Tyree v. Smith, Civ. A. No. 6205.

CourtUnited States District Courts. 6th Circuit. Eastern District of Tennessee
Writing for the CourtROBERT L. TAYLOR
Citation289 F. Supp. 174
PartiesMitchell TYREE, a minor, b/n/f W. B. Tyree, and W. B. Tyree, Individually v. Russell SMITH et al.
Docket NumberCiv. A. No. 6205.
Decision Date01 May 1968

289 F. Supp. 174

Mitchell TYREE, a minor, b/n/f W. B. Tyree, and W. B. Tyree, Individually
v.
Russell SMITH et al.

Civ. A. No. 6205.

United States District Court E. D. Tennessee, N. D.

May 1, 1968.


289 F. Supp. 175

James W. Chambers, Chambers, Fain, Gill & Webb, Knoxville, Tenn., for plaintiffs.

George W. Morton, Jr., Earl S. Ailor, Robert Ray, Poore, Cox, Baker & McAuley, Knoxville, Tenn., for defendants.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

There are several motions before the Court. The motions raise four questions: (1) Is W. B. Tyree, the father of Mitchell Tyree, entitled to damages for the alleged deprivation of constitutional rights of his son; (2) is an action for malicious prosecution within the scope of Title 42 U.S.C. § 1983;1 (3) may plaintiff, W. B. Tyree, recover for attorneys fees and other expenses incident to the investigation and defense of the criminal action brought by defendants and expenses in bringing the present action; and (4) does the complaint show a conspiracy among the defendants.

A father has no standing to sue for the deprivation of civil rights of his children. Denman v. Wertz, 372 F.2d 135 (3 Cir. 1967). Armstrong v. Board of Education of City of Birmingham, Ala., 220 F.Supp. 217 (D.C.1963).

In the case of Krum v. Sheppard, 255 F.Supp. 994 (D.C.1966), the Court said:

"* * * When one is deprived of his civil rights, it is clear that the injury is to his person and that he is the only one who has standing to sue." p. 997.

The motion as to W. B. Tyree, suing individually for the deprivation of his son's constitutional rights, must be sustained.

Monroe also moves to strike certain allegations in the complaint which purport to base the cause of action on malicious prosecution. This motion is overruled. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495.

The foregoing cases do not specifically mention the action of malicious prosecution as included in 42 U.S.C. § 1983. However, under the broad averments in plaintiff's complaint of intentional misuse of power by the officers, it would seem that 42 U.S.C. § 1983 is broad enough to provide a remedy. Rue v. Snyder, 249 F.Supp. 740 (D.C.1966).

In the case of Beauregard v. Wingard, 230 F.Supp. 167 (D.C.1964), the Court said:

"There is no question that an arrest by State officers without warrant, without probable cause, not with a purpose of enforcing the law, but with an ulterior motive, is an arrest without due process. Imprisonment by said officers pursuant to such arrest is likewise without due process. When acting under `color of law' in accomplishing the deprivations above stated, the officers have accomplished a violation of Section 42 U.S.C.A. § 1983." p. 185.

In the case of Nesmith v. Alford, 318 F.2d 110 (5 Cir. 1963), the petitioner was arrested while meeting with a group of Negroes in Montgomery, Alabama. The Court pointed out that since Monroe v. Pape, supra, "* * * violation of some of the Civil Rights of these Plaintiffs

289 F. Supp. 176
was established as a matter of law." (p. 124) One of the rights was the freedom from unlawful arrest. The Court pointed out further
"* * * There are some actions which, although not so as a matter of law, might yet be found by the jury to be a violation of Civil Rights * * *" (Emphasis added.) p. 125.

Further:

"* * * Thus, for example, the commencement and prosecution of unfounded criminal prosecution might under certain circumstances constitute, not only malicious prosecution under the state law (see Part IV), but a violation of Civil Rights as well." p. 126.

Motive plays an important part in cases brought under 42 U.S.C. § 1983. In the case of Bargainer v. Michal, 233 F.Supp. 270 (D.C.1964), the Court said:

"Had the plaintiff alleged merely a beating by the police officers, and no more, defendants' contention that a simple assault and battery was set forth would present a most difficult question to resolve. But when the complaint sets forth that the defendants not only physically abused plaintiff, but thereafter utilized their status as police officers to have him charged and confined to cover up their attack, a cause of action is stated under 42 U.S.C.A. § 1983. These facts set forth a misuse of the power of arrest, possessed by the officers by virtue of state law and made possible only because the alleged wrongdoers were clothed with the authority of state law, Monroe v. Pape, 256 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), thereby depriving plaintiff of his constitutional
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18 practice notes
  • Javits v. Stevens, No. 73 Civ. 5339-LFM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 24, 1974
    ...F.Supp. 684 (E.D.Mo. 1964), aff'd, 357 F.2d 638 (8th Cir. 1966). See also, Denman v. Wertz, 372 F.2d 135 (3d Cir. 1967); Tyree v. Smith, 289 F.Supp. 174 (E.D.Tenn.1968). 4 We note, also, as to the relatives' claim (Count III), which seeks relief based solely on the alleged damage to their r......
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...175; Brown v. Board of Trustees of La Grange Ind. Sch. Dist. (5th Cir. 1951) 187 F.2d 20, 25; and Tyree v. Smith (E.D.Tenn.N.D.1968) 289 F.Supp. 174, 175. Cf. Smith v. Wickline (W.D.Okl.1975) 396 F.Supp. 555, 557.) [91 Cal.App.3d 884] Page 599 Support for the Palo Alto district's position i......
  • Kinzer v. Metropolitan Government of Nashville, No. 3:06cv0649.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • September 11, 2006
    ...that one person generally does not have standing to sue for civil rights violations inflicted on another, citing Tyree v. Smith, 289 F.Supp. 174 (E.D.Tenn.1968), in which the court held that a father not acting in his representative capacity had no standing to sue for the deprivation of the......
  • Milk Drivers, Dairy and Ice Cream v. Roberts Dairy, No. 4:03-CV-40385.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 26, 2003
    ...also Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992. The label of the action stated in the complaint is not controlling. Tyree v. Smith, 289 F.Supp. 174, 176 (E.D.Tenn. 1968) (citing Rules 2, 3, and 8(a)). Moreover, "[i]t is clear . . . that under the modern Federal practice of notice pleadin......
  • Request a trial to view additional results
18 cases
  • Javits v. Stevens, No. 73 Civ. 5339-LFM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 24, 1974
    ...F.Supp. 684 (E.D.Mo. 1964), aff'd, 357 F.2d 638 (8th Cir. 1966). See also, Denman v. Wertz, 372 F.2d 135 (3d Cir. 1967); Tyree v. Smith, 289 F.Supp. 174 (E.D.Tenn.1968). 4 We note, also, as to the relatives' claim (Count III), which seeks relief based solely on the alleged damage to their r......
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...175; Brown v. Board of Trustees of La Grange Ind. Sch. Dist. (5th Cir. 1951) 187 F.2d 20, 25; and Tyree v. Smith (E.D.Tenn.N.D.1968) 289 F.Supp. 174, 175. Cf. Smith v. Wickline (W.D.Okl.1975) 396 F.Supp. 555, 557.) [91 Cal.App.3d 884] Page 599 Support for the Palo Alto district's position i......
  • Kinzer v. Metropolitan Government of Nashville, No. 3:06cv0649.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • September 11, 2006
    ...that one person generally does not have standing to sue for civil rights violations inflicted on another, citing Tyree v. Smith, 289 F.Supp. 174 (E.D.Tenn.1968), in which the court held that a father not acting in his representative capacity had no standing to sue for the deprivation of the......
  • Milk Drivers, Dairy and Ice Cream v. Roberts Dairy, No. 4:03-CV-40385.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 26, 2003
    ...also Swierkiewicz, 534 U.S. at 512, 122 S.Ct. 992. The label of the action stated in the complaint is not controlling. Tyree v. Smith, 289 F.Supp. 174, 176 (E.D.Tenn. 1968) (citing Rules 2, 3, and 8(a)). Moreover, "[i]t is clear . . . that under the modern Federal practice of notice pleadin......
  • Request a trial to view additional results

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