Leber v. Smith, 83-3387

• Decision Date: 06 November 1985
• Docket Number: No. 83-3387,83-3387
• Parties: Eugene A. LEBER; Richard P. Leber; and June M. Leber, Plaintiffs-Appellants, v. Steven A. SMITH; Sheriff, Erie County, Wanda Jane Gladwell, Admx.; Board of Erie County Commissioners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 101

773 F.2d 101

Eugene A. LEBER; Richard P. Leber; and June M. Leber Plaintiffs-Appellants, v. Steven A. SMITH; Sheriff, Erie County, Wanda Jane Gladwell Admx.; Board of Erie County Commissioners Defendants-Appellees.

No. 83-3387.

United States Court of Appeals Sixth Circuit.

Argued July 16, 1984.

Decided Sept. 20, 1985.

As Amended on Denial of Rehearing and Rehearing En Banc Nov. 6, 1985.

Dennis E. Murray, Kirk J. Delli Bovi (argued), Murray & Murray Co., L.P.A., Sandusky, Ohio, for plaintiffs-appellants.

David M. Jones, Barry Fissel (argued), Eastman & Smith, Toledo, Ohio, Gary Lickfelt, Raymond N. Watts, William E. Didelius, Sandusky, Thomas Manahan, Manahan, Pietrykowski, Bamman & Moore, Toledo, Ohio, for defendants-appellees.

Before ENGEL and KENNEDY, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

This case is before the court upon an appeal from the order of the district court granting summary judgment in favor of the appellees in an action brought under 42 U.S.C. Sec. 1983. Appellants' amended complaint consisted of six counts, including Sec. 1983 claims against the Erie County Sheriff, an Erie County Sheriff's Deputy, the Board of Erie County Commissioners, and the individual Board members. Various pendent state claims were also asserted.

In the early morning hours of April 7, 1979, the Erie County Sheriff's Department received a telephone call from Richard Leber, the brother of appellant Eugene A. Leber. Richard expressed concern that his brother might attempt to commit suicide. In response, Deputy Sheriff Steven A. Smith and Sargeant Stanley C. Barrett went to the Leber residence, but Eugene Leber had already driven away. Richard once again indicated that he was concerned about his brother, who had been drinking, and wanted him brought home. Based upon information given to them by Richard, Barrett and Smith, in separate vehicles, began to search for Eugene Leber. Upon sighting Leber's vehicle, a high speed chase ensued. A Milan, Ohio, police officer who had been alerted by radio set up a partial roadblock which was successful in stopping Leber's car. Sargeant Barrett pulled up behind Leber's vehicle, got out with his gun drawn, and ordered Leber to exit his car, but Leber did not respond. Deputy Smith then arrived in his vehicle and stopped parallel to Leber's car. With gun drawn, Smith got out and began to run around the front of his vehicle. ¹ He slipped on a patch of ice, stumbled, and accidentally discharged his weapon as he fell. Leber was struck by the bullet and as a result is permanently paralyzed below the level of his rib cage.

Leber ² initiated this lawsuit, naming as defendants Smith and Erie County Sheriff Harold Gladwell ³ in both their individual and official capacities, the Board of Erie County Commissioners, and the individual Board members. Leber alleged that Smith was acting on his own behalf and on behalf of Sheriff Gladwell and the Board of Commissioners when Leber was shot, and that the shooting occurred in furtherance of custom established by the Board. He asserted that the actions by Smith, Gladwell and the Board were in violation of 42 U.S.C. Sec. 1983, and that Smith's actions were grossly wanton and reckless. He further alleged that the Board and its members were negligent and violated duties imposed upon them by the Ohio Revised Code in failing to exercise greater budgetary and financial responsibility and control in the equipping and training of the deputies of the Erie County Sheriff's Department, and in failing to secure an adequate amount of insurance coverage against liability for the Sheriff's Department.

Motions for summary judgment by all defendants were referred to a magistrate for report and recommendation. As to Smith's liability under Sec. 1983, the magistrate determined that the constitutional right in issue was the Fourth Amendment right against unreasonable searches and seizures. The magistrate concluded that because the issue of whether Smith's action in attempting to seize Leber was reasonable was a disputed question of fact, summary judgment was inappropriate on the issues of Smith's Sec. 1983 liability. As to Sheriff Gladwell's liability, the magistrate found that summary judgment was inappropriate because, under the facts as alleged, the Sheriff could be found liable for reckless failure to train and/or failure to create a custom or policy on the use of weapons. The magistrate recommended that summary judgment should be granted to the Board and the Commissioners on the count alleging failure to appropriate the required sums. Leber had also alleged that the Commissioners had a duty under Ohio Revised Code Sec. 305.03 ⁴ to take action because of excessive absenteeism by Sheriff Gladwell. Because the record indicated that the Commissioners had some knowledge of Sheriff Gladwell's frequent absence, the magistrate found that summary judgment was inappropriate on that issue.

The district court, however, concluded that because there was no evidence in the record to indicate that Sheriff Gladwell was absent for ninety days, ORC Sec. 305.03 was inapplicable and thus the Commissioners were entitled to summary judgment. Further, the district court held that Smith was entitled to summary judgment on the Sec. 1983 claim because under the undisputed factual circumstances surrounding the shooting, there was no deprivation of a constitutional right. The court also held that Leber had failed to state a claim against Gladwell for reckless failure to properly train his deputies or to promulgate adequate regulations concerning the use of guns. Finally, having concluded that Leber failed to state any federal claim, the court declined to exercise jurisdiction over the pendent state claims.

On June 24, 1983, Leber filed a complaint in the Court of Common Pleas of Erie County, Ohio, which contained claims for common law negligence, gross negligence, recklessness, violation of duties imposed by Ohio statutes, and for the deprivation of rights secured by the Ohio Constitution. The complaint was based on the same incident as the instant action, and involved the same parties. A jury verdict and a judgment were entered in the Common Pleas Court, adjudicating the state common law liability of all defendants. Thus, the only claims on appeal are federal claims pursuant to Sec. 1983. Leber alleges that he has been deprived of liberty without due process of law under the due process clause of the Fourteenth Amendment and that his Fourth Amendment right to be secure in his person against unreasonable searches and seizures has been violated.

In the recent opinion of Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc ), this court was faced with a very similar fact situation. Wilson, the plaintiff, was injured when the gun of the defendant, Beebe, a Michigan state police officer, discharged as Beebe was attempting to handcuff Wilson during an arrest. Wilson brought suit against Beebe and others, ⁵ seeking damages under Sec. 1983 and under a pendent state claim of negligence. The district court held that there was no cause of action under Sec. 1983, but that Wilson was entitled to recover under his pendent state claim. Upon appeal, a panel of this court reversed the dismissal of the Sec. 1983 claim and remanded to the district court. 743 F.2d 342 (6th Cir.1984). Upon rehearing en banc, the court held that Wilson had failed to establish a cause of action under Sec. 1983. Before reaching this conclusion, the court first determined that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), applies to cases involving deprivations of liberty interests as well as of property. In Parratt, the Supreme Court held that there is no cause of action for the random, unauthorized acts of a state official which deprive a person of property if the state provides an adequate...