Rutherford v. CITY OF NEWPORT NEWS, VIRGINIA

• Decision Date: 29 February 1996
• Docket Number: Civ. A. No. 4:95cv8.
• Citation: 919 F. Supp. 885
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Martha RUTHERFORD, individually, and in her capacity as Administratrix of the Estate of Steven R. Rutherford, Deceased, Plaintiff, v. The CITY OF NEWPORT NEWS, VIRGINIA, Jay A. Carey, Jr., individually and in his official capacity as former Chief of Police of the City of Newport News, Virginia, and Barry Haddix, individually, and in his official capacity as a former Police Sergeant for the City of Newport News, Virginia, and T.A. Zeitler, and James O. Williamson, individually, and in their official capacities as Police Sergeants for the City of Newport News, Virginia, Defendants.

919 F. Supp. 885

Martha RUTHERFORD, individually, and in her capacity as Administratrix of the Estate of Steven R. Rutherford, Deceased, Plaintiff, v. The CITY OF NEWPORT NEWS, VIRGINIA, Jay A. Carey, Jr., individually and in his official capacity as former Chief of Police of the City of Newport News, Virginia, and Barry Haddix, individually, and in his official capacity as a former Police Sergeant for the City of Newport News, Virginia, and T.A. Zeitler, and James O. Williamson, individually, and in their official capacities as Police Sergeants for the City of Newport News, Virginia, Defendants.

Civ. A. No. 4:95cv8.

United States District Court, E.D. Virginia, Newport News Division.

February 29, 1996.

Michael F. Imprevento, Andrew Michael Sacks, Sacks & Sacks, Stanley E. Sacks, Sacks, Sacks & Imprevento, Norfolk, VA, for plaintiff.

Allen Link Jackson, Deputy City Attorney, Newport News, VA, for City of Newport News, Virginia.

Allen Link Jackson, Newport News, VA, Alan Brody Rashkind, Furniss, Davis, Rashkind & Saunders, Norfolk, VA, for Jay A. Carey, Jr.

Allen Link Jackson, Newport News, VA, Fred Bradford Stillman, Robert William McFarland, David Michael Young, McGuire, Woods, Battle & Boothe, Norfolk, VA, for Barry Haddix.

Allen Link Jackson, Kenneth Robert Yoffy, Saunders, Stephenson, Cope, Olson & Yoffy, Newport News, VA, for T.A. Zeitler.

Roy Barrow Blackwell, Kaufman & Canoles, Norfolk, VA, Allen Link Jackson, Newport News, VA, Jonathan Lee Thornton, Kaufman & Canoles, Norfolk, VA, for James O. Williamson.

OPINION AND ORDER

DOUMAR, District Judge.

This case arises from the tragic murder of a young police officer who was ordered to go undercover for the purpose of nabbing a suspected robber of pizza delivery men. The officer, Steven R. Rutherford, was murdered by the robbers. Officer Rutherford's wife, acting pursuant to 42 U.S.C. § 1983, now brings this action against his superiors and the municipality which employed him, claiming that they violated his constitutional rights under the substantive component of the Due Process Clause. Plaintiff's theory of the case is that the Due Process Clause provides an "affirmative duty" on the part of the defendants to protect her decedent once their actions or omissions "created the danger" into which he stepped.

Pending before the Court are motions by all defendants to dismiss, and motions for summary judgment by the individual defendants on the basis of qualified immunity. For the reasons that follow, the motions to dismiss will be GRANTED.

I. Factual and Procedural Background

Plaintiff Martha Rutherford, the Administratrix of the estate of Steven R. Rutherford, deceased, brings this action against the following defendants: the City of Newport News, Virginia ("Newport News"); Jay Carey ("Carey"), formerly the Chief of Police of the Newport News Police Department ("Newport News P.D."); Barry Haddix ("Haddix"), formerly a police sergeant with the Newport News P.D.; and T.A. Zeitler ("Zeitler") and James Williamson ("Williamson"), currently police sergeants with the Newport News P.D. Each of the individuals is sued individually and in their official capacities.

The following facts are taken from the plaintiff's complaint, the truth of which is assumed for the purpose of the pending motions. The case arises out of a tragic incident on the night, of January 11, 1994.¹ Prior to that night, there had been a series of armed robberies of pizza delivery drivers in Newport News. A franchise of a local pizza chain, Chanello's, received what it regarded as a "suspicious" call during the evening hours. Aware of the recent robberies, the Chanello's supervisor called the Newport News P.D. for assistance.

An undercover "sting" operation was hastily concocted that night by police officials. Plaintiff's decedent, twenty-eight year old Steven Rutherford, and his partner, Todd Cioffi, both officers with the Newport News P.D., were selected to participate. Neither of the officers had any training or practice in such operations. Second Amended Compl., ¶ 28.² Officer Rutherford was instructed to disguise himself as a "pizza driver" and to act as a "decoy." Id., ¶ 26. Officer Cioffi was ordered to provide backup. The three sergeant-defendants who ordered the operation were located some 175-200 feet away, but were unable to see the scene of the robbery from their location, and were separated from the decoy car used by Rutherford and Cioffi by a six foot tall wooden fence. Id., ¶ 41.

To characterize the operation as poorly planned is an understatement. Officers Rutherford and Cioffi, who had been filling out paperwork elsewhere when called for the assignment, worked on the details among themselves while driving from the pizza shop. Id., ¶¶ 30, 31. Though instructed to pose as a "realistic" pizza delivery driver, Officer Rutherford was given an empty pizza box. Id., ¶ 43. Officer Rutherford was not given a wire transmitter or electronic device that would permit his backup to monitor the situation. Id., ¶ 44. No clear channel of communications was established for Cioffi in the event the operation went awry. When it did, he was unable to call promptly for additional backup. Id., ¶ 52, 53. No escape or contingency plans were made. Id., ¶ 54.

The operation, such as it was, failed miserably, and ended in disaster. Officer Rutherford's identity as a police officer was quickly discovered by the robbery assailants; he was shot four times and killed.

Plaintiff Martha Rutherford, the deceased officer's wife, brings this action pursuant to 42 U.S.C. § 1983, alleging a deprivation of the decedent's constitutional rights under the substantive Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. She seeks compensatory and punitive damages.

All defendants made motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). By order entered September 15, 1995, discovery was stayed pending resolution of the Rule 12(b)(6) motions. On October 18, 1995, each of the individual defendants moved for summary judgment on grounds of qualified immunity.³ Oral argument was heard on the summary judgment motion on January 16, 1996. This matter is now ripe for adjudication.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of an action for failure to state a claim upon which relief can be granted. Motions to dismiss are to be granted sparingly: ".... a motion to dismiss should not be granted unless the plaintiff can prove no set of facts which would entitle him to relief." Fayetteville Investors v. Commercial Builders, 936 F.2d 1462, 1466 (4th Cir.1991); Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). In considering a motion to dismiss, the court should construe the complaint favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Martin Marietta Corp. v. Intelsat, 991 F.2d 94, 97 (4th Cir.1992) ("the claims must be construed in the light most favorable to the nonmoving party and its allegations taken as true.").

Summary judgment under Rule 56 presents a different standard of review. To sustain a motion for summary judgment, the Court must find that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Thus, because there are no facts before the Court, other than those set forth in plaintiff's complaint, the standard of review is essentially that under Rule 12(b)(6), and the Court will construe the allegations of the plaintiff as true for the purpose of these motions. Dismissal or summary judgment may be entered for the defendants only if they are entitled to prevail as a matter of law.

III. Analysis

A. Claims not before the Court

It is worth pausing here to emphasize what this action is not about. Defendants, construing plaintiff's complaint as possibly presenting an action under state tort law, extensively briefed the issue. Plaintiff has made clear that no such claim is before the Court. The action arises solely under the Constitution. Plaintiff's Brief in Opposition to Sergeants' Motion to Dismiss at 32 ("plaintiff unequivocally states that she does not plead any pendant state law claim ... no state law claims are made ... nor will be made in this case") (hereafter "Pl.Br. in Opp. to Sgts. Dismissal Mot.").

Second, plaintiff has withdrawn claims for damages asserted in her individual capacity for violation of her civil rights, and confines her Complaint to "claims for the widow's damages as a statutory death beneficiary" and to the decedent's own personal claims for violations of his civil rights. Id. at 33 n. 6.⁴

B. Counts I, II, and III: The Affirmative Duty to Protect Under the Substantive Due Process Clause

At the outset, it is important to understand the precise nature of plaintiff's claim. As summarized by her, it is as follows:

The essence of plaintiff's claim is that defendants recklessly, willfully, and arbitrarily created a patently life-threatening danger to Officer Rutherford; then recklessly, willfully, and arbitrarily failed to protect his life; and thereby proximately cause sic his brutal death.

Id. at 10. In sum, plaintiff alleges that the Haddix, Zeitler, and Williamson, the sergeants-defendants (hereafter "Sergeants"), had an "affirmative duty" to protect Officer Rutherford because they had allegedly "created the danger" into which he was required to step on the fateful night — by sending him to the assailants' house without adequate preparation, planning, and backup. There is no contention that this was undertaken for any purpose other than to fulfill what the Sergeants believed was their sworn duty: to apprehend a suspected robber. Plaintiff acknowledges this critical fact, noting that the Sergeants undertook "to conduct an undercover sting operation" in an effort to discover the...