Smith v. Jordan, C-3-81-024.

• Decision Date: 12 November 1981
• Docket Number: No. C-3-81-024.,C-3-81-024.
• Citation: 527 F. Supp. 167
• Parties: Charlene L. SMITH, Plaintiff, v. Raymond B. JORDAN, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

527 F. Supp. 167

Charlene L. SMITH, Plaintiff, v. Raymond B. JORDAN, et al., Defendants.

No. C-3-81-024.

United States District Court, S. D. Ohio, W. D.

November 12, 1981.

COPYRIGHT MATERIAL OMITTED

Thomas H. Busch, Springfield, Ohio, for plaintiff.

David E. Smith, Springfield, Ohio, Robert F. Cowdrey, Dayton, Ohio, for defendants.

DECISION AND ENTRY ON PENDING MOTIONS; MOTION FOR SUMMARY JUDGMENT BY DEFENDANT JORDAN GRANTED IN PART AND DENIED IN PART; MOTION FOR SUMMARY JUDGMENT BY DEFENDANT WOLVERINE INSURANCE COMPANY GRANTED IN PART AND DENIED IN PART; CONFERENCE CALL SET

RICE, District Judge.

The captioned cause is before this Court upon motions for summary judgment by two of the defendants in this action: Raymond B. Jordan, Sheriff of Clark County, Ohio, and the Wolverine Insurance Company (Wolverine).

Jordan's motion for summary judgment is made on the ground that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Wolverine moves for summary judgment on the ground that there is no genuine issue as to any material fact relative to Wolverine's bond coverage for the loss and damages sustained by the plaintiff, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Watkins v. Northwestern Ohio Tractor Pullers, 630 F.2d 1155, 1158 (6th Cir. 1980).

For the reasons set forth below, the motion by Jordan is granted in part and denied in part. Said motion is granted as to Plaintiff's assertions of causes of action directly under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. In all other respects, Jordan's motion is denied. For the reasons set forth below, Wolverine's motion is granted in part and denied in part. Said motion is granted as to Plaintiff's claim seeking to hold Wolverine liable as an insurer for the faithful performance of duty by the Defendant, Linda Clevell. In all other respects, Wolverine's motion is denied.

I. FACTS

The facts in this case are relatively straight-forward and, for the most part, not contested by the parties. Plaintiff was arrested on January 27, 1980, on a charge of passing bad checks and taken to the Clark County Jail in Springfield, Ohio. At the jail, plaintiff was searched by defendant Clevell, a deputy at the jail, in a manner commonly referred to as a "strip-search." The search was conducted in a small bathroom adjacent to the book-in area, and during the search plaintiff removed all of her clothing, except for her underpants, at Clevell's request. Jordan took no part in the search, and plaintiff was released from custody after the search was concluded.

The parties do disagree on several important facts. First, plaintiff alleges that when she asked Clevell why her clothing had to be removed, Clevell responded that "it was standard procedure." Clevell admits making this statement, but Jordan denies any sort of knowledge about or participation in the search. Second, the parties disagree as to whether plaintiff's body was exposed to male deputies and onlookers during the search. Finally, the parties disagree as to whether Clevell, prior to the search, had a real suspicion supported by objective facts that plaintiff was concealing contraband on her body.

Plaintiff has sued defendants Jordan and Clevell under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and under 42 U.S.C. § 1983, for violations of her constitutional rights and for embarrassment, humiliation, and emotional stress, invoking the jurisdiction of this Court pursuant to 28 U.S.C. § 1343. Plaintiff also alleges that these defendants committed state law torts against her. In addition, plaintiff sued Wolverine, alleging that Wolverine was the surety of the faithful performance of the duties of the Sheriff and the employees of the Sheriff's Office. Wolverine, in turn, cross-claimed against Clevell and Jordan, seeking indemnity from those defendants for any and all sums adjudged against Wolverine in this action.

II. MOTION BY DEFENDANT JORDAN

A. Plaintiff's Section 1983 Claim

Sheriff Jordan seeks to escape liability under 42 U.S.C. § 1983,¹ for Clevell's allegedly unconstitutional search by characterizing plaintiff's basis of recovery against him as resting on the doctrine of respondeat superior. In other words, defendant argues, plaintiff seeks to hold him liable simply on the basis of being the superior of Clevell.

Defendant correctly argues that, under § 1983, there is no liability based solely on respondeat superior. Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 580 (6th Cir. 1979); Redmond v. Baxley, 475 F.Supp. 1111, 1115 (E.D.Mich.1979). However, plaintiff's complaint, when fairly read, does not predicate liability solely on the basis of respondeat superior. As noted above, plaintiff alleges that she was told by Clevell that the search she was subject to was "standard procedure" at the jail. While Clevell admitted making this statement, Jordan denies that any such procedure existed. The existence of such a disputed fact (whether this procedure was in use at the jail) precludes the granting of summary judgment on § 1983 liability in Jordan's favor pursuant to Fed.R.Civ.Pro. 56.

Defendant argues that the barrier of respondeat superior can only be surmounted when the superior actually participated in or was present during the alleged unlawful conduct. This assertion represents an unduly narrow view of the law concerning § 1983 liability. It is clear that superiors may be found liable for the acts of subordinates which are the "custom or usage" of the governmental unit, Monell, supra, 436 U.S. at 691, 98 S.Ct. at 2036, or "represent official policy," id. at 694, 98 S.Ct. at 2037, 2038, or are part of a "persuasive pattern" of conduct, Rizzo v. Goode, 423 U.S. 362, 374-75, 96 S.Ct. 598, 605-06, 46 L.Ed.2d 561 (1976). As summarized by the Monell court, § 1983 can impose liability on a superior when that official "under color of some official policy, `causes' an employee to violate another's constitutional rights." 436 U.S. at 692, 98 S.Ct. at 2036 (quoting the language of § 1983). In the instant case, plaintiff's allegation that strip searches were a "standard procedure" at the jail may form part of a "custom or usage" or an "official policy," and thus may form a basis for Jordan's § 1983 liability. The existence of such a procedure, as well as the extent of Jordan's formulation and implementation of the procedure (if any), present disputed factual issues not resolvable on summary judgment. Madewell v. Garmon, 484 F.Supp. 823, 824 (E.D.Tenn. 1980).

Defendant cites Knipp v. Weikle, 405 F.Supp. 782 (N.D.Ohio, 1975) for the proposition that a superior's personal presence or participation in the unlawful conduct is required. As stated above, this proposition ignores case law subsequent to Knipp and, in addition, misreads the Knipp opinion. In Knipp, a case factually similar to the instant action, the Court granted summary judgment for a sheriff when the plaintiff did not allege that the sheriff "was present, knew of or that he participated in the unlawful conduct" of a deputy. Id. at 783. This Court does not believe that the Knipp court was attempting to make an inclusive list of conduct for which a superior could be held liable for acts of a subordinate. Moreover, to the extent that Knipp lends support to defendant's "personal participation" theory, that theory has clearly been overridden by Monell and Rizzo v. Goode, as noted above. See Redmond v. Baxley, supra, at 1115-16.²

Plaintiff also seeks to hold Jordan vicariously liable for Clevell's actions based on an Ohio statute. The statute in point states that:

The sheriff shall be responsible for the neglect of duty or misconduct in office of each of his deputies.

O.R.C. § 311.05.

This statute has no application to plaintiff's § 1983 action and thus does not control Jordan's liability. Presumably, plaintiff is attempting to incorporate the Ohio statute into her § 1983 action pursuant to 42 U.S.C. § 1988. Section 1988 states that in § 1983 actions, if federal law is "deficient" in providing a remedy, state law may be applied "so far as the same is not inconsistent with the Constitution or Laws of the United States."³

At the outset, it is not clear that the Ohio statute need be applied to remedy a deficiency in plaintiff's cause of action. State law has been applied under § 1988 when "federal law provides no rule of decision" on an issue in a § 1983 action. Board of Regents v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980). See, e. g., Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (state survivability of action statute); Board of Regents v. Tomanio, supra (state tolling statute). In contrast, there is federal case law concerning the applicability of respondeat superior in § 1983 actions, as outlined above. Moreover, even if the Ohio statute did apply in this action, it would be clearly "inconsistent" with federal law concerning respondeat superior. Ohio law holds that O.R.C. § 311.05 simply is a restatement of the doctrine of respondeat superior, Huth v. Woodard, 108 Ohio App. 135, 161 N.E.2d 230 (Summit County, 1958), and as such clearly conflicts with Monell's position on that doctrine. See also, Knipp v. Weikle, supra, at 784-86.

Thus, even excepting Plaintiff's reliance on O.R.C. § 311.05, her complaint sets forth genuine issues of fact regarding Jordan's liability under § 1983 which precludes the granting of summary judgment.

B. Implying Causes of Action Under Constitutional Amendments

Plaintiff's complaint may also be read as implying causes of action directly under the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution. As a practical matter, implying such causes of action appears to be redundant in the...