Schaefer v. Wilcock

• Decision Date: 29 December 1987
• Docket Number: 87-C-0226G and 87-C-0512S.,Civ. No. 87-C-0111G
• Citation: 676 F. Supp. 1092
• Parties: Amy SCHAEFER, Margaret Hill, and Diane Dominguez, Plaintiffs, v. Ernest B. WILCOCK, et al., Defendants.
• Court: U.S. District Court — District of Utah

676 F. Supp. 1092

Amy SCHAEFER, Margaret Hill, and Diane Dominguez, Plaintiffs, v. Ernest B. WILCOCK, et al., Defendants.

Civ. Nos. 87-C-0111G, 87-C-0226G and 87-C-0512S.

United States District Court, D. Utah, C.D.

December 29, 1987.

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Kathryn Collard, Salt Lake City, Utah, for plaintiffs.

Stephen J. Sorenson, Robert R. Wallace, Salt Lake City, Utah, for defendants.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter is before the court on motions to dismiss and for summary judgment which were argued extensively on November 9, 1987, and taken under advisement. Kathryn Collard represented the plaintiffs, Stephen J. Sorenson represented defendant officials of the Utah Highway Patrol and Robert R. Wallace represented defendant Eric Nielsen.

In these actions, which were consolidated for purposes of pretrial discovery,¹ each plaintiff claims that she was sexually assaulted by Ernest B. Wilcock ("Wilcock") who at relevant times was employed as a Trooper of the Utah State Highway Patrol ("UHP"). UHP hired Wilcock as a Trooper in 1984. The incidents occurred during the last week of October 1986 and on or about January 1, 1987 in the case of plaintiff Hill,² on February 8, 1987 in the case of plaintiff Dominguez,³ and also on February 8, 1987 in the case of plaintiff Schaefer.⁴

Plaintiffs maintain this action against Wilcock,⁵ seventeen other defendants, who are officers and employees of UHP,⁶ and Dr. Eric Nielsen who performed a psychological assessment on Wilcock.

Plaintiffs have filed this action under 42 U.S.C. § 1983 alleging past and continuing violations of their rights under the first, fourth, ninth, and fourteenth amendments to the United States Constitution and under state law. Plaintiffs allege that Wilcock's actions constituted a violation of the following federal rights: (1) freedom from the use of excessive and unreasonable force during arrest; (2) freedom from the deprivation of liberty without due process of law; (3) freedom from summary punishment; (4) freedom from invasion of privacy; and (5) freedom of access to the courts for the redress of injuries. Plaintiffs also claim they were falsely arrested, subjected to unreasonable search and seizure, and discriminated against on the basis of gender.

Plaintiffs allege that the UHP officials were grossly negligent or deliberately indifferent in qualifying, hiring, training, supervising, and retaining Wilcock as an officer of the UHP, and were grossly negligent in adopting and executing official policies and procedures because the policies and procedures were grossly inadequate to protect plaintiffs' civil rights. In this regard, plaintiffs specifically allege that the defendants were grossly negligent in one or more of the following actions: (1) in relying on a pre-employment background check that was inadequate in a number of respects, including the comprehensiveness of medical information gathered, the number of people interviewed, their appropriateness for interview, and the extent of the interviews; (2) in ignoring expressed reservations against Wilcock found in the UHP background check, including findings of UHP captains after interviewing Wilcock, Wilcock's lack of proper personal and psychological qualities, and recommendations against his being hired; (3) in giving no regard to Wilcock's difficulty in graduating from the police academy; (4) in not requiring periodic reevaluations despite knowledge that the psychological evaluations done on all officers before employment are valid only for 12-18 months; (5) in retaining Wilcock, despite knowledge of deficiencies in good judgment and interpersonal skills; and, (6) in their investigation of complaints of improper conduct made against Wilcock in connection with stops for alleged traffic offenses beginning about six months before the reporting of the incidents here.⁷

With respect to Eric Nielsen's motion for summary judgment, the court notes that Plaintiffs included Eric Nielsen as a defendant because he performed the initial psychological assessment on Wilcock. Utah law requires that before admission to a peace officer training academy, every applicant must be "free of any physical, emotional or mental conditions which might adversely affect the performance of duty as a peace officer as determined through a selection process." Utah Code Ann. § 67-15-6 (1986). Defendant Eric Nielsen, a licensed clinical social worker,⁸ entered into a contract with UHP to perform such preemployment psychological assessments of candidates for jobs with UHP.⁹ He performed such an assessment of Wilcock and transmitted the results to UHP on or about June 21, 1984, at which time he also recommended employment of Wilcock. Plaintiffs claim that Nielsen is liable for violations of the same civil rights as the UHP officials because of his involvement with the qualification and hiring of Wilcock, and also claim a state law cause of action for Nielsen's alleged negligence in performing his official duties.

ANALYSIS

I. MOTION TO DISMISS—UHP AND UHP OFFICIALS

In this case the plaintiffs originally sought an award of damages as well as declaratory and prospective injunctive relief against the UHP, and the named UHP officials in their official and personal capacities. The UHP and UHP officials have moved to dismiss the complaint in its entirety for various reasons.

A. ELEVENTH AMENDMENT IMMUNITY

Defendants first contend that the Eleventh Amendment entirely bars plaintiffs' complaint. In general, the rules governing application of the Eleventh Amendment are difficult to fit into "any coherent framework." Papasan v. Allain, 478 U.S. 265, ___, 106 S.Ct. 2932, 2948, 92 L.Ed.2d 209 (1986) (Brennan, J., concurring and dissenting). Nevertheless, it is abundantly clear that "`in the absence of consent a suit in which the State or one of its agencies or departments is named as a defendant is proscribed by the Eleventh Amendment.'" Id. at 2939 (quoting Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984)); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam); Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425, 88 L.Ed.2d 371 (1985); Quern v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979). This proscription applies although the plaintiff is a citizen of the state sued, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and "whether the relief sought is legal or equitable." Papasan, 106 S.Ct. at 2939. However, the immunity of the Eleventh Amendment does not extend to suits against counties, municipal corporations, or other of a state's political subdivisions. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977) (citing Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890) and Moor v. County of Alameda, 411 U.S. 693, 717-21, 93 S.Ct. 1785, 1799-01, 36 L.Ed.2d 596 (1973)). Application of the Eleventh Amendment's rules of prohibition is difficult in a case such as this because of the nature and capacities in which the various defendants acted, the various kinds of relief sought, and the wide-ranging bases upon which relief is asserted. The Court will analyze the effect of the Eleventh Amendment with respect to the UHP, the UHP officials in their official capacities, and the UHP officials in their personal capacities.

1. The Utah Highway Patrol

Plaintiffs in their Memorandum in Opposition concede that the Eleventh Amendment bars their suit insofar as it seeks relief from the UHP.¹⁰ The court notes that application of the principles stated above renders the UHP itself immune from any suit in federal court, whether based on § 1983 or on breach of any state law obligation, Pennhurst, 465 U.S. at 106, 104 S.Ct. at 911, and whether the relief sought is legal or equitable. Papasan, 106 S.Ct. at 2939. Accordingly, the UHP is dismissed for lack of jurisdiction.

2. UHP Officials in Their Official Capacities

Plaintiffs also seek damages and equitable relief from certain UHP officials as officials. The Supreme Court has made clear that "official capacity" suits are in fact suits against the government entity. In Kentucky v. Graham, the Court stated the following:

Official-capacity suits ... "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978). As long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon v. Holt, 469 U.S. 464 at 472-73, 105 S.Ct. 873 at 878 83 L.Ed.2d 878. It is not a suit against the official personally for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.

473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). Thus, where state¹¹ officials are sued in their official capacity, the state's Eleventh Amendment immunity attaches and federal courts are without jurisdiction. See Edelman v. Jordan, 415 U.S. 651, 672-73, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 462-64, 65 S.Ct. 347, 349-50, 89 L.Ed. 389 (1945).

In 1908 the Supreme Court recognized one limited exception to this rule of immunity, holding that a suit challenging the constitutionality of a state official's conduct was not a suit against the state and thus was not prohibited by the Eleventh Amendment. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).¹² The Supreme...