# Petition for Writ of Certiorari — Stroud v. Shaw > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1623%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 813 ## Text ~ 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 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