Weeks v. Benton

• Decision Date: 12 December 1986
• Docket Number: Civ. A. No. 86-0389-BH.
• Citation: 649 F. Supp. 1297
• Parties: Lois WEEKS, Plaintiff, v. Sheriff Thomas BENTON, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

649 F. Supp. 1297

Lois WEEKS, Plaintiff, v. Sheriff Thomas BENTON, et al., Defendants.

Civ. A. No. 86-0389-BH.

United States District Court, S.D. Alabama, S.D.

December 12, 1986.

Glenda G. Cochran, James R. Cockrell, Birmingham, Ala., for plaintiff.

Reggie Copeland, Jr., Mobile, Ala., Taylor D. Wilkins, Jr. (lead counsel), Bay Minette, Ala., for defendants.

ORDER

HAND, Chief Judge.

This action is brought pursuant to 42 U.S.C. § 1983 and § 1985 for the death of Glennon Anthony Weeks, who died on or about September 10, 1985 while incarcerated in the Baldwin County Jail. The action is brought by Lois Weeks as administratrix of the decedent's estate. The defendants include Sheriff Thomas Benton, Jailer James Hartner, Nurse Elizabeth Sellers, various commissioners of Baldwin County, and Baldwin County. The first three defendants are named in both their individual and official capacities; the commissioners are named only in their official capacity. Various fictitious defendants are also named.

In a nutshell, the complaint alleges that plaintiff's decedent died as a result of the failure of responsible officials to provide him with adequate medical care. A custom or policy of inadequate training and supervision is attributed to the sheriff and to Baldwin County and its commissioners. The decedent was allegedly deprived of his rights under the fourth, fifth, eighth, and fourteenth amendments to the Constitution of the United States. A variety of state tort law claims have been asserted alongside the claims under § 1983 and § 1985.

Presently pending before the Court is defendants' amended motion to dismiss. The motion now contains six parts, each of which is actually a separate motion. Each motion will be addressed individually and all of the motions will be treated as addressed to the entire complaint as most recently amended.

I. MOTION TO STRIKE FICTITIOUS DEFENDANTS

The first part of the motion to dismiss seeks to strike all references to fictitious defendants from plaintiff's complaint. The motion to strike is GRANTED. Fictitious party practice is not authorized by the Federal Rules of Civil Procedure or any other federal statute. See Fifty Associates v. Prudential Insurance Co., 446 F.2d 1187, 1191 (9th Cir.1970); Wiltsie v. California Department of Corrections, 406 F.2d 515, 518 (9th Cir.1969); Tolefree v. Ritz, 382 F.2d 566, 567 (9th Cir.1967).

II. MOTION TO DISMISS CLAIMS UNDER § 1985

Defendants have moved to dismiss all claims brought pursuant to 42 U.S.C. § 1985 because the complaint does not allege that defendants were motivated by any discriminatory animus. This motion is GRANTED. Proof of racial or other class-based invidiously discriminatory animus is an essential requirement to the maintenance of an action under § 1985(3). Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338, 348 (1971). Plaintiff's complaint makes no allegations of racial or class-based discriminatory animus lying behind defendants' actions. Therefore, all claims under § 1985 are DISMISSED.

III. MOTIONS TO DISMISS THE BALDWIN COUNTY COMMISSIONERS

Two separate grounds for dismissing the Baldwin County commissioners have been offered. These motions are appropriately directed toward not only the commissioners but also the county itself. This is because suits against officials in their official capacity are to be treated as suits against the entities under which the officials are employed. See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Monell v. New York City Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611, 635 n. 55 (1978). Thus, suits against any of Baldwin County's commissioners in their official capacities are, in effect, suits against Baldwin County. Therefore, the Court will treat the motions to dismiss the commissioners as applicable to Baldwin County as well.

A. THEORY OF COMMISSIONERS' LIABILITY UNDER § 1983

The first ground for dismissing the commissioners and the county is that their liability is predicated solely on the theory of respondeat superior. Governmental entities cannot be held liable under § 1983 under a respondeat superior theory alone. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 1036, 56 L.Ed.2d 611, 635 (1978). Plaintiff responds by arguing that the county and commissioners should be held liable for their own gross negligence and deliberate indifference to their training and supervisory responsibilities. The decedent's death is attributed to their failure to supervise and operate the jail properly.

This dispute cannot be resolved without first clarifying the basis of municipal liability under § 1983. Unfortunately, the United States Supreme Court and the Eleventh Circuit Court of Appeals have given precious little guidance on this matter, and what guidance that has been provided is confusing and often contradictory.

The Supreme Court first established municipal liability under § 1983 in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court in Monell held that local governing bodies can be sued under § 1983 where an allegedly unconstitutional action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690, 98 S.Ct. at 2035-36, 56 L.Ed.2d at 635. Additionally, such governmental entities "may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 691-92, 98 S.Ct. at 2036, 56 L.Ed.2d at 635-36. The custom or policy must be the "moving force" behind the alleged unconstitutional violation. Id. at 694, 98 S.Ct. at 2038, 56 L.Ed.2d at 638. A municipality cannot be held liable under § 1983 on a respondeat superior theory, solely because it employs a tortfeasor. Id. at 691, 98 S.Ct. at 2036, 56 L.Ed.2d at 635.

Numerous Supreme Court decisions since Monell have attempted to clarify the limits of municipal liability under § 1983. See, e.g., Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673, 685 (1980) (municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983); City of Newport v. Fact Concerts, 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616, 634 (1981) (municipality is immune from punitive damages under § 1983); Oklahoma City v. Tuttle, 471 U.S. 808, 821, 105 S.Ct. 2427, 2435, 85 L.Ed.2d 791, 802 (1985) (custom or policy on which municipal liability is based cannot be inferred solely from a single, isolated instance of police misconduct); Pembaur v. City of Cincinnati, ___ U.S. ___, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452, 462 (1986) (municipal liability may be imposed for a single decision by a municipal policymaker under appropriate circumstances). In Pembaur, the Court stated that "municipal liability under § 1983 attaches where—and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." ___ U.S. at ___, 106 S.Ct. at 1300, 89 L.Ed.2d at 465. This language is not quite as absolute, however, as it first appears. The Pembaur Court also stated, while referring to the "custom or usage" language in § 1983, that "a § 1983 plaintiff ... may be able to recover from a municipality without adducing evidence of an affirmative decision by policymakers if able to prove that the challenged action was pursuant to a state `custom or usage.'" Id. at ___ n. 10, 106 S.Ct. at 1299 n. 10, 89 L.Ed.2d at 464 n. 10. Although these passages are difficult to reconcile, it appears that although municipal liability must be based on a "deliberate choice," the choice need not be expressly stated or constitute an affirmative act. An unheralded but conscious failure to perform a duty may constitute "a deliberate choice to follow a course of action."

Various circuit courts of appeal have struggled to define more fully what is meant by custom or policy. Some courts have held that municipal liability can be established by showing that the governmental entity exhibited "gross negligence" or "deliberate indifference" in failing to train and supervise properly its employees to prevent unconstitutional actions. See, e.g., Tuttle v. Oklahoma City, 728 F.2d 456, 460 (10th Cir.1984) (municipality could be held liable where inadequate training, supervision, and disciplining of police officers amounted to gross negligence and deliberate indifference to the constitutional rights of the decedent), rev'd on other grounds, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), (county could be held liable if the failure to supervise or the lack of a proper training program was so severe as to reach the level of gross negligence or deliberate indifference to the deprivation of plaintiff's constitutional rights), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); see also Gilmere v. City of Atlanta, 774 F.2d 1495, 1503 n. 9 (11th Cir.1985) (cases cited therein) (hereinafter referred to as Gilmere II), cert. denied, ___ U.S. ___, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). The eleventh circuit, however, has been reluctant to adopt a gross negligence standard. That standard was expressly rejected by a three judge panel in Gilmere v. City of Atlanta, 737 F.2d 894, 904 (11th Cir.1984) (hereinafter referred to as Gilmere I).¹ After a rehearing en banc, however, the eleventh circuit indicated that case law did not support a rejection of the gross negligence standard. Gilmere II, 774 F.2d at 1503. Nevertheless, the court declined to adopt such a standard,...