Willard v. City of Myrtle Beach, SC

• Decision Date: 22 November 1989
• Docket Number: Civ. A. No. 4:89-1451-15.
• Citation: 728 F. Supp. 397
• Parties: Lorene WILLARD and Bobby Willard, Plaintiffs, v. CITY OF MYRTLE BEACH, SC, a Municipal Corporation; Joe Levy, Individually and as a Police Officer of City of Myrtle Beach Police Department; J. Stanley Byrd, Chief, City of Myrtle Beach Police Department; William Franklin Davis, Jr., Police Officer of City of Myrtle Beach Police Department; John King, Police Officer of City of Myrtle Beach Police Department; Robert Henegar, Captain, City of Myrtle Beach Police Department; and Thomas Leath, City Manager, City of Myrtle Beach, Defendants.
• Court: U.S. District Court — District of South Carolina

728 F. Supp. 397

Lorene WILLARD and Bobby Willard, Plaintiffs, v. CITY OF MYRTLE BEACH, SC, a Municipal Corporation; Joe Levy, Individually and as a Police Officer of City of Myrtle Beach Police Department; J. Stanley Byrd, Chief, City of Myrtle Beach Police Department; William Franklin Davis, Jr., Police Officer of City of Myrtle Beach Police Department; John King, Police Officer of City of Myrtle Beach Police Department; Robert Henegar, Captain, City of Myrtle Beach Police Department; and Thomas Leath, City Manager, City of Myrtle Beach, Defendants.

Civ. A. No. 4:89-1451-15.

United States District Court, D. South Carolina, Florence Division.

November 22, 1989.

Janet T. Butcher, Hilton Head Island, S.C., for plaintiffs.

H. Franklin Burroughs, Lovelace & Battle, P.A., Conway, S.C., for defendants.

ORDER

HAMILTON, District Judge.

This action arises out of the alleged unlawful arrest and detention of plaintiffs' son for an approximate four hour period on June 11, 1986. The matter is currently before the court upon defendants' motion for summary judgment. Rule 56, Fed.R. Civ.Proc. The court has concluded that this action should be dismissed. Rule 12(b)(6), Fed.R.Civ.Proc.

The factual background relevant to the present suit began and ended on June 11, 1986, on which date Gregory A. Willard (Greg Willard) was arrested and charged with public intoxication and disorderly conduct by officers Joe Levy and John King of the Myrtle Beach Police Department. At the time of his arrest, Greg Willard was placed in a jail cell for approximately four hours; afterward he was released to his mother, Lorene Willard, and his aunt, Linda Inman.

On June 30, 1987, Greg Willard filed suit against the City of Myrtle Beach and various employees of the city alleging civil rights violations, negligence, assault and battery, and intentional infliction of emotional distress. The case was tried before the Honorable Matthew J. Perry and a jury on February 16-18, 1988. At that time, Judge Perry directed a verdict in favor of defendant Robert Henegar on all causes of action and for the defendant City of Myrtle Beach on the 42 U.S.C. § 1983 (§ 1983) cause of action. After deliberation, the jury returned a verdict for the remaining defendants on all remaining claims. The jury specifically found that defendant Joe Levy did not violate plaintiff Greg Willard's constitutional rights. The court thereafter granted plaintiff's motion for a new trial.

On June 9, 1989, plaintiffs herein, the parents of Greg Willard, filed this action against the City of Myrtle Beach and various employees of the City of Myrtle Beach alleging civil rights violations pursuant to § 1983, negligence, intentional infliction of emotional distress, and conspiracy. In their § 1983 cause of action, plaintiffs assert that the defendants' violated their alleged constitutionally protected liberty interest in the companionship and association of their son. Complaint, paras. 16-18.

In support of their motion for summary judgment, defendants assert that qualified immunity bars the allegations contained in the present complaint. They also contend that defendant City of Myrtle Beach cannot be held liable under § 1983 for the alleged torts or other misconduct of its employees under principles of respondeat superior. Moreover, defendants argue that Greg Willard's parents do not have standing to recover damages pursuant to § 1983 based upon any alleged unlawful misconduct directed toward their adult son, Greg Willard, or, alternatively, that plaintiffs do not have a constitutionally protected liberty interest in the companionship and association of their son cognizable under § 1983. Finally, defendants submit that the doctrine of collateral estoppel precludes relitigation of issues actually litigated and determined in Greg Willard's suit against these same defendants. Specifically, defendants assert that plaintiffs' claims against the City of Myrtle Beach and Robert Henegar are barred by virtue of a directed verdict entered in their favor in Civil Action 87-1730.

In opposition to defendants' motion, plaintiffs first submit that no facts support defendants' bold allegations that they acted with a good faith belief that their actions were lawful. Plaintiffs also assert that defendants are liable under principles of respondeat superior on the pendent claims asserted in the complaint. Plaintiffs further allege that they have suffered injury, and that their injuries were proximately caused by defendants' tortious and deliberate interference with their alleged constitutionally protected liberty interest in the companionship and society of their son, Greg Willard. Consequently, plaintiffs contend they have standing to assert their liberty interest claim under § 1983. Plaintiffs also maintain that collateral estoppel does not bar the present suit because it involves different parties, different causes of action, and different issues than the action previously brought by their son (Civil Action 87-1730).

Although defendants have filed a motion for summary judgment, and have submitted affidavits directed toward the issue of qualified immunity of the individual defendants,¹ the court takes notice that no substantial discovery has yet occurred in the present case. Of course, Rule 56(b), Fed.R.Civ.Proc., provides that a "party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for summary judgment." Courts have nevertheless differed on the standard to be applied where the motion for summary judgment is primarily asserted on the basis of the pleadings alone. Compare McWhirter Distributing Company, Inc. v. Texaco, Inc., 668 F.2d 511 (TECA 1981) with Blum v. Morgan Guaranty Trust Company of New York, 709 F.2d 1463 (11th Cir.1983). In any event, because the present summary judgment motion, at least as directed against plaintiffs' § 1983 allegations, was made essentially on the basis of the pleadings alone, it is functionally the same and will be treated by this court as a motion to dismiss for failure to state a claim. Rule 12(b)(6), Fed.R.Civ.Proc.; 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2713, at 594 (2d ed. 1983).

Cognizability of Plaintiffs' § 1983 Claim

In actions brought under § 1983, a motion to dismiss under Rule 12(b)(6) should not be granted unless it appears beyond doubt that the plaintiffs can prove no set of facts to support their allegations. Revene v. Charles County Commissioners, 882 F.2d 870, 872 (4th Cir.1989). In other words, the complaint must be construed liberally and all doubts must be resolved in favor of the nonmoving party. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Chiles v. Crooks, 708 F.Supp. 127, 129 (D.S.C.1989).

The plaintiffs purport to bring their federal claim under § 1983, which provides:

every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.

Obviously, the threshold inquiry in actions brought pursuant to § 1983 is whether plaintiffs have sufficiently alleged the deprivation of a right secured by the Constitution or laws of the United States. Harpole v. Arkansas Department of Human Services, 820 F.2d 923, 925 (8th Cir.1987); Ortiz v. Burgos, 807 F.2d 6, 7 (1st Cir.1986).

Apparently, plaintiffs allege that they were deprived of their constitutionally protected right to the companionship and association of their son, Greg Willard, by virtue of defendants' actions in arresting and detaining him for an approximate four hour period on June 11, 1986, during which time defendants allegedly deliberately withheld necessary medical care. Nonetheless, the federal courts are apparently divided on the question of whether parents may recover under § 1983 for the alleged deprivation of their liberty interest in the companionship and association of their child.²

Several courts have allowed parents to recover under § 1983 for alleged unconstitutional conduct primarily directed toward their children. Kelson v. City of Springfield, 767 F.2d 651 (9th Cir.1985); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). Although most of these courts have grounded their result upon fourteenth amendment noneconomic substantive due process, Bell, 746 F.2d at 1243-44, Kelson, 767 F.2d at 654, at least one court has concluded that a parental liberty interest arises from the first amendment right to freedom of intimate association. Trujillo v. Board of County Commissioners, 768 F.2d 1186, 1188-89 (10th Cir.1985). Regardless of any division as to the precise constitutional underpinning which has been used to support a federal civil rights cause of action for the alleged deprivation of a parental liberty interest in familial association, it is nevertheless clear that all cases which have recognized such a cause of action have done so where the plaintiffs have alleged a permanent, physical loss of association with their child due to unlawful state action taken under color of state law.³

Reluctant to create new substantive rights under the rubric of substantive due process, an equally significant number of courts have refused to create a new constitutional right of action under the same or similar circumstances as those courts which have recognized such claims. Put simply, these courts have either determined that parents or relatives lack standing to assert claims based primarily upon an allegedly unconstitutional deprivation visited upon their child or, alternatively, that the Constitution does not create a cause of action premised entirely upon parental loss of companionship or...