Hebert v. Morley

• Decision Date: 26 July 1967
• Docket Number: No. 65-165.,65-165.
• Citation: 273 F. Supp. 800
• Court: U.S. District Court — Central District of California
• Parties: Henry HEBERT, Plaintiff, v. Frank MORLEY, William P. Veditz, John R. Eckstein, James Patric Brady, and Harold Kade, Defendants.

273 F. Supp. 800

Henry HEBERT, Plaintiff, v. Frank MORLEY, William P. Veditz, John R. Eckstein, James Patric Brady, and Harold Kade, Defendants.

No. 65-165.

United States District Court C. D. California.

July 26, 1967.

John Alan Montag, Los Angeles, Cal., for plaintiff.

Robert G. Cockins, City Atty., and Robert D. Ogle, Asst. City Atty., City of Santa Monica, Santa Monica, Cal., for defendants Veditz, Morley, Eckstein, and Brady.

Harold W. Kennedy, County Counsel, and Irvin Taplin, Jr., Deputy County Counsel, Los Angeles, Cal., for defendant Harold Kade, M.D.

HAUK, District Judge.

The complaint herein adequately states a claim under Section 1 of the Civil Rights Act of 1871, 42 U.S.Code § 1983,¹ because it alleges facts which show that the defendants: (1) while acting under color of state statute, ordinance, regulation, custom or usage, (2) subjected, or caused to be subjected, a person within the jurisdiction of the United States to the deprivation of rights, privileges or immunities secured by the Constitution and laws of the United States. Cohen v. Norris, 300 F.2d 24, 30 (C.A. 9th 1962); Marshall v. Sawyer, 301 F.2d 639, 643 (C.A. 9th 1962); Lucero v. Donovan, 354 F.2d 16, 19-20 (C.A. 9th 1965); Lucero v. Donovan, 258 F.Supp. 979, 980 (C.D.Cal. 1966).

Moreover the complaint sufficiently sets forth a claim under Section 2 of the Civil Rights Act of 1871, 42 U.S.Code § 1985(3)² because it alleges the necessary two additional elements: (1) that the defendants conspired or acted jointly or in concert; and (2) that overt acts were done pursuant to the conspiracy which damaged plaintiff. Hoffman v. Halden, 268 F.2d 280, 294 (C.A. 9th 1959); Cohen v. Norris, 300 F.2d 24, 27-28 (C.A. 9th 1962). It follows that this Court has jurisdiction by virtue of 28 U.S.Code § 1331(a), the Federal question jurisdiction;³ and under 1343 (1),⁴ 1343(3),⁵ 1343(4),⁶ which give District Courts original jurisdiction of civil actions to recover damages and secure redress by way of equitable and other relief for deprivation of Constitutional and civil rights, whether resulting from conspiracy or direct acts

Cohen v. Norris, 300 F.2d 24, 26 (C.A. 9th 1962);

Monroe v. Pape, 365 U.S. 167, 169, 81 S.Ct. 473, 474, 5 L.Ed.2d 492, 495 (1961);

Lucero v. Donovan, 258 F.Supp. 979, 980 (C.D.Cal.1966).

Plaintiff alleges that the defendants, under color of State law, unlawfully arrested him and engaged in a conspiracy to deprive him of his liberty without due process of law, in violation of the United States Constitution, and particularly the Fourth Amendment (arrest without probable cause), the Fifth Amendment (deprivation of liberty without due process of law) and the Fourteenth Amendment (deprivation of liberty without due process of law and denial of equal protection of the law).

The complaint as against Harold Kade, M.D., the Los Angeles County autopsy surgeon and deputy coroner, was dismissed before trial on a motion for summary judgment, the Court finding that at all times mentioned in the complaint he had acted reasonably and within the permissible discretion of his official capacity, and was therefore immune from the charges of the complaint.

This order for summary judgment in favor of Dr. Kade was based, of course, upon the traditional immunity from suit granted by the common law to a public official engaged in discretionary activities, reasonably performed within the appropriate scope of his official authority and capacity. Here Dr. Kade had full and complete statutory authority and capacity, as holder of the public office of autopsy surgeon and deputy coroner, to conduct the autopsy, make the findings and report his opinions exactly as he did in the course of his duties.⁷

Dr. Kade's activities complained of by plaintiff consisted of his autopsy made upon the body of a person who had died after a fall in a bar fight with plaintiff and a later fall at the Santa Monica police station; his set of findings and opinions that the primary cause of death was the blows and fall at the bar; his expression of these findings and opinions to the police officers investigating the death; and his testimony at plaintiff's trial for murder in the course of which Dr. Kade as an expert stated his opinion that the blows and fall the deceased had suffered in the bar fight with plaintiff could have caused the death.

When the activities of Dr. Kade were measured by his statutory discretion, and the scope of his official authority, capacity and duties as deputy coroner and autopsy surgeon, the Court necessarily found his immunity from suit so compelling that as a matter of law he was dismissed from the action.

Long since has the Ninth Circuit granted immunity to physicians in public office, effectively protecting against civil rights suits the following: County health officers and their deputies, State mental hospital superintendents, staff physicians at State hospitals, and even private physicians making examinations and testifying in court proceedings for mental illness commitments. Hoffman v. Halden, 268 F.2d 280, 298-300 (C.A. 9th 1959).

The same protective shield of immunity to suit has been raised for physicians, not only State and County medical officers and members of institutional medical staffs but also private physicians engaged in examination or testimony on behalf of the State or the Courts in commitment proceedings, in at least three other Circuits: the Sixth,⁸ the Seventh,⁹ and the Eighth.¹⁰ And, as might be expected, the District Courts have both set and followed the clear trend of immunity for physicians engaged in official or quasi-official duties, for example, Judge Delehant in the District of Nebraska¹¹ and Judge Kent in the Western District of Michigan.¹²

After the dismissal of Dr. Kade, the case came to trial before the Court without a jury on June 22, 1967, jury having been expressly waived by all parties. At the conclusion of plaintiff's case, on motion of defendants Eckstein and Brady, the Court ordered the case dismissed as to them, plaintiff having introduced no evidence relating to these police officers.

The trial concluded on June 23, 1967, and the Court now makes its Decision, Findings of Fact, and Conclusions of Law in favor of the remaining police officer defendants, Veditz and Morley.

On February 13, 1962, in the early morning, shortly after midnight of the 12th, in a Santa Monica bar, plaintiff grabbed one Charles Swallow by the shirt as he was sitting at the bar and struck Swallow twice with his fist in the face. This was without any provocation, except certain racially insulting remarks made by Swallow. Swallow was knocked to the floor, his head hitting with a "thud". He remained on the floor in a semiconscious condition until defendant Veditz, a Santa Monica police officer, arrived at the scene shortly after the incident. Plaintiff told Veditz he acted in self-defense.

Veditz escorted plaintiff outside the bar where he was placed in the custody of defendant Morley, another Santa Monica police officer, who had just then arrived at the scene. Morley questioned plaintiff briefly and then locked him in a police car in front of the bar.

In the meantime Veditz returned to the bar, saw a small amount of dried blood below Swallow's nose as he still lay on the floor, and formed an opinion that Swallow was intoxicated.

About this time Morley came into the bar and the two officers assisted Swallow to a police car. While Swallow was being taken by Morley directly to the Santa Monica jail booking area, Veditz had a short conversation with plaintiff in the other police car and then released him.

In the Santa Monica jail Swallow was placed at the booking window where he appeared to be conscious and able to stand in a steady manner, holding on to a wire mesh screen with both hands.

While Swallow was being searched by Morley he had a sudden seizure, became completely rigid, and fell over backwards, striking his head on the floor. He was not moved until an ambulance arrived a few minutes later. In the meantime, superior officers were notified, photographs were taken of Swallow in the position where he fell and a report of the circumstances surrounding the fall in the jail was made and filed.

Swallow was taken to the Santa Monica Emergency Hospital and then to the Los Angeles County General Hospital, where he died about 10:00 a. m., February 13, 1962, from head injuries.

Two County autopsy surgeons who examined the deceased concluded that the primary cause of the death was the blows and the fall the deceased suffered at the bar.

With this knowledge and shortly before midnight on February 13, 1962, Officer Veditz saw plaintiff on the street in Santa Monica and asked him to go with him to police headquarters for questioning.

Plaintiff was not placed under arrest at this time but voluntarily went along with Officer Veditz, was interrogated for about one-half hour at police headquarters, and was then placed under arrest by Veditz for violation of California Penal Code § 187, "murder", at 10:30 a. m. on the morning of February 14, 1962.

Before Veditz made this arrest, he had talked to an eyewitness at the bar, Edna Schwing, who stated that plaintiff had assaulted her at the bar, tearing some buttons on her blouse, and had then approached Swallow and without any provocation on Swallow's part, struck Swallow twice in the face, knocking him to the floor.

At about 8:00 p. m. on February 13, 1962, also prior to arresting plaintiff, Veditz called the County Coroner's office and during the conversation was informed that the blows received by Swallow and his fall at the bar probably caused the seizure in the jail, which, in turn, caused the jail fall that eventually led to Swallow's death.

Moreover, during the interrogation plaintiff made statements inconsistent with his previous statements to Veditz, admitting that he had struck Swallow with his fist, and that Swallow had not pulled a knife on him just before he struck...