Opinion
CV-01-114-ST
April 20, 2001
FINDINGS AND RECOMMENDATION
INTRODUCTION
Plaintiff, Sherrell Pollard ("Pollard"), filed this action on January 25, 2001, against defendants, the City of Portland ("Portland"), Portland's Mayor (Vera Katz ("Katz")), six Portland police officers (Douglas Matthews ("Matthews"), Troy Gauger, Donald Livingston, Matthew Tobey, Edward Hamann, and Melvin Tellingusen), the City of Gresham ("Gresham"), two Gresham detectives (Galen Tercek and Mike McGowan), Multnomah County, and Gary Muncie, a Sergeant employed by Multnomah County. Pollard alleges two claims for violation of 42 U.S.C. § 1983, and claims for battery, false imprisonment, and false arrest, arising out of an incident on September 5, 2000, during which Portland police officers stopped a vehicle in which she was a passenger. Following the stop, Pollard was ordered out of the vehicle, frisked, searched, and transported to a Portland Police Bureau station for questioning.
On March 30, 2001, this court granted plaintiff leave to file an Amended Complaint. This listing of defendants is taken from the Amended Complaint.
This court has jurisdiction under 28 U.S.C. § 1331. Katz has filed a Motion to Dismiss (docket #8). For the reasons that follow, the motion should be denied.
STANDARDS
A motion to dismiss under FRCP 12(b)(6) will be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir 1995); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir 1995). "The issue is not whether [the] plaintiff will ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the review is limited to the Complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the nonmovant. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir), cert denied, 506 U.S. 999 (1992); Love v. United States, 915 F.2d 1242, 1245 (9th Cir 1989).
DISCUSSION
I. Allegations of the Complaint
For purposes of the present motion, the following allegations of the Amended Complaint are taken as true:
In early September 2000, Portland police officers were searching for two black men named Calvin ("Slick") Davis and Medera Prince Moon ("Moon") who were wanted on charges that they had committed a murder on August 23, 2000. Amended Complaint, ¶ 4.2. By September 5, 2000, Davis and Moon had already been arrested and were in custody. Id, ¶ 4.3.
At or around midnight on September 5, 2000, Pollard was a passenger in a vehicle being driven in Northeast Portland by a black man named Charles Paschal ("Paschal"). Id, ¶ 4.1. Paschal does not resemble either Davis or Moon other than being a young black male. Id, ¶ 4.5. Despite the fact that Davis and Moon were already in custody, Matthews, a Portland police officer, had been instructed to follow and stop the vehicle Paschal was operating in order to question the occupants based on speculation that one of the homicide suspects was in the vehicle. Id, ¶¶ 4.7, 8. Members of Portland's Special Emergency Response Team ("SERT") conducted a "high risk" stop of the vehicle being driven by Paschal. Id, ¶¶ 4.9-10. Pascal and Pollard were ordered out of their vehicle at gunpoint. Id, ¶ 4.10. Pollard was made to lie on the ground, and was frisked and handcuffed. Id, ¶ 4.11. Without her consent, Pollard was then searched, denied a telephone call to talk to an attorney, questioned, and transported to the N.E. Precinct of the Portland Police Bureau. Id, ¶¶ 4.12-18.
Pollard was in custody approximately three hours. Id, ¶ 4.27. During that time, she was again denied a telephone call to talk to an attorney and was questioned about the suspect named "Slick" or Davis. Id, ¶¶ 4.20-.21. She was released only when it was learned that she knew nothing about Davis except what she had seen on television and news reports. Id, ¶ 4.22. However, she was photographed without her consent prior to being released. Id, ¶¶ 4.22-.23.
Katz is the Mayor and the Commissioner in Charge of the Portland Police Bureau. Id, ¶ 3.2. In that capacity, Katz is the "final decision-maker for [Portland] with respect to the operation of its police bureau." Id, ¶ 3.2. The Complaint makes the following specific allegations as to Katz:
Defendant Katz has repeatedly failed, despite notice of serious problems involving the police, to train, supervise and discipline the police officers under her control leading to an atmosphere [in] the police bureau which is disrespectful of the rule of law and the rights of the persons with whom the police officers come into contact.
Defendant Katz has failed to insure [sic] that the police officers under her control have been kept abreast of important local court rulings such as that in the case entitled Dale Acelar et al. v. John Minnis et al, USDC Civil No. 98-165-AA, in [which] the Honorable Ann Aiken held that the transport of a person to the police station for question [sic] required probable cause. Had those police officers been properly trained, plaintiff would not have been transported to the police station in the absence of probable cause to arrest her.
Id, ¶¶ 4.29-.30.
II. Analysis
Katz is sued only in her individual capacity. Id, ¶ 3.2. She moves to dismiss the claims against her on the ground that she was not personally involved in the stop or detention of Pollard and is not a "supervisor" of the individual defendant police officers within the meaning of 42 U.S.C. § 1983.
As discussed at length in several scholarly articles on this subject, the law governing individual supervisory liability for purposes of claims under 42 U.S.C. § 1983 is in a state of flux. However, it is clear that individual supervisory liability, in contrast to official capacity liability, does not turn on a showing of an official "policy or custom," but on whether the supervisor "caused" the deprivation of a federal right:
Kit Kinports, The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases, 1997 U Ill L Rev 147 (1997); Symposium, Supervisory Liability in Section 1983 Cases, 15 Touro L Rev 1657 (1999).
[T]o establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. . . . More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a "`moving force'" behind the deprivation . . .; thus, in an official-capacity suit the entity's "policy or custom" must have played a part in the violation of federal law.
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citations omitted, emphasis in original); see also Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir 1978) ("[P]ersonal participation is not the only predicate for section 1983 liability. Anyone who `causes' any citizen to be subjected to a constitutional deprivation is also liable.").
The more vexing issue is what constitutes a sufficient causal connection for the imposition of individual supervisory liability. In the Ninth Circuit, the "requisite causal connection can be established . . . by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Johnson, 588 F.2d at 743-44. A supervisor may be found liable in his or her individual capacity if he or she "`knowingly refused to terminate a series of acts by others, which he [or she] kn[e]w or reasonably should [have] know[n] would cause others to inflict the constitutional injury.'" Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir 1991) (citation omitted). Thus, Katz's individual liability may be premised on her "`own culpable action or inaction in the training; supervision; or control of [her] subordinates; for [her] acquiescence in the constitutional deprivations . . .; or for conduct that showed a reckless or callous indifference to the rights of others." Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir 1998), quoting Larez, 946 F.2d at 646.
Katz argues that the Portland City Code provisions concerning her role with respect to the Bureau of Police make it clear that she is not a "supervisor" for purposes of 42 U.S.C. § 1983. Portland's Bureau of Police is headed by a Chief of Police and has four branches, each of which is headed by a Deputy Chief, including the (1) Operations Branch; (2) Investigations Branch; (3) Operations Support Branch; and (4) Administrative Support Branch. Portland City Code ("PCC") 3.20.010. The Chief of Police is the "Commanding Officer of the police force" and "direct[s] the police work of the City." Id. The Chief of Police is in turn "directly responsible to the Commissioner in Charge for the proper functioning of the Bureau." Id. Katz is the Commissioner in Charge.
Katz cites Hernandez v. Gates, 100 F. Supp.2d 1209 (C.D. Cal 2000) in support of her request for dismissal of the claims against her. In Hernandez, civil rights claims brought against members of the Los Angeles City Council were dismissed because the City Council members did not "exercise supervisory responsibility over the [police] department and its officers as that concept has been developed in Section 1983 jurisprudence." Id at 1219. The court noted that the City Council members did not participate "in any way in the actual hiring, firing and disciplining of police officers." Id at 1217 n10. In addition, they did not "directly supervise police officers in general," did not supervise the accused officers in particular, and had no "day-to-day authority over the department." Id at 1219. Instead, the police department was headed by a Chief of Police and an executive staff consisting of two assistant chiefs, several deputy chiefs, and 17 commanders. Id. Moreover, the City police department was under the ultimate "control and oversight of the civilian Board of Police Commissioners." Id.
The problem with analogizing this case to Hernandez is that the PCC clearly gives the Commissioner in Charge some authority over the operation of the Bureau of Police, and some disciplinary authority over its officers. In contrast, in Hernandez, the city council members had no such authority over the police department. The PCC indicates that the Commissioner in Charge is ultimately responsible for approving assignment of Deputy Chiefs, as well as the personnel and duties assigned by the Chief of Police in each of the four branches of the Bureau of Police: "[E]ach of [the four Bureau of Police branches] shall be commanded by a Deputy Chief and have personnel and such duties as may be assigned by the Chief of Police, subject to the approval of the Commissioner in Charge." PCC 3.20.010 (emphasis added). In addition to these duties, the PCC appears to arm the Commissioner in Charge with disciplinary authority. Neither the Chief of Police, nor the Deputy Chiefs, nor any lower ranking officer in the Bureau of Police has the authority to suspend a subordinate officer. Instead, police captains simply have the authority to "recommend for suspension to the Commissioner in Charge any subordinate officer, member or employee for a violation [of City ordinances and rules, orders and regulations for the government of the police force] as prescribed by the Civil Service rules." PCC 3.20.050 (emphasis added). While these provisions do not assist the court in determining the factual issue of whether Katz was sufficiently culpable to be found individually liable for the constitutional violations allegedly suffered by Pollard, they do indicate that Katz has the ultimate authority to approve discipline of officers allegedly committing such offenses.
In Larez, the Ninth Circuit indicated that knowledge by a supervisor of constitutional violations, and acquiescence in those violations, is sufficient to hold the supervisor liable. Larez, 946 F.2d at 646. Additionally, the Ninth Circuit made clear that the supervisor's liability may, in part, turn on the supervisor's response to the specific constitutional violation alleged by the plaintiff. Id. In this case, Pollard has sued Katz in her individual capacity and alleges that Katz had "notice of serious problems involving the police." Despite that notice, Pollard alleges that Katz failed "to train, supervise and discipline the police officers under her control" and failed to ensure that those same police officers were made aware of court decisions which declared unconstitutional the identical type of harm allegedly suffered by Pollard (i.e. transport to a police station without probable cause as a violation of the Fourth Amendment). Amended Complaint, ¶¶ 4.25-26. The record is silent as to the actions taken against the officers involved in the incident with Pollard.
Katz may well be entitled to summary judgment against the claims alleged against her individually, based upon her role in supervising police officers or her lack of knowledge or acquiescence to constitutional deprivations. However, the only motion presently pending in this case is a motion to dismiss which requires this court to accept Pollard's pleadings as true. As discussed above, the applicable provisions of the PCC are insufficient, in and of themselves, to exonerate Katz from individual supervisory liability.
Katz also moves to strike Pollard's request for punitive damages against her on the ground that it is immaterial. That request should be denied as moot.
RECOMMENDATION
For the reasons stated above, Defendant Katz's Motion to Dismiss (docket #8) should be DENIED.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due May 11, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than May 29, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.