James Hirst v. Jean Gertzen

WALTER E. HOFFMAN, Senior District Judge,

Sitting by Designation, dissenting in part:

A relatively simple factual case has been rendered exceedingly complex by the majority opinion. The net effect of the reversal is tantamount to a direction for the lower Court to let the plaintiff recover, at least insofar as the unidentified deputy sheriff is concerned. Because the issue of causation is vital on the facts presented, and it clearly appears from the sworn testimony of every witness that the deputy sheriff was not at the county jail after 4:30 p. m. on March 6, 1975, until 8:00 a. m. on March 7, 1975, during which time Clayton Hirst committed suicide by hanging himself in his cell by the use of his belt, I respectfully dissent.

Whether the Supreme Court did, or did not, permit the recovery on simple negligence in actions under § 1983, under the recent case of Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), is not material in this case. The crucial question is dependent upon the part a certain deputy sheriff played in handling Clayton Hirst.

Hirst was apparently arrested on an excessive drinking charge 1 and was. initially placed in the Cut Bank jail. About noon on March 5,1975, the chief of police of the City *1266 of Cut Bank took Hirst to the Glacier County jail, where he was booked (apparently by the alleged sadistic deputy sheriff) and placed in a cell on the second floor. At the time of booking another officer was present. About 1:00 p. m., the sheriff (a female) took Hirst before a justice of the peace in the adjoining courthouse for a brief hearing. He was then returned to his cell. Contrary to the usual practice Hirst was permitted to retain his clothes he was wearing, including his belt which was not noticed as Hirst was wearing a T-shirt outside his trousers, because Hirst advised that his sister, Carol, was getting bond money and he would be released shortly.

According to Carol Hirst Shields, then Carol Hirst Allison and the sister of Clayton Hirst, the sheriff telephoned her after her brother had been transferred to the Glacier County jail. The sheriff turned the phone over to Clayton Hirst and Carol advised her brother that she had made arrangements for a bond to be posted, but the father had to go get the money. Carol related that Clayton was “very upset” and, when told that she would get the money in the morning, Clayton replied, “Don’t worry”, and that his voice sounded “scared” and “upset”. This is the only possible evidence from which anyone could conclude that he was “apparently in fear of his life” as related by the majority opinion, although not stated in this manner in the offer of proof. All other uncontradicted testimony was to the effect that Clayton Hirst was completely normal in his words and actions during all times he was seen alive in jail. All persons having any contact with Clayton Hirst during the brief period of his jail confinement were called as witnesses in the bifurcated trial, essentially all of whom were called by counsel for the plaintiff. No single witness placed the alleged sadistic deputy sheriff in the jail area at any time between 4:30 p. m. on March 6, 1975 and 2:15 a. m. on March 7, 1975, at which time Hirst’s body was discovered in his jail cell.

The majority opinion fails to mention the fact that the so-called sadistic deputy sheriff had gone home at 4:30 p. m. and did not return until 8:00 a. m. the next morning to work his regular 8:00 a. m. to 4:00 p. m. shift. Had the sworn testimony indicated any evidence pointing to the deputy sheriff’s presence at or near the jail area during the crucial period, I would concede that there is a basis for reversal. However, the majority feels that merely because this particular deputy sheriff had a key to enter the jail area — although only one key was available to actually get into the cell area on the second floor and this key was located in a counter drawer in the dispatcher’s office— this evidence was sufficient to infer that the deputy sheriff in question may have entered the premises on the night of March 6 and, unnoticed by the dispatcher who was the only person on duty, the alleged sadistic deputy sheriff took the key from the counter drawer, went to the second floor, thereafter either murdered Hirst or so taunted him to the point that Hirst committed suicide. Of course, the majority now approves of the jury finding that Hirst committed suicide and, therefore, the issue would be whether the alleged sadistic deputy sheriff so threatened or taunted Hirst' that Hirst took his own life.

Nor does the majority opinion reflect that the uncontradicted evidence reveals that, after the purported sadistic deputy sheriff had left the jail area between 4:00 and 4:30 p. m., following the completion of his duty shift, the last person who saw Hirst alive was Deputy Sheriff Koepke (admittedly not the same deputy sheriff whose prior acts and conduct are the subject of the majority opinion) when he went to Hirst’s cell to retrieve the dinner dishes following Hirst’s final meal and, in compliance with Hirst’s request, brought him a deck of cards and a book. 2 Koepke left the jail area immediate *1267 ly thereafter and, from that time until the body was discovered, the only persons in the jail were two female dispatchers, Stephanie Cunningham who worked the 4:00 p. m. to midnight shift, and Michaela Bogie who went on duty at midnight and, at approximately 2:15 a. m., not having heard anything from Hirst by the monitor which would pick up any noise in Hirst’s cell, called Wayne Higgins, a police officer of the City of Cut Bank, with a request that he check the cell. 3 It was Higgins 4 who discovered the body and cut it down.

The district court dismissed the action as alleged in Count II of the amended complaint as to the defendants, Moore, Frisbee, Bruch, Higgins, Bogie and Cunningham, by order entered on January 11, 1977. This Count, according to the majority opinion, has apparently reinstated the above named defendants despite the fact that at least some of these defendants could not possibly have had anything to do with the case unless a conspiracy had been shown — an allegation which was settled by the jury verdict.

On February 8, 1978, the trial court approved an extensive final pretrial conference order, same having been prepared and signed by counsel. It is interesting to note that, assuming decedent committed suicide by hanging, plaintiffs’ only contention as to liability is C(l)(b) which reads:

“Gross negligence amounting to willful and wanton misconduct by defendants in failing to adequately safeguard and preserve the life of Clayton Hirst.”

Further, under paragraph 8 of plaintiffs’ contentions, it is said:

“Actions taken and not taken by defendants in this case to safeguard the life of Clayton Hirst fell below the applicable standard of care in this locality for the administration of jail facilities”

At no time, in the pleadings or otherwise, has there been any contention that the alleged sadistic deputy sheriff ever directly threatened or taunted Clayton Hirst. The offer of proof as to the prior acts of this *1268 deputy sheriff does include an allegation that this party had mistreated James Hirst, the older brother of Clayton Hirst, on one occasion approximately 3 years prior to Clayton’s death. While there is no evidence that Clayton learned of this episode, it is not unlikely that he became aware of it. In any event, the majority would now permit evidence of this prior incident, together with others, in an attempt to show the psychological effect upon Clayton Hirst when he realized that he was confined to a jail which was under at least partial control of this same sadistic deputy sheriff. This is the only possible nexus, not otherwise covered by the evidence of all witnesses, between that particular deputy sheriff and Hirst’s death.

Stated in a somewhat different manner, the question is whether a § 1983 defendant can be held liable merely because an employee, admittedly with a prior alleged history of improper actions, is retained in employment status by the employer when there is no showing that, on all pertinent occasions, the employee either treated the prisoner improperly or otherwise was present when the prisoner sustained his injury or death. In my judgment to hold a defendant liable under this extreme psychic reasoning goes too far. The majority apparently rests its holding on the theory, not with a shred of evidence to support it factually, that a “systematic failure on the part of the relevant county officials to exercise even minimal care in the hiring and supervision of the deputy in charge of prisoners at the Glacier County Jail.” Once again, if there existed even a slim reed of evidence to tie the alleged sadistic deputy sheriff to the incident involving Hirst taking his own life, I would not disagree with the fundamental principle that there does exist a duty of reasonable care and reasonable supervision of employees charged with the custodial duties of inmates in a jail. But all of the sworn testimony points conclusively to the fact that the particular deputy sheriff last saw Hirst shortly after 4:00 p. m. when he went to the second floor to bring Hirst downstairs to answer the telephone, and Hirst was thereafter fed his evening meal by Deputy Sheriff Koepke. Unwilling as I am to permit a recovery based upon a psychic theory that the alleged sadistic deputy sheriff’s mere employment at the jail caused, directly or indirectly, the tragic death of Clayton Hirst by Hirst’s own act of self-destruction, it is wholly immaterial as to whether isolated prior acts of the same deputy sheriff could, or could not, be shown. Not only is it immaterial but it is highly prejudicial to the rights of all remaining defendants.

The majority argues that evidence of the prior acts of the deputy sheriff is admissible under Rule 404(b), Fed.R.Evid., for the purpose of proving “identity” where identity is in issue. In the present case I am at a loss to determine any remaining issue of “identity”. Everyone concedes that the facts as related in the offer of proof pertain to the alleged sadistic deputy sheriff. As stated by the late Chief Judge John J. Parker, in Lovely v. United States, 169 F.2d 386, 390 (4th Cir.), cert. denied 338 U.S. 834 , 70 S.Ct. 38 , 94 L.Ed. 508 (1949), a criminal prosecution:

Equally specious is the contention that the evidence was admissible on the question of identity. The question in the case is not who ravished the prosecutrix but whether or not she had been ravished at all. The fact that the accused had denied in his statement to the F.B.I. that he ravished her, did not justify the admission of testimony that he had ravished another woman, on the theory that the prosecutrix had been ravished by an unknown person and such evidence would tend to identify the ravisher. The right of persons accused of crime to have the evidence confined to the issues on trial cannot be nullified by any such unrealistic hypothesis. It is well settled that, where identity is not in issue, it is improper to admit evidence of other crimes on the theory of proving identity. See 20 Am.Jur. p. 293 and cases cited.

From the offer of proof we must assume— although it has never been judicially or administratively decided — that the deputy sheriff in question did commit the prior acts *1269 which admittedly would show some sadistic tendencies, especially directed toward Native Americans. But the theory of now admitting proof of these prior acts under the “identity” exception is, as Judge Parker says, an “unrealistic hypothesis.” 5

The majority agrees that the “identity” exception to Rule 404(b) must be applied with care, as otherwise the evidence will reach the very matter which the general rule excludes, i.e., character evidence. The majority upholds the trial court’s exclusion of this evidence as to the identity of the contended murderer in the bifurcated trial, but then concludes that it is admissible in any further proceeding to establish gross negligence (or, of course, simple negligence) in ascertaining whether the county officials neglected their duty in hiring and supervising the same deputy sheriff, and in proving that such negligence proximately caused the death of Clayton Hirst. Such a ruling deprives the trial court of its discretion under Rule 403, F.R.Evid., even if such testimony could possibly be considered as relevant, as the probative value of such evidence, even if established, is substantially outweighed by the danger of unfair prejudice, and will merely lead to confuse the jurors.

The majority is in error when it states that the issue of “identity” was not presented to the jury in the first phase of the bifurcated trial. The special verdict form completed by the jury is substantially as follows:

I.

What was the cause of Clayton Hirst’s death: check (a) or (b).

(a) Electrocution

(b) Hanging

If you have checked (a), go to No. II. If you have checked (b), return your verdict.

II.

Place an “x” next to the name(s) of the person(s), if any, who electrocuted Clayton Hirst.

Jean Gertzen_ Bert Newman_

John P. Moore_ William Koepke_

Seldon S. Frisbee Wayne J. Higgins_

William Riddle_ Michelle Bogie_

William Bruch_ Stephanie Cunningham

If you cannot identify the person(s) who electrocuted Clayton Hirst, place an “x” in this blank__

Since the jury arrived at the unanimous conclusion that Clayton Hirst met his death by hanging, it was unnecessary for the jury to attempt to identify any person or persons. However, to say, as the majority does, that “identity” was not involved in the first phase of the bifurcated trial is beyond my comprehension.

In upholding the trial court’s discretion in bifurcating the trial, the majority states that “the complex conspiracy issue would be eliminated if the jury found that Clayton Hirst died by self-inflicted hanging”. Despite this statement, all of the parties named as persons who may have been involved in the alleged electrocution of Hirst remain as defendants in this case, together with the City of Cut Bank and the County of Glacier who have been reinstated as parties defendant. Under what conceivable theory the City of Cut Bank could possibly be reinstated is beyond my comprehension.

The authorities cited by the majority relate, in the main, to cases in which motions to dismiss the complaints were either granted or denied. In each case, it was assumed or proven that the defendants participated in the physical violence of a prisoner, or were otherwise liable for independent negligence in failure to supervise or provide a proper training program which was tanta *1270 mount to “gross negligence” or “deliberate indifference” to the deprivation of the particular plaintiffs’ constitutional rights. Rundle v. Madigan, 356 F.Supp. 1048 (N.D. Cal.1972); Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979); Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.1978). None of these cases pertained to situations in which the facts had been established that a particular defendant did not even come near the inmate after the inmate was last observed by others in a normal condition.

The majority likewise notes that “[t]he afternoon before his death, Hirst, a cheerful person with no history of depression or mental illness, was visibly upset and apparently in fear of his life.” The emphasized words are not substantiated by this record. Deputy Sheriff Koepke and the attorneys representing Hirst on the city and state charges, were the last individuals who saw Hirst alive, and none of the foregoing testified that he was “visibly upset” and “apparently in fear of his life”; to the contrary they said that he appeared to be entirely normal and in reasonably good spirits with the belief that he would prevail on the pending charges. Only the testimony of the sister, who conversed with Hirst by telephone, tends to support the offer of proof that he was “upset”, and since the sister did not see Hirst it could not have been “visibly upset”. The majority opinion avoids any discussion of the facts as revealed by the extensive transcript and this is my primary complaint in that the majority disregards the complete lack of causation insofar as the alleged sadistic deputy sheriff is concerned.

As stated in Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976), section 1983 provides a cause of action where a person acting under color of state law “subjects, or causes to be subjected”, any other person to a deprivation of rights secured by the Constitution and laws of the United States. Id. at 370 , 96 S.Ct. at 603 . Rizzo points out the necessity of a causal connection between the victims who complain of a deprivation of a right secured by the Constitution and laws and one who “subjects or causes to be subjected” the alleged victims to such deprivation of rights in an action under § 1983. Id. at 371-72, 96 S.Ct. at 604-05 . While Rizzo was essentially an injunctive proceeding, the opinion refers to the statute as imposing liability “whether in the form of payment of redressive damages or being placed under an injunction.” Id. at 370 , 96 S.Ct. at 603 . The net effect of the majority opinion is to invade the principles of federalism rejected in Rizzo , and to invite future actions against state or local officials predicated solely upon the individual past actions of an officer, even when that officer did nothing to subject or cause to be subjected to any deprivation of rights of the alleged victim.

Rizzo is followed by Monell v. New York City Dep’t. of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), and, on the issue of causation, the court again emphasizes the fact that, absent causation, “Congress did not intend § 1983 liability to attach”. To the same effect is Redmond v. Baxley, 475 F.Supp. 1111, 1116 (E.D.Mich.1979), relied upon by the majority.

Even under a Montana state law claim, assuming that the trial court in the present case was in error in basing its decision on the immunity of state officials, see Owen v. City of Independence, 445 U.S. 622 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980), the Montana case of Pretty On Top v. City of Hardin, 597 P.2d 58 (Mont.1979), correctly states the law with respect to the duties of a jailer where a prisoner commits suicide. As the Montana Supreme Court said: “Absent some possible special circumstances a jailer is under no duty to prevent [the prisoner] from taking his own life”. As pointed out, the contention that the security policy made it possible for the prisoner to take his own life is insufficient. The “special circumstances” required are such as to make it incumbent upon the jail authorities to elevate their duty of care and thereby create the possibility that the acts of the jail authorities or individuals were the proximate cause of the death. For example, a known mentally disturbed or highly nervous individual may well elevate the duty of care. But in this case, in an effort to establish *1271 that Hirst was electrocuted, plaintiffs have conclusively shown that Hirst was a completely normal person, albeit he was disappointed when he could not be released forthwith on bail.

In the final analysis, we return to the evidentiary question as to the admissibility under Rule 404(b) of the prior acts of the alleged sadistic deputy sheriff where all of the evidence conclusively establishes that the person in question never saw Hirst after approximately 4:00 p. m. on March 6, 1975, and Hirst committed suicide at some time prior to the discovery of his body at approximately 2:15 a. m. on March 7. In my judgment, the ruling of the majority does violence to that portion of Rule 404(b) which states: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith”, and the rule as stated by that eminent jurist, the late Chief Judge John J. Parker, quoted supra, precludes the admission of such testimony.

While I do not generally approve of substituting offers of proof for the presentation of evidence, the record (1472-1473) in this case demonstrates that the evidence had been fully presented and, after the return of the verdict, the learned trial judge stated to counsel:

THE COURT: Now, as I understand it, and you can correct me if I am in error, with a verdict which indicates that the cause of death was by self-inflicted hanging, this means that there remains, as a potential in the case, a claim that the Plaintiffs’ civil rights were violated by reason of the gross negligence of the Sheriff in the maintenance of the jail and in a failure to protect Clayton Hirst.

Does the Plaintiff have any other evidence that it wants to offer on that issue? MR. RUSSELL [counsel for plaintiffs]: Well, I would call attention to the earlier offers of proof that we made as to background of Mr. [name omitted in opinion] to indicate a lack of supervision and failure to discharge him.

However, in view of the findings, the factual findings, we would not be inclined to go forward solely on that basis, other than with respect to evidence as to the negligent inquiry into Mr. [name omitted in opinion] background by Miss Gertzen.

We have no other evidence of negligence to offer, other than that which has been offered already.

THE COURT: Well, do you care to make an offer of proof as to, make it very simply as to that and I will accept that offer of proof now.

MR. RUSSELL: I would incorporate the earlier offers of proof, acts of Mr. [name omitted], so I don’t have to go back over them. These have been gone into in great detail. I incorporate them herein, and I would indicate that the cause of the matters that are indicated in the earlier offers of proof, we feel that Mr. [name omitted] had a record, a past record, at the time that he was in custody of Mr. Hirst that should have brought his discharge, if the Sheriff had been — if the Sheriff had lived up to the applicable standards of care as that standard would be defined in this case.

Other than that, I have no offer of proof to make.

THE COURT: Very well. The offer of proof is rejected then, and the Court finds as a matter of law, that there is no such gross negligence as would lead to any kind of a conclusion of the kind of willfulness, which would constitute a violation of the Defendants’ (sic) civil rights.

More recent cases have done away with the state of mind requirement and, as indicated, Parratt v. Taylor, supra, may conceivably permit the establishment of a claim under § 1983 predicated on simple negligence but, since the other members of the panel have concluded that the collateral matters of alleged prior acts by the deputy sheriff are admissible to prove identity, I see no need to further extend this dissent.

. The amended complaint alleges that Hirst was arrested on February 28, 1975 by Cut Bank police on a charge of excessive drinking, and was transferred to the Glacier County jail on March 5, 1975 to be held on a charge of burglary and/or malicious mischief.

. Either shortly before or while Hirst was eating his dinner, Hirst was visited by two attorneys, one of whom represented Hirst on the City of Cut Bank charge, the other represented him on the state charge of burglary and/or malicious mischief. The Glacier County attorney testified that Hirst appeared to be in good spirits and discussed at length with the attorney the merits of his defense to the more serious charge. The attorneys left at approximate *1267 ly the time that Deputy Sheriff Koepke arrived to pick up Hirst’s dinner dishes.

. In light of Parratt v. Taylor, supra, assuming that only simple negligence is all that is required in a § 1983 action, I could be persuaded that there was a showing of prima facie negligence on the part of the dispatchers who conceded that it was customary to check the prisoner, through the use of the monitor, after approximately two to three hours of not having heard from him. It is true that the dispatchers were handicapped by reason of the installation of a new heating system which, initially at least, caused a banging or clanging of the piping system, but dispatcher Cunningham conceded that she made no effort to check on Hirst from the time the dinner dishes were retrieved by Deputy Sheriff Koepke until she was relieved at midnight by dispatcher Bogie.

Similarly, in light of Parratt , the fact that Hirst was not issued coveralls, the usual clothing for an inmate, and was obviously permitted to retain a belt, may possibly present a prima facie case of simple negligence against certain parties, as well as Glacier County if the practice was adopted by the County, who permitted Hirst to retain his clothing. This could include the alleged sadistic deputy sheriff as he was the booking officer at the time Hirst arrived at the Glacier County jail.

These concessions, however, are not sufficient for the majority. They would insist upon the receipt of proof of the prior sadistic acts of the deputy sheriff who, except for his booking activities, had nothing more to do with Hirst’s death than any member of this panel.

I am particularly concerned that the majority’s reversal will create undue expense for certain defendants who obviously have nothing to do with the case. There were 14 defendants named in the original complaint. The trial court dismissed the County of Glacier, the City of Cut Bank, the State of Montana, and the Attorney General of Montana. Permission to appeal from the interlocutory order was denied by the Ninth Circuit on July 13, 1976. The amended complaint names 10 defendants and the majority opinion reinstates plaintiffs’ claims against the County of Glacier and the City of Cut Bank. In accepting the jury verdict that Hirst committed suicide, this should have eliminated several of the now 12 remaining defendants as several were charged only as to participants in a conspiracy in hiding the fact that Hirst had been electrocuted — a fact now disproved by the jury verdict. I deplore the handling of the appeal in this manner, thereby causing defendants to incur additional expense.

. Higgins is an enrolled member of the Blackfoot Tribe of Indians; the same Tribe to which Hirst belonged. Higgins is a named defendant in the amended complaint which alleges broad conclusory allegations of discrimination against members of the Blackfoot Tribe.

. Even to the present day Lovely v. United States, supra, has been extensively cited. The same case was further considered on this point in subsequent proceedings. See: Lovely v. United States, 175 F.2d 312 (4th Cir. 1949), affirming United States v. Lovely, 77 F.Supp. 619 (E.D.S.C.1948), and United States v. Lovely, 319 F.2d 673 (4th Cir. 1963) (a proceeding under 28 U.S.C. § 2255 attacking the conviction for want of jurisdiction). It is again cited with approval, but distinguished, in United States v. Dutsch, 357 F.2d 331, 333 (4th Cir. 1966). The basic principle has been followed by various circuits and state court decisions since the effective date of the Federal Rules of Evidence.