Semple v. The City of Moundsville

• Citation: 195 F.3d 708
• Decision Date: 01 December 1997
• Docket Number: No. 97-1708,CA-95-17-5,CA-95-18-5,CA-95-96-5,97-1708
• Parties: (4th Cir. 1999) CHARLES LEE SEMPLE, JR., Administrator of the Estate of Deborah Louise Semple, Deceased; AMANDA LONE SUAREZ, a minor, by Charles Lee Semple, Jr., her grandfather and guardian; ANGELA MARIA SUAREZ, a minor, by Charles Lee Semple, Jr., her grandfather and guardian; THERESA A. SEMPLE, Administratrix of the Estate of Scott A. Semple, Deceased; KERMIT Z. GARRISON, Administrator of the Estate of James K. Garrison, deceased, Plaintiffs-Appellants, v. THE CITY OF MOUNDSVILLE, a Municipal Corporation, Defendant-Appellee. () . Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 708

195 F.3d 708 (4th Cir. 1999)

CHARLES LEE SEMPLE, JR., Administrator of the Estate of Deborah Louise Semple, Deceased; AMANDA LONE SUAREZ, a minor, by Charles Lee Semple, Jr., her grandfather and guardian; ANGELA MARIA SUAREZ, a minor, by Charles Lee Semple, Jr., her grandfather and guardian; THERESA A. SEMPLE, Administratrix of the Estate of Scott A. Semple, Deceased; KERMIT Z. GARRISON, Administrator of the Estate of James K. Garrison, deceased, Plaintiffs-Appellants, v. THE CITY OF MOUNDSVILLE, a Municipal Corporation, Defendant-Appellee.

No. 97-1708 (CA-95-17-5, CA-95-18-5, CA-95-96-5.)

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: December 1, 1997.

Decided: October 5, 1999.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

COUNSEL ARGUED: Jan Clovis Swensen, George Michael Kontos, SWENSON & PERER, Pittsburgh, Pennsylvania, for Appellants. Joseph S.D. Christof, II, DICKIE, MCCAMEY & CHILCOTE, Wheeling, West Virginia, for Appellee. ON BRIEF: Gail W. Kahle, DICKIE, MCCAMEY & CHILCOTE, Wheeling, West Virginia, for Appellee.

Before WIDENER and MURNAGHAN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Judge Widener wrote the opinion, in which Judge Murnaghan and Senior Judge Phillips joined.

OPINION

WIDENER, Circuit Judge:

The present appeal arises out of a longstanding domestic dispute between Deborah Semple and Michael Suarez that resulted in a multiple homicide and suicide. Miss Semple was involved in a long-term relationship with Mr. Suarez; they had lived together for years. They had two children, Amanda Lone Suarez and Angela Marie Suarez. The district court entered its judgment in favor of the City on account of the murders of Miss Semple, Scott Semple, and James Garrison, and we affirm.

During the couple's relationship, domestic violence occurred from time to time. On January 15, 1989 Suarez was arrested by the Moundsville Police Department for battery for an alleged incident of abuse, a misdemeanor, but the charges were dropped at Miss Semple's request. Prior to 1994, Patricia Rodgers, Miss Semple's mother, also contacted the Moundsville Police Department about Suarez's abusive behavior towards Miss Semple and contacted the police multiple times between January and June 1994.

On June 21, 1994, Miss Semple called the Moundsville Police Department from a pay phone and reported that Suarez had abused and threatened her at her Moundsville residence, that Suarez was at the residence with loaded guns, and that their two daughters were also in the house. The police responded, assisted in removing the daughters from the house, advised Miss Semple of her rights as an alleged domestic violence victim and provided her with a copy of the Moundsville Police Department's Victims Information Sheet. During the relevant time period, the Moundsville Police Department had a written Domestic Violence Policy in effect. Also on June 21, 1994, Miss Semple filed a family violence petition, and the West Virginia magistrate issued a family violence temporary protective order directing Suarez to "refrain from contacting, telephoning, communicating, harassing, or verbally abusing [Miss Semple]." After several unsuccessful attempts to serve Suarez with the temporary protective order, he was notified of it, as Deborah's mother was notified, during a telephone conversation on June 23, 1994.

On June 24, 1994, the West Virginia magistrate conducted a final hearing and issued a final order that prohibited Suarez from contacting Miss Semple. The magistrate also contacted the Police Department and advised that "when [Suarez] is seen, he can be served and lodged in jail if he violates the order." Two days later, Miss Semple called the police and reported that Suarez had been at her house, indicated that she knew nothing could be done at that moment, and asked if an officer would respond if she called and "just got her name out."

Then, on June 27, 1994, the Moundsville Police Department responded to a call from Miss Semple's mother requesting assistance at Miss Semple's residence. The police arrived within three minutes of the phone call and found that Suarez had broken a window, entered the house, struck Miss Semple with a gun, pointed the gun at her head and threatened to kill her. Later that day, Suarez was arrested and charged with felony endangerment with the use of a firearm, felony malicious assault and misdemeanor stalking. Bond was set at $75,000. Further, Suarez was served with the final protective order, and his bond included a provision that he was not to contact Miss Semple. On July 1, 1994, Suarez posted bond and was released from jail. The Moundsville Police Department attempted to notify Miss Semple. Unable to do so, the police notified Miss Semple's parents of Suarez's release.

On July 6, 1994, Miss Semple called the Moundsville Police Department and reported that Suarez had been harassing her, her father, her babysitter and her housekeeper by telephone. The next day, Miss Semple met with county prosecutors and filed a criminal complaint against Suarez. Based on that complaint, a West Virginia magistrate issued an arrest warrant for the misdemeanor charge of violating the protective order. Later in the day, Miss Semple notified police that Suarez was at the rear door of the Moundsville residence shouting obscenities at her. The police responded and arrested Suarez. Suarez was released on a $500 personal recognizance bond.

One week later, on July 13, 1994, the Moundsville Police Department responded to an anonymous phone call that reported that Suarez had vandalized the Moundsville residence. The police notified Miss Semple's father of the incident, and he informed the police that Miss Semple no longer lived at that residence.

On August 6, 1994 Miss Semple returned to the Moundsville residence to retrieve some of her possessions. She was accompanied by her two daughters, her brother, Scott Semple, who was armed with a handgun, and James Garrison, a friend of Miss Semple's. At approximately 1:30 in the afternoon, Miss Semple called the police and notified them that Suarez had vandalized the residence, but did not request assistance. Four minutes later, one of Miss Semple's daughters called from the residence. Miss Semple picked up the phone, advised the police that one of the girls was playing with the phone and pressed the redial button, and explained that"everything was fine." Then, at 1:43, Miss Semple made a frantic phone call to inform the police that Suarez was in the house. The police arrived three minutes later to discover that Suarez had shot and killed Miss Semple, Scott Semple, and James Garrison, and then fatally shot himself.

Plaintiffs, Charles Lee Semple, Jr., Administrator of the Estate of Deborah Louise Semple, and Amanda Lone Suarez and Angela Marie Suarez, minors, by Charles Lee Semple, Jr., their grandfather and guardian, filed an action against the City of Moundsville, a municipal corporation, for damages under 42 U.S.C. § 1983 and under West Virginia's Wrongful Death Statute, W. Va. Code § 55-7-6. On the same day, Theresa A. Semple, Administratrix of the Estate of Scott A. Semple, filed an identical action against the City of Moundsville. Subsequently, Kermit Z. Garrison, Administrator of the Estate of James K. Garrison, filed an identical civil action. The City only, no individual, was sued, and these three actions were consolidated for purposes of trial and discovery.

The City moved for summary judgment, which the district court granted. The court granted summary judgment against the plaintiffs on their § 1983 claims, and also decided the state law claims in favor of the City on the ground that the municipality was immune under West Virginia's state immunity statute. W.Va. Code§ 29-12A-5(a)(5) (1992). Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Myers v. Finkle, 950 F.2d 165, 167 (4th Cir. 1991). As stated, we affirm.

I. Plaintiffs' 42 U.S.C. § 1983 Claims.

Section 1983 of Title 42 of the United States Code provides a civil remedy for state deprivations of rights secured by the Constitution and laws of the United States.

In Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694 (1978), the Supreme Court interpreted § 1983 to permit a municipality to be held liable for constitutional deprivations resulting from its employees' conduct. Nevertheless, "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691. Consequently, this circuit held in Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994), that "plaintiffs seeking to impose liability on a municipality must, therefore, adequately plead and prove the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their rights." See also Monell, 436 U.S. at 694 (holding plaintiff must prove that "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury"); Spell v. McDaniel, 824 F.2d 1380, 1386-87 (4th Cir. 1987), cert. denied sub nom., City of Fayetteville, N.C. v. Spell, 484 U.S. 1027 (1988). Thus, a prerequisite to municipal liability is the finding that an official policy or custom existed.

An official policy often refers to "formal rules or understandings . . . that are intended to, and do, establish fixed plans of action to be followed...