Shepherd v. Wellman
Decision Date | 23 December 2002 |
Docket Number | No. 01-5189.,01-5189. |
Citation | 313 F.3d 963 |
Parties | Bill Wayne SHEPHERD, et al., Plaintiffs-Appellants, v. Billy WELLMAN, et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Sixth Circuit |
Jeffrey M. Blum (argued and briefed), Louisville, KY, for Plaintiffs-Appellants.
Dana C. Fugazzi (argued and briefed), Kentucky State Police Legal Office, Frankfort, KY, Stanton L. Cave (briefed), Mary E. Naumann (argued and briefed), Jackson & Kelly, Lexington, KY, Robert I. Cusick, Jr. (briefed), Steven L. Snyder (argued and briefed), Pamela J. Ledford, Wyatt, Tarrant & Combs, Louisville, KY, for Defendants-Appellees.
Before: KEITH, KENNEDY, and MOORE, Circuit Judges.
Plaintiffs-Appellants, Mary Jane Jones, Jacob Shepherd, and Bill W. Shepherd, and Attorney-Appellant Jeffrey Blum appeal from the following orders: (1) the denial of plaintiffs' motion for partial summary judgment seeking a declaratory judgment that the Kentucky State Police (KSP) deadly force policy is unconstitutional; (2) the order dismissing the § 1983 action against Wellman, former KSP police Commissioner; (3) the imposition of sanctions against plaintiffs' attorney Jeffrey Blum; (4) the dismissal, with prejudice, of plaintiffs' claims against defendants Reffett, Provence, Reichenbach, and Silvers ("Officers").
We decline to consider the constitutionality of the KSP deadly force policy, because the plaintiffs lacked standing to seek declaratory judgment, and because this issue was not raised before the district court. We also conclude that the district court properly dismissed the § 1983 action against Wellman, because the pleadings did not place Wellman on notice that he was being sued as an individual. Similarly, we are not persuaded that the district court abused its discretion when it imposed sanctions against Blum for using this case to conduct discovery in an unrelated case. Moreover, we find that the district court did not abuse its discretion when it dismissed the claims against the Officers, because the plaintiffs failed to obtain counsel. Accordingly, we AFFIRM the district court orders.
On August 4, 1993, Gary Shepherd was shot and killed during a standoff with several members of the KSP Special Response Team. On August 5, 1994, Mary Jane Jones, decedent's girlfriend, filed several claims on behalf of Jacob Shepherd, the couple's son, including the loss of parental consortium, and a claim filed under Ky.Rev.Stat. Ann. § 411.150 ( ). Jones also filed a personal injury claim, which she withdrew voluntarily. Bill Wayne Shepherd, the decedent's brother, and representative of the decedent's estate, also filed a § 1983 action against the defendants. The defendants are members of the Kentucky State Police Department.
On August 25, 1995, Billy Wellman, the former KSP police commissioner, filed a motion to dismiss the plaintiffs' § 1983 action on the grounds of absolute immunity. The district court granted this motion in Wellman's favor on the grounds that the pleadings did not provide Wellman with notice that he was being sued in his individual capacity.
On June 6, 1997, the plaintiffs filed a partial summary judgment motion seeking a declaratory judgment that the KSP deadly force policy is unconstitutional. This argument was first raised in the second amended complaint. The district court did not permit the plaintiffs to file the second amended complaint because this additional amendment would have resulted in undue prejudice and delay. The district court denied plaintiffs' partial motion for summary judgment because the constitutionality of the deadly force policy was not argued in the pleadings accepted by the court. Plaintiffs are appealing the denial of their motion for partial summary judgment.
On January 28, 1998, Blum subpoenaed several witnesses, and requested juror questionnaires to investigate allegations of jury tampering in Ford v. Provence (Ford I), an unrelated case in which Blum represented another plaintiff against the Kentucky State Police Department. The Officers filed a motion for a protective order and sanctions to prevent the plaintiffs from using the instant case to conduct discovery for an unrelated case. The district court construed this motion as a motion for excess costs and attorneys fees under 28 U.S.C. § 1927. On June 24, 1998, after giving Blum an opportunity to explain why he should not be sanctioned, the district court granted the Officers' motion for sanctions because Blum had improperly used the instant litigation in order to conduct discovery in an unrelated case. On July 31, 1998, Blum was granted leave to withdraw as plaintiffs' counsel. Plaintiffs are appealing the sanctions order.
When a status conference was held on March 28, 2000, the plaintiffs had not obtained counsel. The district court ordered the plaintiffs to obtain counsel no later than 60 days following the entry of the order setting monetary sanctions against Blum. That order was entered on August 31, 2000. The plaintiffs did not secure counsel within 60 days of that order, nor did they timely respond to the Officers' motion to dismiss for failure to prosecute. On January 5, 2001, the district court granted the Officers' motion to dismiss for failure to prosecute. Plaintiffs are appealing this order.
On January 17, 2001, the officers filed a motion pursuant to Fed.R.Civ.P. 60(b) to amend the judgment to dismissal with prejudice, because the statute of limitations had run on the plaintiffs' complaints. Plaintiffs did not respond to this motion, and the district court granted the motion in favor of the Officers. Plaintiffs appeal the amended order.
(1) Plaintiffs' Motion for Partial Summary Judgment
The plaintiffs filed a motion requesting that the district court declare the KSP deadly force policy unconstitutional. The district court found that the plaintiffs lacked standing to seek such declaratory relief. Plaintiffs now ask this court to declare the policy unconstitutional. They allege that the issue is properly before us because both parties consented to litigate the constitutionality of the policy, even though the issue was not raised in the pleadings. The defendants maintain that they did not consent to litigate whether the deadly force policy was constitutional.
A federal appellate court generally does not consider an issue that was not considered below. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). This rule is one of prudence and does not limit our jurisdiction; we retain considerable discretion to decide questions not raised initially in the district court. See United States v. Hayes, 218 F.3d 615, 620 (6th Cir.2000). The Federal Rules of Civil Procedure provide that "when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Fed.R.Civ.P. 15(b). The record in this case does not support plaintiffs' allegation that the defendants impliedly consented to litigate the constitutionality of the deadly force policy. Therefore, the Federal Rules of Civil Procedure do not require us to consider this issue, and we decline to exercise our discretion to do so.
(2) The Dismissal of the § 1983 Action Against Wellman
We review a district court's grant of summary judgment de novo. See Hammons v. Norfolk, 156 F.3d 701, 704 (6th Cir.1998). However, in the civil rights context, we scrutinize the dismissal of complaints with special care. See Forest v. United States Postal Service, 97 F.3d 137, 139 (6th Cir.1996). We construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein. See Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994).
In Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that the Eleventh Amendment bars § 1983 suits against a state and against state employees sued in their official capacities, unless the state has waived its immunity, or unless Congress has overridden the state's immunity under section 5 of the Fourteenth Amendment. As a result, we require § 1983 plaintiffs to "set forth clearly in their pleading that they are suing the state defendants in their individual capacity for damages, not simply their capacity as state officials." Wells v. Brown, 891 F.2d 591, 593 (6th Cir.1989).
Where no explicit statement appears in the pleadings, this Circuit uses a "course of proceedings" test to determine whether the § 1983 defendants have received notice of the plaintiff's intent to hold them personally liable. See Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir.2001) (en banc) (). Under this test, we consider the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint, particularly claims for qualified immunity, to determine whether the defendant had actual knowledge of the potential for individual liability. Id. at 772 n. 1. We also consider whether subsequent pleadings put the defendant on notice of the capacity in which he or she is being sued. Id.
In Moore, the court noted that the caption on the complaint listed only the defendant police officers' names, not their official titles, and that the complaint referred to the officers throughout as the "individual defendants." Id...
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