Morrash v. Strobel, s. 85-1918

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation842 F.2d 64
Docket NumberNos. 85-1918,s. 85-1918
PartiesJoseph MORRASH and Morton Ford, Plaintiffs-Appellees, and Charles Cox, Plaintiff, v. Charles STROBEL, Defendant-Appellant. and John R. Stedman, City of Alexandria; Defendant. Joseph MORRASH, Charles Cox and Morton Ford, Plaintiffs-Appellants, v. Charles STROBEL and City of Alexandria, Defendants-Appellees. and John R. Stedman, Defendant. Joseph MORRASH, Charles Cox and Morton Ford, Plaintiffs-Appellees, v. CITY OF ALEXANDRIA, Defendant-Appellant. and Charles Strobel, John R. Stedman, Defendants. Joseph MORRASH and Morton Ford, Plaintiffs-Appellants, and Charles Cox, Plaintiff, v. Charles STROBEL, City of Alexandria, Defendants-Appellees. and John R. Stedman, Defendant. Joseph MORRASH and Morton Ford, Charles Cox, Plaintiffs-Appellants, v. Charles STROBEL, Defendant-Appellee. and John R. Stedman, City of Alexandria, Defendants. (L), 85-1939, 85-1998, 85-2002 and 86-3552.
Decision Date06 October 1987

Robert A.W. Boraks, Washington, D.C. (Mary E. Craig, Reston, Va., on brief), for defendant-appellant.

Susan M. Cardenas, Joseph F. Cunningham (David G. Fiske, Thomas & Fiske, P.C.; David D. Hudgins, William H. Atwill, Jr., Cunningham & Hudgins, Alexandria, Va., on brief), for plaintiffs-appellees.

Before PHILLIPS and SPROUSE, Circuit Judges, and BOYLE, District Judge for the Eastern District of North Carolina, sitting by designation.

TERRENCE WILLIAM BOYLE, District Judge:

In this civil rights case, three Alexandria, Virginia, policemen sued the City and its Public Safety Director claiming that their constitutional rights were deprived by the defendants. All of the plaintiffs claim that they were "whistle blowers" who pursued and exposed police misconduct. The plaintiffs claim that in return for their efforts to expose corruption they were singled out by the defendants for retaliation resulting in either discipline or discharge. The plaintiffs seek to recover money damages from the defendants, together with injunctive relief reinstating the dismissed plaintiff and expunging the records of the disciplined plaintiffs, and a mandatory injunction against future violations of the plaintiffs' constitutional rights and the recovery of attorneys' fees under 42 U.S.C. Sec. 1988.

I.

The controversy arose from two separate incidents. The first involved the alleged moral turpitude of an Alexandria police officer, and the second involved the alleged illegal drug activity of the city sheriff. In the summer of 1982, the plaintiff Morton Ford heard rumors that one of his fellow officers had made homosexual advances toward an adolescent male. Conversations with this officer increased Ford's suspicion. Ford sent a memo to the police department's internal affairs division expressing his concern over this subject. Shortly thereafter Ford had a disagreement with his superior, the defendant Charles Strobel, Director of Public Safety for the City of Alexandria. Strobel questioned Ford's motive in writing the memo setting out his suspicion of sexual misconduct by a fellow officer. Later, Ford was transferred from his assignment in vice/narcotics to a night shift patrol, without any loss of pay or of seniority.

Ford claims that Strobel transferred him as punishment in retaliation for the memo. The defendants claim that the transfer was unrelated to the memo. Rather, defendants say that Ford's transfer resulted from his poor management and poor leadership and his disclosure within the police force of the allegations against his fellow officer. Ford did not invoke his right to an administrative grievance procedure to redress the transfer although that right was available to him.

After Ford's memo with the charges, Strobel conducted an investigation of the alleged sexual impropriety and concluded that the suspicions raised in the memo were the product of rumor and that the accusations against the officer were unfounded.

The summary handling of the official investigation caused a group called the Alexandria Police Association ("the Association") to initiate its own "unofficial" inquiry. A memo was sent to the defendant Strobel from the Association questioning the adequacy of his investigation. This was followed in October 1983 by the appointment by the Association of an "investigative committee" consisting of the plaintiff Ford, together with the plaintiff Joseph Morrash (a fellow officer) and a third police officer who is in no way involved in this lawsuit.

Morrash and Ford contend that they were authorized as members of a committee of the Police Association to determine whether Public Safety Director Strobel's investigation was adequate or a sham.

Approximately two weeks after the committee had been formed, Officer Morrash was cautioned by his superior, Lieutenant Hilleary, not to conduct his investigation while he was on duty. On November 28, 1983, Morrash was transferred from his job as a burglary investigator to foot patrol at a shopping center. On November 29, 1983, Morrash filed a grievance to this transfer. Morrash and Ford continued to participate in the investigation for several months. During January and February 1984, the Association questioned the usefulness of continuing the investigation as its members began to voice objection to the committee's activity.

On April 4, 1984, when the committee failed to produce substantial proof to corroborate Officer Ford's allegations of sexual misconduct, the Association entirely withdrew its support from the committee.

Morrash appealed the transfer through established grievance procedures and secured the reinstatement of his previous job assignment. An arbitration panel unanimously held that the transfer was punitive and that the reasons for the transfer were pretextual.

The second incident involved the following facts. The plaintiff-appellant Charles Cox, a police officer, was assigned to investigate suspected drug trafficking at an Alexandria restaurant. Cox and another officer conducted the investigation, which began in February 1984, under the command of Lt. Arthur Bratcher. Through a confidential informant, it was discovered that a regular patron of the restaurant was the Alexandria sheriff. The sheriff was at one point a "target" of the investigation. The evidence produced by this investigation was insignificant and circumstantial. Thereafter, Bratcher terminated the sheriff's status as a target of the inquiry and the investigation of the restaurant stopped in mid-March 1984. Cox then wrote a memo to Bratcher stating that the investigation of the sheriff should continue, citing what he believed to be promising new leads. The investigation was not reopened. On August 24, 1984, Cox resigned from the police force after allegations (which he denied) that he had been improperly using sick leave time for his recreation. Cox, Ford and Morrash filed this action.

The district judge allowed summary judgment for the City on all of the claims of all of the plaintiffs. The court also allowed summary judgment for the defendant Strobel on the claims of Charles Cox. The jury tried and decided the claims of the plaintiffs Morrash and Ford against the defendant Strobel under 42 U.S.C. Sec. 1983. These included claims for the alleged deprivation of the plaintiffs' constitutional rights to free association and due process.

The jury awarded Morrash $6,000 and Ford $9,000 on these claims. No punitive damages were awarded. Defendant Strobel did not make a motion to the trial court for judgment n.o.v. Thereafter, the district court ordered Ford reinstated to his prior position and ordered Morrash's and Ford's files to be expunged of any adverse content as a result of this entire incident. The district court also awarded plaintiffs' attorneys' fees after substantially reducing the allowable hours and hourly rate. All of the parties have appealed the adverse rulings of the court.

II.

We affirm the summary judgment on all claims against the City of Alexandria and the summary judgment on the claims of Charles Cox against the defendant Strobel. We also affirm the trial court's denial of attorney's fees to the City. Because defendant Strobel neglected to move below for a judgment notwithstanding the verdict, this court may not reverse the trial court's denial of Strobel's motions for directed verdict against Morrash and Ford. Because, however, we find that the trial court erred in denying these motions, we remand the action for a new trial with respect to Morrash's and Ford's Due Process claims and Morrash's freedom of association claim.

A claim under 42 U.S.C. Sec. 1983 will not support a recovery for mere negligence, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), nor will it countenance a claim founded on respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-2038, 56 L.Ed.2d 611 (1978). To the extent that the City negligently failed to supervise Strobel, the plaintiff-appellants have no right to recover. The City would be liable only to the degree that Strobel's actions could be said to represent official policy. 436 U.S. at 694, 98 S.Ct. at 2037-2038. Municipal liability under Sec. 1983 exists only where a deliberate choice to follow a course of action is made by the official responsible for establishing final policy with respect to the subject matter at issue. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986).

The plaintiff-appellants base their claims against the City on the argument that Strobel's actions were deliberate choices by an official responsible for establishing final policy. The question for us is whether the plaintiff-appellants raised an issue of triable fact whether Strobel was responsible for establishing final policy. The City argues there has been no pattern of abuse and that, in the absence of such a pattern, a municipality cannot...

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