Rule 54(b), its failure to do so here does not require a remand, because the record reveals that the court properly exercised its discretion. Id . at 1218. Granting summary judgment for Vigo County unambiguously disposed of all claims against it, and that judgment was final. Nat'l Metalcrafters v. McNeil , 784 F.2d 817, 821 (7th Cir. 1986). Any benefit from delaying Doe's appeal, either with respect to judicial economy or any other factor, is difficult to imagine. Gray has defaulted. Vigo County has defended this suit on legal grounds that do not depend on the veracity of Doe's accusations or the extent of her still-to-be-determined damages. Therefore, this appeal will not "create needless duplication of effort[s] to resolve the parties' entire dispute." VDF FutureCeuticals, Inc. v. Stiefel Labs., Inc. , 792 F.3d 842, 845 (7th Cir. 2015). In fact, to forbid appeal until the district court assesses damages and enters final judgment against Gray would simply serve to invite Doe and Vigo County to duplicate their present efforts at a later date. Id . Therefore, Doe's appeal is properly before us.

III

We first address the question whether Doe may hold Vigo County vicariously liable for Gray's sexual misconduct. A defendant such as Vigo County is entitled to summary judgment if it shows that the material facts, construed most favorably to the plaintiff, could not establish its liability as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We assess the propriety of granting summary judgment de novo . Bunch v. United States , 880 F.3d 938, 941 (7th Cir. 2018).

To the extent that Doe is relying on the County's liability pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), she is not using a theory of vicarious liability. We address her Monell claim in Part IV, below. To the extent that she is pursuing state-law claims against the County, it is Indiana's law that determines the County's responsibility for the acts of its employee. She cannot hold the County vicariously liable under section 1983, see Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and so we do not pursue that possibility further.

Indiana law generally holds an employer vicariously liable for an employee's wrongs only where the latter "has inflicted harm while acting ‘within the scope of employment.’ " Barnett v. Clark , 889 N.E.2d 281, 283 (Ind. 2008) (quoting Sword v. NKC Hosps., Inc. , 714 N.E.2d 142, 148 (Ind. 1999), and Warner Trucking, Inc. v. Carolina Cas. Ins. Co. , 686 N.E.2d 102, 105 (Ind. 1997) ). That requirement is met if the employee's torts were "incidental to the conduct authorized" or furthered the business of the employer "to an appreciable extent." Id . ; see also id. at 286 (suggesting the wrong might either "further [the] employer's business" or be "motivated ... by his employer's interests"); Stropes ex rel. Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc. , 547 N.E.2d 244, 247 (Ind. 1989) ("[A]n employee's wrongful act may still fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business, even if the act was predominantly motivated by an intention to benefit the employee himself."). The employer need not order or desire the employee to commit the wrongful act; it may even forbid such conduct expressly. Warner Trucking, Inc. , 686 N.E.2d at 105.

The Supreme Court of Indiana has explained how these general principles of respondeat superior map onto sexual misconduct by employees. In doing so, it has stressed the physical, indeed intimate, contact that a job must require before vicarious liability will attach. See Barnett , 889 N.E.2d at 286. Barnett gives four examples, the first of which comes from Stropes . Stropes held that a residential institution for physically and intellectually disabled youth might be liable for an employee's sexual assault of a boy committed to its care. 547 N.E.2d at 250. As Barnett stressed, the employee in Stropes was charged with bathing, dressing

, feeding and changing the linens of the boy, and the employee was authorized, when performing these duties, to touch the boy's genitals, give him a comforting pat, and physically restrain him. Barnett , 889 N.E.2d at 284–85 (discussing Stropes , 547 N.E.2d 244 ). Thus, the employee's wrongful actions were "sufficiently associated with [the employee's] authorized duties" to preclude summary judgment for the employer. Id . (quoting Stropes , 547 N.E.2d at...