Petition for Writ of Certiorari — Stroud v. Shaw
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~ Supreme Court, U.8.
| FILED
931893 MAY 26 1994
No. OICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1993
C. I. STROUD, Individually,
Petitioner
vs.
DEBORAH SHAW, Administratrix of the Estate
of Sidney Bowen,Deceased, and NANCY BOWEN,
Individually and as guardian ad litem for
KIMBERLY YVONNE BOWEN and LEE FREDERICK
BOWEN, the minor children of Sidney Bowen,
Respondents
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Michael F. Easley Rudolph A. Ashton, III *
Attorney General of Sumrell, Sugg, Carmichael
North Carolina & Ashton, P.A.
Isaac T. Avery, III 310 Broad Street
Special Deputy Post Office Drawer 847
Attorney General New Bern, NC 28563
NC Dept. of Justice Telephone: 919-633-3131
Post Office Box 629
Raleigh, NC 27602-0629
Telephone: 919-733-7952
* Counsel of Record
QUESTION PRESENTED
WHETHER SUPERVISORY LIABILITY CAN BE
IMPOSED UNDER 42 U.S.C. §1983 WHERE
THE SUPERVISOR HAD BEEN TRANSFERRED
FIFTEEN (15) MONTHS PRIOR TO THE
INCIDENT AND THE INTERVENING
SUPERVISION WAS FOUND TO BE
CONSTITUTIONAL.
TABLE OF CONTENTS
QUESTION PRESENTED ....... i |
TABLE OF COMPETE (ou ew Te ii
TABLE OF AUTHORITIES ...... » iv
PARTIC“ DROW... ea ae 1
OPINION BRL... A Se eee 2
JURISDICTION «4.0504 ee 2
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED ....« 5 « « e 3
STATEMENT OF THE CASE ..... . 3
REASONS FOR GRANTING THE WRIT. . . 6
I. BY SETTING NO TIME
LIMIT FOR SUPERVISORY
LIABILITY, THE
CIRCUIT COURT FAILS
TO PROPERLY ADDRESS
CAUSATION IN LIGHT OF
THE FACT THAT STROUD
HAD BEEN GONE FIFTEEN
MONTHS BEFORE THE INCIDENT,
AND UNFAIRLY SUBJECTS
SUPERVISORS TO LIABILITY FOR
ACTIONS REMOTELY RELATED TO
THEIR SUPERVISION. ..... 7
II. THE INTERVENING
SUPERVISION OF SERGEANT
SMITH SHOULD INSULATE
STROUD FROM LIABILITY IN
THIS
vc on MESSE Se 440 ES 13
III. THIS CASE PRESENTS
ADDITIONAL ISSUES OF
IMPORTANCE TO LOWER
COURTS THAT HAVE
NEVER BEEN ADDRESSED
BY THE
SUPREME COURT. ....... 15
Ee eee eee td ew Be
CERTIFICATE OF SERVICE... ee ee ae”
APPENDIX OS ee ee
-iii-
TABLE OF AUTHORITIES
CASES
Anderson v. Creighton, 483 U.S. 635,
107 S.Ct. 3034, 97 L.Ed. 2d 523
CSURT) anc ane aude a RRWWREWE CERES OR Sd 17
Bowers v. DeVito, 686 F.2d 616
Teh Cle, DORR is 66nd 6 cA Ra Nee i ease 10
City of Canton v. Harris, 489 U.S. 378,
109 S.Ct. 1197, 103 L.Ed.2d 412
e | erie et Pray ee ere ee 15
Collins v. Harkers Heights,
U.S. (ae Gk. 2061,
tiene & Fe ae eee i2
Doe v. Taylor Independent _
School District, 975 F.2d 137
CR ae. SOE Abbe wba eee ORR 16
Fernandez v. Chardon, 681 F.2d 42
rime Cie, See na icicka fae eek kaneaa 16
Fox v. Custis, 712 F.2d 84
PSG Cie Se adobe eecd aks ees 10
Haynesworth v. Miller, 820 F.2d 1245
(D.C. Cig. 1987) .cccccesevesessines 16
Humann v. Wilson, 696 F.2d 783
(tit ie. OE oe ee a 10
Janan v. Trammell, 785 F.2d 557
to re eee ey are eee eee 10
Vv. , 811 F.2d
1243 (9th Cir. Sg Se ee ee 10
ite v. ey, 546 F.2d 334
(29a Cale TPO Ceres ce ek ore 11
Lopez _v. Houston Independent School
District, 817 F.2d 351
“Letese li 2. 20S. 3 or oe rer 12
Malley v. Briggs, 475 U.S. 335,
106 S.Ct. 1092, 89 L.Ed.2d 271
[RN 609s ocd os eo a a oe 17
Martinez v. California, 444 U.S. 277,
100 S.Ct. 553, 62 L.Ed.2d
ON 1 1000) 35 A 6, 8, 9
Monell v. Dept. of Social Services,
436 U.S. 658, 98 S.Ct. 2018,
56 L.Ed.2d 611 Ce TaD ae oe Vo owe 8, 15
Monroe v. Pape, 365 U.S. 167,
81 S.Ct. 473, 5 L.Ed.2d 492
(SPOS 608 66 5 ee eid yuk. 8
QO’Ouinn v. Manuel, 773 F.2d 605
(eee eee SOE 6c keris cat ee 12
-V-
Revere v. Massachusetts General
Hospital, 463 U.S. 239,
103 S.Ct. 2979, 77 L.Ed.2d 605
PERS. 4 ccs ko ee 12
Rizzo v. Goode, 423 U.S. 362,
96 S.Ct. 598, 46 L.Ed.2d 561
CAOTED oc cccdeas teense 6, 10, 15
Scheuer _v. Rhodes, 416 U.S. 232,
94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)
Shaw v. Stroud, 13 F.3d 791
(4th Cir. 1994).... 2, 6, 8, 13, 14, 16
Slakan v. Porter, 737 F.2d 368
(4th Cir. 1984) cert. denied,
470 U.S. 1035, 105 S.Ct. 1413,
64 L.Ed.2d 796 (1985) ..cccccccccces 12
Stoneking v. Bradford Area School
District, 882 F.2d 720
(3rd Cir. 1989) cert. denied,
493 U.S. 1044, 110 S.Ct. 840,
107 £.8d.20 O98 (RODE As signee scunt 12
20 U.8-6.. G2O0E14). 4c0deennacweouee 2
20. 0.8.0. SURSRIDY isc. i cccaeeee eee 5
62 U:8.C. BIGOd <nkccsecseeeee 439
-vi-
HT el Met Pan
No. 93 -
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1993
C. I. STROUD, Individually,
Petitioner
vs.
DEBORAH SHAW, Administratrix of the
Estate of Sidney Bowen,Deceased, and
NANCY BOWEN, Individually and as guardian
ad litem for KIMBERLY YVONNE BOWEN and
LEE FREDERICK BOWEN, the minor children
of Sidney Bowen,
Respondents
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Petitioner C. I. Stroud respectfully
prays that a writ of certiorari issue to
review the judgment and Opinion of the
United States Court of Appeals for the
Fourth Circuit entered in this case on
January 6, 1994.
OPINION BELOW
The opinion of the United States
Court of Appeals for the Fourth Circuit
affirming the decision of the District
Court for the Eastern District of North
Carolina for which review is sought is
Shaw v. Stroud, 13 F.3d 791 (4th Cir.
1994). Said opinion of the United States
Court of Appeals for the Fourth Circuit
is reproduced in the appendix to this
petition. (App. 1).
The petitioner filed a petition for
rehearing with a suggestion for a
rehearing in banc. This was denied by
order of the United States Court of
Appeals for the Fourth Circuit filed
February 25, 1994. A copy of said order
is reproduced in the appendix to this
petition. (App. 69).
JURISDICTION
The judgment of the United States
Court of Appeals for the Fourth Circuit
was filed on January 6, 1994. The
petition for rehearing with suggestion
for rehearing in banc was denied on
February 25, 1994. Jurisdiction of this
Court to review the decision of the
United States Court of Appeals for the
Fourth Circuit is invoked under Title 28
U.S.C. §1254(1).
eA eR Sina Tsar ihe 01 en ad avery W
a ee eee eee
Ss RO
CONSTITUTIONAL PROVISIONS |
AND STATUTES INVOLVED
1. 42 U.S.C. §1983 (App. 73).
STATEMENT OF THE CASE
On February 22, 1991 the estate of
Sidney Bowen, his widow and minor children
filed this action under 42 U.S.C. §1983
and state law against North Carolina State
Highway Patrol Trooper Alfred Morris and
several of his supervisors. C. I. Stroud,
the District First Sergeant for Morris
from Morris’ initial employment in 1983
until November, 1988, fifteen (15) months
prior to this incident, was made a party,
as was J. M. Smith, the District First
Sergeant from 1988, including the date on
which the incident occurred. Line
Sergeant J. A. McVicker and Line Sergeant
J. H. Parks were originally named but were
later voluntarily dismissed by the
Piaintiffs.
On February 27, 1990 Trooper Morris,
a seven-year veteran of the North Carolina
State Highway Patrol, was on duty as a
Sworn law enforcement officer, in uniform,
in rural Columbus County near Bolton,
North Carolina. He stopped Sidney Bowen
for suspicion of driving while impaired,
and Bowen ran from him and was
apprehended. Once back at the patrol car,
an altercation ensued, in which Trooper
-~
Morris, after being threatened by Bowen
and struck in the head by his own metal
flashlight that Bowen had taken from him,
shot and killed Bowen.
C. I. Stroud served as District First
Sergeant of Troop B-5, Whiteville, North
Carolina between February, 1981 # and
November, 1988, following which he was
transferred to New Bern, North Carolina
where he was serving as District First
Sergeant at the time of the incident and
at the time the complaint was filed. His
transfer from Troop B-5 to the New Bern
District occurred some fifteen (15) months
prior to the February 27, 1990 incident
resulting in the death of Sidney Bowen.
It is an uncontested fact that Stroud was
neither involved in the shooting incident
nor the investigation of it and has no
first-hand knowledge as to the events
surrounding that incident. Sergeant J. M.
Smith took over as District First Sergeant
when Stroud was transferred from B-5 to
New Bern, and was Morris’ First Sergeant
for the fifteen (15) months prior to the
incident involving Sidney Bowen.
At the close of discovery, Morris,
Stroud and Smith filed separate motions
for summary judgment as to all claims
based upon qualified immunity as well as
on the merits. In an order filed on
August 5, 1992, (App. 30) the district
court granted Smith’s motion for summary
wii
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4
;
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54
judgment in all respects. Of relevance to
this petition, the motions of Morris and
Stroud pertaining to the 42 U.S.C. §1983
and wrongful death claims were denied.
In support of its denial of Stroud’s
motion for summary judgment, the district
court, accepting the evidence in the light
most favorable to the plaintiffs, could
cite only three alleged isolated incidents
where defendants had claimed they were
assaulted by Morris, had complained to
Stroud, and where no action had been
taken. The three alleged incidents
mentioned by the district court occurred
in May of 1987, July of 1987, and March of
1988.
On August 19, 1992 Stroud appealed
the denial of his summary judgment motion
to the United States Court of Appeals for
the Fourth Circuit on his defense of
qualified immunity. He also filed a
motion pursuant to 28 U.S.C. §1292(b), and
received an order permitting him to appeal
the additional issue of whether the
district court erred in denying his motion
for summary judgment based upon the
merits.
In affirming the denial of summary
judgment for Stroud, the United States
Court of Appeals for the Fourth Circuit
deemed the three above incidents relied
upon by the district court sufficient to
as
impose supervisory liability, even though
Stroud had left in November ot 1988 and
the incident with Bowen did not occur
until February 27, 1990.
Smith’s motion for summary judgment
was affirmed by the Fourth Circuit Court
of Appeals. It held that Smith took
sufficient action and supervisory
liability could not be imposed.
REASONS FOR GRANTING THE WRIT
The decision of the United States
Court of Appeals for the Fourth Circuit in
Shaw v. Stroud, 13 F.3d 791 (4th Cir.
1994), shockingly imposes’ supervisory
liability on a District First Sergeant who
had been transferred from the area some
fifteen (15) months prior to the incident
giving rise to this lawsuit. It is
respectfully contended that this decision
conflicts with this Court’s decisions in
Martinez v. California, 444 U.S. 277, 100
S.Ct. 553, 62 L.Ed.2d 481 (1980) and Rizzo
v,. Goode 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1976), and decisions of
various Circuit Courts on the issues of
ceusation, foreseeability, and remoteness.
The Fourth Circuit decision also fails to
consider the impact of the intervening
fifteen (15) month period of supervision
by Sergeant Smith, whose actions were held
to be constitutional.
t MaMa rt Riise
The Circuit Court decision
inadequately addresses Supervisory
liability both in its consideration on the
merits and its analysis under qualified
immunity. The impact of its decision is
not limited to law enforcement officials,
but impacts all government officials in
Supervisory positions. The Supreme Court
should allow this petition to Clarify the
Circumstances under’ which Supervisory
officials may be held liable for the
alleged constitutional injuries inflicted
by their subordinates long after the
Supervisory relationship has ended.
I. BY SETTING NO TIME LIMIT FOR
SUPERVISORY LIABILITY, THE
CIRCUIT COURT FAILS TO PROPERLY
ADDRESS CAUSATION IN LIGHT OF
THE FACT THAT STROUD HAD BEEN
GONE FIFTEEN MONTHS BEFORE THE
INCIDENT, AND UNFAIRLY SUBJECTS
SUPERVISORS TO LIABILITY FOR
ACTIONS REMOTELY RELATED TO
THEIR SUPERVISION.
This petition for certiorari should
be allowed because the decision of the
Fourth Circuit Court of Appeals failed to
properly address the elements of
remoteness and causation in light of the
fact that Sergeant Stroud had been gone
fifteen (15) months before the altercation
between Trooper Morris and Sidney Bowen.
The Circuit Court decision conflicts with
prior decisions of the United States
Supreme Court and Circuit Courts in this
regard, and this ruling needs to be
clarified.
This passing of fifteen (15) months
between Stroud’s transfer and the death of
Bowen led to the dissent in Shaw v.
Stroud. The dissenting judge found that
§1983 should be read acainst the
background of tort liability. Monroe v.
Pape, 365 U.S. 167, 167, 81 S.Ct. 473,
484, 5 L.Ed.2d 492 (1961), overruled in
part on other grounds, ne Vv. t. of
Sociai Services, 336 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). The dissent
noted that though a person is ordinarily
liable for the natural consequences of his
actions, neither traditional tort law nor
§1983 imposes liability where causation is
too remote, citing Martinez v. California,
444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d
481 (1980). The dissent then posited the
question: How remote is “too remote"? 13
F.3d at 807. (App. 28).
Proximate cause iS an imprecise
concept, and rapidly deteriorates with the
passage of time. Therefore, an exact
definition of what is "too remote" is
probably not feasible. However, the
Supreme Court can certainly more clearly
define what is "too remote", thereby
offering guidance to supervisors,
especially those who have departed their
position some time prior to the incidents
in question.
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In Martinez, a fifteen year old girl
was murdered by a parolee five months
after he was released from prison, despite
his history as a sex offender. This Court
held that under the particular
circumstances of that parole decision, the
decedent’s death was too remote a
consequence to hold the parole officers
responsible under federal civil rights
law.
We need not and do not decide
that a parole officer could
never be deemed to "deprive"
someone of life by action taken
in connection with the release
of a prisoner on parole. But we
do hold that at least under the
particular circumstances of this
parole decision, appellants’
descendent’s death is too remote
a consequence of the parole
officers’ action to hold them
responsible under the federal
Civil rights law. Although a
§1983 claim has been described
as "a species of tort
liability," Imbler v. Pachtman,
$24 U.&. 409, 417, ae
perfectly clear that not every
injury in which a state official
has played some part is
actionable under that statute.
444 U.S. at 285.
Several Circuit Courts have also held
that lapse of time is a _= prominent
consideration and that remoteness breaks
=
the causal connection. See Humann v.
Wilson, 696 Fiad@ 783. (20th Cir. 1963)
(two-month lapse after parole destroyed
proximate cause); Fox v. Custis, 712 F.2d
84 (4m. Ciss 1983) (where parolee
committed crimes approximately one month
after release there was no federal
constitutional right to be protected, and
if Martinez applied, the injuries here
were too remote). Ketchum v. Alameda
County, 811 F.2d 1243 (9th Cir. 1987)
(two month time lapse and 50 mile distance
remote both as to time and geography);
Bowers v. DeVito, 686 F.2d 616 (7th Cir.
1982) (murder committed one year after
release from mental institution too
remote); Janan v. Trammell, 785 F.2d 557
(6th Cir. 1986) (victim killed by parolee
less than two months after release was
causally remote).
The troublesome treatment of
remoteness by the Fourth Circuit is
closely entwined with the issue of
causation. To hold that Bowen’s death in
1990 was a natural and foreseeable
consequence of Stroud’s inaction during
his supervision of Morris from 1983 to
1988 conflicts with the requirement of an
affirmative causal link between’ the
Supervisor’s inaction and the particular
constitutional injury suffered by the
plaintiff as set forth by this Court in
Rizzo v. Goode, 423 U.S. 362, 96 §.Ct.
598, 46 L.Ed.2d 561i (1976). In Rizzo v.
ait.
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OD we Aa ee lee ) arene: ail ee tate Fc
Goode, this Court held that the Mayor, the
Police Commissioner, and other high
officials were not liable in a §1983
action because there was no affirmative
link between the conduct complained of and
the actions by the officials. While this
standard was somewhat developed in Rizzo,
its decision was also based upon the fact
that the plaintiffs could not show an
unacceptably high number of incidents of
constitutional dimension. It is urged
that the Supreme Court should more fully
develop the affirmative causal link
standard in Rizzo regarding Supervisory
liability to provide guidance to the lower
courts.
In Kite v. Kelley, 546 F.2d 334 (10th
Cir. 1976), the Tenth Circuit Court of
Appeals applied the Rizzo decision to a
case in which the FBI and U.S. Attorney
General were being sued for the acts of a
Single FBI Agent. In holding that no
Supervisory liability existed, the Circuit
Court held that:
The "affirmative link"
requirement of Rizzo means to us
that before a superior may be
held [liable} for acts of an
inferior, the Superior,
expressly or otherwise, must
have participated or acquiesced
in the constitutional
deprivations of which complaint
is made.
546 F.2d at 337.
atta
The few isolated incidents over the
five year period of supervision by Stroud
and the fifteen month gap do not establish
the affirmative link necessary to show
that Stroud participated in or acquiesced
in the alleged constitutional violation
resulting in the death of Sidney Bowen.
The impact of this case is not
limited to law enforcement officials. It
applies to state and local jailers and
corrections personnel, ‘Qui v. Manuel,
773 F.2d 605 (5th Cir. 1984), Slakan v.
Porter, 737 F.2d 368 (4th Cir. 1984) cert.
denied, 470 U.S. 1035, 105 S.Ct. 1413, 84
L.Ed.2d 796 (1985); school teachers and
principals, Stoneking v. Bradford Area
School District, 882 F.2d 720 (3rd Cir.
1989) cert. denied, 493 U.S. 1044, 110 S.
Ct. 840, 107 L.Ed.2d 835 (1989), Lopez v.
Houston d nden cho i ict, $817
F.2d 351 (5th Cir. 1987); transportation
workers, Collins v. Harkers Heights,
U.S. . 112 S.Ct. 1061, 117 L.Ed.2d 261
(1992); mental health personnel, Revere v.
Massachusetts n spi , 463 U.S.
239, 103 &.Ct. 2979, 77 %.E4d.2a 605
(1983); and any other supervisor in a
state or local governmental position.
=. =
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Pei Nl ROIS SN Ms scl tcc at pete A Sak
II. THE INTERVENING SUPERVISION OF
SERGEANT SMITH SHOULD INSULATE
STROUD FROM LIABILITY IN THIS
CASE.
For the fifteen (15) month period
after Sergeant Stroud was transferred from
Troop B-5 to New Bern, and up until the
incident in question, Sergeant Smith was
the District First Sergeant. This
intervening supervision breaks any causal
link between Stroud and Morris’ and
insulates Stroud from Supervisory
liability. The importance of this concept
was overlooked by the Fourth Circuit
Opinion which conflicts with Rizzo v.
Goode. It is respectfully urged that the
lack of any causal connection is
demonstrated in two ways. First, the
Fourth Circuit found that Sergeant Smith’s
Supervision was constitutionally adequate,
both on the merits, 13 F.3d at 801, (App.
18) and under the standards of qualified
immunity. 13 F.3d at 803. (App. re Pee 5
in fact the actions of Smith were
constitutionally adequate, and it is urged
that they were, that necessarily should
break any causal connection between
Stroud’s supervision and Morris’ conduct
in February, 1990. Even if the isolated
incidents used to impose Supervisory
liability on Stroud are deemed to be
sufficient, the remoteness as to Stroud
and apparently appropriate action taken by
sergeant Smith should cure any possible
i
defects in supervision occurring during
the years 1983 through November, 1988.
The curative effect of intervening
supervision is an issue that needs to be
addressed by this Court.
Secondly, as the dissent points out,
the fifteen (15) month time lapse was not
the only factor breaking the links of the
causal chain in this’ case. Once
transferred, Stroud lost the opportunity
to correct any alleged unconstitutional
conduct by Morris. The dissent concluded:
A person should be responsible
for the natural consequences of
his actions, but not necessarily
for consequences that can occur
only if an independent
tortfeasor intervenes.
13 F.3d at 807. (App. 29).
The net result of the Fourth Circuit
opinion is that a previous supervisor will
be responsible for the actions of his
subordinates if it is alleged that any
complaints occurred during the previous
Ssupervisor’s tenure. This could be true
regardless of whether subsequent
Supervisors acted constitutionally or not.
Under either scenario, it would be
manifestly unfair to subject the previous
supervisor to liability, and the Supreme
Court needs to address this dilemma.
-14-
a ae ee
a
SS A NE ee
Rizzo v. Goode held:
[Tjhere was no affirmative link
between the occurrence of the
various incidents of police
misconduct and the adoption of
any plan or policy by
petitioners = express or
otherwise - showing their
authorization or approval of
such misconduct.
423 U.S. at 371.
The intervening supervision of Smith
clearly breaks the affirmative causal link
required by Rizzo.
Ili. THIS CASE PRESENTS ADDITIONAL
ISSUES OF IMPORTANCE TO LOWER
COURTS THAT HAVE NEVER’ BEEN
ADDRESSED BY THE SUPREME COURT.
A. viso Labi
This court has never stated the
Standard of supervisory liability, but has
held that state executive officials at the
highest level can be held liable for
constitutional violations committed.
Scheuer v. Rhodes, 416 U.S. aaa, 94 8.Ct.
1683, 40 L.Ed.2d 90 (1974). Most of the
lower courts have relied upon this Court’s
decisions concerning municipal policy
cases. see Monell _v. Dept. of Social
services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978); City of Canton v.
Harris, 489 U.S. 378, 109 S.Ct. 1197, 103
238
L.Ed.2d 412 (1989).
The Circuit Courts have adopted
similar standards, but not identical, to
that relied upon by the Fourth Circuit in
determining supervisory liability. The
Fourth Circuit standard requires’ the
plaintiff to meet a heavy burden of proof
and show deliberate indifference. Shawy.
Stroud, 13 F.3d at 799 (App. 13). See
Fernandez v. Chardon, 681 F.2d 42, at 56
(lst Cir. 1982) (notice of pervasive
constitutional violation or if their
failure to supervise "is so severe as to
amount to gross negligence or deliberate
indifference to constitutional violations
. "); Doe v. Taylor Independent School
District, 975 F.2d 137, 144 (5th Cir.
1992) (notice of a pattern of
unconstitutional acts demonstrated
deliberate indifference to or a tacit
authorization of the offensive acts and
failed to take sufficient remedial action
which was a proximate cause of injury);
Haynesworth v. Miller, 820 F.2d 1245,
1259-63 (D.C. Cir. 1987) (collecting cases
on this issue).
B. Qualified Immunity
The qualified immunity analysis was
flawed. The Fourth Circuit stated that
the particularized right was that of the
Fourth Amendment. This is a general
right. This Court has said that a court
<=
nth ll ihe
must look at the particular conduct of the
Supervisor and determine if that conduct
has ever been specifically determined to
violate the Fourth Amendment. Anderson v.
Creighton, 483 U.S. 635, 639-40, 107 S.Ct.
3034, 97 L.Ed.2d 523 (1987) (Due Process
Clause is too general; the law must be
more particularized when = applied to
qualified immunity). The officer "will
not be immune if, on an objective basis,
it is obvious that no reasonably competent
officer could have concluded the conduct
was unconstitutional". Malley v. Briggs,
475 U.S. 335, 341, 106 S.Ct. 1092, 89
L.Ed.2d 271 (1986). If officers of
reasonable competence would disagree on
this issue, immunity should be recognized.
475 U.S. at 341. The standard for use of
force was not clearly established during
Stroud’s tenure. 13 F.3d at 802 (App. 19-
20). Stroud responded to some complaints
and not to others. The complainants were
convicted of using force against Morris.
Officers can disagree about whether this
conduct was adequate, and therefore,
Stroud is entitled to immunity.
CONCLUSION
The Supreme Court needs to
definitively offer guidance in 42 U.S.C.
§1983 claims regarding Supervisory
liability. Fairness to all litigants,
both plaintiffs and defendant Supervisors,
compels Clarification of Supervisory
<=
liability responsibilities and _ duties
where the supervisor was not in control at
Or near the time of the incident
complained of against the employee.
Therefore, the petitioner C.I. Stroud
prays that a writ of certiorari issue to
review the judgment of the Unite States
Court of Appeals for the Fourth Circuit.
Respectfully submitted this the 26th
day of May, 1994.
SUMRELL, SUGG, CARMICHAEL & ASHTON, P.A.
Attorneys for Petitioner C. I. Stroud
BY: CA Ee OP OL a
RUDOLPH A. ASHTON, III
State Bar I. D. No. 0125
310 Broad St., P.O. Drawer 847
New Bern, North Carolina 28563
Telephone: (919) 633-3131
Of Counsel:
Michael F. Easley
Attorney General of North Carolina
BY: Logo le bi Cty gE
ISAAC T. AVERY, III/
State Bar I. D. No. 6011
Special Deputy Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
Telephone: (919) 733-7952
attin
BEST AVAL
q
iy
:
“
No. 93 -
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1993
C. I. STROUD, Individually,
Petitioner
vs.
DEBORAH SHAW, Administratrix of the Estate
of Sidney Bowen,Deceased, and NANCY BOWEN,
Individually and as guardian ad litem for
KIMBERLY YVONNE BOWEN and LEE FREDERICK
BOWEN, the minor children of Sidney Bowen,
Respondents
CERTIFICATE OF SERVICE
I, Rudolph A. Ashton, III, do swear
Or declare that on this date, the 26th day
of May, 1994, pursuant to Supreme Court
Rules 29.3 and 29.4, I have served the
attached motion for leave to proceed in
forma pauperis and petition for a writ of
certiorari on each party to the above
proceeding, or that party’s counsel, and
On every other person required to be
served by depositing in an envelope
wttin
LABLE COPY
containing the above documents in the
United States Mail properly addressed to
each of them and with first-class postage
prepaid.
The names and addresses of those
served are as follows:
MR. JAMES E. FERGUSON, II
Ferguson, Stein, Watt, Wallas,
Adkins & Gresham, P.A.
Suite 730 East Independence Plaza
700 East Stonewall Street
Charlotte, North Carolina 28202
MR. SAMUEL T. CURRIN
Attorney at Law
Chocklett Tower, Suite 508
3100 Smoketree Court
Raleigh, North Carolina 27604
This the 26th day of May, 1994.
SUMRELL, SUGG, CARMICHAEL & ASHTON, P.A.
Attorneys for Petitioner
BY: Kc. 4). Ziad oa, : se.
RUDOLPH A. ASHTON, III
NC State Bar No. 0125
310 Broad St., Post Office Drawer 847
New Bern, North Carolina 28563
Telephone: (919) 633-3131
«20.
ee ee eee ay ee ee
APPENDIX
Opinion of the United States Court
Appeals for the Fourth Circuit
(1-6-94)
Opinion of United States District
Judge, E.D.N.C. (8-5-92)
Order Denying Petition for Rehearing
with Suggestion for Rehearing in banc
(2-25-94)
42 U.S.C. §1983
Pa
.:
}
4
4
5
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DesoraH SHaw, Administratrix of
the Estate of Sidney Bowen,
deceased; Nancy Bowen,
Individually, and as guardian ad
litem for Kimberly Yvonne Bowen
and Lee Frederick Bowen, the
minor children of Sidney Bowen,
Plaintiffs-Appellees,
Vv.
C. I. Stroup, Individually,
Defendant-Appellant,
and
ALFRED E. Morris, J. M. SMITH;
J. A. McVicxer; J. H. Parks, in
their individual capacities,
Defendants.
ae
No. 92-2029
tw
SHAW v. STROUD
DEBORAH SHAW, Administratrix of
the Estate of Sidney Bowen,
deceased; Nancy Bowen,
Individually, and as guardian ad
litem for Kimberly Yvonne Bowen
and Lee Frederick Bowen, the
minor children of Sidney Bowen,
Plaintiffs-Appellants,
4 No. 92-2109
ALFRED E. Morris; C. I. Stroup,
J. M. Smitn, in their individual
Capacities,
Defendants-Appellees,
and
J. A. McVicxer; J. H. Parks, in
their individual capacities,
Defendants.
j
~
DEBORAH SHAW, Administratrix of
the Estate of Sidney Bowen,
deceased; Nancy Bowen,
Individually, and as guardian ad :
litem for Kimberly Yvonne Bowen |
and Lee Frederick Bowen, the
minor children of Sidney Bowen, . No. 92-2252
Plaintiffs-Appellants, coe a a ;
Vv.
C. I. Stroup; ALFRED E. Morris;
J. M. Smitn, in their individual
Capaciues,
Defendants-Appellees.
SHaw v. Stroup 3
DesoraH SHAW, Administratrix of
the Estate of Sidney Bowen,
deceased; Nancy Bowen,
Individually, and as guardian ad
litem for Kimberly Yvonne Bowen
and Lee Frederick Bowen, the ; .
minor children of Sidney Bowen, ( No. 92-2253
Plaintiffs-Appellees,
Ve
C. I. Stroup, Individually,
Defendant-Appellant.
J
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, District Judge.
(CA-91-18-7-BR)
Argued: September 29, 1993
Decided: January 6, 1994
Before HALL, PHILLIPS, and HAMILTON, Circuit Judges.
Affirmed by published opinion. Judge Hamilton wrote the majority
Opinion, in which Judge Phillips joined. Judge Hall wrote an opinion
dissenting in part.
COUNSEL
ARGUED:Rudolph A. Ashton, I, SUMRELL, SUGG, CARMI-
CHAEL & ASHTON, P.A., New Bem, North Carolina; Samuel
Thomas Currin, Raleigh, North Carolina; Linda Anne Fox, Assistant
4 SHAw v. STROUD
Attomey General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellants. James Elliot Fergu-
son, I, FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM &
SUMTER, P.A., Charlotte, North Carolina, for Appellees. ON
BRIEF: Denise D. Daggett, Raleigh, North Carolina; Michael F. Eas-
ley, Attomey General of North Carolina, Isaac T. Avery, I, Special
Deputy Attomey General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. Anita S. Hodg-
kiss, FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM &
SUMTER, P.A., Charlotte, North Carolina, for Appellees.
OPINION
HAMILTON, Circuit Judge:
These consolidated appeals and cross-appeals arise out of an action
under 42 U.S.C. § 1983 and state law against a North Carolina state
trooper and several of his supervisors by the wife and minor children
of a citizen the trooper shot and killed during an arrest.
I
On February 27, 1990, Officer Alfred Morris (Morris), a seven-
year veteran of the North Carolina Highway Patrol, stopped Sidney
Bowen (Bowen), a 42-year-old black man, as he pulled into his drive-
way, on suspicion of driving while impaired. At Morris’ request,
Bowen displayed his driver's license and seated himself in the patrol
car. When Morris reached for his ticket book, Bowen ran from the
car. Morris, flashlight in hand, pursued him.
Meanwhile, Nancy, Bowen's wife, was in her bedroom, and Kim-
berly, their fifteen-year-old daughter, was in the bathroom. At some
point during the chase, both Kimberly and Nancy heard Bowen say,
"Okay, Okay, I'l. go anywhere you want me to go." (J.A. 117). Mor-
ns Claims that, when Bowen fell to the ground, Morris caught up with
him and took control of him with either an arm-bar technique or by
holding him around his collar. Both Kimberly and Nancy heard
Bowen yell, "Nancy, I’m going to jail." /d. Kimberly and Nancy then
SHAW Vv. STROUD SS
ran to the front porch where they saw Bowen and Mortis near the
patrol car. Bowen was standing with his hands behind his back and
Morris was standing behind him. Bowen called to Kimberly, "Kim-
berly, Kimberly, go get help, teli them the law is trying to kill me in
my own front yard." /d. Kimberly ran through the house and out the
back door to a nearby uncle’s house.
Nancy witnessed from the porch the following entire violent
encounter. Morris called the Elizabethtown Office of the Highway
Patrol and asked for backup at 9:41:46 p.m. Just as he dropped the
microphone, Nancy saw Bowen jerk his hand away from Morris. At
this point, Morris became the aggressor and began to hit Bowen with
the flashlight about the head and shoulders until he fell to the ground.
Nancy claims that Bowen got up and struggled with Morris for con-
trol of the flashlight. At that point, she asserts, Morris let go of the
flashlight, pulled out his pistol, and fired at Bowen. She stated that
Morris was either crouched down or kneeling as he shot Bowen. He
fired at least twice; then, Bowen swung at Morris with either his fist
or the flashlight. Morris stood up and began backing away from the
rear of his car toward the highway as Bowen continued to swing at
him. Morris then resumed firing his pistol until Bowen fell to the
ground. Morris had fired six bullets, five of which struck Bowen. The
injuries were fatal. Morris called for assistance at 9:43:19 p.m.—93
seconds following his initial call prior to the physical confrontation. '
"Morris presents a different view of the events. Morris claims that he
pushed Bowen's chest up against the right rear passenger door of the
patrol car to search him. Bowen allegedly told Morris that he was going
to have to call for some help because he (Bowen) would not go along
willingly. Deciding to radio for assistance, Morris reached in through the
open front passenger door with his right hand (his left hand was holding
Bowen) to grab the radio. At 9:41:46 p.m., he called the Elizabethtown
Highway Patrol Office and asked for backup. Morris claims that Bowen
then swung at Morris with his left hand. A struggle ensued during which
Bowen was knocked to the ground. When Morris reached through the
passenger door of the car to retrieve his handcuffs. Bowen took the flash-
light from his right hand. When Morris looked up, he says that Bowen
had the flashlight poised to hit him. The blow struck the back of Morris’
head.
Next, Morris claims that he staggered behind his car, stumbled. and
fell to his knees at the edge of the roadway. Bowen allegedly then
as
6 SHaw v. STROUD
Although Morris sustained a two-centimeter laceration on the
lower left back of his head, his medical records indicate that he never
lost consciousness. The autopsy of Bowen revealed that he had sus-
tained many blunt force injuries to the head and neck. He had exten-
sive bruising on his neck, indicating that pressure had been applied
to the front of his neck by some object. He had a blood alcohol con-
tent of .11.
Sergeant C.I. Stroud (Stroud)* was Morris’ supervisor from the
time Morris joined the patrol in 1983 until late November 1988.
Stroud was transferred fifteen months before the Bowen shooting.
Nevertheless, during his tenure as Morris’ supervisor, Stroud received
reports about Morris’ use of excessive force. For example, in May
1987, Morris arrested, and allegedly beat, Harvey Paul Walker.
Shortly before his trial, Walker saw Stroud at the Waffle House in
Whiteville. When he told Stroud that he wanted to talk with him
about the way Morris had treated him, Stroud responded, "Oh, what
happened, he roughed you up?" (J.A. 354). He suggested that Walker
call him. Instead, Walker gave Stroud his phone number and asked
him to call. Stroud, however, never called Walker. Thereafter, Walker
called the patrol station and left several messages for Stroud; Stroud
never retumed the calls. Walker did not file a formal complaint.’
Again in May 1987, a line sergeant informed Stroud that an
arrestee, Thomas Menser, had complained that Morris had called him
a "nigger." Stroud asserts that he directed a line sergeant to counsel
Morris about this incident. Although Menser also filled out a report
of assault, an investigation cleared Morris of the charges.
pounced on him and struck him again with the flashlight. Morris reached
for his revolver with his right hand, stuck his middle finger in the trigger
guard, flipped off the safety, and then saw Bowen perched to strike him
again. He stood, moved away from Bowen, and fired his pistol simulta-
neously, firing six bullets, five of which struck Bowen.
*Stroud was the District First Sergeant of Troop B-V in Whiteville
from February 1981 until late November 1988.
*In his first affidavit, Stroud points out that Walker denied having ever
complained about Morris’ conduct. Stroud contends that the conversauon
at the Waffle House never occurred.
ate
P —o —s
SuHaw v. Stroup 7
During an arrest in July 1987, Morris allegedly assaulted Gary
Ward. Although Ward never filed a formal complaint against Morris,
he told Stroud that he "had been from Maine to Miami and that [he]
had never seen anybody with a set of troopers with the conduct and
atuitude that his officers had." (J.A. 390). Ward claimed that Stroud
just "sort of smiled at him." /d.‘
Responding to allegations of rudeness, a line sergeant counseled
Morris about being insulting to the public. These incidents, occurring
in September and December of 1987 and in February and May of
1988, were brought to the attention of Stroud.
Morris allegedly assaulted Jessie James during an arrest in March
1988. James testified at his deposition that he saw Stroud when Mor-
ris took him to the jail. James claims that Stroud commented to Mor-
s, "You got another one." (J.A. 989). Stroud and Morris allegedly
laughed. James asserts that Stroud refused to listen to him when he
tried to tell Stroud that Morris had beaten him. James never filed a
formal complaint*
In July 1988, Rhonda Cothron called the State Highway Patrol
Internal Affairs Department in Raleigh to report that Morris and
Trooper C.C. Albritton had assaulted her son. She informed the offi-
cer who received the complaint that John Cothron had two five-inch
cuts on his head, was beaten in the face, and was struck in the ribs
by the troopers. The investigating troopers took Cothron to the hospi-
tal. Although Albritton admitted hitting Cothron on the head with his
flashlight, Morris declared that Cothron received his injuries when he
hit his head on the door molding while trying to avoid being hand-
“Morris and Trooper Thompson were both involved in the arrest of
Gary Ward. Stroud claims that Thompson, not Morris, actually hit Ward
during the arrest. Stroud also points out that Ward indicates in his affida-
vit that he complained to Stroud about his treatment by Thompson and
Morris. Ward did not. Stroud contends, specify that Morris had assaulted
hum.
‘James, Stroud argues, was never able to describe him accurately
Stroud also contends that highway patrol records and the tesumony of
highway patrol members at the scene confirm that Stroud was not even
on duty that night.
8 SHaw v. STROUD
cuffed. Stroud instructed a subordinate to conduct an investigation in
which Morris was completely exonerated.
Morris instituted a disproportionately high number of assault
charges against arrestees. From September 1987 to December 1988,
during Stroud’s tenure, six of the nine charges of assault on a law
enforcement officer in Columbus County, North Carolina were
brought by Morris. There were forty-six charges for resisting arrest,
twenty of which were initiated by Morris.* From 1984 to 1990, thir-
teen people arrested by Morris alleged that he used excessive force.
Sergeant J.M. Smith (Smith) transferred to the B-V Troop and
replaced Stroud as First Sergeant in December 1988. When Smith
moved to B-V, he knew nothing about Morris. Stroud did not inform
him that he had heard any complaints about Morris’ use of excessive
force.
On May 3, 1989, Judge William C. Gore, then the Chief District
Court Judge in Columbus County, spoke with Line Sergeant J.A.
White (White) about concerns over Morris’ conduct. Judge Gore
related that, over the past eighteen months, he had seen case after case
involving the use of excessive force by Morris on defendants. He also
stated that most of the incidents appeared to "involve blacks or people
of lower means." (J.A. 447). Judge Gore remarked that he was afraid
that it was "only a matter of time before Trooper Morris seriously
injures a person." Jd. Judge Gore failed to identify any specific inci-
dents of misconduct. Although Judge Gore told White that he did not
wish to file a formal complaint, White filled out a "Record of Com-
plaint and/or Service Request" form regarding his conversation with
Judge Gore and left it on Smith’s desk since Smith was off duty at
the ume.
Sergeant White, Morris’ line supervisor, talked with Mormis about
Judge Gore’s concerns. White informed Smith that he had counseled
Morris. Smith then spoke with his Troop Commander, Captain C. V.
Parks (Parks). Smith and Parks decided that the proper course of
action would be to monitor Morris’ job performance and conduct
*Stroud notes that Morris often worked in high risk areas. Many of the
arrestees pleaded guilty to assault or resisting arrest
SHAW Vv. Stroup 9
more closely in the future. As a result, Smith accompanied Morris on
patrol on at least two subsequent occasions.
One week after Judge Gore’s complaint, Dennis Worley, a local
defense attorney, spoke with White about Morris’ conduct towards his
client, Chris Hardee. Worley felt that Morris had been too rough with
Hardee during a drunk driving arrest. After becoming aware of this
complaint, Smith assigned White to attend Hardee’s trial specifically
to hear all the evidence. At the trial, Hardee was found guilty of driv-
ing while impaired. No evidence of any improper conduct by Morris
was adduced.” Smith took no further action on the matter.
In March 1989, Fire Chief Roscoe Jacobs complained to Smith that
Morris was rude to him at the scene of an accident. One month later,
White advised Morris to be more courteous to the motoring public
following an incident involving a tractor on the road.
Three weeks before Bowen was killed, Morris allegedly beat
Rudolph Towns in the head with his gun during a drunk driving
arrest. Towns suffered a fractured skull.* Smith met Morris at the hos-
pital when he took Towns in for treatment. Although Towns contends
that he "made it clear" at the hospital that he was upset about his treat-
ment by Morris, Towns never indicates that he made the Situation
clear to Smith. Towns did not lodge a complaint. Smith did not launch
an investigation.
From January 1989 through March 1990, Morris brought two of
the six total charges for assault on an officer in Columbus County. He
brought eleven of the twenty-seven charges for resisting arrest.
Between April 1987 and February 1990, Morris completed Report of
Assault forms relating to eight separat& incidents in which he claims
he was assaulted.*
"Hardee was not allowed to testify regarding Morris’ conduct at this
trial.
*Morris claims that Towns sustained his injury from hitting his head
on a vent shade on the patrol car.
"The staff of Troop B-V included a First Sergeant, two line sergeants.
and twenty troopers.
10 SHAW v. STROUD
One year after Bowen’s fatal shooting, the administratrix of
Bowen’s estate, together with his widow and minor children, filed this
§ 1983 action against Morris, alleging (1) that he was liable to
Bowen’s estate for violating Bowen’s Fourth Amendment rights by
using excessive force to arrest him and (2) that he was liable to
Bowen’s wife and children for violating their substantive due process
"right" to enjoy the "life, love, comfort, and support of their husband
and father’ without undue state interference. Plaintiffs also asserted
§ 1983 claims against a number of Morris’ supervisors, based on alle-
gations that they had "caused" the consututional violations alleged dy
failing to properly train, supervise, and discipline Morris. Only two
of the original supervisory defendants are involved in this appeal:
Stroud and Smith."* Finally, plaintiffs asserted several pendent state-
law claims: a wrongful death claim brought against all defendants by
Bowen's estate, and claims for negligent and intentional infliction of
emotional distress brought against all defendants by Bowen’s widow
and minor children.
After the close of discovery, Morris, Stroud, and Smith filed sepa-
rate motions for summary judgment as to all claims along with sup-
porting affidavits and depositions. [he plainuffs responded with
affidavits and depositions. When the plaintiffs asserted that Jessie
James was afraid of retaliation and would not sign an affidavit, the
district court ordered a deposition to be taken. Morris and Stroud
moved to strike James’ deposition testuumony.
As to Morris, the district court granted summary judgment on the
Fourteenth Amendment due process claim, the negligent inflicuon of
emotional distress claim, and the intentional infliction of emouonal
disiress claim only as it pertained to Lee Bowen, the minor son of
Bowen; however, the district court denied summary judgment on the
other claims.
As to Stroud, the district court denied Stroud’s motion for sum-
mary judgment on the § 1983 supervisory liability claim alleging that
he caused the violation of Bowen’s Fourth Amendment rights at the
The two other supervisors originally named as defendants—Line Ser-
geants McVicker and Parks—have been voluntarily dismissed by plain-
uffs and are no longer involved in this action.
SHAW v. StRouD 11
hands of Morris. The district court reasoned that Stroud exhibited
deliberate indifference because he ignored the complaints of at least
three witnesses who alleged that Morris had beaten them during an
arrest. Rejecting Stroud’s qualified immunity defense, the district
court found ''no reasonable officer could have believed that Stroud’s
conduct in tacitly approving Morris’ allegedly unlawful conduct was
lawful under clearly established law." (J.A. 139). Holding that a rea-
sonable jury could find the requisite bad faith to support a wrongful
death claim against a public officer, the district court also withheld
summary judgment on this claim. However, summary judgment was
granted on the state law claims of intentional and negligent infliction
of emotional distress. The district court also granted summary judg-
ment to Stroud on the § 1983 claim based on Morris’ violation of
Bowen's Fourteenth Amendment substantive due process rights.
Summary judgment was granted on all claims against Smith. The
district court found that Smith exhibited no deliberate indifference to
merit liability under § 1983. According to the district court, Smith
pursued complaints even though they were not formal. The court held
that "ai most, Smith’s response was negligent, not deliberately indif-
ferent." (J.A. 141). Even if he was deliberately indifferent, the district
court opined that Smith was entitled to qualified immunity because
his conduct in dealing with Judge Gore’s and Worley’s informal com-
plaints against Morris was lawful.
Consequently, the district court left the following claims remaining
for trial: (1) the Fourth Amendment claim against Morris, (2) the
wrongful death claim against Morris, (3) the intentional infliction of
emotional distress claim against Morris, (4) the § 1983 claim against
Stroud alleging that he caused the violation of Bowen’s Fourth
Amendment rights through failure to supervise Morris, and (5) the
wrongful death claim against Stroud.
Stroud filed an interlocutory appeal from the district court’s denial
of his motion for summary judgment based on qualified immunity on
the § 1983 claim against him, as he was entitled to do under Mitchell
v. Forsyth, 472 U.S. 511 (1985). At Stroud’s request, we agreed to
hear two other issues as part of the same interlocutory appeal, pursu-
ant to 28 U.S.C. § 1292(b): (1) whether the district court erred in
denying his motion for summary judgment based on the merits of the
=| ba
12 SHAW Vv. STROUD
§ 1983 claim against him and (2) whether the district court erred in
denying his motion to strike the deposition testimony of Jessie James.
Plaintiffs sought leave to cross-appeal, pursuant to 28 U.S.C.
§ 1292(b), on three additional issues: (1) whether the district court
erred in granting Sergeant Smith's motion for summary judgment
based on qualified immunity with respect to the § 1983 failure-to-
supervise claim against him; (2) whether the district court erred in
entering summary judgment against plaintiffs on their state-law
claims for negligent infliction of emotional distress; and (3) whether
the district court erred in entering summary judgment against plain-
tiffs on their § 1983 claims for violation of their substantive due pro-
cess rights. We agreed to hear these issues as well.”
We consolidated the appeals and cross-appeals of Stroud and the
plaintiffs for briefing and argument.
II
The standard of appellate review for the granting or denial of a
summary judgment motion is de novo. Thus, the court of appeals uses
the same standard as the district court. A moving party is entitled to
summary judgment "if the pleading, depositions, answers to interrog-
atories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to material fact and that the
moving party is entitled to judgment as a matter of law." Fed. R. Civ.
Pro. 56(c). See Charbonnages de France v. Smith, 597 F.2d 406 (4th
Cir. 1979).
A genuine issue exists "if the evidence is such that a reasonable
jury could retum a verdict for the nonmoving party." Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion
for summary judgment, the court is required to view the facts and
draw reasonable inferences in a light most favorable to the nonmov-
ing party. Jd. at 255. The plaintiff is entitled to have the credibility
of all his evidence presumed. Miller v. Leathers, 913 F.2d 1085, 1087
(4th Cir. 1990), cert. denied, 111 S. Ct. 1018 (1991). The party seek-
“Morris appeals nothing. Neither side appeals the decisions on the
intenuonal infliction of emotional distress claim.
=
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SHAW v. StrRouD 13
ing summary judgment has the initial burden to show absence of evi-
dence to support the nonmoving party's case. Celotex Corp. v.
Catret, 477 U.S. 317, 325 (1986). The opposing party must demon-
strate that a triable issue of fact exists; he may not rest upon mere
allegations or denials. Anderson, 477 U.S. at 248. A mere scintilla of
evidence supporting the case is insufficient. /d.
I
The principle is firmly entrenched that supervisory officials may be
held liable in certain circumstances for the constitutional injuries
inflicted by their subordinates. See Slakan v. Porter, 737 F.2d 368
(4th Cir. 1984), cert. denied, 470 U.S. 1035 (1985): Orpiano vy.
Johnson, 632 F.2d 1096 (4th Cir. 1980), cert. denied, 450 U.S. 929
(1981); Withers v. Levine, 615 F.2d 158 (4th Cir. 1980). In Slakan.
we reasoned that liability is not premised upon respondeat superior
but upon "a recognition that supervisory indifference or tacit authori-
zation of subordinates’ misconduct may be a causative factor in the
constitutional injuries they inflict on those committed to their care."
Slakan, 737 F.2d at 372-73.
Recognizing that supervisory liability can extend "to the highest
levels of state government," we have noted that liability ultimately is
determined "by pinpointing the persons in the decisionmaking chain
whose deliberate indifference permitted the constitutional abuses to
continue unchecked." Slakan, 747 F.2d at 376. See Spell v. McDaniel,
591 F. Supp. 1090, 1109-10 (E.D. N.C. 1984) (determining issue on
supervisory liability is whether defendant proximately caused a viola-
tion of the plaintiff's rights by doing something or failing to do some-
thing he should have done). We have also noted that this issue is
ordinarily one of fact, not law. Id. See Avery v. County of Burke, 660
F.2d 111, 114 (4th Cir. 1981).
We have set forth three elements necessary to establish supervisory
liability under § 1983: (1) that the supervisor had actual or construc-
tive knowledge that his subordinate was engaged in conduct that
posed "a pervasive and unreasonable risk" of constitutional injury to
citizens like the plaintiff; (2) that the supervisor’s response to that
knowledge was so inadequate as to show "deliberate indifference to
Or tacit authorization of the alleged offensive practices," and (3) that
—_
LA
14 SHAW v. STROUD
there was an "affirmative causal link" between the supervisor’s inac-
tion and the particular constimtional injury suffered by the plaintiff.
See Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990); Slakan, 737
F.2d at 373; Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983).
See City of Canton v. Harris, 489 U.S. 378, 390 (1989); Larez v. City
of Los Angeles, 946 F.2d 630, 645-46 (9th Cir. 199!); Gutierrez-
Rodriguez v. Cartagena, 882 F.2d 553, 572 (1st Cir. 1991); Meade v.
Grubbs, 841 F.2d 1512, 1527-28 (10th Cir. 1988).
To satisfy the requirements of the first element, a plainuff must
show the following: (1) the supervisor’s knowledge of (2) conduct
engaged in by a subordinate (3) where the conduct poses a pervasive
and unreasonable risk of constitutional injury to the plainuff. Slakan,
737 F.2d at 373. Establishing a "pervasive" and "unreasonable" risk
of harm requires evidence that the conduct is widespread, or at least
has been used on several different occasions and that the conduct
engaged in by the subordinate poses an unreasonable risk of harm of
consututional injury. /d. at 373-74."
A plainuff may establish deliberate indifference by demonstrating
a supervisor’s "continued inaction in the face of documented wide-
spread abuses." Jd. at 373. See Miltier, 896 F.2d at 848; Withers, 615
K2d at 158; Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). -
The plaintiff assumes a heavy burden of proof in establishing deLiber-
ate indifference because:
[o}rdinarily, [the plaintiff] cannot satisfy his burden of proof
by pointing to a single incident or isolated incidents, for a
supervisor cannot be expected to promulgate rules and pro-
cedures covering every conceivable occurrence within the
area of his responsibilities. Nor can he reasonably be
expected to guard against the deliberate criminal acts of his
properly trained employees when he has no basis upon
which to anticipate the misconduct A supervisor's contn-
ued inaction in the face of documented widespread abuses,
"In practical terms, it should be noted that a showing of a pervasive
and unreasonable risk of harm is also necessarily a component of estab-
lishing either "deliberate indifference" or "tacit authorizauon." See, e.g.,
Slakan, 737 F.2d at 372-73.
S)
snnepiiiilitiiasiel
SHAW v. STROUD 15
however, provides an independent basis for finding he either
was deliberately indifferent or acquiesced in the constitu-
tionally offensive conduct of his subordinates.
Slakan, 737 F.2d at 372-73 (quoting Orpiano, 632 F.2d at 1101 (cita-
tions omitted)). See Lopez v. Robinson, 914 F.2d 486 (4th Cir. 1990).
Causation is established when the plaintiff demonstrates an "affir-
mative causal link"' between the supervisor’s inaction and the harm
suffered by the plaintiff. Slakan, 737 F.2d at 376; see Rizzo v. Goode,
423 U.S. 362 (1976). This concept encompasses cause in fact and
proximate cause. In Slakan, we noted that the "proof of causation may
be direct ... where the policy commands the injury of which the
plaintiff complains ... [or] may be supplied by [the] tort principle
that holds a person liable for the natural consequences of his actions."
Slakan, 747 F.2d at 376 (quoting Wellington, 717 F.2d at 936).
A. Stroud
Stroud argues that the plaintiffs have failed to establish each ele-
ment required for supervisory liability on his part. Stroud first con-
tends that the plaintiffs have not shown that Stroud knew of conduct
by Morris which posed a pervasive and unreasonable risk of harm to
ciuzens like Bowen. We disagree. As discussed more fully below,
Stroud had knowledge of at least three incidents in which Morris used
excessive force which posed an unreasonable risk of harm to
arrestees.
Next, Stroud argues that he exhibited no deliberate indifference.
The plaintiffs, however, have presented more than an isolated incident
Suggesting Stroud’s deliberate indifference to or implicit authoriza-
tion of Morris’ abusive conduct. Three separate witnesses have
alleged that, when they notified Stroud of assaults by Morris, he
responded callously and with apparent amusement. For instance,
Stroud never bothered to retum Harvey Paul Walker’s phone calls
although he knew that Morris had possibly "roughed up" Walker. In
addition, Stroud just "sort of smiled" at Gary Ward when Ward
reported Morris’ violent conduct to Stroud. Besides laughing when
Morris escorted Jessie James to the jail, Stroud refused to listen to
16 SHAW v. STROUD
James when he tried to report that Morris had beaten him." Finally,
the statistical evidence speaks for itself: during Stroud’s tenure as
First Sergeant of Troop B-V (two line sergeants and twenty troopers),
Morris instituted twenty-six of the fifty-five charges of assault on a
law enforcement officer and resisting/delaying/obstructing an officer.
Under these circumstances, Stroud’s inaction raises genuine issues of
material fact as to whether he "was deliberately indifferent or acqui-
esced in the constitutionally offensive coriduct of his subordinates."
Id. at 372-73."
The causation prong presents a more difficult question. Stroud con-
tends that, because he transferred fifteen months before the Bowen
incident, there is no affirmative causal link to the harm suffered by
Bowen. We believe our discussion of causation in Slakan forecloses
Stroud’s argument In Slakan, we determined thai the causal link in
§ 1983 cases is analogous to proximate cause. In other words, Stroud
is liable for the "natural consequences of his actions." /d. at 376. Not-
withstanding the fifteen month gap, Bowen’s death was a natural and
foreseeable consequence of Stroud’s failure to investigate, or even to
address, the pervasive violent propensities of one of his officers.
Because Stroud was aware of Morris’ frequent use of excessive force,
it follows that he knew that Morris’ unchecked service on the ferce
posed a constant and dangerous threat to the welfare of arrestees."®
Stroud attacks the credibility of the affidavits of witmesses who
claimed that they notified Stroud after being beaten by Morris. For obvi-
ous reasons, this argument is unpersuasive: matters of credibility are for
the jury. At the summary judgment stage, the moving party is entided to
"have the credibility of his evidence as forecast assumed, his version of
all that is in dispute accepted, [and] all internal conflicts resolved favor-
able to him." Miller, 913 F.2d at 1087.
“Stroud also argues that no formal complaints were filed, and there-
fore, no supervisory liability can attach. This argument founders because
Major Spainhour’s deposition indicates that a complaint need not be
written or formal under departmental policy. Therefore, the plainuffs
have proffered sufficient evidence from which a reasonable jury could
‘ind that Stroud acted with deliberate indifference to, or tacitly acknowl-
edged, Morris’ acuons.
“In Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (Ist Cir. 1989),
the First Circuit held that the following jury instructions sufficienuy
até
SHAW v. StrouD 17
Viewing the evidence in this light, under Slakan the plainuffs have
presented sufficient evidence to withstand summary judgment on the
element of causation. Succinctly stated, crediting the plaintiff's evi-
dence, a reasonable jury could find that Stroud acted with deliberate
indifference and that 4 causal link exists between Stroud’s inaction
and the alleged harm. Accordingly, Stroud is not entitled to summary
judgment.
B. Smith
In their cross-appeal, the plaintiffs contend the district court erred
in granting summary judgment to Smith on the Fourth Amendment
excessive force claim. We disagree. Despite the plaintiffs’ arguments
that he should have done more, Smith took supervisory actions on
allegations involving Morris’ conduct. For instance, when confronted
with Judge Gore’s complaint, Smith rode with Morris on patrol at
least twice. In response to Dennis Worley’s complaint, Smith
assigned Line Sergeant White to attend Chris Hardee's trial to deter-
mine if Morris had engaged in any improper conduct. While Smith
did not launch an Internal Affairs investigation into Morris’ alleged
beating of Rudolph Towns, Towns’ affidavit indicates that, although
he was upset about the way he had been treated by Morris, he never
made this situation entirely clear to Smith. Although Smith’s actions
described the causation element necessary to establish supervisory liabil-
ity under § 1983: The acts or omissions of the supervisors must have
“played a substanual part in bringing about or actually causing the injury
or damage, and that the [in]jury or damage was either a direct result or
a reasonable probable consequence of the act or omission." /d. at 569.
Even though Stroud departed fifteen months before the Bowen incident.
his failure to address Morris’ problems during Stroud’s tenure at least
created a jury question as to whether Stroud "played a substantial part”
in bringing about Bowen's death.
Interpreting Rizzo, the D.C. Circuit has set forth a similar standard for
Causation under § 1983. In Haynesworth v. Miller, 820 F.2d 1245 (D.C.
Cir. 1987), the D.C. Circuit held, "{[wJhen inaction in the face of a sub-
Stanuial threat of harm is shown, it can be said that the supervisor acqui-
esced in the resulting constitutional violation, thereby ‘linking’ the non-
feasance with the injury in the manner required by Rizzo." /d. at 1261¢
at.
18 SHAW Vv. STROUD
may not have been the most effective and although he might have
done more, such a rule is not the standard by which we judge Smith's
conduct. In short, Smith simply did not exhibit the "tacit authoriza-
tion’ of or ‘deliberate indifference’ to constitutional injuries" required
for § 1983 supervisory liability. Wellington, 717 F.2d at 936 (quoting
Avery, 660 F.2d at 114). Because the plaintiffs presented insufficient
evidence of this second element of § 1983 supervisory liability, Smith
is entitled to summary judgment.
IV
Both Stroud and Smith argue that, even if the plaintiffs have dem-
onstrated that they exhibited deliberate indifference, qualified immu-
nity serves as a defense. In Harlow vy. Fitzgerald, 457 U.S. 800
(1982), the Supreme Court established an "objectively reasonable"
standard for qualified immunity. Government officials have qualified
immunity for discretionary functions so long as "their conduct does
not violate clearly established statutory or constitutional nights of
which a reasonable person would have known." /d. at 818. In deter-
mining the availability of qualified immunity, the point of reference
is the time at which the action or inaction occurred. Harlow, 457 U.S.
at 818. We have held that officers are entitled to qualified immunity
when they rely on standard operating procedures, if that reliance is
reasonable. Vizbaras v. Prieber, 761 F.2d 1013, 1015 (4th Cir. 1985),
cert. denied, 474 U.S. 1101 (1986). A police officer is entitled to pre-
vail on an assertion of qualified immunity if a reasonable officer pos-
sessing the same information would have believed his conduct was
lawful. Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991). See
Pritchett v. Alford, 973 F.2d 307 (4th Cir. 1992); Torchinsky v.
Siwinski, 942 F.2d 257, 260 (4th Cir. 1991); Korb v. Lehman, 919
F.2d 243 (4th Cir. 1990), cert. denied, 112 S. Ct. 51 (1991); Goodwin
v. Metts, 885 F.2d 157 (4th Cir. 1989), cert. denied, 494 U.S. 1081
(1990); Gooden v. Howard Co., Md., 917 F.2d 1355 (1990).
A. Stroud
Because of the nature of § 1983 supervisory liability, the plaintiffs
must make several separate showings to demonstrate that Stroud
lacked qualified immunity: (1) it was ''clearly established" at the time
or Morris’ conduct that Stroud could be held liable under § 1983 for
-18-
a UP
SHaw v. Stroup 19
constitutional violations committed by Morris: (2) it was "clearly
established" at the time Stroud was Supervising Morris that the degree
of force that Stroud knew that Morris was using against arrestees was
unconstitutional; (3) a reasonable person in Stroud’s position would
have known that his actions were unlawful.
Stroud’s argument here is two-fold. First, he submits that the law
as to supervisory liability was not clearly established. In the alterna-
tive, he argues that the law on excessive force was not clearly estab-
lished. We disagree.
Before we begin our analysis, it is helpful to summarize concisely
the pertinent facts. Stroud was Morris’ Supervisor from the time Mor-
ns joined the patrol in 1983 until late November 1988, when Stroud
was transferred. The majority of the incidents complained of occurred
between May 1987 and November 1988. For example, in May 1987,
the Walker and Menser incidents took place. In July 1987, Morris
allegedly assaulted Ward. In March 1988, James Claimed he was
assaulted, and in July 1988, the Cothron assault occurred. On Febru-
ary 27, 1990, the Bowen incident occurred.
At the time of Stroud’s inaction, § 1983 liability for supervisors
was Clear. In 1984, we held in Slakan that a Supervisor who was
deliberately indifferent in the face of a pervasive and unreasonable
risk of harm could be held liable under § 1983 where the inaction
bore an affirmative causal link to the harm suffered by the plaintiff.
Slakan, 737 F.2d at 377. Therefore, it was Clearly established at the
time of Morris’ conduct that Stroud could be held liable for Morris’
conduct.
A much closer question concems whether it was Clearly established
at the time Stroud was supervising Morvis that the degree of force
Stroud knew Morris was using was unconstitutional. Throughout the
time period in question, it was surely clear that arrestees had a general
constitutional right to be free from the use of excessive force by
police officers. See Tennessee v. Garner. 471 U.S. 1, 11 (1985). Dur-
ing the ume in which the complained of acts and Omissions by Stroud
took place, this circuit applied a "shock the conscience" test in evalu-
ating claims of excessive force. Justice v. Dennis, 834 F.2d 380, 383
- 19~—
20 SHaw v. Stroup
(4th Cir. 1987), judgment vacated, 490 U.S. 1087 (1989)."* See also
Bailey v. Turner, 736 F.2d 963, 965 (4th Cir. 1984) (framing test as
whether use of force "shocks the conscience" or has been applied
"maliciously and sadistically for the purpose of causing harm"). In
Justice, we approved jury instructions which defined the standard for
evaluating a claim of excessive force perpetrated by a police officer
as whether the force was so "brutal, demeaning and harmful as liter-
ally to shock the conscience of a court." /d. at 382. We held that other
factors to be considered in an excessive force claim were "the need
for the application of the force; .. . the relationship between the need
for the force and the amount of force used; ... [and] the extent of
injury inflicted.’" /d. at 383 (quoting Bailey, 736 F.2d at 970).
Under the "shocks the conscience" test applied in this circuit during
the period in question, it is clear that the use of significant amounts
of physical force against unarmed arrestees who did not pose a signif-
icant risk of harm to the arresting officer or anyone else was unconst-
tutional. During arrests, Morris engaged in a course of conduct in
which he beat severely men who were completely unarmed and who
did nothing more than verbally challenge the officer's authority.
In light of the clearly established standard governing supervisory
liability, a reasonable person in Stroud’s position would unquesuon-
ably believe that his conduct violated clearly established law regard-
ing the contours of supervisory liability. Although Stroud claims that
he never received the witness’ reports of Morris’ abuse while he was
Morris’ supervisor, we must consider the plainuffs’ account as true
at the summary judgment stage. Thus, assuming that Stroud did
receive the complaints about Morris, Stroud could not have consid-
ered his inaction lawful. Stroud’s argument is unsuccessful because
no reasonable officer possessing Stroud’s information would believe
his actions—laughing at and ignoring complaints of excessive force
perpetrated by an officer he supervised—to be lawful.
**although we decided Justice under the Fifth Amendment substanuve
due process clause rather than under the Fourth Amendment. this distinc-
tion is without a difference: we were deciding the contours of the circum-
stances in which a police officer's use of force against an arrestee would
violate the Constitution.
-20-
SHAW v. Stroup 21
B. Smith
Even if Smith did arguably exhibit deliberate indifference. he is
enutled to qualified immunity. Smith meets the standard for qualified
immunity set forth in Harlow, 457 U.S. at 818: a reasonable officer,
in light of clearly established legal rules, could have believed his con-
duct was lawful. Smith followed standard operating procedures. He
made records of complaints, monitored Morris’ actions. and reported
Morris’ conduct to Smith's superiors. While Stroud maintains that he
too followed standard operating procedures, this contention is merit-
less. Stroud, unlike Smith, failed to investigate any informal com-
plaints. In his deposition, Major Tony Spainhour testified that under
State Highway Patrol procedure a complaint need be neither formal
nor written to merit investigation.” In response to concerms about
Morris’ use of excessive force, Smith counseled Morris and attempted
to ascertain the truth of the allegations and the need for any corrective
acuon. This behavior stands in stark contrast to the callousness exhib-
ited by Stroud when confronted with very similar charges about Mor-
ms’ acuons. Because Smith's conduct "does not violate clearly
established statutory or constitutional rights of which a reasorf able
person would have known,” Harlow, 457 U.S. at 818, Smith is enti-
Ued to qualified immunity.
V
In their cross-appeal, the plaintiffs contend that the district court
erred in dismissing their state law negligent infliction of emotional
distress claim against Morris. To establish a negligent infliction of
emouonal distress claim, the plaintiffs must show that (1) the defen-
dant negligenuy engaged in conduct: (2) it was reasonably foresee-
able that such conduct would cause the plaintiffs severe emotional
distress; and (3) the conduct did cause the plainuffs severe emotional
distress. Johnson v. Ruark Obstetrics, 395 S.E.2d 85. reh’g denied,
399 S.E.2d 133 (N.C. 1990).
"Even if Stroud could establish that his actions conformed to standard
operating procedures, this conduct still fails to meet the requirement in
Vizbaras that the officer's reliance be reasonable. Vizbaras, 761 F.2d at
1013.
22 Saw v. Stroup
A public officer performing discretionary acts, however, is abso-
lutely immune from mere negligence claims. Hare v. Butler, 394
S.E.2d 231 (N.C. App.), disc. rev. denied, 399 S.E.2d 121 (N.C.
1990). A negligent infliction of emotional distress claim, by its very
definition, necessarily alleges only negligence. Therefore, Morris is
absolutely immune from any negligent infliction of emotional distress
claim under North Carolina law.
The plaintiffs argue that gross negligence is sufficient to pierce an
officer's immunity. While intentional, malicious, or corrupt acuons
may pierce an officer’s immunity, the North Carolina Supreme Court
has never allowed a showing of gross negligence to suffice to pierce
an officer’s immunity, absent a statute specifically abolishing the
common law immunity. See Wiggins v. City of Monroe, 326 S.E.2d
39 (N.C. App. 1985), cert. denied, 358 S.E.2d 72 (N.C. 1987). The
cases cited by the plaintiffs do not hold otherwise. In Bullins v.
Schmidt, 369 S.E.2d 601 (N.C. 1988), the Supreme Court of North
Carolina based its decision on a Motor Vehicle Statute which had spe-
cifically displaced common law immunity." In that case, police offi-
cers in a high-speed chase caused the deaths of two innocent drivers
from a head-on collision. Interpreting the above statute, the Supreme
Court of North Carolina translated the standard of care under that
statute as "gross negligence": if an officer behaves with gross negli-
gence, the court held, the speed limit exemption under the motor vehi-
cle statute did not protect him.
Nor does the case of Columbus County Auto Auction v. Aycock
Auto Company, 368 S.E.2d 888 (N.C. 1988), support the plaintiffs’
position. In Columbus, the North Carolina Court of Appeals did not
hold that gross negligence was sufficient to support a claim; it merely
stated in dicta that not even gross negligence had been alleged to sup-
port the plaintiff's claim of negligence in the issuance of North Caro-
lina certificates of title for stolen vehicles. Counseling even more
against the plaintiffs’ proffered interpretation of North Carolina law
"*The relevant statute creates an exemption from legal speed limita-
tions for police officers who are pursuing persons charged with viola-
tions of the law. The exemption, however, does not protect police
officers who are chasing criminals with a "reckless disregard for the
safety of others." N.C. Gen. Stat. § 20-145 (Supp. 1987).
in
SHAW v. STROUD 23
is the fact that the case referenced by the North Carolina Court of
Appeals in Aycock Auto Company holds that public officials are
immune from liability for "mere negligence." The Court of Appeals
held that a public official does not waive immunity unless it is alleged
and proved that the officer’s actions were "corrupt or malicious" or
beyond the scope of the official’s duties. Wiggins v. City of Monroe,
326 S.E.2d at 39. Accord Harwood v. Johnson, 374 S.E.2d 401 (N.C.
App. 1988), affd in part, rev'd in part on: other grounds, 388 S.E.2d
439 (N.C. 1990), reh’g denied, 392 S.E.2d 90 (N.C. 1990); Piggot v.
City of Wilmington, 273 S.E.2d 752 (N.C. App. 1981). Because a
claim for negligent infliction of emotional distress involves neither of
the above elements, Morris’ immunity remains intact.
VI
Stroud also alleges that Jessie James’ deposition should have been
stricken because his testimony conflicts not only with his former
Statement to Les Bums, a private investigator, but also with the affi-
davits of three highway patrol officers. In the interview with Bums,
James described the night on which Morris arrested and allegedly beat
him; however, James failed to allege that Stroud was at the jail that
evening. Relying on our decision in Barwick v. Celotex Corp., 736
F.2d 946 (4th Cir. 1984), Stroud contends that because James’ deposi-
tion is inconsistent with his prior testimony and other testimony in the
record and intended solely to create an issue of material fact, it should
have been stricken. We disagree.
We review the lower court’s decision not io strike the deposition
under the abuse of discretion standard. Bobb v. Modern Products,
Inc., 648 F.2d 1051, 1055 (Sth Cir. 1981). Unlike the instant case, the
Barwick case dealt with a party who, after years of Litigation, submit-
ted an affidavit solely to contradict prior deposition testimony so as
to create a genuine issue of material fact. Barwick, 736 F.2d at 960.
In contrast, James is not contradicting earlier testimony because this
deposition was his first deposition. Likewise, the Barwick deposition
was not based on personal knowledge. James’ deposition, however,
related to a specific personal encounter. In addition, James’ deposi-
tion did not follow years of protracted litigation. Finally, the credi-
bility of a deposition is a question for the jury rather than an issue to
be setued at the summary judgment stage. See Summerlin v. Edgar,
«23.
24 Syaw v. STROUD
809 F.2d 1034, 1039 (4th Cir. 1987). Hence, the district court did not
abuse its discretion in not striking James’ deposition.
vil
Finally, we tum -> the plaintiffs’ argument that the district court
erred in granting su ary judgment on their Fourteenth Amendment
claim for loss of the love and support of a family member. To this
date, we have not recognized such a substantive due process claim for
the deceased’s family. See Rucker v. Hartford County, 946 F.2d 278,
283 (4th Cir. 1991), cert. denied, 112 S. Ct. 1175 (1992) ("reserv[ing]
for another day" whether we would recognize a due process claim for
the deprivation of the love and support of a family member resulting
from the unconstitutional action of a state official).
We nvied in Rucker that other circuits have recognized two differ-
ent versions of such a substantive due process claim. Under the first
version, a plaintiff must show state actions that directly injure the
relationship itself, "as by the taking of a child from its parents’ cus-
tody." Id.; see Ortiz v. Burgos, 807 F.2d 6, 7-9 (Ist Cir. 1986). A
plaintiff establishes a violation under the second version by demon-
strating "any conduct which, though unrelated to the relationship, vio-
lates the constitutional right of any person in the relationship, on the
theory that such conduct incidentally injures the relationship, hence
the ‘liberty interest’ in its preservation possessed by all parties to it."
946 F.2d at 282. This is a derivative claim. See Kelson v. City of
Springfield, 767 F.2d 651 (9th Cir. 1985}; Trujillo v. Board of County
Comm'r, 768 F.2d 1186, 1189-90 (10th Cir. 1985).
Refusing to "create new substantive rights under the rubric of sub-
stantive due process," other courts have refused to recognize a sub-
stantive due process claim arising from the deprivation of the love
and support of a family member. Willard v. City of Myrtle Beach,
S.C., 728 F. Supp. 397, 400 (D.S.C. 1989). See Harpole v. Arkansas
Department of Human Services, 820 F.2d 923 (8th Cir. 1987);
Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S.
826 (1982). Interestingly, the United States Supreme Court has never
held that the protections of substantive due process extend to claims
based on governmental action which affects the family relationship
ae
4
SHAW v. Stroup 25
only incidentally. Ortiz, 807 F.2d at 8. See Willard, 728 F. Supp. at
402.
The plaintiffs argue that the history of and purpose behind § 1983
compels recognition of this claim. We disagree. In Rucker we specifi-
cally avoided recognizing such a claim. Jd. at 280. Moreover, because
the Supreme Court has never extended the constitutionally protected
liberty interest incorporated by the Fourteenth Amendment due pro-
cess Clause to encompass deprivations resulting from governmental
actions affecting the family only incidentally, we decline to sanction
such a claim at the present time.
Accordingly, the district court Properly granted summary judgment
in favor of the defendants on the plainuffs’ substantive due process
claim.
Vil
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
HALL, Circuit Judge, dissenting in part:
A police officer disgraces his public trust by beating anyone who
crosses him, especially if that anyone is black and of humble means.
Over several years, two different Superiors close their eyes to his
abuses, and respond with a grin or a sarcastic quip if they happen or
are forced to glimpse one. The officer, unrestrained if not downright
emboldened by this acquiescence, ends up emptying his gun into a
marginally inebriated misdemeanant. So could a jury find on this
record.
The most remarkable thing about this saa Story is that our law of
excessive force, supervisory liability, and qualified immunity has
become so labgrynthine (and maybe so Overly forgiving) that both
Supervisors have substantial arguments that-they should not be liable
for the violation of the dead man’s civil rights.
-75-
26 SHAW v. STROUD
The majority has ably described the legal labyrinth, so I will not
belabor it here. After winding through the maze, though, I find myself
at a quite different destination. On the § 1983 excessive force claim,
I would reverse both the grant of summary judgment for Smith and
the denial of summary judgment for Stroud. I therefore respectfully
dissent in part. Otherwise, I concur in the judgment and opinion of the
majority.
I.
I think that a reasonable jury could find that Smith was deliberately
indifferent. Smith replaced Stroud in December, 1988, and, though
Stroud did not share with him any unofficial knowledge of Morris’
proclivities, Smith was soon to learn. Judge William C. Gore of the
county district court complained to a line sergeant under Smith's
command about Morris. Because of his position, Judge Gore intended
to offer only discreet advice and did not want to file a formal charge.
The line sergeant reported to Smith:
Judge Gore states that he is very concerned that Trp. A. E.
Morris is having case after case involving the use of physi-
cal force on defendants. Judge Gore states that in his opin-
ion a lot of these cases are a result of excessive force being
applied. Judge Gore states that he is being informed from
several lawyers that excessive force is being applied to their
clients from Trp. Morris. Judge Gore went on to say that he
feels that it is only a matter of time before Trp. Morris seri-
Ously injures a person and Trp. Morris and the [Highway
Patrol] will be sued. Judge Gore states that it seems that
most of the cases he refers to involve blacks or people of
lower means. Judge Gore states he likes Trp. Morris but
feels bound by his position to inform us of this problem.
This information was soon followed by a complaint by a local law-
yer to the same line sergeant. This lawyer reported that his client,
Chris Hardee, had been pulled over by Morris in South Carolina, and
Morris forced his client at gunpoint to return to North Carolina to be
arrested. Back in North Carolina, a scuffle took place between Hardee
and Morris, which resulted in Hardee's suffering broken ribs and a
broken foot.
x
$
"
3
SHAw v. StrRouD 27
Smith discussed the Gore and Hardee information with his com-
mander. Smith decided to ride with Morris on patrol a couple of times
to monitor his behavior, and he agreed with the line sergeant that a
close eye should be kept on Morris. Finally, he had the line sergeant
attend Hardee’s trial. When no evidence at the trial indicated any mis-
conduct by Morris — not because it did not exist, but rather because
the judge ruled it irrelevant — Smith let the matter drop.
Then, in February, 1990, just three weeks before Bowen was shot.
Smith met Morris at a hospital where Morris had taken a drunk driv-
ing suspect, Rudolph Towns. Towns had suffered a broken skull dur-
ing his arrest. Smith did not respond to the incident in any manner.
The district court ruled that, at worst, Smith was only "negligent"
in responding to this evidence of Morris’ brutality. Invoking qualified
immunity, the court stated that a reasonable supervisor could have
believed that Smith's response was lawful.
I cannot agree with this ruling. Judge Gore’s warning had to be
perceived as extraordinary, and should have set off a serious investi-
gation. I don’t know how Smith thought that Towns’ skull got broken,
and I confess puzzlement at the bland dismissal of this episode by
both the district court and the majority. True enough, the record does
not disclose that Towns made a clearly articulated complaint to
Smith. On the other hand, the majority attaches no fatal significance
to this "defect" in its analysis of three incidents that occurred during
Stroud’s tenure. See supra at 15-16 (discussion of Walker, Ward, and
James incidents). Though a formal, or at least Clearly stated, com-
plaint is a coveted arrow in the civil rights plaintiff's quiver, I know
of no decision requiring the plaintiff to prove a supervisor's knowl-
edge of a subordinate’s unconstitutional behavior through formal
complaints alone. A broken skull speaks for itself. I would hope that
arrestees in Columbus County, North Carolina, do not accidentally
fracture their skulls on the vent shades of police cars with such fre-
quency that Smith would not be expected to make even a cursory
invesugation of an individual case.
Judge Gore provided Smith a salutary, and all too prescient, wam-
ing; Smith responded in a most ineffective. manner. The Hardee com-
plaint received ostrich-like investigation, perhaps from ineptitude,
97.
28 SHAW v. STROUD
perhaps by design. Towns’ fractured skull provided Smith a gratu-
itous last chance to act; he did nothing. From this series of facts, a
jury could reasonably find that Smith’s inertia was deliberate.
fl.
I agree with the majority that the numerous affidavits produced by
the plaintiffs, along with the later corroboration offered by Judge
Gore and the incredibly disproportionate number of arrests Morris
made for resisting arrest and assaulting an officer, could easily lead
a reasonable trier of fact to find that Stroud simply winked and smiled
at Morris’ excesses. "Deliberate indifference” would be a charitable
description.
But I would reverse nonetheless. Fifteen months passed between
Stroud’s transfer and the killing of Bowen,’ and someone else —
Smith — had the power, responsibility, and opportunity to put a stop
to Morris’ misconduct. Under Smith’s watch, Towns’ skull, Hardee's
lawyer, and Judge Gore gave their warnings.
Section 1983 "should be read against the background of tort Liabil-
ity." Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled in part on
other grounds, Monell v. Dep't of Social Services, 436 U.S. 658, 690-
691 (1978). Though a person is ordinarily liable "for the natural con-
sequences of his actions," id., neither traditional tort law nor § 1983
imposes liability where causation, though present in fact, is too
remote. Martinez v. California, 444 U.S. 277, 285 (1980). How
remote is "too remote'’? Section 1983 does not contain a bright-line
"limitations" period on ex-supervisor liability for constituuonal viola-
tions by erstwhile subordinates, but lapse of time is certainly a promi-
nent consideration. See, e.g., Martinez, 444 U.S. at 285 (five months
between parolee’s release by defendant and plainuff’s injury at paro-
lee’s hands); Humann v. Wilson, 696 F.2d 783 (10th Cir. 1983) (two-
month lapse after parole destroyed proximate cause).’
‘In its analysis of Stroud’s motion on this claim. the district court did
not discuss the fifteen-month lapse.
In Fox v. Custis, 712 F.2d 84, 87 (4th Cir. 1983), a parolee defrauded
an innkeeper within three weeks of release. His parole officers failed to
ae.
ae
SHAW v. STROLD 29
In any event, the fifteen-month lapse is not the only factor breaking
the links of the causal chain. Even if Smith’s responses to the Gore,
Hardee, and Towns incidents were merely negligent, his misfeasance
was indispensable in bringing about Bowen's eventual death. For all
we can know, if Stroud had still been Morris’ supervisor, he might
have stopped Morris after any of the incidents. A person should be
responsible for the natural consequences of his actions, but not neces-
sarily for consequences that can occur only if an independent tortf<a-
sor intervenes.
Proximate cause is a regrettably imprecise concept. In fashioning
the quasi-tort federal common law of § 1983, we must define the lim-
its Of personal liability in a manner that is both manageable and faith-
ful to the public policy behind the statute. From the best evidence
available to me — Martinez and its progeny — I conclude that
§ 1983's "affirmative causal link" rapidly deteriorates with passage of
ume, especially where a new, self-sufficient impetus for the eventual
injury develops. In short, though Stroud was probably deliberately
indifferent during his tenure, I think that the causal link to Bowen’s
eventual slaying is too attenuated to fairly support § 1983 liability.
I respectfully dissent.
revoke his parole, even though they also suspected that the parolee had
committed an arson-murder on the same day as the innkeeper fraud. Two
weeks later, the parolee set fire to a house, shot and stabbed one young
girl, and raped and set on fire another. We found these injuries "too
remote" from the parole officers’ actions to support § 1983 liabilty, cit-
ing Martinez. We did, however, "bolster" our decision by holding that
there is no general constitutional right for a member of the public at large
to be protected from "criminals or madmen." /d. at 88.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
No. 91-18-CIV-7-BR
DEBORAH SHAW, Administratrix
of the Estate of Sidney Bowen,
Deceased, and NANCY BOWEN,
Individually and as guardian
ad litem for KIMBERLY YVONNE
BOWEN and LEE FREDERICK BOWEN,
the minor children of Sidney
Bowen,
Plaintiffs,
Vv. ORDER
ALFRED E. MORRIS, C.I. STROUD,
and J.M. SMITH, in their
individual capacities,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Defendants,
This matter is before the court on
seven pending’ motions. All three
remaining defendants (two have been
voluntarily dismissed) have moved for
summary judgment; three motions were filed
to strike evidence plaintiffs submitted in
opposition to the motions for summary
judgment; and plaintiffs have moved to
-30-
WHETHER SUPERVISORY LIABILITY CAN BE
IMPOSED UNDER 42 U.S.C. §1983 WHERE
THE SUPERVISOR HAD BEEN TRANSFERRED
FIFTEEN (15) MONTHS PRIOR TO THE
INCIDENT AND THE INTERVENING
SUPERVISION WAS FOUND TO BE
CONSTITUTIONAL.
QUESTION PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
PARTIES BELOW
OPINION BELOW
JURISDICTION
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT.
I. BY SETTING NO TIME
LIMIT FOR SUPERVISORY
LIABILITY, THE
CIRCUIT COURT FAILS
TO PROPERLY ADDRESS
CAUSATION IN LIGHT OF
THE FACT THAT STROUD
HAD BEEN GONE FIFTEEN
ys Se
ii
iv
oF
CONCLUSION
CERTIFICAT
MONTHS BEFORE THE INCIDENT,
AND UNFAIRLY SUBJECTS
SUPERVISORS TO LIABILITY FOR
ACTIONS REMOTELY RELATED TO
THEIR SUPERVISION. ..... 7
THE INTERVENING
SUPERVISION OF SERGEANT
SMITH SHOULD INSULATE
STROUD FROM LIABILITY IN
THIS
So ee ae ae eer ee ee,
THIS CASE PRESENTS
ADDITIONAL ISSUES OP
IMPORTANCE TO LOWER
COURTS THAT HAVE
NEVER BEEN ADDRESSED
BY THE
SUPREME COURT. . . « « « « « 49
lL?
» CF SERVICE «6 ¢-s-s 6 oe
\)
TABLE OF AUTHORITIES
CASES
Anderson v. Creighton, 483 U.S. 635,
107 S.Ct. 3034, 97 L.Ed. 2d 523
(1907) ..0%a05 dawns eee 17
Bowers v. DeVito, 686 F.2d 616
(Tth Cie. LBBZ) ccccccsnencascsavcassecsa 10
ity o nton v. is, 489 U.S. 378,
109 S.Ct. 1197, 103 L.Ed.2d 412
(19G9) «ccccoseseesessusteueseetencs 15
Collins v. Harkers Heights,
0.8. » Ba S.Ct. 166i,
ll? L.8G.2G 208 (A982) soccvecvssces 12
Doe v. Taylor Independent
School District, 975 F.2d 137
(Sth Cis. 255E) 0s5s0t sae veveaan ens 16
Fernandez v. Chardon, 681 F.2d 42
(ist Cir. 1962) 0% csceasecesseuseeeus 16
Fox v. Custis, 712 F.2d 84
(4th Cis.: 3962) dave. 4055505 10
Haynesworth v. Mi , 820 F.2d 1245
(D.C. Gig: 9908) vce ceneseee 16
Humann v. Wilson, 696 F.2d 783
(10th Cie. 4088) «cca 10
Janan v. Trammell, 785 F.2d 557
(OGM Cie. Set 4b) ks iv iockbeccdccc.
Ketchum v. Alameda County, 811 F.2d
ReGen CPG Cabs RED n 4c s kw ob 06s ie
Kite v. Kelley, 546 F.2d 334
ei Fae eee on re
Lopez _v. Houston Independent School
District, 817 F.2d 35]
eo ee a ee
Maliey v. Briggs, 475 U.S. 335,
106 S.Ct. 1092, 89 L.Ed.2d 271
SN ea S5 8 OE ae Sala oo ls dex,
Martinez v. California, 444 U.S. 277,
100 S.Ct. 553, 62 L.Ed.2d
eh Se Ce eee nea 6,
Monell _v. Dept. of Social Services,
436 U.S. 658, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978)............
Monroe v. Pape, 365 U.S. 167,
81 S.Ct. 473, 5 L.Ed.2d 492
eo) a a re ope oe
O’Ouinn v. Manuel, 773 F.2d 605
SO RT Sl ov oSew Felco ack.
Revere v. Massachusetts Gene
Hospital, 463 U.S. 239,
103 S.Ct. 2979, 77 L.Ed.2d 605
(19B3) ccccccccssveceesesescesecsese 12
Rizzo v. ode, 423 U.S. 362,
96 S.Ct. 598, 46 L.Ed.2d 561
C1976) sccdaconscansstoversas 6, 20, 325
Scheuer v. Rhodes, 416 U.S. 232,
94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)
Shaw v. Stroud, 13 F.3d 791
(4th Cir. 1994).... 2, 6, 8, 13, 14, 16
Slakan v. Porter, 737 F.2d 368
(4th Cir. 1984) cert. denied,
470 U.S. 1035, i05 8:Ct. 3413,
B84 L.EG.20 796 (19GS) «cccvccccceces 12
Stoneking v. Bradford Area School
District, 882 F.2d 720
(3rd Cir. 1989) cert. denied,
493 U.S. 1044, 110 S.Ct. 840,
107 &.8a.30 O95 (ORS ois tsa 12
20 O00: SEES in on de 2
90°-0:.8.6. SIRRHAS 55) Area 5
¢ G.8.0. BUD sce eee . & 0
-Vie
No.
93 -
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1993
C. I. STROUD, Individually,
Petitioner
vs.
DEBORAH SHAW, Administratrix of the
Estate of Sidney Bowen,Deceased, and
NANCY BOWEN, Individually and as guardian
ad litem for KIMBERLY YVONNE BOWEN and
LEE FREDERICK BOWEN, the minor children
of Sidney Bowen,
Respondents
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Petitioner C. I. Stroud respectfully
prays that a writ of certiorari issue to
review the judgment and Opinion of the
United States Court of Appeals for the
Fourth Circuit entered in this case on
January 6, 1994.
PINION BELOW
The opinion of the United States
Court of Appeals for the Fourth Circuit
affirming the decision of the District
Court for the Eastern District of North
Carolina for which review is sought is
Shaw v. Stroud, 13 F.3d 791 (4th Cir.
1994). Said opinion of the United States
Court of Appeals for the Fourth Circuit
is reproduced in the appendix to this
petition. (App. 1).
The petitioner filed a petition for
rehearing with a suggestion for a
rehearing in banc. This was denied by
order of the United States Court of
Appeals for the Fourth Circuit filed
February 25, 1994. A copy of said order
is reproduced in the appendix to this
petition. (App. 69).
JURISDICTION
The judgment of the United States
Court of Appeals for the Fourth Circuit
was filed on January 6, 1994. The
petition for rehearing with suggestion
for rehearing in banc was denied on
February 25, 1994. Jurisdiction of this
Court to review the decision of the
United States Court of Appeals for the
Fourth Circuit is invoked under Title 28
U.S.C. §1254(1).
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
Ls 42 U.S.C. §1983 (App. ways
STATEMENT OF THE CASE
On February 22, 1991 the estate of
Sidney Bowen, his widow and minor children
filed this action under 42 U.S.C. §1983
and state law against North Carolina State
Highway Patrol Trooper Alfred Morris and
several of his supervisors. C. I. Stroud,
the District First Sergeant for Morris
from Morris’ initial employment in 1983
until November, 1988, fifteen (15) months
prior to this incident, was made a party,
as was J. M. Smith, the District First
sergeant from 1988, including the date on
which the incident occurred. Line
sergeant J. A. McVicker and Line Sergeant
J. H. Parks were Originally named but were
later voluntarily dismissed by the
Plaintiffs.
On February 27, 1990 Trooper Morris,
a seven-year veteran of the North Carolina
State Highway Patrol, was on duty as a
Sworn law enforcement Officer, in uniform,
in rural Columbus County near Bolton,
North Carolina. He stopped Sidney Bowen
for suspicion of driving while impaired,
and Bowen ran from him and was
apprehended. Once back at the patrol car,
an altercation ensued, in which Trooper
whe
Morris, after being threatened by Bowen
and struck in the head by his own metal
flashlight that Bowen had taken from him,
shot and killed Bowen.
C. I. Stroud served as District First
Sergeant of Troop B-5, Whiteville, North
Carolina between February, 1981 and
November, 1988, following which he was
transferred to New Bern, North Carolina
where he was serving as District First
Sergeant at the time of the incident and
at the time the complaint was filed. His
transfer from Troop B-5 to the New Bern
District occurred some fifteen (15) months
prior to the February 27, 1990 incident
resulting in the death of Sidney Bowen.
It is an uncontested fact that Stroud was
neither involved in the shooting incident
nor the investigation of it and has no
first-hand knowledge as to the events
surrounding that incident. Sergeant J. M.
Smith took over as District First Sergeant
when Stroud was transferred from B-5 to
New Bern, and was Morris’ First Sergeant
for the fifteen (15) months prior to the
incident involving Sidney Bowen.
At the close of discovery, Morris,
Stroud and Smith filed separate motions
for summary judgment as to all claims
based upon qualified immunity as well as
on the merits. In an order filed on
August 5, 1992, (App. 30) the district
court granted Smith’s motion for summary
jullie
judgment in all respects. Of relevance to
this petition, the motions of Morris and
Strouc pertaining to the 42 U.S.C. §1983
and wrongful death claims were denied.
In support of its denial of Stroud’s
motion for summary judgment, the district
court, accepting the evidence in the light
most favorable to the plaintiffs, could
cite only three alleged isolated incidents
where defendants had claimed they were
assaulted by Morris, had complained to
Stroud, and where no action had been
taken. The three alleged incidents
mentioned by the district court occurred
in May of 1987, July of 1987, and March of
1988.
On August 19, 1992 Stroud appealed
the denial of his summary judgment motion
to the United States Court of Appeals for
the Fourth Circuit on his defense of
qualified immunity. He also filed a
motion pursuant to 28 U.S.C. §1292(b), and
received an order permitting him to appeal
the additional issue of whether’ the
district court erred in denying his motion
for summary judgment based upon the
merits.
In affirming the denial of summary
judgment for Stroud, the United States
Court of Appeals for the Fourth Circuit
deemed the three above incidents relied
upon by the district court sufficient to
= =
impose supervisory liability, even though
Stroud had left in November of 1988 and
the incident with Bowen did not occur
until February 27, 1990.
Smith’s motion for summary judgment
was affirmed by the Fourth Circuit Court
of Appeals. It held that Smith took
sufficient action and supervisory
liability could not be imposed.
RE NS FOR GRANTIN WRIT
The Jecision of the United States
Court of Appeals for the Fourth Circuit in
Shaw v. Stroud, 13 F.3d 791 (4th Cir.
1994), shockingly imposes’ supervisory
liability on a District First Sergeant who
had been transferred from the area some
fifteen (15) months prior to the incident
giving rise to this lawsuit. ae
respectfully contended that this decision
conflicts with this Court’s decisions in
Martinez v. California, 444 U.S. 277, 100
S.Ct. 553, 62 L.Ed.2d 481 (1980) and Rizzo
v.Goode 423 U.S. 362, 936 S.Ct. 598, 46
L.Ed.2d 561 (1976), and decisions of
various Circuit Courts on the issues of
causation, foreseeability, and remoteness.
The Fourth Circuit decision also fails to
consider the impact of the intervening
fifteen (15) month period of supervision
by Sergeant Smith, whose actions were held
to be constitutional.
The Circuit Court decision
inadequately addresses Supervisory
liability both in its consideration on the
merits and its analysis under qualified
immunity. The impact of its decision is
not limited to law enforcement officials,
but impacts all government officials in
Supervisory positions. The Supreme Court
Should allow this petition to clarify the
circumstances under’ which Supervisory
officials may be held liable for the
alleged constitutional injuries inflicted
by their subordinates long after the
Supervisory relationship has ended.
I. BY SETTING NO TIME LIMIT FOR
SUPERVISORY LIABILITY, THE
CIRCUIT COURT FAILS TO PROPERLY
ADDRESS CAUSATION IN LIGHT OF
THE FACT THAT STROUD HAD BEEN
GONE FIFTEEN MONTHS BEFORE THE
INCIDENT, AND UNFAIRLY SUBJECTS
SUPERVISORS TO LIABILITY FOR
ACTIONS REMOTELY RELATED TO
THEIR SUPERVISION.
This petition for certiorari should
be allowed because the decision of the
Fourth Circuit Court of Appeals failed to
properly address the elements of
remoteness and causation in light of the
fact thac Sergeant Stroud had been gone
fifteen (15) months before the altercation
between Trooper Morris and Sidney Bowen.
The Circuit Court decision conflicts with
prior decisions of the United States
Supreme Court and Circuit Courts in this
a
regard, and this ruling needs to _ be
clarified.
This passing of fifteen (15) months
between Stroud’s transfer and the death of
Bowen led to the dissent in §haw v.
Stroud. The dissenting judge found that
§1983 should be read against the
background of tort liability. Monroe v.
Pape, 365 U.S. 167, 187, 81 §8.Ct. 473,
484, 5 L.Ed.2d 492 (1961), overruled in
part on other grounds, Monell v. Dept. of
Social Services, 336 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). The dissent
noted that though a person is ordinarily
liable for the natural consequences of his
actions, neither traditional tort law nor
§1983 imposes liability where causation is
too remote, citing Martinez v. California,
444 U.S. 277, 100 §.Ct. 553, 62 L.Ed.24
481 (1980). The dissent then posited the
question: How remote is “too remote"? 13
F.3d at 807. (App. 28).
Proximate cause iS an _ imprecise
concept, and rapidly deteriorates with the
passage of time. Therefore, an exact
definition of what is “too remote" is
probably not feasible. However, the
Supreme Court can certainly more clearly
define what is “too remote", thereby
offering guidance to supervisors,
especially those who have departed their
position some time prior to the incidents
in question.
In Martinez, a fifteen year old girl
was murdered by a parolee five months
after he was released from prison, despite
his history as a sex offender. This Court
held that under the particular
circumstances of that parole decision, the
decedent's death was too remote a
consequence to hold the parole officers
responsible under federal civil rights
law.
We need not and do not decide
that a parole officer could
never be deemed to “deprive”
someone of life by action taken
in connection with the release
of a prisoner on parole. But we
do hold that at least under the
particular circumstances of this
parole decision, appellants’
descendent’s death is too remote
a consequence of the parole
officers’ action to hold them
responsible under the federal
Civil rights law. Although a
§1983 claim has been described
as "a species of tort
liability," Imbler v. Pachtman,
$24 60U..S. 409, 417, st. ois
perfectly clear that not every
injury in which a state official
has played some part is
actionable under that statute.
444 U.S. at 285.
several Circuit Courts have also held
that lapse of time is a _ prominent
consideration and that remoteness breaks
ain
the causal connection. See Humann v.
Wilson, 696 F.2d 783 (10th Cir. 1983)
(two-month lapse after parole destroyed
proximate cause); Fox v. Custis, 712 F.2d
84 (4th Cir. 1983) (where parolee
committed crimes approximately one month
after release there was no federal
constitutional right to be protected, and
if Martinez applied, the injuries here
were too remote). Ketchum _v. Alameda
County, 811 F.2d 1243 (9th Cir. 1987)
(two month time lapse and 50 mile distance
remote both as to time and geography);
Bowers v. DeVito, 686 F.2d 616 (7th Cir.
1982) (murder committed one year after
release from mental institution too
remote); Janan v. Trammell, 785 F.2d 557
(6th Cir. 1986) (victim killed by parolee
less than two months after release was
causally remote).
The troublesome treatment of
remoteness by the Fourth Circuit is
closely entwined with the issue of
causation. To hold that Bowen’s death in
1990 was a natural and foreseeable
consequence of Stroud’s inaction during
his supervision of Morris from 1983 to
1988 conflicts with the requirement of an
affirmative causal link between the
Ssupervisor’s inaction and the particular
constitutional injury suffered by the
plaintiff as set forth by this Court in
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct.
598, 46 L.Ed.2d 561 (1976). In Rizzo v.
iin
Goode, this Court held that the Mayor, the
Police Commissioner, and other high
officials were not liable in a 61983
action because there was no affirmative
link between the conduct complained of and
the actions by the officials. While this
standard was somewhat developed in Rizzo,
its decision was also based upon the fact
that the plaintiffs could not show an
unacceptably high number of incidents of
constitutional dimension. [It is urged
that the Supreme Court should more fully
develop the affirmative causal] Link
Standard in Rizzo regarding supervisory
liability to provide guidance to the lower
courts.
In Kite v. Kelley, 546 F.2d 334 (10th
Cir. 1976), the Tenth Circuit Court of
Appeals applied the Rizzo decision to a
case in which the FBI and U.S. Attorney
Generali were being sued for the acts of a
Single FBI Agent. In holding that no
Supervisory liability existed, the Circuit
Court held that:
The ‘affirmative link"
requirement of Rizzo means to us
that before a superior may be
held [liable] for acts of an
inferior, the Superior,
expressly o otherwise, must
have partici d or acquiesced
in the nstitutional
~
deprivations of which complaint
—Pisv we AVIS ud de Wnicn | pi a sik
o
. &
ct?
O @M
The few isolated incidents over the
five year period of supervision by Stroud
and the fifteen month gap do not establish
the affirmative link necessary to show
that Stroud participated in or acquiesced
in the alleged constitutional violation
resulting in the death of Sidney Bowen.
The impact of this case is not
limited to law enforcement officials. It
applies to state and local jailers and
corrections personnel, Q’‘Quinn v. Manuel,
773 F.2d 605 (5th Cir. 1984), Slakan v.
Porter, 737 F.2d 368 (4th Cir. 1984) cert.
denied, 470 U.S. 1035, 105 S.Ct. 1413, 84
L.Ed.2d 796 (1985); school teachers and
principals, Stoneking v. Bradford Area
School District, 882 F.2d 720 (3rd Cir.
1989) cert. denied, 493 U.S. 1044, 110 S.
Ct. 840, 107 L.Ed.2d 835 (1989), Lopez v.
Houston Independent School District, 817
F.2d 351 (5th Cir. 1987); transportation
workers, Collins v. Harkers Heights,
U.S. . 112 S.Ct. 1061, 117 L.Ed.2d 261
(1992); mental health personnel, Revere v.
Massachusetts General Hospital, 463 U.S.
239, 103 S.Ct. 2979, 77 L.Ed.2d 605
(1983); and any other supervisor in a
state or local governmental position.
eit
II. THE INTERVENING SUPERVISION OF
SERGEANT SMITH SHOULD INSULATE
STROUD FROM LIABILITY IN THIS
CASE.
For the fifteen (15) month period
after Sergeant Stroud was transferred from
Troop B-5 to New Bern, and up until the
incident in question, Sergeant Smith was
the District First Sergeant. This
intervening supervision breaks any causal
link between Stroud and Morris’ and
insulates Stroud from Supervisory
liability. The importance of this concept
was overlooked by the Fourth Circuit
Opinion which conflicts with Rizzo v.
Goode. It is respectfully urged that the
lack of any causal connection is
demonstrated in two ways. First, the
Fourth Circuit found that Sergeant Smith’s
Supervision was constitutionally adequate,
both on the merits, 13 F.3d at 801, (App.
18) and under the standards of qualified
immunity. 13 F.3d at 803. (App. 21). If
in fact the actions of Smith were
constitutionally adequate, and it is urged
that they were, that necessarily should
break any causal connection between
Stroud’s supervision and Morris’ conduct
in February, 1990. Even if the isolated
incidents used to _ impose Supervisory
liability on Stroud are deemed to be
sufficient, the remoteness as to Stroud
and apparently appropriate action taken by
sergeant Smith should cure any possible
at Re
defects in supervision occurring during
the years 1983 through November, 1988.
The curative effect of intervening
Supervision is an issue that needs to be
addressed by this Court.
Secondly, as the dissent points out,
the fifteen (15) month time lapse was not
the only factor breaking the links of the
causal chain in this’~ case. Once
transferred, Stroud lost the opportunity
to correct any alleged unconstitutional
conduct by Morris. The dissent concluded:
A person should be responsible
for the natural consequences of
his actions, but not necessarily
for consequences that can occur
only if an independent
tortfeasor intervenes.
13 F.3d at 807. (App. 29).
The net result of the Fourth Circuit
Opinion is that a previous supervisor will
be responsible for the actions of his
subordinates if it is alleged that any
complaints occurred during the previous
Supervisor’s tenure. This could be true
regardless of whether subsequent
Supervisors acted constitutionally or not.
Under either scenario, it would be
manifestly unfair to subject the previous
Supervisor to liability, and the Supreme
Court needs to address this dilemma.
-14-
Rizzo v. Goode held:
[Tjhere was no affirmative link
between the occurrence of the
various incidents of police
misconduct and the adoption of
any plan or policy by
petitioners ~ express or
otherwise ~ showing their
authorization or approval of
such misconduct.
423 U.S. at 371.
The intervening supervision of Smith
clearly breaks the affirmative causal link
required by Rizzo.
IIIf. THIS CASE PRESENTS ADDITIONAL
ISSUES OF IMPORTANCE TO LOWER
COURTS THAT HAVE NEVER’ BEEN
ADDRESSED BY THE SUPREME COURT.
: Supervisory Liability
This court has never’ stated the
standard of supervisory liability, but has
held that state executive officials at the
highest level can be held liable for
constitutional violations committed.
Scheuer v. Rhodes, 416 U.S. 23a, 94 &.Ct.
1683, 40 L.Ed.2d 90 (1974). Most of the
lower courts have relied upon this Court’s
decisions concerning municipal policy
cases. see Monell _v. Dept. of Social
services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978); City of Canton v.
Harris, 489 U.S. 378, 109 S.Ct. 1197, 103
—)
L.Ed.2d 412 (1989).
The Circuit Courts have adopted
similar standards, but not identical, to
that relied upon by the Fourth Circuit in
determining supervisory liability. The
Fourth Circuit standard requires’ the
plaintiff to meet a heavy burden of proof
and show deliberate indifference. Shaw v.
Stroud, 13 F.3d at 799 {App. i153). See
Fernandez v. Chardon, 681 F.2d 42, at 56
(lst Cir. 1982) (notice of pervasive
constitutional violation or if their
failure to supervise "is so severe as to
amount to gross negligence or deliberate
indifference to constitutional violations
"); Doe v. Taylor Independent School
Diatrice. 975 F.20. i37, 266 Stn. Cir.
1932) (notice of a pattern of
unconstitutional acts demonstrated
deliberate indifference to or a tacit
authorization of the offensive acts and
failed to take sufficient remedial action
which was a proximate cause of injury);
Haynesworth v. Miller, 820 F.2d 1245,
1259-63 (D.C. Cir. 1987) (collecting cases
on this issue).
B. Qualified Immunity
The qualified immunity analysis was
flawed. The Fourth Circuit stated that
the particularized right was that of the
Fourth Amendment. This is a _ general
right. This Court has said that a court
oe
must look at the particular conduct of the
Supervisor and determine if that conduct
has ever been specifically determined to
violate the Fourth Amendment. Anderson v.
Creighton, 483 U.S. 635, 639-40, 107 S.Ct.
3034, 97 L.Ed.2d 523 (1987) (Due Process
Clause is too general; the law must be
more particularized when applied to
qualified immunity). The officer "will
not be immune if, on an objective basis,
it is obvious that no reasonably competent
officer could have concluded the conduct
was unconstitutional". Malley v. Briggs,
475 U.S. 335, 341, 106 S.Ct. 1092, 89
L.Ed.2d 271 (1986). If officers of
reasonable competence would disagree on
this issue, immunity should be recognized.
475 U.S. at 341. The standard for use of
force was not clearly established during
Stroud’s tenure. 13 F.3d at 802 (App. 19-
20). Stroud responded to some complaints
and not to others. The complainants were
convicted of using force against Morris.
Officers can disagree about whether this
conduct was adequate, and therefore,
Stroud is entitled to immunity.
NCLUSION
The Supreme Court needs to
definitively offer guidance in 42 U.S.C.
§1983 claims regarding Supervisory
liability. Fairness to all litigants,
both plaintiffs and defendant supervisors,
compels Clarification of supervisory
a 2,
liability responsibilities and _ duties
where the supervisor was not in control at
Or near the time of the incident
complained of against the employee.
Therefore, the petitioner C.I. Stroud
prays that a writ of certiorari issue to
review the judgment of the United States
Court of Appeals for the Fourth Circuit.
Respectfully submitted this the 26th
day of May, 1994.
SUMRELL, SUGG, CARMICHAEL & ASHTON, P.A.
Attorneys for Petitioner C. I. Stroud
BY: <A CLeAGn LZ
RUDOLPH A. ASHTON, III
State Bar I. D. No. 0125
310 Broad St., P.O. Drawer 847
New Bern, North Carolina 28563
Telephone: (919) 633-3131
Of Counsel:
Michael F. Easley
Attorney General of North Carolina
BY: Zunoe 7 (leew, Z
ISAAC T. AVERY, III
State Bar I. D. No. 6011
Special Deputy Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
Telephone: (919) 733-7952
oiktia
No. 93 -
IN THE SUPREME COURT OF THE UNITED STATES
October Term 1993
C. I. STROUD, Individually,
Petitioner
vs.
DEBORAH SHAW, Administratrix of the Estate
of Sidney Bowen,Deceased, and NANCY BOWEN,
Individually and as guardian ad litem for
KIMBERLY YVONNE BOWEN and LEE FREDERICK
BOWEN, the minor children of Sidney Bowen,
Respondents
CERTIFICATE OF SERVICE
I, Rudolph A. Ashton, III, do swear
or declare that on this date, the 26th day
of May, 1994, pursuant to Supreme Court
Rules 29.3 and 29.4, I have served the
attached motion for leave to proceed in
forma pauperis and petition for a writ of
certiorari on each party to the above
proceeding, or that party’s counsel, and
On every other person required to be
served by depositing in an envelope
+.
containing the above documents in the
United States Mail properly addressed to
each of them and with first-class postage
prepaid.
The names and addresses of those
served are as follows:
MR. JAMES E. FERGUSON, II
Ferguson, Stein, Watt, Wallas,
Adkins & Gresham, P.A.
Suite 730 East Independence Plaza
700 East Stonewall Street
Charlotte, North Carolina 28202
MR. SAMUEL T. CURRIN
Attorney at Law
Chocklett Tower, Suite 508
3100 Smoketree Court
Raleigh, North Carolina 27604
This the 26th day of May, 1994.
SUMRELL, SUGG, CARMICHAEL & ASHTON, P.A.
Attorneys for Petitioner
BY: (CA. hkl i.
RUDOLPH A. ASHTON, III
NC State Bar No. 0125
310 Broad St., Post Office Drawer 847
New Bern, North Carolina 28563
Telephone: (919) 633-3131
«ttn
Opinion of the United States
Appeals for the Fourth Circuit
(1-6-94)
APPENDIX
Court
Opinion of United States District
Judge, E.D.N.C.
(8-5-92)
Order Denying Petition for Rehearing
with Suggestion for Rehearing in banc
(2-25-94)
42 U.S.C. $1983
new
of
30
69
a
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