Opinion
Civil Action No. 99-WM-159
October 13, 2000
ORDER Re: Motion to Compel and Motion for Stay of Discovery
Plaintiff brings this 42 U.S.C. § 1983 case against the City and County of Denver ("Denver"), former Chief of Police Michaud in his official and individual capacities and against Daniel Pollack, a former police officer, in his individual and official capacities. Plaintiff brings claims of alleged deprivation of rights guaranteed under the First, Fourth, Fifth, Ninth, Tenth and Fourteenth Amendments to the United States Constitution. Plaintiff maintains that, while in uniform and on duty December 29, 1997, defendant Pollack detained and sexually assaulted her. Specifically, plaintiff contends she was sexually fondled and forced to perform oral sex on defendant Pollack on that date. Pollack was terminated from the Police Department and is serving a sentence for sexual assault.
A January 28, 1999 Order of Reference referred this case to the undersigned magistrate judge for pretrial case management. Defendants Michaud and Denver's Motion for Stay of Discovery [filed June 25, 1999] was referred to the magistrate judge on November 2, 1999.
Defendants Michaud and Denver's Motion to Dismiss or for Summary Judgment [filed June 25, 1999] remains pending. Also before the Court is Plaintiff's Motion to Compel Defendant City and County of Denver to Respond to Discovery Requests . . . [filed October 14, 1999].
Plaintiff alleges that that Michaud and Denver had knowledge of prior incidents of police misconduct and civil rights violations by other Denver police officers involving similar facts. See Complaint, ¶ 49. She alleges there was an official policy, practice or custom responsible for the deprivation of her rights. Id, ¶ 65. She claims that defendants were deliberately indifferent to her constitutional rights and that the custom, habit and practice of the Denver Police Department failed to adequately address investigate, discover and act upon the sexual misconduct of its officers. Pl. Prelim. Response in Opposition to Defs. Motions to Dismiss or for Summary Judgment and Motion to Stay Discovery, at 2. She contends that the officer who investigated complaints against Pollack was aware of numerous complaints regarding sexual misconduct by police officers. Id, at 15, Ex. 14, Dilley Deposition.
Chief Michaud avers he had no knowledge of any acts of sexual misconduct by Pollack. Michaud does not address whether he had knowledge of any prior acts of sexual misconduct involving other police officers. Plaintiff also contends that Michaud and Denver acted pursuant to official policy practice or custom when they failed to instruct, train, control or discipline Pollack and other officers (id, ¶¶ 50, 52, 54), and that they knew or should have known that the wrongs alleged by plaintiff were about to be committed and could have prevented them. Id, ¶ 51. Plaintiff alleges she has a right to be free from unreasonable searches and seizures, from unreasonable and excessive force upon her person during arrest/detention, and from unjustified intrusions upon her physical security. Id, ¶ 67. Plaintiff also brings state law claims of assault, battery, false imprisonment, kidnapping and outrageous conduct against Pollack. Plaintiff further alleges a violation of COLO. REV. STAT. § 18-8-403 against all defendants, breach of a duty to hire, train and supervise employees against defendants Michaud and Denver, and a claim based on apparent authority against defendants Michaud and Denver. Plaintiff moves to compel responses to all of her May 10, 1999 discovery requests, to which defendants have not responded. Defendants Michaud and Denver agree they have not answered any of plaintiff's discovery requests, but argue that filing their motion for stay of discovery relieves them of any obligation to do so. See Defs. Response to Motion to Compel, ¶¶ 8,9. Defendants also contend that D.C. COLO. L.R. 30.1B applies to stay all discovery. Id. Defendants moved for a stay of all discovery under COLO. REV. STAT ¶ 24-10-108 on June 25, 1999. Defs. Motion to Dismiss, for Summary Judgment and for Stay of Discovery, at 2, 13, 14. Although defendants also raised the qualified immunity defense for Michaud in his individual capacity, they do not expressly request a stay on that ground. See id, at 14, 17.
In a § 1983 claim, municipal liability is restricted. A municipality may be held liable under 42 U.S.C. § 1983 only for its own unconstitutional or illegal policies or customs and not for the tortious acts of its employees. See Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Municipalities may not be held liable under a theory of respondeat superior. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985). Rather, in order for a municipality to be held liable under § 1983, a plaintiff must prove that a municipal policy or custom caused the plaintiff's alleged deprivation. P. T. v. Independent School District, No. 16, 894 F.2d 1176, 1187 (10th Cir. 1990; see also Gates v. Unified School District No. 449 of Leavenworth County, Kansas, 996 F.2d 1035 (10th Cir. 1993). To hold Denver liable in this § 1983 suit, plaintiff must establish the existence of a policy adopted by Denver's Police Department or the existence and maintenance of a Police Department custom of failure to receive, investigate or act on complaints of violations of females' constitutional rights to be free of sexual abuse or assault at the hands of the district's employees. To establish a case based on custom, plaintiff must prove: "(1) the existence of a continuing, persistent and widespread practice of unconstitutional misconduct by the [municipality's] employees; (2) deliberate indifference to or tacit approval of such misconduct by the [municipality's] policymaking officials after notice to the officials of that particular misconduct; and (3) that the plaintiff was injured by virtue of the unconstitutional acts pursuant to the [municipality's] custom and that the custom was the moving force behind the unconstitutional acts." See Gates, 996 F.2d at 1041. In order for the individual defendants to be held personally liable to plaintiff on a custom claim, she must prove: (1) that the defendants received notice of a pattern of violations of females' constitutional rights to be free of sexual assault and illegal detention at the hands of the municipality's employees; (2) that the defendants displayed deliberate indifference to or tacitly authorized the unconstitutional acts; (3) that the defendants failed to take proper remedial steps; and (4) the defendants' failure to take proper remedial steps caused the plaintiff's injury. Id. Deliberate indifference, in the municipal liability context, is an objective standard which is satisfied if the risk is so obvious that the official should have known of it. Farmer v. Brennan, 511 U.S. 825, 840-42(1994). Deliberate indifference is shown when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation and it consciously or deliberately chooses to disregard the risk of harm. Board of County Commissioners v. Brown, 117 S. Ct. 1382, 1390 (1997). Defendant Michaud has asserted the qualified immunity defense in response to plaintiff's constitutional claims against him in his individual capacity. Qualified immunity shields public officials from civil damages liability if their actions did not "`violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pino v. Higgs, 75 F.3d 1461, 1467 (10th Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a public official raises the defense of qualified immunity, the court first determines whether the conduct of which plaintiff complains constitutes a violation of a constitutional or statutory right; if so, the court then addresses whether that right was clearly established at the relevant time. Gehl v. Koby, 63 F.3d 1528, 1533 (10th Cir. 1995) (citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991)). Plaintiff must therefore "present facts which if true would constitute a violation of a clearly established law." Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988) (internal citation omitted)). If the plaintiff cannot meet her burden, the defendant is entitled to qualified immunity and the constitutional claims must be dismissed. Lewis v. City of Fort Collins, 903 F.2d 752, 758 (10th Cir. 1990). "Insubstantial lawsuits `against government officials [should] be resolved prior to discovery and on summary judgment if possible.'" Jones v. City and County of Denver, 854 F.2d 1206, 1211 (10th Cir. 1988) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n. 2 (1987)). When the qualified immunity defense has been raised, the plaintiff may not use discovery as a fishing expedition to flesh out the merits of his claims. Sawyer v. County of Creek, 908 F.2d 663, 668 (10th Cir. 1990).
The Supreme Court has recognized constitutional protection for an individual's bodily integrity. In Rochin v. California, 342 U.S. 165 (1952), the Supreme Court held that a forced act of sexual intercourse violated the victim's due process right to be free from physical abuse or sexual assault by state actors. The Supreme Court thus recognized a substantive due process right to bodily integrity in Rochin and a line of other cases, even when declining to apply it to particular fact situations. See e. g. Washington v. Glucksberg, 117 S.Ct. 2258, 2267 (1997) (no due process right to assisted suicide); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 287-88 (1990) (no absolute due process right to terminate life support of an incompetent). The Supreme Court has not had occasion to consider the liability of a state actor under § 1983 for a sexual assault, but it has held that it is not necessary for there to be a precedent applying the constitutional right to a "fundamentally similar" factual situation in order for a criminal defendant to know that he is violating the due process right to bodily integrity by committing sexual assault. United States v. Lanier, 117 S. Ct. 1219, 1226-28 (1997).
A number of circuit courts have found due process violations when state actors have inflicted sexual abuse on individuals. In one case involving rape by a police officer after a traffic stop, the Fourth Circuit described the due process right which was violated as a "right . . . not to be subjected by anyone acting under color of state law to the wanton infliction of physical harm." Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997). In a 1994 case involving sexual abuse of school children by a teacher, the Fifth Circuit held that there was a well-established "liberty interest in . . . bodily integrity," Doe v. Taylor Ind. Sch. Dist., 15 F.3d 443, 450-52 (5th Cir. 1994), and in 1992, the Ninth Circuit found a clearly established "right to bodily privacy" in Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) (parolee observed while supplying a urine sample). The Eighth Circuit has also applied a due process analysis to violation of an individual's bodily integrity by a state actor. In Haberthur v. City of Raymore, Missouri, 119 F.3d 720, 723 (8th Cir. 1997), the court recognized the due process right to be free of unwelcome "sexual fondling and touching or other egregious sexual contact" by a police officer acting under color of law, reversing a dismissal on the pleadings. The Third Circuit has held that a student may maintain a civil rights action against school officials under the Due Process Clause's protection of the right to be free from unjustified intrusions on personal integrity through establishing and maintaining, with alleged deliberate indifference to the consequences, a policy, practice or custom of failing to take action with respect to complaints of teacher sexual misconduct by a teacher. Stoneking v. Bradford Area School District, 882 F.2d 720 (3rd Cir. 1989). The Tenth Circuit later recognized that sexual molestation of a student stated a claim of violation of the student's substantive due process rights to bodily integrity. Abeyta v. Chama Valley Independent School District, No. 19, 77 F.3d 1253, 1255 (10th Cir. 1996) (citing Stoneking).
For purposes of this discovery order, plaintiff has demonstrated that her Fourteenth Amendment Due Process right to bodily integrity was violated by Pollack and that her right to bodily integrity was well established law in 1997. Pollack's sexual assault of plaintiff was a violation of the most intimate kind of bodily integrity. He forced himself on her in a way that could not be considered part of any legitimate police function. Because plaintiff allegedly was fondled and forced to perform oral sex upon Pollack, the facts of this case are very similar to those in Jones. In Jones, a police officer stopped the plaintiff on suspicion of driving while intoxicated, told her she would not be arrested and offered to drive her home, but then raped her. The Fourth Circuit held that the violation of the plaintiff's bodily integrity invaded her due process rights. See Jones, 104 F.3d at 628.
Plaintiff has not, at this stage of the case, presented any showing, however, that defendant Michaud knew of Polack's propensities or of other complaints of police officer sexual misconduct. She therefore cannot show that Michaud's conduct was unreasonable in light of the clearly established law and he may raise the qualified immunity defense. Until the issue of qualified immunity has been resolved, discovery as to defendant Michaud individually, should be stayed. The qualified immunity defense is not available to Denver or to official capacity claims. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). Suit may proceed against the municipality when immunity shields the individual defendants Watson v. City of Kansas City, Kansas, 857 F.2d 690, 697 (10th Cir. 1988). In Barney v. Pulsipher, 143 F.3d 1299, 1308, 1310-11 (10th Cir. 1998), a panel of the court of appeals held that a female prisoner could not establish a § 1983 failure to train claim when the city officials had no knowledge of previous sexual assaults by the jailor who assaulted her or complaints about any other jailor. Similarly, in Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996), the plaintiff was unable to prove a custom of failing to act on complaints about several police officers having sexual relations with underage females.
Here, the burden is on plaintiff to prove that Denver or Michaud had knowledge of other similar acts by Denver police officers and acted with deliberate indifference to those complaints in the areas of training and supervision of police officers. While Barney and Andrews do not expressly discuss discovery about complaints directed at officers other than the named offender, the court finds that those courts resolved the municipality liability issues after consideration of similar complaints filed against the named defendant and other officials. Denver's knowledge of complaints about Pollack and other officers is therefore relevant under Rule 26(b), Fed.R.Civ.P. and plaintiff is entitled to discovery on those issues. See Spell v. McDaniel, 591 F. Supp. 1090, 1114-15 (E.D.N.C. 1984) (discovery as to complaints against particular officer and complaints about other officers discoverable).
The court finds that defendants' reliance on COLO. REV. STAT § 24-10-108 is misplaced with regard to discovery concerning plaintiff's constitutional claims. Defendants may rely on the statute however, to preclude discovery on plaintiff's state tort claims pending ruling on the issue of sovereign immunity as to those claims.
The court finds that defendants' reliance on D.C.COLO.L.R. 30.1B is also misplaced. The rule, by its express terms, applies only to depositions. For the reasons stated, Plaintiff's Motion to Compel Defendant City and County of Denver . . . [filed October 14, 1999], is granted in part and denied in part.
It is further ORDERED that because the discovery requests go to plaintiff's constitutional claims, defendants shall fully and completely respond to Plaintiffs' [sic] First Set of Interrogatories, numbered 1-4, 5 (from 1990 to the present only), and 6-9, and Plaintiffs' [sic] First Requests for Production of Documents numbered 1 through 8 within 14 days of this order. No extensions of time to respond will be granted.
It is further ORDERED that defendants' responses to Interrogatory number 5 and any documents produced relating to interrogatory number 5 and any internal affairs investigations shall be under a Protective Order in that the information must be kept confidential, used only for purposes of the instant litigation, and returned to defendants at the conclusion of this matter including all appeals. Alternatively, the parties may agree that the Protective Order currently in place shall apply to the documents so produced.
It is further ORDERED that defendants' Motion for Stay of Discovery [filed June 25, 1999] is granted in part and denied in part. Discovery on plaintiff's state tort claims is stayed. Discovery shall proceed against Denver on plaintiff's constitutional claims but shall be stayed as to defendant Michaud individually pending a ruling on his defense of qualified immunity. It is further ORDERED that any other relief requested in Plaintiff's Motion to Compel Defendant City and County of Denver . . . [filed October 14, 1999] and defendants' Motion for Stay of Discovery [filed June 25, 1999] not specifically addressed in this order is denied.
See Lewis v. City of Fort Collins, 903 F.2d 752, 754 (10th Cir. 1990).
Defendant Pollack, who is currently incarcerated, has not answered or otherwise responded to the complaint. The within order applies only to defendants Denver and Michaud's motion for stay.
It is further ORDERED that the motions hearing set for December 9, 1999 at 11:00 a.m. in C-159 is vacated.
SO ORDERED.