Gaborik v. Rosema, K 83-406.

Citation599 F. Supp. 1476
Decision Date28 December 1984
Docket NumberNo. K 83-406.,K 83-406.
PartiesJohn GABORIK, Plaintiff, v. Hubert "Cal" ROSEMA, individually and as Sheriff of Van Buren County, Sheriff's Department of Van Buren County; and County of Van Buren, jointly and severally, Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)

Tat Parish, St. Joseph, Mich., for plaintiff.

Richard VanOrden, Grand Rapids, Mich., for defendants.

OPINION

ENSLEN, District Judge.

Plaintiff, a former Van Buren County Deputy Sheriff, brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that Defendants deprived him of his rights under the First and Fourteenth Amendments. Specifically, Plaintiff alleges that his rights to freedom of speech, freedom of political expression, freedom of political association, freedom of personal association, and "other rights" have been violated by Defendants in retaliation for Plaintiff having supported Defendant Rosema's opponent (the incumbent) as a candidate for election as Van Buren County Sheriff. Plaintiff alleges that following the election of Defendant Rosema he was denied deputy sheriff status, placed on a permanent "graveyard" shift and undesirable shift rotation, deprived of the status and benefits of being a road officer and command officer and instead relegated to the status of a jailer, denied overtime, denied court time, denied special details and equipment accorded to other officers, and denied meetings with the sheriff to discuss grievances. Plaintiff contends that this conduct ultimately resulted in his constructive discharge. Named as Defendants are the County of Van Buren, the Sheriff's Department of Van Buren County, and Sheriff Rosema in his individual and official capacities. Presently before the Court is Defendants' Motion for Summary Judgment, filed October 15, 1984.

I. Standard of Review

To warrant the grant of summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1603, 26 L.Ed. 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008, 1011 (CA6 1976); Nunez v. Superior Oil Company, 572 F.2d 1119 (CA6 1978); Tee-Pak, Inc. v. St. Regis Paper Company, 491 F.2d 1193 (CA6 1974). If no genuine issue as to any material fact is established, the moving party is entitled to judgment as a matter of law. Chavez v. Noble Drilling Company, 567 F.2d 287 (CA5 1978); Irwin v. U.S., 558 F.2d 249 (CA6 1977).

In determining whether or not there are issues of fact requiring a trial, "the inferences to be drawn from the underlying facts contained in the (affidavits, attached exhibits, and depositions) must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bohn Aluminum & Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA6 1962). Even if the basic facts are not disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from them. United States v. Diebold, supra; EEOC v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091, 1093 (CA6 1970). In making this determination, the Court must make reference to the entire record and all well pleaded allegations are to be accepted as true. Dayco Corporation v. Goodyear Tire and Rubber Company, 523 F.2d 389 (CA6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (DC Mich 1968); Mahlar v. U.S., 196 F.Supp. 362 (DC Pa 1961). These guidelines will be adhered to as substantive issues of the motion are examined.

II. Plaintiff's Claim Against Defendant Van Buren County

Defendant County argues that it cannot be held liable under 42 U.S.C. § 1983 for the acts of Sheriff Rosema because "(a) the actions of Defendant sheriff may not be imputed to the County so as to become County policy; and (b) there can be no official policy of the County with respect to those matters complained of against Defendant sheriff." Defendant contends, in essence, that as to each and every matter of which Plaintiff complains, the sheriff is vested by statute and case law with exclusive authority and is free from constraint or guidance by the County; therefore, Defendant Rosema's actions cannot be said to represent County policy or custom. Plaintiff responds by arguing that the actions of Defendant Rosema in areas where he is the "final authority" or "ultimate repository of County power" do represent "official policy" for which the County may be held liable.

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that Congress intended municipalities and other local government units to be included among those "persons" to whom 42 U.S.C. § 1983 applies. This holding has been applied to counties by the Sixth Circuit. Hays v. Jefferson County, Kentucky, 668 F.2d 869 (CA6 1982), cert. den., 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73. The rule, as stated in Monell, supra, 436 U.S. at 690-691 and 694, 98 S.Ct. at 2035-2036 and 2037:

Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of a § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person", by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.
* * * * * *
... A local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

The Supreme Court has not addressed the question whether a county may be held liable under § 1983 for the actions of its sheriff. Case law from this and other jurisdictions on this issue, which has been researched and discussed at length by the parties herein, is not unequivocal. However, a recent decision by the Sixth Circuit Court of Appeals, which has not been cited by the parties, directs this Court to the conclusion that Defendant County may be held liable for the acts of Defendant Rosema.

Pembaur v. City of Cincinnati, et al, 746 F.2d 337 (CA6 1984) involved a § 1983 action for alleged deprivation of Fourth and Fourteenth Amendment rights. Plaintiff sought, in part, to impose liability on a county for the actions of its sheriff. The trial court concluded that the county could not be held liable for the policies of the sheriff because the sheriff was not subject to the control of the Board of Commissioners, the county's governing body. The court reasoned that the sheriff's powers and duties were established by the state legislature, which presumably rendered him a state rather than county official. The Sixth Circuit affirmed the dismissal of the county,1 but not until it first concluded that the trial court erred in ruling that the county could not be held liable for the actions of its sheriff:

In Monell v. Department of Social Services, 436 U.S. 658, 694 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), the Supreme Court held that a local government can be liable in a § 1983 action when its official policy or governmental custom is responsible for a deprivation of constitutional rights. Apparently recognizing that a local government's "official policy" can originate from more than one source, the Court stated "... it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. (emphasis added). See also, Owen v. City of Independence, 445 U.S. 622, 657-658 100 S.Ct. 1398, 1418-1419, 63 L.Ed.2d 673 (1980). Thus, the Board's lack of control does not necessarily preclude a finding of liability on the part of the County. We must determine whether the nature and duties of the Sheriff are such that his acts may fairly be said to represent the county's official policy with respect to the specific subject matter.
Initially, we note that the district court is incorrect to the extent that its decision implies that the Sheriff is not a County official. The Sheriff is elected by the residents of the County, Ohio Rev.Code Ann. § 311.01 (Baldwin 1982), and serves as the "chief law enforcement officer of the county." 1962 Op.Att'y.Gen. No. 3109. He submits his budget requests to the Board, Ohio Rev.Code Ann. § 311.20, which in turn furnishes his office, books, furniture, and other materials. Ohio Rev.Code Ann. § 311.06. His salary and all training expenses are also paid out of the general county fund. Ohio Rev.Code Ann. §§ 325.01-06. Although none of these factors is itself determinative, we believe it is obvious that the Sheriff is a County official. Moreover, we believe that the duties of the Sheriff, as enumerated in Ohio Rev.Code Ann. § 311.67, and his responsibility for the neglect of duty or misconduct of office of each of his deputies, see Ohio Rev.Code Ann. § 311.05, clearly indicate that the Sheriff can establish county policy in some areas. We conclude, therefore, that, in a proper case, the Sheriff's acts represent the
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3 cases
  • Timberlake By Timberlake v. Benton
    • United States
    • U.S. District Court — Middle District of Tennessee
    • January 29, 1992
    ...therefore could be sued. See, e.g., Pillette v. Detroit Police Department, 661 F.Supp. 1145, 1150 (E.D.Mich. 1987); Gaborik v. Rosema, 599 F.Supp. 1476, 1481 (W.D.Mich.1984); Kennibrew v. Russell, 578 F.Supp. 164, 166-67 (E.D.Tenn.1983). Those courts finding police departments not amenable ......
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    • U.S. District Court — Middle District of Florida
    • July 1, 1996
    ...§ 1983 and therefore could be sued. Pillette v. Detroit Police Department, 661 F.Supp. 1145, 1150 (E.D.Mich.1987); Gaborik v. Rosema, 599 F.Supp. 1476, 1481 (W.D.Mich.1984); Kennibrew v. Russell, 578 F.Supp. 164, 166-167 Defendant points out that the Eleventh Circuit Court of Appeals follow......
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