Frye v. Town of Akron

• Decision Date: 08 March 1991
• Docket Number: Civ. No. F 90-157.
• Parties: Linda L. FRYE, Individually and as Personal Representative of the Estate of Karrie A. Darnell, deceased, and Thomas C. Darnell, Plaintiffs, v. The TOWN OF AKRON, and James A. Moore, Defendants.
• Court: U.S. District Court — Northern District of Indiana

759 F. Supp. 1320

Linda L. FRYE, Individually and as Personal Representative of the Estate of Karrie A. Darnell, deceased, and Thomas C. Darnell, Plaintiffs, v. The TOWN OF AKRON, and James A. Moore, Defendants.

Civ. No. F 90-157.

United States District Court, N.D. Indiana, Fort Wayne Division.

March 8, 1991.

Wilford A. Hahn, Esteban R. Callejas; Matheny, Michael, Hahn & Bailey, Huntington, Ind., for plaintiffs.

Steven P. Polick; Judge & Knight, Ltd., Munster, Ind., for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on motion to dismiss filed by the defendants on December 24, 1990. Plaintiffs responded to the motion on January 11, 1991 and defendants replied to plaintiffs' response on February 4, 1991.

In deciding a motion to dismiss for failure to state a claim, this court must take the well pleaded factual allegations of the plaintiff's complaint as true. Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980). The complaint must be considered in the light most favorable to the plaintiff and every doubt must be resolved in the plaintiff's favor. Henry C. Beck Co. v. Fort Wayne Structural Steel, 701 F.2d 1221 (7th Cir.1983). Dismissal is improper "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." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985) (quoting Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Nonetheless, a complaint "must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory." Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 594 (7th Cir.1986). "The heavy costs of modern federal litigation ... counsel against launching the parties into pretrial discovery if there is no reasonable prospect that the plaintiff can make out a cause of action from the events narrated in the complaint." Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984).

Discussion

On August 17, 1988 the Decedent, Karrie A. Darnell, was riding on the back of a motorcycle driven by Scottie Shepherd. At about 12:25 a.m. the defendant James Moore, who was the Deputy Marshal of the Town of Akron, observed the motorcycle crossing the center line of the highway on two or three occasions. At that time, Deputy Moore attempted to stop the motorcycle. After the motorcycle failed to stop, Deputy Moore began to chase the motorcycle. The chase proceeded at speeds in excess of 90 miles per hour over winding roads at night. Deputy Moore's vehicle struck the motorcycle, forcing the motorcycle off the road and causing the motorcycle to strike a fence. Karrie Darnell died as a result of the accident.

Plaintiffs, Karrie Darnell's parents¹, have filed a two-count complaint under 42 U.S.C. § 1983. Count I asserts a Fourth Amendment claim against Deputy Moore, alleging that he engaged in excessive force when he seized the Decedent. In the alternative, plaintiffs allege that Deputy Moore violated the Decedent's Fourteenth Amendment substantive due process rights. Count II asserts that the Town of Akron violated the Decedent's civil rights by failing to train Deputy Moore. Defendants have moved to dismiss plaintiffs' complaint for failure to state a claim. In their motion, defendants assert that Deputy Moore's actions did not constitute a seizure for the purposes of the Fourth Amendment, that Deputy Moore did not violate the decedent's Fourteenth Amendment rights, that plaintiffs have inadequately pled a claim against the Town of Akron, and that plaintiffs are not entitled to recover either hedonic damages or damages for their own pain and suffering.

First, defendants argue that the accident which took Karrie Darnell's life did not constitute a "seizure" for Fourth Amendment purposes. Defendants cite Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), to support their argument. In Brower the Court held that:

It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. That is the reason there was no seizure in the hypothetical situation that concerned the Court of Appeals a police chase in which the suspect unexpectedly loses control of his car and crashes. The pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit; and though he was in fact stopped, he was stopped by a different means—his loss of control of his vehicle and the subsequent crash. If, instead of that, the police cruiser has pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect's freedom of movement would have been a seizure.

109 S.Ct. at 1381.

In Campbell v. White, 916 F.2d 421 (7th Cir.1990), the Seventh Circuit applied Brower to a set of facts nearly identical to the ones in the case at bar. In Campbell, the parents of a deceased motorcyclist brought a § 1983 action against the police officer who struck and killed the motorcyclist during the course of a high-speed pursuit. The Seventh Circuit stated:

While it is clear that Officer White intended to stop Campbell and Miller for speeding and that White's actions caused, or contributed to, a "termination of Campbell's freedom of movement," there is no evidence whatsoever to suggest that White intended physically to stop or detain Campbell by running over him with his car in the event Campbell refused to pull over voluntarily. The collision between White and Campbell was not "the means intentionally applied" to effect the stop, but was rather an unfortunate and regrettable accident.

916 F.2d at 423.

Similarly, in the present case, there is no allegation that Deputy Moore intended to effect the stop of Shepherd's motorcycle by colliding with the motorcycle and forcing it off the road. In the absence of such intent, Deputy Moore's actions did not constitute a "seizure" for Fourth Amendment purposes and plaintiffs do not have a cause of action against Deputy Moore under the Fourth Amendment.

Defendants have also argued that the plaintiffs do not have a substantive due process claim against Deputy Moore. The Fourteenth Amendment prohibits states from depriving "any person of life, liberty, or property, without due process of law." The substantive aspect of the Due Process Clause has been used to incorporate some, but not all, of the substantive limitations to state and local government². Specifically, substantive due process has been invoked to protect persons from conduct so arbitrary, egregious and shocking that it is impermissible regardless of any procedural safeguards provided³.

In Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir.1990), the Court applied a substantive due process analysis to an excessive force case involving a police chase. The Court concluded that the plaintiff, who was accidentally shot in the jaw when police attempted to apprehend a robbery suspect, did not have a Fourth Amendment claim against the police officer because, pursuant to Brower, the officer did not "seize" the plaintiff because there was no intent to gain control over the plaintiff by shooting him. However, the Court assumed that claims of excessive force outside the context of seizure still may be analyzed under substantive due process principles, and held that "while Landol did not have a Fourth Amendment claim, he was entitled to bring a claim under the Fourteenth Amendment alleging a deprivation of `life, liberty, or property' without due process as a result of the police shooting." 906 F.2d at 796. Defendants question the validity of this holding and argue that under Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), all prearrest excessive force claims are to be analyzed exclusively under the Fourth Amendment reasonableness standard and not under the substantive due process "reckless or callous indifference" standard.

After carefully reading Graham, this court concludes that defendants have read the holding in the case too broadly. The Supreme Court in Graham did not hold that all prearrest excessive force claims are to be analyzed exclusively under the Fourth Amendment. Rather, Graham provides explicit guidance for dealing with excessive force cases:

In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct. The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force" standard.

Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons ... against unreasonable ... seizures" of the person. This much is clear from our decision in Tennessee v. Garner 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), supra. ... Today we make explicit what was implicit in Garner's analysis, and hold that all claims that law enforcement officers have used excessive force — deadly or not —

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