Jennings v. Davis

• Decision Date: 20 April 1973
• Docket Number: No. 72-1590.,72-1590.
• Citation: 476 F.2d 1271
• Parties: Betsy A. JENNINGS et al., Appellants, v. Ilus W. DAVIS et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

476 F.2d 1271 (1973)

Betsy A. JENNINGS et al., Appellants, v. Ilus W. DAVIS et al., Appellees.

No. 72-1590.

United States Court of Appeals, Eighth Circuit.

Submitted March 16, 1973.

Decided April 20, 1973.

Philip C. Ehli, and Ben E. Pener, Kansas City, Mo., filed appendix and appellants' brief.

Manfred Maier, Kansas City, Mo., filed brief of appellees, Lewis, Carr and Divilbliss.

Harry P. Thomson, Jr., and George E. Leonard, Kansas City, Mo., filed brief and supplemental appendix of appellees, Davis, Kelly, Gilmore, Wells and Willits.

Before MATTHES, Chief Judge, and ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This is an appeal from a dismissal of appellants' civil rights action under 42 U.S.C. § 1983 for failure to state a claim upon which relief can be granted.

The complaint alleges that on November 20, 1969, appellant, Mrs. Jennings, was arrested on a speeding violation by a Kansas City, Missouri, police officer and was directed to report to the 63d street police station; that at the station appellant overheard two police officers "talking, bragging and ridiculing the behavior of traffic violators that they had arrested", which remarks caused appellant to feel "humiliated, frightened and intimidated;" that appellant inquired of these officers why they "were not out arresting murderers and thiefs who were out committing all these crimes right under their noses;" and that Noffke, a civilian clerk at the station, thereupon committed an assault and battery upon appellant and engaged in an unlawful search and seizure of her person, all in violation of her constitutional rights. Appellant alleged that she suffered physical and emotional injuries requiring hospitalization, seeking actual and punitive damages. She and her husband joined common law tort violations in separate counts with this § 1983 action.

Appellants subsequently were allowed to dismiss the suit without prejudice with respect to Noffke, whom they believed to be "judgment proof" and to have been discharged by the Board of Police Commissioners. This appeal is from a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure of the § 1983 claim against the remaining defendants, who are: The five members of the Board of Police Commissioners of the Kansas City Police Department; Clarence M. Kelley, the Chief of Police; Carr, the desk sergeant and Lewis, a patrolman at the 63d street station; and Divilbiss, the arresting officer.

All defendants, save Noffke, moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Each attached an affidavit to his motion. The Chief of Police and the Board of Police Commissioners members each stated, under oath, that he had no personal knowledge of the incident, was not present at the time and did not direct or order the arrest or subsequent action relating to appellant. Lewis stated that although he was present at the time of the incident, he was in no way involved in any act directed toward appellant and had no supervisory authority. Carr stated that he was present but did not direct, order or become involved in the incident and was unable to intervene. Divilbiss admitted giving appellant a speeding summons but stated he was not present and had no knowledge of the incident.

The trial court, D.C., 339 F.Supp. 919, dismissed the complaint against the Chief of Police and the Board members holding that, as a matter of law, where damages are sought under § 1983 "the doctrine of respondeat superior is not available to impose vicarious liability upon a defendant who has no personal involvement in the alleged deprivation of plaintiff's federally-protected rights." In a separate ruling the trial court dismissed the cause against Divilbiss, Lewis and Carr, holding that under the facts alleged in the complaint, no constitutionally protected right had been violated by the three.

Although the action was dismissed under Rule 12(b)(6), matter outside the pleadings was presented by way of affidavits and exhibits which were not excluded by the trial court. Under Rule 12(b), the dismissal constitutes disposition by summary judgment as provided in Rule 56 on the basis that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.¹ Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Minnesota Bearing Company v. White Motor Corporation, 470 F.2d 1323 (CA8 1973) and Abramson v. Mitchell, 459 F.2d 955 (CA8 1972).

42 U.S.C. § 1983, of course, must "be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961).

THE ARRESTING OFFICER

We affirm the trial court's dismissal of the complaint with respect to patrolman Divilbiss. The only allegation in the complaint in regard to this appellee was that Divilbiss arrested appellant for speeding on the day of the incident and told her to report to the 63d street station. The appeal with respect to this defendant is patently frivolous.

THE POLICE CHIEF and BOARD MEMBERS

We agree with the trial court's holding that this action is not maintainable against the appellees under the doctrine of respondeat superior, nor do we find the complaint sufficient on any other basis of liability.

The appellants admittedly placed heavy reliance upon the respondeat superior theory in pursuing this action. We, of course, are to afford remedial statutes such as § 1983 a liberal construction, but expressly reject the application of the doctrine on this set of facts, as have the vast majority of federal courts in cases such as this. See, e. g., Adams v. Pate, 445 F.2d 105 (CA7 1971); Madison v. Gerstein, 440 F.2d 338 (CA5 1971); Dunham v. Crosby, 435 F.2d 1177 (CA1 1970); Campbell v. Anderson, 335 F.Supp. 483 (D.Del.1971); Sanberg v. Daley, 306 F.Supp. 277 (N.D.Ill. 1969) and Jordan v. Kelly, 223 F. Supp. 731 (W.D.Mo. 1963). But, compare, Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), rev'd on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) and Hill v. Toll, 320 F.Supp. 185 (E.D.Pa.1970).

The respondeat superior principle holds liable the "innocent" master (with the infamous "deep pocket") for the torts committed by his servant in the course of his employment. The modern justification for respondeat superior is that it is

. . . a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which is a practical matter are sure to occur in the conduct of the employer\'s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of all past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large. Added to this is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to be careful in the selection, instruction and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely. (emphasis added) W. Prosser, Law of Torts, 458-459 (4th ed. 1971).

With such justification in mind the "master" of course, is and can only be the municipality employing the appellees. It is the city who set the enterprise in motion, who "profits" from the appellees' labor and who, if held liable in such instances, can by its powers of taxation spread the resulting expenditures amongst the community at large.² Kansas City, however, is not a defendant in this action, nor could it be under § 1983. Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

We also believe that appellants' claim cannot succeed on the theory of...