Sherrell By and Through Wooden v. City of Longview

• Decision Date: 30 December 1987
• Docket Number: Civ. A. No. TY-87-240-CA.
• Citation: 683 F. Supp. 1108
• Court: U.S. District Court — Eastern District of Texas
• Parties: Jeremy M. SHERRELL, A Minor, Acting By and Through his Guardian Phyllis WOODEN, Plaintiff, v. The CITY OF LONGVIEW, Police Chief James McLaughlin, Deputy Police Chief Neil McKinney, and Former Police Officer Kenneth Alan Kavanaugh, Sergeant Phil English, Defendants.

683 F. Supp. 1108

Jeremy M. SHERRELL, A Minor, Acting By and Through his Guardian Phyllis WOODEN, Plaintiff, v. The CITY OF LONGVIEW, Police Chief James McLaughlin, Deputy Police Chief Neil McKinney, and Former Police Officer Kenneth Alan Kavanaugh, Sergeant Phil English, Defendants.

Civ. A. No. TY-87-240-CA.

United States District Court, E.D. Texas, Tyler Division.

December 30, 1987.

COPYRIGHT MATERIAL OMITTED

Guy N. Harrison, Mobley, Green & Harrison, Longview, Tex., for plaintiff.

Michael R. Buchanan, Dallas, Tex., T. John Ward, Sharp, Ward, Price & Searcy, Longview, Tex., for City of Longview and McLaughlin.

Robert W. Weber, Atchley Russell Waldrop & Hlavinka, Texarkana, Tex., for McKinney and English.

Kenneth A. Kavanaugh, pro se.

MEMORANDUM OPINION

JUSTICE, Chief Judge.

Defendants City of Longview, Police Chief James McLaughlin, Deputy Chief Neil McKinney, and Sergeant Phil English move to dismiss the complaint for failure to state a claim upon which relief can be granted, under Fed.R.Civ.P. 12(b)(6). In the alternative, they move for a more definite statement, pursuant to Fed.R.Civ.P. 12(e).¹

The party bringing a motion to dismiss under Rule 12(b)(6) bears the burden of demonstrating that no claim has been stated upon which relief can be granted. 2A Moore's Federal Practice ¶ 12.072.-5. In construing the motion, the court must accept all factual allegations in the complaint as true, and resolve all factual disputes in favor of the plaintiff. O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985). Dismissal is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Reeves v. Guiffrida, 756 F.2d 1141, 1143 (5th Cir.1985). The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence in support of his claim, regardless of how unlikely it may appear from the pleadings that he will succeed. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

1. Parties' Contentions

Plaintiff is a young child who was assaulted and seriously injured by the defendant, Kenneth Kavanaugh, in August, 1985. At the time of the assault Kavanaugh was employed as a police officer by the City of Longview, Texas. Kavanaugh had allegedly been given psychological tests in 1982, showing him to have a propensity toward violence and dangerousness, and an inability to control his actions. The police department was aware of these tests, plaintiff contends, yet nonetheless employed him. In addition, Kavanaugh had several times complained to his supervisor, defendant English, of suffering from fatigue and stress, which plaintiff alleges further put the defendants on notice of Kavanaugh's psychological state.

In July 1985, Kavanaugh allegedly assaulted the plaintiff, by hitting him. It appears Kavanaugh at the time was not on-duty. The assault was reported to the police. However, Kavanaugh was not arrested,² it is claimed, because he was a police officer and the City of Longview "had a policy of dealing with police officers involved in domestic violence in a manner other than normal ordinary citizens were dealt with, that being, not arresting them and assigning them for counseling." Complaint, statement of facts (paragraph and page unnumbered).

Although not arrested, Kavanaugh was assigned to counseling with another officer, Zerban, who is not a defendant here. Plaintiff asserts that Zerban did not have proper training to undertake such counseling.

A second complaint was made to the police about Kavanaugh's abuse of the plaintiff and his younger brother between July 7 and August 7, 1985. Again Kavanaugh was not arrested, but was merely questioned by the deputy police chief.

Finally, on the evening of August 23, 1985, Kavanaugh took the plaintiff and two siblings to the home of defendant English, advising English that he was under extreme stress and was afraid he would abuse the children. English allegedly "counseled" Kavanaugh, but did not arrest him or take the children away. After leaving English's home, Kavanaugh assaulted the plaintiff, causing him serious injuries, including severing the child's penis.

Plaintiff complains that the failure of the city and the individual police officers to arrest Kavanaugh, even though they knew of his dangerousness to the plaintiff, left Kavanaugh free to assault and injure him. Such failure to arrest Kavanaugh allegedly denied plaintiff due process and equal protection of the law, in violation of 42 U.S.C. § 1983. Plaintiff further claims that the defendants' refusal to arrest Kavanaugh because he was a police officer, reflecting a department policy of treating police officers involved in domestic disputes differently than civilians, also violated plaintiff's rights under Section 1983. Finally, Sherrell claims that the defendants were negligent in hiring and keeping Kavanaugh on the police force, despire his known dangerousness, and in not arresting Kavanaugh after the first assault on the child.

The moving defendants seek dismissal of the complaint, or of individual claims, on the following grounds:

1. That the defendants' alleged failure to protect the plaintiff from Kavanaugh does not rise to the level of a constitutional deprivation;

2. That the plaintiff has failed to allege the specific facts necessary to show that a municipal policy or custom existed and was the "moving force" causing his injury;

3. That plaintiff has failed to allege any discriminatory purpose or intent by the defendants, or to negate any rational basis for the alleged discrimination against him;

4. That, as a matter of law, the plaintiff cannot raise a cause of action alleging negligent deprivation of civil rights against the defendants; and

5. That the defendants are shielded by immunity, under the Texas Tort Claims Act, from plaintiff's state law causes of action.

Finally, in the alternative, the defendants move for a more definite statement, on the grounds that the plaintiff has not pled sufficient facts to overcome their asserted qualified immunity defense.

2. Allegations of a Constitutional Deprivation

Defendants rightly point out that, to make out a Section 1983 claim against the city and its police officers in their official capacity, the plaintiff must allege that their conduct deprived him of a constitutional right, and was not simply a breach of duty imposed under state law. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986); Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692-93, 61 L.Ed.2d 433 (1979). No constitutional violation is possible here, defendants contend, because they had no constitutional obligation to protect the plaintiff from assault. Estate of Gilmore v. Buckley, 787 F.2d 714, 719 (1st Cir.), cert. denied ___ U.S. ___, 107 S.Ct. 270 (1986); Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982). They further deny that they were in any custodial or other "special relationship" with the boy, or had any constitutional duty to protect him, even assuming that indeed they were aware of the dangers Kavanaugh posed to the child. They disclaim having undertaken any acts or omissions which placed the child in any special danger or which otherwise "threw him into a snake-pit." Walker v. Rowe, 791 F.2d 507, 511 (7th Cir.), cert. denied ___ U.S. ___, 107 S.Ct. 597, 93 L.Ed.2d 597 (1986).

Accepting plaintiff's factual allegations as true, as the court must, the complaint sufficiently pleads a constitutional deprivation to withstand the motion to dismiss. As discussed below, plaintiff has alleged a constitutional deprivation under two potentially valid theories.

a. Discrimination in police protection

The Constitution, because it is "a charter of negative liberties," Walker, 791 F.2d at 510, does not generally mandate that police protect a citizen from attack by a private individual. Estate of Gilmore, 787 F.2d at 719. Once the government has undertaken to provide the public with protection and law enforcement, however, it cannot do so in a manner which violates the Constitution, such as by discriminating against certain persons on an irrational basis. Bartalone v. County of Berrien, 643 F.Supp. 574, 576 (W.D.Mich.1986) (citing Smith v. Ross, 482 F.2d 33, 36-37 (6th Cir.1973)); Dudosh v. City of Allentown, 629 F.Supp. 849, 854 (E.D.Pa.1985) and related opinion, 665 F.Supp. 381 (E.D.Pa. 1987), reconsideration denied sub nom. Dudosh v. Warg, 668 F.Supp. 944 (E.D.Pa. 1987).

The plaintiff has alleged that he was the victim of a departmental policy providing favored treatment to police officers accused of domestic violence. He is thereby asserting a Fourteenth Amendment deprivation. As the U.S. Court of Appeals for the Seventh Circuit has stated, "discrimination in providing protection against private violence would of course violate the equal protection clause of the Fourteenth Amendment." Bowers, 686 F.2d at 618. Acts of omission in providing police protection, as well as acts of commission, may be discriminatory under the Fourteenth Amendment. Bartalone, 643 F.Supp. at 576.

Defendants suggest that "a police department is given wide latitude in the dispatch of its own internal affairs," citing Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976). This does not extend, however, to situations in which police authority is used for unlawful purposes. The focus of Section 1983 is on the "misuse of state power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961); see also Daniels, 106 S.Ct. at 665-6. Such misuse of state power may exist when a police department or police officers attempt to shield one of their own from the consequences of wrongdoing, by the exercise of...