Spencer v. BOARD OF POLICE COM'RS, 82-0854-CV-W-1.

• Decision Date: 03 June 1983
• Docket Number: No. 82-0854-CV-W-1.,82-0854-CV-W-1.
• Citation: 564 F. Supp. 1222
• Parties: Edith E. SPENCER, Plaintiff, v. BOARD OF POLICE COMMISSIONERS, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

564 F. Supp. 1222

Edith E. SPENCER, Plaintiff, v. BOARD OF POLICE COMMISSIONERS, et al., Defendants.

No. 82-0854-CV-W-1.

United States District Court, W.D. Missouri, W.D.

May 16, 1983.

On Summary Judgment June 3, 1983.

Richard H. Anton, Kansas City, Mo., for plaintiff.

Manfred Maier, Neal E. Millert, James, Millert, Houdek, Tyrl & Sommers, Kansas City, Mo., for defendants.

MEMORANDUM OPINION AND ORDERS

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on defendants' motion to dismiss. Defendants allege, pursuant to Rule 12(b)(6), F.R.Civ.P., that plaintiff's complaint fails to state a claim upon which relief can be granted. This Court's April 1, 1983 order reflects that the above case was removed from the April 18, 1983 joint civil trial docket for the reason that the question now presented by defendants' motion to dismiss surfaced at the March 31, 1983 pretrial conference held in anticipation of the trial of this case on the April 18, 1983 trial docket.

The parties have filed their respective suggestions in support of and in opposition to defendants' pending motion to dismiss. As will be apparent from what we shall state in this memorandum opinion, we are satisfied that matters outside the pleadings should be considered and that, therefore, the pending motion to dismiss should be treated as one for summary judgment and disposed of as provided in Rule 56, F.R. Civ.P. Rule 12(b), F.R.Civ.P., of course, provides that under such circumstances "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." An order will be entered affording all parties such a reasonable opportunity to present any material in addition to that which we discuss in this memorandum opinion.

II.

Plaintiff's complaint is in two counts. Count I attempts to invoke the jurisdiction conferred on this Court by 28 U.S.C. § 1343 and attempts to allege an action under 42 U.S.C. § 1983. Plaintiff alleges a sequence of events which is apparently undisputed. While plaintiff generally alleges that she was deprived of "rights, privileges and immunities secured to Plaintiff by the Federal Civil Rights Act (42 U.S.C. § 1983, et seq.)," her complaint shows that she relies primarily on the Fourteenth Amendment.¹ Plaintiff alleged in that regard the following:

20. That Defendants used the incident on June 4, 1982, and the subsequent investigation in order to transfer Plaintiff to the "Dog Watch" in direct violation of her constitutional rights guaranteed to her by the Fourteenth Amendment to the United States Constitution.

21. That as a direct and proximate result of the foregoing, plaintiff has been deprived of the opportunity to clear a stigma of misconduct from her name and work record; that she has sustained embarrassment, humiliation and mental anguish; that the continuation of the order of suspension and reprimand in her personnel record constitutes grave damage to her career; to her opportunities to advancement, and for increases in income; and that she has sustained actual damages in the amount of Seventy-Five Thousand ($75,000.00) Dollars.

In paragraph 22 of her complaint, the plaintiff alleged that she was entitled to punitive damages in the amount of $250,000.00. In her prayer for relief, she also prays for injunctive relief in the form of an order which would require the defendants to remove all detrimental material from her personnel file, for an order transferring her back to her former position from which she was transferred, and for her attorney's fees.

Count II of plaintiff's complaint seeks to invoke this Court's pendent jurisdiction over what may be assumed is a State action for defamation.² Both defendants' original and amended answers allege that the plaintiff's complaint fails to state a cause of action against either defendant and that this Court lacks subject matter jurisdiction in this cause.

III.

Plaintiff's pretrial memorandum, filed pursuant to this Court's March 9, 1983 notice of pretrial conference, proposed that defendants stipulate to a number of facts. Plaintiff also attached copies of 17 exhibits which plaintiff indicated she would adduce at trial. Additional exhibits are before the Court, the same having been attached to defendants' answers to plaintiff's interrogatories. Defendants' pretrial memorandum indicates their willingness to accept the following paragraphs of the stipulation as proposed in plaintiff's pretrial memorandum:

1. Plaintiff Edith Spencer is a civilian employee of the Kansas City, Missouri Police Department and has been so employed since February 1, 1969.

2. On June 4, 1982 plaintiff was a clerk-typist assigned to the Metro Patrol Division on Watch 2.

3. The Internal Affairs Division of the Kansas City, Missouri Police Department conducted an investigation of the incident involving plaintiff.

4. Pursuant to the investigation performed by the Internal Affairs Division, plaintiff took a polygraph examination on August 4, 1982.

5. By memorandum dated August 13, 1982, defendant Norman Caron notified plaintiff that she would be suspended for a period of ten (10) days without pay.

6. By notice dated August 17, 1982, plaintiff was transferred from Watch 2 at the Metro Patrol Division to Watch 3 at the East Patrol Division.

7. The letter dated August 13, 1982, notifying plaintiff of her suspension will be a permanent entry in her personnel file with the Kansas City, Missouri Police Department.

8. Plaintiff's Personnel file and station file with the Kansas City, Missouri Police Department are properly identified as business records and no further identification is necessary to establish them as business records. All other objections to the admissibility of any contents of the personnel and station file are preserved.

The exhibits attached to plaintiff's pretrial memorandum and those attached to defendants' answers to plaintiff's interrogatories establish what are apparently the undisputed material factual circumstances of this case.

An Incident Report, prepared by Sergeant Richard James and signed by plaintiff on June 11, 1982, stated that:

At 1300 hours this date, the reporting supervisor was contacted via phone by Officer Robert H. Crum, Raytown, Mo. Police Department relative to Civilian Edith Spencer.

Officer Crum stated that at 1230 hours 6-4-82, Civilian Edith Spencer was apprehended by members of his department at the Mount Olivet Cemetery after they received a complaint from the cemetery manager that she was stealing flowers from the graves. He went on to relate that Civ. Spencer was to be allowed to return the flowers and he did not believe prosecution would be pursued.

That Incident Report added:

After reviewing the file from the Raytown Police Department, it is apparent that Civ. Edith Spencer is in violation of the Department Rules of Conduct as follows:

1. A member will be held responsible for any act of omission specifically required or prohibited in these and/or other applicable rules or regulations which in any way is prejudicial to good order or discipline, or reflects upon the good name or reputation of the police department, or adversely affects its interests.

2. A member is further charged with the duty to conduct himself at all times in keeping with the Code of Ethics and the policy statements of the Chief of Police; all activity contrary to this concept, whether or not specifically mentioned or prohibited in these rules, may subject a member to disciplinary action.

3. A member shall not engage in any illegal, immoral, or indecent conduct, nor in any normally legitimate act which, when performed in view of the public, would tend to reflect discredit upon the police department.

That report shows that on June 11, 1982 plaintiff's supervisor, Sergeant Edward Wolters, recommended that an "Internal Affairs Investigation" be conducted. In the space provided on the form for the "recommendation of unit or shift commander," Captain Marylyn Brauninger stated the following on June 11, 1982: "Due to conflicting accounts of this incident, I recommend an Internal Affairs Investigation. Ms. Spencer denies stealing anything from the cemetery and expressed willingness to take a polygraph examination."

Captain Brauninger's comment concerning "the conflicting accounts of this incident" were made in light of the statements contained in Incident Report of Officer Crum of the Raytown Police Department (a copy of which is before the Court) and the statements made by plaintiff in her June 11, 1982 interdepartment communication to Sergeant Wolters (a copy of which is also before the Court), both of which were obviously considered by Captain Brauninger.³

Major Elmer Meyer filled in the space provided in the Incident Report for "Recommendation of Division Commander" with the statement: "I concur, request internal affairs investigation." The Bureau Commander James S. Keiter recommended the same thing. In the space provided for "Action taken by Chief of Police," Chief of Police Caron noted that he agreed with the various recommendations and that an Internal Affairs Investigation should be conducted.

Plaintiff's Exhibit No. 2 is a copy of Policy Number 415 of the Kansas City, Missouri Police Department which establishes the procedures for an Internal Affairs Investigation. That exhibit, which was incorporated by reference in paragraph 16 of plaintiff's complaint, stated in part that:

The Internal Affairs Division is responsible for conducting investigations into incidents involving alleged misconduct by department members, complaint investigations that have originated from the filing of O.C.C. complaints, miscellaneous investigations at the request of the Chief of Police or his designee, and the discharge of firearms by department members. The department has established certain guidelines that not only provide for consistency in investigations, but assure department members of their right to fair and equitable treatment during

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