Smith v. Hill

• Decision Date: 23 March 1981
• Docket Number: No. C 80-0169A.,C 80-0169A.
• Citation: 510 F. Supp. 767
• Parties: Kyle L. SMITH and Lynne A. Smith, Plaintiffs, v. Dick HILL, Don Forsythe, Karl R. Lyman, Kenneth J. Pinegar and H. Jerry Bradshaw, Utah County Commissioners, Utah County, State of Utah, Scott M. Matheson, Governor of the State of Utah, and Utah State Commissioner of Public Safety Larry Lunnen in his public and individual capacities, Defendants.
• Court: U.S. District Court — District of Utah

510 F. Supp. 767

Kyle L. SMITH and Lynne A. Smith, Plaintiffs, v. Dick HILL, Don Forsythe, Karl R. Lyman, Kenneth J. Pinegar and H. Jerry Bradshaw, Utah County Commissioners, Utah County, State of Utah, Scott M. Matheson, Governor of the State of Utah, and Utah State Commissioner of Public Safety Larry Lunnen in his public and individual capacities, Defendants.

No. C 80-0169A.

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

March 23, 1981.

Loni F. DeLand, McRae & DeLand, Salt Lake City, Utah, for plaintiffs.

Jeffrey N. Clayton, Moyle & Draper, Salt Lake City, Utah, for defendants Hill and Forsythe.

Noall T. Wootton, Utah County Atty., Provo, Utah, for defendants Lyman, Pinegar and Bradshaw, Utah County Commissioners and Utah County.

Allen L. Larson, Snow, Christensen & Martineau, Salt Lake City, Utah, for defendants State of Utah, Scott M. Matheson, and Utah State Commissioner of Public Safety Larry Lunnen.

AMENDED ORDER OF DISMISSAL

ALDON J. ANDERSON, Chief Judge.

This is a civil rights action brought under 42 U.S.C. § 1983.¹ At issue before the court is a motion filed by defendants Karl R. Lyman, Kenneth J. Pinegar, and H. Jerry Bradshaw, who collectively comprise the Utah County Commission. They have moved the court for a dismissal of the action as against them individually, and as to the County. Memoranda have been filed by the respective parties to this motion. Oral argument was made before the court on December 1, 1980. The court has considered the arguments thus made and concludes that, as a matter of law, plaintiffs have not stated a claim as against the County defendants. The motion to dismiss is accordingly granted.

FACTS

For the purposes of this motion all of the factual assertions of the second amended complaint are taken as true. Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). The claims herein arise from an incident that occurred on April 19, 1979, at 11:30 p. m. Plaintiff Kyle Smith answered a knock on the door of his residence in Orem, Utah. On opening the door he found defendant Dick Hill and a youth of 15 to 16 years of age. Hill is employed in Utah County as a deputy constable. Without identifying himself Hill told Smith that he, Smith, owed him $50. Smith inquired why and was told that it was for a traffic ticket issued to him for driving without a license. Smith then showed his driver's license. Hill stated that the fine was reduced to $45, but continued his insistence that Smith pay the fine. Hill allegedly stated that the fine should be paid immediately "or you go with me." Smith responded that he was not going anywhere, having not yet seen any identification for Hill. Smith claims that Hill then jerked open the screen door and pulled a pistol from under his jacket, which he cocked. Hill entered the house and threatened to shoot Smith. He allegedly aimed the pistol at Smith's chest at a distance of eight to ten inches and ordered Smith to put his hands on the wall. Smith asserts that he felt tremendous fear, both for his own safety and for that of his wife, Lynne Smith. He further claims that he was apprehensive over the safety of his small child who was sleeping in a crib on the opposite side of the plaster board wall at which Hill was pointing the gun.

Smith states that he asked Hill if he could put on some clothes but that he was rebuffed by Hill's saying, "Take another step and so help me I'll kill you." Lynne Smith entered the room and asked Hill his name so that she could write a check. He uncocked his gun and took a card from his wallet indicating his name to be Dick Hill. The complaint states further that he was pointing the pistol at Lynne Smith as he was giving her the card. Plaintiffs assert that he said to her, "Don't argue with cops, it's stupid and will only get you killed." Through the whole ordeal, plaintiffs claim, Hill appeared "angry, excited and not in control of his emotions." They claim further that Hill's apparent emotional state coupled with the brandishing of his weapon caused them to experience anxiety and fear for their lives. At no time during the incident was either plaintiff shown any kind of warrant or court order.

MOTION TO DISMISS

This suit was filed nearly a year after the alleged incident. The second amended complaint names Hill as a defendant and also includes the constable under whom he worked, the individual County Commissioners for Utah County, Utah County, the State of Utah, the Governor for the State of Utah, and the Utah State Commissioner of Public Safety as defendants. The members of the Utah County Commission and Utah County seek to have the complaint dismissed as to them.

Plaintiffs claim that the Commission had a duty to supervise the hiring of deputy constables and to insure that deputy constables are properly trained for the performance of their duties. Plaintiffs allege that the Commission breached these duties, which proximately caused a deprivation of plaintiffs' civil rights. Plaintiffs claim that Utah County, by and through the County Commissioners, exhibited a custom, policy, or usage in that it was negligent in the hiring, assigning, training, and supervision of deputy constables. Such negligence, they assert, was a direct cause of the incident complained of.

The County defendants assert that they cannot be liable under section 1983 as a matter of law. They claim that the County is not liable because the injury of which plaintiffs complain was not caused by an official custom, policy, or usage. The individual members of the County Commission argue further that they are not individually liable even if the County is because they are guaranteed legislative immunity for acts performed in a legislative capacity.

Three issues are presented: (1) whether a defendant in a supervisory position can be liable under section 1983 for failure to supervise or to train his subordinates; (2) whether an action under section 1983 can justifiably be based on conduct that is no more than merely negligent, and (3) whether, in this case, the conduct of the Utah County defendants rose to a level of culpability greater than mere negligence because of their alleged failure to train or supervise the activities of constables and deputy constables. The disposition of these issues makes it unnecessary to determine the legislative immunity issue raised by the Commissioners.

1. The liability of a supervisor under section 1983.

All the parties to the instant dispute acknowledge that under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),² a municipality—including a county — may be liable under section 1983 for constitutional deprivations just as any other "person" would be. The touchstone of the Monell decision, as it is applicable here, is that a municipality is not liable "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 691, 98 S.Ct. at 2036. Thus, the municipality is not liable under a theory of respondeat superior simply because it employs a tortfeasor. The language of section 1983 "plainly imposes liability on a government that, under color of some official policy, `causes' an employee to violate another's constitutional rights." Id. at 692, 98 S.Ct. at 2036.

In Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the plaintiff sued the Mayor of Philadelphia, the Police Commissioner, the City Managing Director of Philadelphia and others because of alleged unconstitutional acts of various police officers who were not parties to the action. The Court, reversing the lower court's granting of relief, said that the facts failed to show an "affirmative link" between the police misconduct complained of and "the adoption of any plan or policy by the Mayor and the Police Commissioner — express or otherwise — showing their authorization or approval of such misconduct." Id. at 371, 96 S.Ct. at 604. In Kite v. Kelley, 546 F.2d 334 (10th Cir. 1976), the plaintiff similarly sued the Attorney General of the United States and the Director of the FBI for alleged deprivations committed by FBI agents. The Tenth Circuit held that the doctrine of respondeat superior was not operable in a suit brought under section 1983. The court observed that the "`affirmative link' requirement of Rizzo means to us that before a superior may be held for acts of an inferior, the superior, expressly or otherwise, must have participated or acquiesced in the constitutional deprivations of which complaint is made." Id. at 337. The opinion further states that there was no proof of "lack of training or of declaration of wrongful policy." Id. at 338. See Lessman v. McCormick, 591 F.2d 605, 612 (10th Cir. 1979) ("personal participation" will have to be demonstrated).³

In McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979), plaintiff brought a civil rights action against two police chiefs, among others, for breach of their duty to supervise police officers. The court held that a cause of action would be available under section 1983 "when the defendant was in a position of responsibility, knew or should have known of the misconduct, and yet failed to act to prevent future harm." Id. at 697. The language "knew or should have known" indicates that a supervisory official need not have participated actively in the deprivation. Such an official may be liable even though the extent of his participation in the illegal act was no more than acquiescence. It is reasonable to conclude that the "personal participation" language of Lessman, 591 F.2d at 612, was an intended emphasis on the necessity of causation, rather than as a stated requirement that a supervisory defendant be shown to have affirmatively and actively participated. Thus, the thrust of Monell and Rizzo seems to allow a plaintiff to establish municipal liability by proving either "(a) an official policy or custom which results in constitutional violations or (b) conduct by officials in authority evincing implicit...