McPherson v. Kelsey

• Decision Date: 01 October 1997
• Docket Number: Nos. 95-2234,95-2269 and 96-1017,s. 95-2234
• Citation: 125 F.3d 989
• Parties: Douglas C. McPHERSON and Connie K. McPherson, Plaintiffs-Appellees/Cross-Appellants (95-2269; 96-1017), v. Arthur T. KELSEY, Defendant, Thomas Scott and Richard Boushong, Defendants/Cross-Appellees, Steven Sowle and G. Michael Hocking, Defendants-Appellants (95-2234)/Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 989

125 F.3d 989

Douglas C. McPHERSON and Connie K. McPherson Plaintiffs-Appellees/Cross-Appellants (95-2269; 96-1017), v. Arthur T. KELSEY, Defendant Thomas Scott and Richard Boushong, Defendants/Cross-Appellees Steven Sowle and G. Michael Hocking, Defendants-Appellants (95-2234)/Cross-Appellees.

Nos. 95-2234, 95-2269 and 96-1017.

United States Court of Appeals Sixth Circuit.

Argued Dec. 3, 1996.

Decided Oct. 1, 1997.

Douglas C. McPherson, Lansing, MI, Plaintiff-Appellee/Cross-Appellant in 95-2234.

Elaine Whitfield Sharp, Whitfield, Sharp & Sharp, Marblehead, MA, for Plaintiff-Appellee/Cross-Appellant in 95-2269.

Daniel S. Sharp (argued and briefed), Whitfield, Sharp & Sharp, Marblehead, MS, for Connie K. McPherson in 95-2234, 95-2269 and Plaintiffs-Appellees/Cross-Appellants in 96-1017.

James L. Dyer (argued and briefed), Vandervoort, McFee, Christ, Carpenter & Fisher, Battle Creek, MI, for Defendants.

Gail P. Massad (briefed), Cummings, McClorey, Davis & Acho, Livonia, MI, for Defendants-Appellants/Cross-Appellees.

Before: LIVELY, NELSON, and RYAN, Circuit Judges.

OPINION

DAVID A. NELSON, Circuit Judge.

Defendant G. Michael Hocking, a judge of the Circuit Court of Eaton County, Michigan, and defendant Steven Sowle, a corrections officer in the Eaton County Sheriff's Department, are appealing here from a $45,000 judgment entered against them in a civil rights action that arose out of an allegedly illegal stop and frisk incident in the county courthouse. The plaintiffs, Douglas C. McPherson and Connie K. McPherson, are cross-appealing from an adverse judgment on certain of their substantive claims and from the denial of a claim for attorney fees.

The main issues on which our decision will turn are whether the district court erred in denying defendants Hocking and Sowle qualified immunity from suit on Mr. McPherson's federal constitutional claims and in denying Officer Sowle statutory immunity with respect to a state law false-arrest claim. We conclude that immunity ought to have been granted as to each of the claims in question. To the extent that the judgment went against the defendants, the judgment will be reversed. We shall deny the cross-appeal in its entirety.

I

Plaintiff Douglas McPherson was engaged in a dispute with his former wife, Judith McPherson, over the custody of their children. Judge Hocking was the circuit judge to whom the custody dispute had been assigned.

On August 15, 1991, Judge Hocking suspended Mr. McPherson's custodial rights pending final resolution of the matter. Mr. McPherson subsequently filed a motion for temporary visitation, and his motion was set down for hearing before Judge Hocking on September 23, 1991.

A caseworker warned the judge that there should be security at the hearing because of Mr. McPherson's alleged volatility and flaring temper. McPherson--a large, unsmiling man with a forceful voice, according to Judge Hocking--was described by the caseworker as an "eerie" and "intimidating" person.

Sheriff's Department Officer Lonny Mascho was assigned to Judge Hocking's courtroom on the day of the hearing. Defendant Steven Sowle replaced him in that assignment. When Officer Sowle relieved Officer Mascho, the record indicates, the latter told Sowle to keep a close eye on Mr. McPherson.

Judge Hocking ruled against Mr. McPherson at the hearing, denying him the visitation rights he had sought. Mr. McPherson, not surprisingly, was upset. After Judge Hocking left the bench, McPherson angrily told Officer Sowle and the court reporter that they worked for a very cruel system.

Officer Sowle reported this outburst to Judge Hocking and suggested that it might be prudent to make sure Mr. McPherson left the courtroom area. After questioning the court reporter and learning that she had been sufficiently unhappy about Mr. McPherson's display of temper to have Officer Sowle escort her out of the courtroom, the judge apparently accepted the officer's suggestion.

Mr. McPherson, meanwhile, had gone to the office of the Eaton County Friend of the Court to file a grievance against that official. Friend of the Court personnel gave him a grievance form and told him to take it to the office of Chief Judge Thomas Eveland. Mr. McPherson was advised that the way to get to Judge Eveland's office was to go through a certain door, marked "Staff Only," that sometimes was locked and sometimes was not locked.

Mr. McPherson made his way to the "Staff Only" door, found it unlocked, and went through the door, into a so-called "security area," and on to Judge Eveland's office. There he left the form with the judge's secretary.

Judge Hocking, who was unaware of McPherson's business with Judge Eveland's staff, happened to see Mr. McPherson in the security area after McPherson had left Judge Eveland's office. Judge Hocking told Mr. McPherson very forcefully to leave the area and "[d]on't ever come back here." McPherson responded, "Yes, sir." Judge Hocking then returned to his own office.

Soon thereafter it was reported to Judge Hocking that Mr. McPherson was "lurking," or pacing back and forth, outside the security door. The judge looked through the door and saw Mr. McPherson there.

Concerned that the man he thought he had ejected might present a safety threat, the judge instructed his clerk to call the sheriff's department for assistance. The clerk did so, apparently expressing concern that Mr. McPherson might have a gun. Defendant Thomas Scott, one of the officers responding to the call (the others were defendant Sowle and defendant Richard Boushong), proposed conducting a pat-down search of Mr. McPherson and inspecting his briefcase for weapons. The judge responded that this would be fine. The building was not equipped with metal detectors, and neither Judge Hocking nor the officers knew whether Mr. McPherson was in fact carrying a weapon.

Mr. McPherson and his current wife, plaintiff Connie McPherson, were standing in front of a bank of elevators when the officers found them. The officers--at least one of whom had drawn his weapon, according to Mr. McPherson--told the McPhersons not to get on the elevator.

Officers Sowle and Boushong denied that a weapon had been drawn by anyone. Be that as it may, it is uncontroverted that Officer Sowle proceeded to conduct a pat-down search of Mr. McPherson's person. Mr. McPherson claims that during the search he was "grabbed and squeezed by the testicles," which resulted in a great deal of pain. Officer Sowle denies having grabbed the man's testicles, and a jury eventually found in favor of the officer on Mr. McPherson's claims of battery and excessive use of force.

One of the officers, whom Mr. McPherson could not identify, searched McPherson's briefcase. It proved to contain nothing more than legal documents pertaining to the custody case. When the search was completed, the officers escorted the McPhersons out of the courthouse.

II

Mr. and Mrs. McPherson filed their lawsuit in federal court on September 22, 1993, just before the second anniversary of the stop and frisk incident. Named as defendants were Arthur T. Kelsey, who had been sheriff of Eaton County at the time; officers Scott, Boushong and Sowle; and Judge Hocking. As amended in September of 1994, the complaint asserted claims under 42 U.S.C. § 1983 for an alleged deprivation of rights guaranteed by the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution, plus pendent state law claims for assault, battery, intentional infliction of emotional distress, false arrest, loss of consortium, and bystander emotional distress.

The defendants moved for summary judgment on a variety of grounds, including (with respect to the federal claims) both judicial or quasi-judicial immunity and qualified immunity. Statutorily created governmental immunity was asserted with respect to the state law claims. The district court ruled against the defendants on all of their claims to immunity, but granted summary judgment to Sheriff Kelsey on the ground that the sheriff had not personally participated in the conduct complained of. The plaintiffs have not appealed the dismissal of the claims against Sheriff Kelsey.

The case against the remaining defendants was tried to a jury of seven. In the course of the trial the district court entered judgment as a matter of law in favor of officers Scott and Boushong. The court directed a verdict in favor of Mr. McPherson, however, on the claims arising from the supposed violation by Officer Sowle and Judge Hocking of McPherson's Fourth Amendment right to be secure against unreasonable searches and seizures.

As directed, the jury returned verdicts against Judge Hocking and Officer Sowle on the unreasonable search and seizure claims. The jury also found for Mr. McPherson and against Officer Sowle on the state law false arrest claim; for Mr. McPherson and against Judge Hocking on the First Amendment (right of free speech) claim; and for Mrs. McPherson on her loss of consortium claim. The jury's verdict was in favor of Judge Hocking and Officer Sowle on all of the remaining claims against them. Mr. McPherson was awarded actual damages in the amount of $40,000, and Mrs. McPherson was awarded actual damages of $5,000. The jury declined a request by Mr. McPherson for punitive damages.

Judgment was entered in conformity with the jury's verdict, and the district court denied a timely motion by defendants Hocking and Sowle for a new trial. This appeal and cross-appeal followed.

III

A

Judges have long been held to be absolutely immune from being sued on account of their judicial acts. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871). Section 1983 was not intended to abolish this immunity. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The defendants' first argument, based on a line of cases that now includes Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), Forrester v....