Opinion
No. 1:03-cv-01135-DFH-TAB.
July 26, 2004
ENTRY ON SHERIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff Eric Crumes, Sr. alleges that defendant David Myers arrested him without probable cause, used excessive force against him, and caused groundless criminal charges to be filed against him. Crumes alleges violations of his rights under the Fourth Amendment to the United States Constitution and under state law. At the time of the arrest, Myers owned two companies — defendants Myers Protective Services, Inc. and Myers Investigations, Inc. — and was a "special deputy" appointed by the Marion County Sheriff. Crumes has sued Myers and the two corporations, as well as former Marion County Sheriff Jack Cottey in his individual and official capacities.
Sheriff Cottey, in both his individual and official capacities, has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. He argues that even if Myers violated Crumes' rights, there is no basis for holding the sheriff or his successor liable for those violations. For the reasons explained below, the sheriff's motion for judgment on the pleadings is denied with respect to Crumes' federal claims but granted as to his state law claims.
The Applicable Standard
The court applies to the sheriff's motion for judgment on the pleadings under Rule 12(c) the same standards that applies to a motion for failure to state a claim under Rule 12(b)(6). See, e.g., Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 182-83 (7th Cir. 1986); Paist v. Town Country Corp., 744 F. Supp. 179, 181 (N.D. Ill. 1990). The court must accept as true the complaint's "well-pleaded factual allegations" and draw "all reasonable inferences" in plaintiff's favor. Chakonas v. City of Chicago, 42 F.3d 1132, 1134 (7th Cir. 1994). The sheriff is entitled to dismissal of a claim only if it appears beyond doubt that plaintiff would not be entitled to relief under any set of facts that might be proved within the scope of the complaint's allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Chaney v. Suburban Bus Div. of Reg'l Transp. Auth., 52 F.3d 623, 626-27 (7th Cir. 1995). Nevertheless, a plaintiff may still plead himself out of court if the complaint includes allegations that show he cannot possibly be entitled to the relief he seeks. See, e.g., Jefferson v. Ambroz, 90 F.3d 1291, 1296-97 (7th Cir. 1996); Warzon v. Drew, 60 F.3d 1234, 1240 (7th Cir. 1995).
Under the liberal notice pleading standard in federal civil actions, a plaintiff may plead a conclusion in the complaint, and then, if the conclusion is questioned in a motion to dismiss or for judgment on the pleadings, the plaintiff may suggest a set of facts consistent with the allegations that would, if proved, establish the right to recover on the legal claim. Early v. Bankers Life and Cas. Co., 959 F.2d 75, 78-79 (7th Cir. 1992). In light of some of the sheriff's arguments, it also bears mentioning that the plaintiff is not required to spell out in a complaint all the factual and evidentiary bases for his claims for relief or all elements of a legal claim. E.g., Scott v. City of Chicago, 195 F.3d 950, 951-52 (7th Cir. 1999); Jackson v. Marion County, 66 F.3d 151, 154 (7th Cir. 1995).
Plaintiff's Allegations
In light of this standard, the court accepts the following allegations as true for purposes of the sheriff's motion. In December 2001, plaintiff Crumes was a resident of Tara Townhouse on the Green, a condominium complex in Indianapolis. Defendant David Myers was president of Myers Protective Services, Inc. and Myers Investigations, Inc. Cplt. ¶ 12. Tara Townhouse had contracted with Myers and/or his corporations to provide security services for Tara Townhouse and its residents. Id., ¶ 13.
Defendant Sheriff Cottey conferred non-employee special deputy powers on defendant Myers on June 14, 1999. The sheriff acted pursuant to Indiana Code § 36-8-10-10.6, which authorizes a sheriff to appoint special deputies who may then, subject to limitations imposed by the appointing sheriff, exercise the powers of a deputy sheriff.
At approximately 11:00 pm on December 15, 2001, plaintiff Crumes was sitting in his parked car in the Tara Townhouse complex checking voice mail messages on his cellular telephone. Defendant Myers drove up in his private security vehicle and parked behind Crumes, shining a spotlight into Crumes' car. Myers got out of his car and asked Crumes for his driver's license. Crumes handed Myers his license and asked Myers if there was a problem. He told Myers that he lived in the complex and asked Myers to identify himself. Myers responded that he was a Marion County Sheriff. He then corrected himself and told Crumes that he was a Marion County Special Deputy.
Myers took Crumes' driver's license back to his vehicle. Crumes' license showed that his address was within the Tara Townhouse complex. The license plates on his vehicle were current, his vehicle was registered, and he had never been arrested and was not the subject of an arrest warrant or any other legal proceeding.
Some time passed as Crumes waited for Myers to return with his driver's license. Crumes thought that Myers was taking too much time, so he got out of his car, walked back to Myers' vehicle and asked when Myers would be finished with his license. Crumes alleges that Myers screamed at him to "get back in your vehicle." Cplt. ¶ 20. Crumes again told Myers that he lived in the complex, that his driver's license reflected that fact, and that the license plates on his car were valid. Again, Myers screamed at Crumes to "get back in your vehicle." Id., ¶ 21. Crumes began walking back to his car, at which point he stated "This is bull s***. I live here." Id., ¶ 22.
Upon hearing this, Myers got out of his car and approached Crumes, who was now seated in the driver's seat of his own car. According to plaintiff, Myers loudly asked, "What did you say?" Crumes answered, "I said this is bull s***. You guys work for us." Id., ¶ 25. Myers then ordered Crumes out of his vehicle and told Crumes he was under arrest for disorderly conduct. Crumes asked to speak with Myers' supervisor. Myers said that he was the supervisor and Crumes was headed to jail. Myers then opened the driver's side door and attempted to pull Crumes out of the car by his arm. Crumes asked Myers what he was doing and told Myers that he had not done anything to justify such treatment. Myers then hit him on the hands and placed a handcuff on one wrist.
Crumes then got out of his car voluntarily. He asked Myers to call the Indianapolis Police Department, Marion County Sheriff's Department, or Indiana State Police to assist in the situation. To that, Myers put his hand on his gun and said, "turn your f***ing a** around." Crumes alleges that Myers continued in his attempt to arrest Crumes and, in the process, Myers "inflicted unnecessary pain" on him. Id., ¶ 31.
Crumes informed Myers that he was carrying a firearm under his vest. Myers removed the firearm and then spoke into his two-way radio saying, "Code one. Man with a gun." Myers finished placing the handcuffs on Crumes and roughly moved Crumes over to his security vehicle and "shoved" Crumes onto the hood. Id., ¶ 35. Crumes called to neighbors who were witnessing the incident, asking that they call the Indianapolis Police Department late shift supervisor for assistance. Myers then pushed Crumes' head toward the hood of the car. Crumes alleges that he suffered physical injury after he was handcuffed.
Crumes was charged with disorderly conduct, battery, and resisting law enforcement. His bond was set at $30,000, and he spent one night in jail. After an evidentiary hearing, the state criminal court found that Myers did not have probable cause or reasonable suspicion for the stop, nor for the ensuing investigation. The state court further found that there was no probable cause for battery or for resisting law enforcement. All charges were dismissed.
The allegations against Myers would, if proved, establish violations of Crumes' Fourth Amendment rights and the torts of assault, battery, and false arrest. Crumes also seeks to hold Sheriff Cottey liable for the alleged violations, in both his individual and official capacities. Crumes points out that Myers' own past criminal record meant that his appointment as a special deputy was contrary to state law and the written policies of the Marion County Sheriff's Department. Indiana Code § 36-8-10-10.6 provides in relevant part:
(a) The sheriff may appoint as a special deputy any person who is employed by a governmental entity as defined in IC 35-41-1 or private employer, the nature of which employment necessitates that the person have the powers of a law enforcement officer. During the term of his appointment and while he is fulfilling the specific responsibilities for which the appointment is made, a special deputy has the powers, privileges, and duties of a county police officer under this chapter, subject to any written limitations and specific requirements imposed by the sheriff and signed by the special deputy. A special deputy is subject to the direction of the sheriff and shall obey the rules and orders of the department. A special deputy may be removed by the sheriff at any time, without notice and without assigning any cause.
(b) The sheriff shall fix the prerequisites of training, education, and experience for special deputies, subject to the minimum requirements prescribed by this subsection. Applicants must:
* * *
(2) never have been convicted of a felony, or a misdemeanor involving moral turpitude. . . .
Sheriff Cottey had adopted separate departmental regulations on the appointment of special deputies, which provided that the special deputy appointee must not:
A. Have been convicted of any felony charges.
B. Have been convicted of any misdemeanor charges in the last five (5) years involving moral turpitude. Misdemeanor convictions will be reviewed by Department Staff who will then make a determination as [to] whether or not the applicant will be accepted.
Cplt. ¶ 47. Those regulations are inconsistent with the state statute's requirement that a special deputy "never" have been convicted of a felony or a misdemeanor involving moral turpitude.
On March 27, 1995, Myers pleaded guilty to felony theft. On April 17, 1996, Myers' petition for modification of sentence was granted and his conviction was downgraded from a felony to a Class A misdemeanor. Id., ¶ 44. Thus, Sheriff Cottey's 1999 appointment of Myers as a special deputy was inconsistent with both the state law and the written Marion County Sheriff's policy.
Discussion
I. Section 1983 — The Federal Claims
Plaintiff Crumes asserts his federal constitutional claims under 42 U.S.C. § 1983, which reads in relevant part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .
To state a valid claim under section 1983, Crumes must first allege that he was deprived of a right secured by the Constitution or laws of the United States by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). He has done so.
Myers was a special deputy of the sheriff's department. Under the statute that authorized his appointment, "[d]uring the term of his appointment and while he is fulfilling the specific responsibilities for which the appointment is made, a special deputy has the powers, privileges, and duties of a county police officer under this chapter, subject to any written limitations and specific requirements imposed by the sheriff and signed by the special deputy." Ind. Code § 36-8-10-10.6(a); see also Robey v. State, 481 N.E.2d 138, 141 (Ind.App. 1985) (special deputy was "public servant" for purposes of criminal official misconduct statute because he had been appointed to discharge a public duty). Accordingly, Crumes has alleged sufficiently that Myers acted under color of state law when he stopped and arrested Crumes and caused criminal charges to be filed. For purposes of deciding Sheriff Cottey's motion, the court therefore accepts those factual allegations as true and must assume that Myers violated Crumes' federal constitutional rights.
The sheriff argues that Crumes has alleged only a violation of a state law, with its restrictions on special deputy appointments based on the deputy's criminal history. It is well established, of course, that § 1983 offers no remedy for violations of only state law. E.g., McKinney v. George, 726 F.2d 1183, 1188 (7th Cir. 1984) (affirming summary judgment on Fourth Amendment claim where arrest may have violated state law but was based on probable cause); accord, Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002) (no federal right not to be arrested in violation of state law); Pasiewicz v. Lake County Forest Pres. Dist., 270 F.3d 520, 526 (7th Cir. 2001) ("The federal government is not the enforcer of state law."); Schultz v. Baumgart, 738 F.2d 231, 236 (7th Cir. 1984) (federal court was not responsible for enforcement of details of state law in the guise of a federal constitutional claim).
However, Crumes has not confused a violation of state law with a violation of the federal Constitution. The question is whether federal law could hold Sheriff Cottey liable for those alleged constitutional violations, in either his individual or official capacities. In his response to the motion for judgment on the pleadings, Crumes has clarified the foundation for his federal claims against the sheriff, as he had the right to do under the federal system of notice pleading. Ross Bros. Constr. Co. v. International Steel Services, Inc., 283 F.3d 867, 873 (7th Cir. 2002) ("complaints in a system of notice pleading initiate the litigation but recede into the background as the case progresses . . . subsequent pleadings can refine the claims and briefs and memoranda can supply the legal arguments that bridge the gap between facts and judgments") (citations omitted).
Crumes argues that Sheriff Cottey acted with deliberate indifference to the plainly obvious prospect that appointment of Myers, with his criminal history, would result in violation of citizens' federal constitutional rights. See Palmer v. Marion County, 327 F.3d 588, 597 (7th Cir. 2003) (to hold municipality liable for its custom or policy under § 1983, plaintiff must show that final policymaker was deliberately indifferent to public safety). Crumes also argues that, because Sheriff Cottey was the final decision-maker in appointing special deputies, his decision is necessarily a final policy decision of the local government for purposes of Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691 (1978) (doctrine of respondeat superior does not apply to § 1983). See McMillian v. Monroe County, 520 U.S. 781, 785 (1997) (Alabama sheriff had "final policymaking authority" in area of law enforcement, but ultimately was deemed to be acting for state rather than county when investigating murder); Pembaur v. City of Cincinnati, 475 U.S. 469, 485 (1986) (prosecutor acted as final decision-making authority on action in issue). Sheriff Cottey does not dispute the final decision-maker point, but he argues that Crumes cannot establish a sufficient causal link between his appointment of Myers and the violations of Crumes' federal rights.
In Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397 (1997), the Supreme Court addressed a case with striking similarities to this case, but also with some important differences. The plaintiff in Brown alleged and ultimately proved that a reserve deputy sheriff had used excessive force to arrest her, resulting in serious injuries. The reserve deputy in question was the sheriff's relative and had a criminal history with several misdemeanor convictions, including assault and battery, resisting arrest and public drunkenness, all arising from a campus fight. 520 U.S. at 413-14 n. 2. The plaintiff also sued the county, arguing that the sheriff's decision to hire the special deputy, notwithstanding his criminal history, reflected deliberate indifference to the danger that he had violent tendencies and posed a special threat of constitutional violations. A jury found in favor of the plaintiff on the claim against the county.
The Supreme Court ultimately reversed, finding that the evidence was not sufficient to hold the county liable for hiring the special deputy. The Court assumed that, as in this case, the sheriff was the final decision-maker for the county. The Court then explained that such claims based on hiring decisions would have to meet "rigorous requirements of culpability and causation" in order to protect the county from being held liable on evidence that would support only a respondeat superior theory. 520 U.S. at 415. Holding the county liable for the sheriff's hiring decision would require proof that the sheriff's decision "reflected a conscious disregard for a high risk that [the reserve deputy] would use excessive force in violation of respondent's federally protected right." Id. at 415-16. Brown shows that Crumes' § 1983 claims against Sheriff Cottey may be difficult to prove, but that they should not be dismissed at the pleadings stage. First, although the Brown Court set a high bar in such cases to prove both culpability (at least deliberate indifference to constitutional rights) and causation (the resulting injury was a "plainly obvious consequence" of the hiring decision), the Brown Court plainly left the courthouse door open for such claims, as long as the evidence is strong enough. Sheriff Cottey points out that the reserve deputy in Brown was a county employee, while Myers was not a county employee in this case. That distinction makes no difference on the federal constitutional claims for deliberate disregard of citizens' constitutional rights. Regardless of the exact nature of the relationship, the sheriff's appointment conferred law enforcement powers on Myers, and Crumes has argued that the alleged constitutional violations were the predictable result of the appointment.
Second, the Brown Court made a point of noting that the hiring decision in the case was legal under state law, which prohibited appointment only of persons with felony records. 520 U.S. at 405 ("Sheriff Moore's hiring decision was itself legal, and Sheriff Moore did not authorize Burns to use excessive force. Respondent's claim, rather, is that a single facially lawful hiring decision can launch a series of events that ultimately cause a violation of federal rights."). In this case, Myers was convicted of felony theft in 1995, which was changed to misdemeanor theft in 1996. The court must assume at this point that Myers' appointment was contrary to state law. Even giving effect to the post hoc discount of the theft conviction from felony to misdemeanor, the misdemeanor conviction was for a crime of moral turpitude. See Dashto v. INS, 59 F.3d 697, 699 (7th Cir. 1995) (in the immigration context, theft is a crime of moral turpitude); Soetarto v. INS, 516 F.2d 778, 780 (7th Cir. 1975) ("Theft has always been held to involve moral turpitude, regardless of the sentence imposed or the amount stolen."); Fletcher v. State, 340 N.E.2d 771, 774 (Ind. 1976) (theft involves "dishonesty or false statement" and is therefore admissible against a witness with a prior conviction for theft); Baker v. Miller, 138 N.E.2d 145, 147 (Ind. 1956) (in the context of attorney discipline, theft is a crime of moral turpitude). Based on the timing, Myers' 1999 appointment was also contrary to the sheriff's written policy, which barred appointments as special deputies of persons convicted of such a misdemeanor in the past five years.
The alleged violations of both state law and the sheriff's written policy are not conclusive on the federal constitutional question, but they are evidence that tends to support plaintiff's claim of deliberate indifference to the threat Myers posed to constitutional rights. See Havey v. County of Dupage, 820 F. Supp. 359, 362 (N.D. Ill. 1993) (denying motion to dismiss where plaintiff alleged that county failed to follow its own policies intended to prevent suicide by jail inmates); Riddle v. Innskeep, 675 F. Supp. 1153, 1163 (N.D. Ind. 1987) (denying summary judgment in juvenile's claim for stabbing by another juvenile who had been placed in center contrary to county policies).
Because Sheriff Cottey was the final decision-maker on such appointments, his decision to appoint Myers contrary to the written policy can itself be deemed a policy decision sufficient to meet the criteria for municipal liability in Monell. See Billings v. Madison Metro. Sch. Dist., 259 F.3d 807, 817 (7th Cir. 2001) (constitutional violation may be shown if "the plaintiff's constitutional injury was caused by a person with final policy-making authority").
Third, the Court decided Brown based on a full trial record rather than at the pleadings stage. As noted above, the standard for judgment on the pleadings is stringent. The court may grant the motion only if it appears "beyond doubt" that plaintiff would not be entitled to relief under any set of facts that might be proved within the scope of the complaint's allegations. Conley v. Gibson, 355 U.S. at 45-46; accord, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) (rejecting "heightened pleading requirement" for § 1983 claims of municipal liability). For these reasons, although plaintiff Crumes will need evidence to meet "rigorous requirements of culpability and causation," Brown, 520 U.S. at 415, his complaint against Sheriff Cottey is sufficient to withstand the motion for judgment on the pleadings.
The sheriff's motion did not attempt to distinguish between the individual capacity and official capacity claims. Plaintiff has alleged sufficiently Sheriff Cottey's personal involvement in the decision to appoint Myers. Under state law, only the sheriff may make such an appointment. See Ind. Code § 36-8-10-10.6.
II. State Law Claims
Plaintiff also seeks relief from Sheriff Cottey under state law for false arrest and assault and battery, as well as for negligent hiring of Myers. The sheriff argues that he is immune from plaintiff's state law claims of false arrest and assault and battery under the Indiana Tort Claims Act. That Act provides that a governmental entity is not liable for a loss resulting from: "The act or omission of anyone other than the governmental entity or the governmental entity's employee." Ind. Code § 34-13-3-3(10). There is no allegation here that Myers was an employee of the Sheriff's Department. Based on the plain language of the statute, state law bars liability for the false arrest and assault and battery by special deputy Myers. Myers' role as a special deputy who was not a department employee distinguishes this case from Delk v. Board of Comm'rs, 503 N.E.2d 436, 440 (Ind.App. 1987), where the Court of Appeals reversed summary judgment in favor of a sheriff based on alleged false imprisonment by full-time deputy sheriffs, stating: "the sheriff is responsible for the torts of his deputies."
Plaintiff Crumes also contends that Sheriff Cottey should be liable for the negligent appointment of Myers as a special deputy. Indiana law recognizes a cause of action for negligent hiring, retention, and supervision of an employee. Grzan v. Charter Hosp. of Northwest Ind., 702 N.E.2d 786, 793 (Ind.App. 1998). To defeat plaintiff's claim for negligent hiring, Sheriff Cottey relies on Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999), in which the Indiana Supreme Court reaffirmed the established principle under Indiana law: "Nor may one recover damages because a state official made an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment." Campbell v. State, 284 N.E.2d 733, 737 (Ind. 1972).
The parties find themselves in something of a stand-off on some procedural issues on this claim. Plaintiff contends that Sheriff Cottey waived the common law immunity defense by failing to plead it in the answer. Most immunities are affirmative defenses, Miller v. American Stock Exchange, 317 F.3d 134, 151 (2d Cir. 2003), citing Gomez v. Toledo, 446 U.S. 635, 640 (1980), and affirmative defenses can be waived, Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000). However, in the absence of surprise or unfair prejudice, the court may allow amendment of an answer to raise such an affirmative defense. See, e.g., Jackson v. Rockford Housing Auth., 213 F.3d 389, 393 (7th Cir. 2000) (affirming decision to allow similar amendment to add affirmative defense); Blaney v. United States, 34 F.3d 509, 512 (7th Cir. 1994). In this case, such amendment is especially appropriate because plaintiff's complaint does not explicitly allege a claim for negligent hiring, retention or supervision. Nevertheless, the complaint was sufficient to put defendants on notice that such a claim was being asserted. See Sinkule v. Fisher Dev., 2002 WL 1308642, at *5 (N.D. Ill. June 14, 2002) (finding plaintiffs put defendant on notice of negligent hiring claim by alleging that defendant's employees engaged in sexual harassment and defendant knew or should have known of the conduct); see also Chontos v. Rhea, 29 F. Supp. 2d 931, 938 (N.D. Ind. 1998) (finding that although "the complaint could be more clear and specific," the complaint did "fairly suggest a claim of negligent retention."). Moreover, the parties have briefed the availability of the unpleaded defense to the unpleaded claim. The best approach to this stand-off is to treat the complaint as alleging a claim against Sheriff Cottey for negligent hiring and to deem the sheriff's answer amended to plead the immunity defense.
On the merits, the principle of Campbell, reaffirmed in Benton, applies squarely to plaintiff's claim that Sheriff Cottey negligently appointed Myers as a special deputy. The common law immunity bars such a claim. Accord, Lamb v. City of Bloomington, 741 N.E.2d 436, 442 (Ind.App. 2001) (affirming dismissal of claim against city fire department for negligent staffing procedures and numbers).
To the extent plaintiff might be understood to allege a claim for relief directly under Indiana Code § 36-8-10-10.6, which is quoted above, the claim is dismissed. There is no indication that the Indiana legislature intended to create a private right of action under the statute. See Merrill v. Trump Ind., Inc., 320 F.3d 729, 732 (7th Cir. 2003) (declining to find implied right of action under Indiana statute), citing Vaughn v. Daniels Co., 777 N.E.2d 1110, 1134 (Ind.App. 2002).
Conclusion
Sheriff Cottey's motion for judgment on the pleadings is denied as to plaintiff's federal claims and granted as to his state law claims against the sheriff.So ordered.