Melson v. Kroger Co.

• Decision Date: 02 November 1982
• Docket Number: No. C-3-82-061.,C-3-82-061.
• Citation: 550 F. Supp. 1100
• Parties: Sharon MELSON, et al., Plaintiffs, v. The KROGER COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

550 F. Supp. 1100

Sharon MELSON, et al., Plaintiffs, v. The KROGER COMPANY, et al., Defendants.

No. C-3-82-061.

United States District Court, S.D. Ohio, W.D.

November 2, 1982.

COPYRIGHT MATERIAL OMITTED

Janice L. Jessup, Dayton, Ohio, for plaintiffs.

Paul J. Winterhalter, Dayton, Ohio, for defendants Kroger Co. and Jackson.

James D. Dennis, Asst. City Atty., Dayton, Ohio, for defendants Bogan, O'Connor, Bent, Wheeler and Doe.

DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION TO DISMISS IN PART, AND OVERRULING SAME IN PART; DEFENDANTS TO HAVE TWENTY DAYS TO FILE MOTION FOR SUMMARY JUDGMENT

RICE, District Judge.

Plaintiffs filed this civil rights action in response to an encounter with four members of the Dayton police force, during which encounter, Plaintiffs contend, said officers violated their constitutional rights. Five of the seven named Defendants (the four officers and Chief of Police Grover O'Connor) have filed a motion to dismiss (doc. # 6) the complaint, pursuant to Fed. R.Civ.P. 12(b). For the reasons set forth below, said motion is sustained in part, and overruled in part. Defendants will have twenty (20) days after receipt of this Entry in which to file motions for summary judgment.

I. SUMMARY OF ALLEGATIONS IN THE COMPLAINT

Plaintiffs Sharon Melson, Alberta Bonner, Curita Bonner, Jerry Trice, and Mary Trice filed this action on February 25, 1982. Named as Defendants are the Kroger Company, Earl Jackson, a Kroger's employee, four Dayton police officers (R.C. Bogan, Barbara Bent, J.E. Wheeler, Policeman "John First Doe"), and O'Connor.

The factual allegations in the complaint concern an incident of October 1, 1981. Plaintiffs allege the following: at about 4:00 p.m. on that date, they were shopping at the Kroger Store at 1451 Troy Street in Dayton, and thereafter left the store to place their groceries in their car located in the store parking lot. After they left, Jackson called the Dayton police, reporting that "four black men were at the parking lot ... with a gun on the seat of the automobile." The four previously mentioned police officers were dispatched to Kroger's in response to the call, and Jackson "directed them to apprehend and detain" the Plaintiffs. At about 5:30 p.m., even though Plaintiffs "were lawfully and properly conducting themselves" in the parking lot and adjacent street, they were nevertheless "approached and apprehended" by the police officers. The officers ordered Plaintiffs to pull their car over to the curb, using a loud speaker system and displaying their weapons; they were ordered to exit the car "without just or probable cause to do so." When Plaintiffs were unable to exit as swiftly as the officers desired, the officers pointed their weapons "directly at the Plaintiffs and causing Curita Bonner, a minor child to become hysterical with fear ...." Furthermore, the officers "forcibly and violently seized and assaulted Plaintiffs" and "conducted unlawful searches of the person, purses and automobile of the Plaintiffs," without probable cause. After discovering that the alleged gun was a harmonica owned by Jerry Trice, a blind Plaintiff, said officers "threatened Sharon Melson with continued detention if she was unable to produce her driver's license." No charges were ever filed against Plaintiffs, and these incidents caused them pain and suffering, and emotional shock and distress. Complaint, ¶¶ 12-23.

Plaintiffs alleged that Chief O'Connor "while acting in concert with all defendants named herein, hired, ordered, place (sic) upon the streets of the City of Dayton, Ohio, police officers who were improperly trained and who, displaying a lack of judgment, used their status as police officers under the direction of the Defendant, Grover O'Connor" to commit the alleged acts. ¶ 28(a). They also allege that Defendants "intentionally engaged in malicious, wilfull and wanton conduct and recklessly caused Plaintiffs to be assaulted," ¶ 30, and that said conduct was "motivated and intended because of Plaintiffs' race." ¶ 32.

The complaint then sets forth six Counts. Count I alleges that said acts violated Plaintiffs' rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution. Count II refers to deprivation of Eighth Amendment rights, while the third Count alleges deprivation of rights under the Thirteenth Amendment and 42 U.S.C. § 1981. Count IV also alleges that Defendants violated the Thirteenth Amendment. Finally, in Counts V and VI, Plaintiffs allege that Defendants acted "in concert" to deprive them of their civil rights, in violation of 42 U.S.C. §§ 1985 & 1986, respectively.

Plaintiffs pray for monetary and injunctive relief. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1341 & 1343,¹ and the Court's pendent jurisdiction. The causes of action are said to arise under the aforementioned constitutional amendments, and 42 U.S.C. §§ 1981, 1983, 1985, & 1986. ¶ 3.

II. DEFENDANTS' MOTION TO DISMISS IS SUSTAINED IN PART AND OVERRULED IN PART

Five of the named Defendants have moved to dismiss the complaint (doc. # 6), pursuant to Fed.R.Civ.P. 12(b)(2), (5) & (6). In a Rule 12(b)(6) motion, the Court must accept as true all well-pleaded allegations in the complaint, Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976), and such a motion should not be sustained unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Neil v. Bergland, 646 F.2d 1178, 1184 (6th Cir.1981), cert. granted on other grounds, ___ U.S. ___, 102 S.Ct. 2267, 73 L.Ed.2d 1282 (1982). The Court can also examine the record to determine if service of process was properly made. 5 C. Wright & A. Miller, Federal Practice and Procedure, § 3151 at 582-83 (1969). With these standards in mind, the Court turns toward the grounds advanced in said motion.

A. ALLEGATIONS WITH RESPECT TO O'CONNOR

Defendants initially argue that, whatever may be the underlying constitutional violations arising from the October 1st incident (discussed infra), there are no allegations that Chief O'Connor directly participated in the alleged unlawful conduct. Such direct participation is a prerequisite for liability under the civil rights laws. Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982); Wilson v. Beebe, 612 F.2d 275, 275-76 (6th Cir.1980) (per curiam); Jones v. Denton, 527 F.Supp. 106, 109 (S.D.Ohio 1981).

Plaintiffs concede that they make no allegations directly implicating Chief O'Connor in the October 1st incident. But they do allege, as noted above, that he "hired, ordered," and placed "improperly trained" police officers upon the streets of Dayton. Defendants characterize this allegation as one of "negligently" hiring and training officers, Defendants' Motion to Dismiss, doc. # 6, p. 2, and conclude that such allegations are insufficient. See Hays, supra, 668 F.2d at 872-73; Jones v. Denton, supra.

The Court cannot agree with Defendants' characterization of the complaint. The allegations with respect to Chief O'Connor do not refer to "negligent" acts. Hays indeed stated that liability could not be predicated on mere negligent hiring or training. But the Court went on to state that a supervisory official could be

held liable only where there is essentially a complete failure to train the police force, or training that is so reckless or grossly negligent that future police misconduct is almost inevitable ....

Hays, supra, 668 F.2d at 874.

The allegations in the complaint, taken as true, meet this standard, albeit barely so. Plaintiffs do not allege that there was a "complete failure" to train. However, they do allege that Chief O'Connor hired and placed "improperly trained" police officers on duty, who displayed a "lack of judgment ... under the direction" of O'Connor. Complaint, ¶ 28(a). They also allege that all Defendants engaged in "reckless" conduct. ¶ 30. These allegations, taken together, satisfy the Hays test that training must be "so reckless or grossly negligent that future police misconduct is almost inevitable." Accordingly, to the extent that the allegations with respect to the other Defendants who directly participated in the October 1st incident survive a motion to dismiss (discussed infra), O'Connor's motion to dismiss must be, and hereby is, overruled.

B. SERVICE OF PROCESS ON DEFENDANT DOE

Plaintiffs were unable to identify one of the four police officers involved in the October 1st incident, and named him as a "Doe" Defendant. All parties acknowledge, and the record reflects that said Defendant has not been served with process. Based on this failure to serve process, Defendants argue that the action should be dismissed with respect to him, under Rule 12(b)(5).²

However, Plaintiffs contend that despite "due diligence," they have been unable to ascertain the name of the Doe Defendant. They suggest that his identity might be discovered in the future. Since it is "reasonably conceivable" that Plaintiffs could learn the true identity of the Doe Defendant in the future, Croy v. Skinner, 410 F.Supp. 117, 132 (N.D.Ga.1976), and properly serve him, the Court will, at this time, overrule the motion to dismiss Doe. If and when Plaintiffs learn Doe's identity, he could be properly served under Fed.R.Civ.P. 4(d)(1). See also Maclin v. Paulson, 627 F.2d 83, 87-88 (7th Cir.1980).

C. ALLEGED DENIAL OF FOURTH AMENDMENT RIGHTS

The gravamen of Plaintiffs' cause of action under Count I is that Defendants' actions on October 1st invaded their Fourth Amendment right to be free from "unreasonable searches and seizures." Courts have entertained suits, under the civil rights laws, to remedy alleged invasions of Fourth Amendment rights by police. The initial defense to such allegations, pressed by Defendants herein, is that the alleged acts comported with the law of search and seizure. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct....