Opinion
8:00CV515
July 10, 2002
MEMORANDUM AND ORDER
Before me are 1) the plaintiff's motion, Filing No. 69, for judgment on the pleadings; and 2) the defendants' motion, Filing No. 73, for summary judgment. The parties submitted briefs in opposition on both motions, and the defendants filed an index of evidence, Filing No. 70, in opposition to the motion for judgment on the pleadings.
The defendants' supporting index of evidence was not filed separately but rather attached to the motion itself.
Despite the prior dispositive orders entered in this case, two constitutional claims arguably still remain: the plaintiff's claims against the City, brought pursuant to 42 U.S.C. § 1983, alleging that an unconstitutional policy or custom resulted in a violation of his Fourth Amendment and Equal Protection rights. Although no claims remain against defendant McCaslin in his individual capacity, see Filing Nos. 43 and 68, the plaintiff nevertheless now asks for judgment on the pleadings against McCaslin in his individual and official capacity. The defendants, in turn, ask the court to grant them summary judgment on any remaining claims. I have now reviewed the record, the parties' briefs, and the applicable law, and I conclude that the plaintiff's motion for judgment on the pleadings must be denied and the defendants' motion for summary judgment granted.
The plaintiff's motion for judgment on the pleadings is improper on several grounds. First, and most obvious: since my prior orders dismissed the plaintiff's claims against McCaslin, no claims remain on which to grant judgment. Second, assuming that some claim remains against McCaslin, the plaintiff's motion is improperly framed: since the plaintiff's motion presents matters outside the pleadings, the motion is not properly one for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), but instead one for summary judgment under Federal Rule of Civil Procedure 56. The defendants anticipated this procedural snare, as evidenced by their motion for summary judgment. Whether I analyze the matters before me as a motion for judgment on the pleadings or as a motion for summary judgment, I conclude that the plaintiff's remaining claims must be dismissed as a matter of law. See Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995) ("Where unresolved issues are primarily legal as opposed to factual, summary judgment is particularly appropriate.")
The plaintiff's position relies on the well-settled rule that qualified immunity is a defense available only to government employees sued in their individual capacities. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (in a section 1983 action alleging constitutional violations, owners of property erroneously seized by deputy sheriff under a valid writ of execution sued sheriff and deputies only in their official capacities, thus eliminating the availability of any qualified immunity defense). The plaintiff contends that his Fourth Amendment claims against McCaslin in his official capacity survived my order dismissing claims against McCaslin in his individual capacity on qualified immunity grounds. The plaintiff therefore insists that he is entitled to judgment on that Fourth Amendment claim. The plaintiff's approach is simply incorrect.
First, "[a] suit against a public employee in his or her official capacity is merely a suit against the public employer." Id. Thus, to the extent any claim against McCaslin survives, it is a claim against the City.
The second impediment the plaintiff faces is his inability to allege an action performed under color of state law that resulted in a constitutional injury. Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998). A local government cannot be held liable under section 1983 for an injury inflicted solely by its employees on a theory of respondeat superior. Id.; see Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). Rather, a plaintiff seeking to impose such liability is required to identify either an official municipal policy or a widespread custom or practice that caused the plaintiff's injury. Springdale Educ. Ass'n, 133 F.3d at 651.
Here, the plaintiff cannot establish that his misdemeanor citations for enticement were the result of an unconstitutional official policy or widespread custom. As I held in my prior order, the problem with McCaslin's handling of the plaintiff's situation was his failure to follow the department's investigative protocol before citing the plaintiff for enticement. The plaintiff did not attack — nor could he, on the facts alleged — the investigative protocol itself as an unconstitutional policy or custom. McCaslin's decision to issue the citations in no way violated the Omaha Police Department written policy on warrantless arrests or the requirements of Nebraska law. See Filing No. 70, Carey Aff., Ex A; Neb. Rev. Stat. Ann. § 29-404.02 (Michie 1995). Nor did the plaintiff identify any custom implicated in McCaslin's decision to issue the citations.
As the defendants' summary judgment brief points out, the basis of the plaintiff's complaint is McCaslin's decision to issue the tickets for enticement rather than the department's policy or custom on publicly disseminating information about enticement allegations. Defendants' Brief at 16-17.
Moreover, even assuming that the plaintiff might be able to identify some unconstitutional policy or custom, the plaintiff cannot establish McCaslin's role as a municipal official with final policy making authority. Municipal liability may be imposed for a single decision by a municipal policymaker only if that person has final decision making authority in that area of the government's business. Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986); Angarita v. St. Louis Cnty., 981 F.2d 1537, 1546 (8th Cir. 1992); Ware v. Jackson Cnty., 150 F.3d 873, 886-87 (8th Cir. 1998). But municipal liability under section 1983 "attaches 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." Schlmigen v. City of Rapid City, 83 F. Supp.2d 1061, 1066 (D.S.D. 2000) (citing Pembaur, 475 U.S. at 483). "Final policymaking authority is determined by whether an official has the authority to make official policy or custom regarding the action alleged to have caused the particular constitutional violation at issue." Id. at 1067 (citing Angarita, 981 F.2d at 1547).
Even if McCaslin had such authority within the Omaha Police Department as a sergeant with the Child Victim Sexual Assault Unit — which he did not — that authority would not have been implicated in his decision to cite the plaintiff for enticement. McCaslin based his decision to alter the investigative protocol by citing the plaintiff before a detective had spoken with the boys on the strength of the information he received from Officer Gunter. No final policy making authority was implicated in this decision. Rather, McCaslin merely exercised his judgment as an experienced police officer. Consequently, the plaintiff's section 1983 claim based on the Fourth Amendment must fail.
Whether a particular official has final policy making authority is a question of state law. Pembaur, 475 U.S. at 483. Under Nebraska law, final policy making authority for the police department is vested in the chief of police. See Neb. Rev. Stat. Ann. § 14-602 (chief has "supervision and control of the police force," subject to orders of the superintendent of police). McCaslin had a few supervisory duties in his role as a sergeant with the Child Victim Sexual Assault Unit, but he did not make or determine policy for the unit or for the Omaha Police Department.
The defendants also asks the court for summary judgment on the plaintiff's equal protection claim. I have already granted defendant McCaslin summary judgment on this claim in his individual capacity, see Filing No. 68 at 8-13, so the question here is whether my prior decision also exonerates the City (and thus McCaslin in his official capacity). While the Eighth Circuit rejects the notion that "there must be a finding that a municipal employee is liable in his individual capacity as a predicate to municipal liability," the circuit also holds that municipal liability cannot be imposed "where there has been no violation of the plaintiff's constitutional rights as a result of action by the municipality's officials or employees." Speer v. City of Wynne, 276 F.3d 980, 985 (8th Cir. 2001) (noting that municipal liability might arise where no single official or employee's actions create a constitutional violation, but officials or employees' collective actions do). Since I have already ruled that McCaslin individually did not violate the plaintiff's equal protection rights, the City and McCaslin in his official capacity are thus entitled to summary judgment. Accordingly,
IT IS ORDERED:
1. The plaintiff's motion, Filing No. 69, for judgment on the pleadings is denied;
2. The defendants' motion, Filing No. 73, for summary judgment on the plaintiff's remaining claims is granted;
3. By separate order, judgment shall be entered in favor of the defendants and against the plaintiff, with the defendants to be awarded reasonable attorney fees and costs.