Marcum v. Catron
| Decision Date | 28 September 1999 |
| Docket Number | No. Civ. 98-435.,Civ. 98-435. |
| Citation | 70 F.Supp.2d 728 |
| Parties | Lewell MARCUM, Plaintiff, v. Sam CATRON, Individually and as Sheriff of Pulaski County, Kentucky, Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
James T. Gilbert, Coy, Gilbert & Gilbert, Richmond, KY, for Lewell Marcum, plaintiff.
Dave Whalin, Sun S. Choy, Landrum & Shouse, Louisville, KY, for Sam Catron, defendant.
This is a freedom of association case in which the plaintiff invokes that freedom as protective of his right to cohabit with a particular person, shielding him from government intrusion. This matter is before the court upon the plaintiff's motion to alter, amend, or vacate the court's order of January 25, 1999 dismissing the plaintiff's case. The court has reviewed the arguments of counsel and, being otherwise sufficiently advised, will grant the plaintiff's motion in part and deny it in part because, although the freedom of intimate association is protected as an element of both Fourteenth Amendment liberty and First Amendment association, it was not clearly established on the date of the defendant's action that the particular association in which the plaintiff was engaged on the date of his termination was protected by the freedom here asserted.
On September 17, 1997, the defendant, the Sheriff of Pulaski County, Sam Catron (Catron), terminated the employment of the plaintiff, then a deputy sheriff. The plaintiff claims that he was fired (1) because of his relationship with the woman with whom he was cohabiting and (2) for political considerations, in that the defendant, facing reelection, had been threatened with political retaliation if the plaintiff was not fired.1 He subsequently filed suit, seeking a remedy under 42 U.S.C. § 1983 (§ 1983) for the violation of his First and Fourteenth Amendment rights. The defendant moved to dismiss the case, asserting that he was protected by the doctrine of qualified immunity to the extent he was sued in his individual capacity and that the plaintiff had failed to allege a constitutional violation, mandating the dismissal of the claims against him in his official capacity.
Section 1983 creates a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights. See Conn v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999). A plaintiff must allege two elements to establish a prima facie case under § 1983:(1) that the action occurred "under color of law"; and (2) that the action was a deprivation of a constitutional right or a federal statutory right. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Here, the defendant does not contest that he acted under the color of state law in terminating the plaintiff's employment. The defendant, asserting the defense of qualified immunity, argues that he cannot be held individually liable under § 1983.
Qualified immunity shields government officials performing discretionary functions from liability for civil damages if, at the time the challenged action occurred, their conduct did not violate clearly established law. Conn, 119 S.Ct. at 1295; Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful action turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Wilson v. Layne, 526 U.S. 603, ___, 119 S.Ct. 1692, 1699, 143 L.Ed.2d 818 (1999); Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The "clearly established" principle enables courts to balance two competing concerns in § 1983 litigation: the vindication of citizens' constitutional rights and the need of public officials to perform their duties effectively and to anticipate when their conduct will result in liability. Anderson, 483 U.S. at 639, 107 S.Ct. 3034. When deciding the clearly-established issue, this court examines federal constitutional, statutory, and case law existing at the time of the challenged action, turning first to decisions of the Supreme Court and the Sixth Circuit and if such law is unavailable to law from other circuits. Eugene D. v. Karman, 889 F.2d 701, 706 (6th Cir.1989).
The court must first determine whether the plaintiff has alleged the deprivation of a constitutional right at all and then, and only then, determine whether the right was clearly established at the time of the alleged violation. Wilson v. Layne, 119 S.Ct. at 1697; Conn, 119 S.Ct. at 1295; County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). "Deciding the constitutional question before addressing the qualified immunity question ... promotes clarity in the legal standards for official conduct, to the benefit of both officers and the general public." Wilson, 119 S.Ct. at 1697. The Sixth Circuit also has endorsed this "merits first" approach. See, e.g., Jackson v. Leighton, 168 F.3d 903 (6th Cir.1999). Cases such as the present one illuminate the importance of deciding the constitutional question first, for when cases hinge upon close issues of developing law, limiting the court's inquiry to whether the law was clearly established at the time of the defendant's actions gives short shrift to the interests of both the litigants and the law.
Municipalities and other bodies of local governments may be sued under § 1983 for depriving an individual of his constitutional rights.2 Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The governmental entity is not, however, instantly liable for every action committed by a governmental agent under color of state law which deprives an individual of his constitutional rights. Local governments may be liable for damages whenever
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 ... local governments ... 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 decision-making channels.
Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (1978). In other words, the governmental entity must be the "moving force" behind the deprivation. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
While a government body may not be held liable under § 1983 based on the doctrine of respondeat superior, a plaintiff may employ several different legal theories to impose § 1983 liability on a governmental body.3 Generally, "liability ensues if the constitutional injury results from the implementation or 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." Id. at 694, 98 S.Ct. 2018. A single decision by an official with policy-making authority may be sufficient to constitute a policy attributable to the government for § 1983 liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Whether an official wields the authority to make final policy is a question of law for the court, to be decided based upon state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).
The United States Constitution safeguards freedom of association. Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). Constitutionally protected freedom of association may be divided into two distinct categories. The Constitution shelters both the freedom to enter into and maintain certain intimate associations (intimate association) and the freedom to associate for the purpose of engaging in those activities protected by the First Amendment, such as speech and the exercise of religion (expressive association). Roberts, 468 U.S. at 618, 104 S.Ct. 3244. It is the former kind of association, intimate association, that is at issue in this case.
Freedom of intimate association is a hybrid right, drawn from both the First and the Fourteenth Amendments. Id., at 618-620, 104 S.Ct. 3244. Justice Brennan, writing for the court in Roberts, turned to Fourteenth Amendment jurisprudence to support this right of intimate association4 and opined, Id. at 618, 104 S.Ct. 3244. He explained, Roberts, 468 U.S. at 619, 104 S.Ct. 3244. Once again, Justice Brennan cited Fourteenth Amendment cases5 to support the liberty interest in and right to privacy in the creation and maintenance of certain intimate relationships, but also cited First Amendment cases.6 Similarly, in Board of Directors of Rotary International v. Rotary Club of Duarte,7 the Supreme Court affirmed that "the freedom to enter into and carry on...
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