Petition for Writ of Certiorari — Harwick v. Anderson

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Supreme Court, U.8.

FILED

98 56 JUN 301998

DOCKET NO.: OFFICE OF THE CLERK

UNITED STATES SUPREME COURT

OCTOBER 1997 TERM

MELVIN HARWICK

Petitioner,

Vs.

DEWAYNE “ANDY” ANDERSON, INDIVIDUALLY

AND AS SHERIFF OF MCCLAIN COUNTY,

OKLAHOMA, A POLITICAL SUBDIVISION OF THE

STATE OF OKLAHOMA, BY AND THROUGH ITS

BOARD OF COUNTY COMMISSIONERS, AND JOHN

DOES, UNKNOWN JAILERS AND DEPUTIES OF

MCCLAIN COUNTY, OKLAHOMA

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT APPEALS FOR THE

TENTH CIRCUIT

George Caporal

Counsel of Record for Petitioner

221 SW 25"

Oklahoma City, OK 73109

(405) 235-3888

QUESTIONS PRESENTED FOR REVIEW

1. The Court of Appeals erred in sustaining the District

Court’s ruling that the Respondent was not vicariously liable

for the acts of his employees.

2. The Court of Appeals erred in sustaining the District

Court’s ruling sustaining Respondent’s Motion for Summary

Judgment.

PARTIES

The caption herein contains all parties to this case and

pursuant to SUPREME COURT RULE 14(1)(b) they are not

listed here.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...........00++ ii

PARTIES iii

CITATIONS OF THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS

ENTERED IN THE CASE BY THE COURTS (FULL

VERBATIM TEXT SET OUT IN APPENDIX 2) 1

BASIS FOR JURISDICTION ........cccccccssseerceereeenees 2

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND REGULATIONS

INVOLVED IN THIS CASE (FULL VERBATIM TEXT

SET OUT IN APPENDIX 1) .........cccersessseeeenseeseenees Ls

STATEMENT OF THE CASE .........ccccssccessseerseenees 4d

ARGUMENT .ccccocscoscosccssesscsccccsccccccssecscosvencesoncseneres 6

THE COURT OF APPEALS ERRED IN SUSTAINING

THE DISTRICT COURT’S RULING THAT THE

RESPONDENT WAS NOT VICARIOUSLY LIABLE

FOR THE ACTS OF HIS EMPLOYEEGS.............. 6

THE COURT OF APPEALS ERRED IN SUSTAINING

THE DISTRICT COURT’S RULING SUSTAINING

RESPONDENT’S MOTION FOR SUMMARY

JUDGMENT. 12

APPENDIX 1 16

APPENDIX 2 21

APPENDIX 3 31

APPENDIX 4.... 37

APPENDIX 5 ieee 39

APPENDIX 6 ei 41

APPENDIX 7 43

APPENDIX 8 45

APPENDIX 9 .46

APPENDIX 10... ‘iit ... 48

CASES

Allen v. Muskogee, Okl., 119 F.3d 837 (10th Cir.

1997), cert. denied, 1998 WL 83676 (U.S. 1998) ---------- 8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). 13

Andrews v. Philadelphia, 895 F.2d 1469, 1488 (3d

Cir. 1990), 11

Applied Genetics Int'l. Inc. v. First Affiliated Sec..,

Inc., 912 F.2d 1238, 1241 (10th Cir.1990). 12

Aptheker v. Secretary of State, 378 US 500, (1994)---------- 14

Carey v. US Postal Service, 812 F.2d 621 13

Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L.

Ed. 2d 265, 106 S. Ct. 2548 (1986)

City of Springfield v. Kibbe, 480 U.S. 257.

City of Springfield v. Kibbe, 777 F.2d 801, 805-09

(1st Cir. 1985), cert. dismissed as improvidently

granted, 480 U.S. 257, 107 S. Ct. 1114, 94 L. Ed.

2d 293 (1987) (per curiam).

Deepwater Invs. Ltd. v. Jackson Hole Ski Corp.,

938 F.2d 1105, 1110 (10" Cir. 1991).

Garcia v. Salt Lake County, 768 F.2d 303, 308-09

(10th Cir. 1985)

Hays v. Jefferson County, 668 F.2d 869, 873-74

(6th Cir.), cert. denied, 459 U.S. 833, 74 L. Ed.

2d 73, 103 S. Ct. 75 (1982).

McClelland v. Facteau, 610 F.2d 693, 695 (10th Cir.

1979).

McKay v. Hammock, 730 F.2d 1367, 1374 (10th

Cir. 1984).

McKay v. Hammock, 730 F.2d 1367, 1375 (10th

Cir. 1984)

Meade v Grubbs (1988, CA10 Okla) 841 F2d 1512,

10 FR Serv 3d 1137

Rizzo v. Goode, 423 U.S. 342, 371, 46 L. Ed. 2d

561, 96 S. Ct. 598 (1976)

9, 10, 13

Rock v. McCoy, 763 F.2d 394, 397 (10th Cir. 1985) ------

Specht v. Jensen, 832 F.2d 1516, 1524 (10th Cir.

1987)

Varela v. Jones, 746 F.2d 1413, 1418 (10th Cir.

1984) 10

Wolfenbarger v. Williams, 774 F.2d 358, 365 (10th

Cir. 1985), cert. denied, 475 U.S. 1065, 89 L. Ed.

2d 602, 106 S. Ct. 1376 (1986). 9

STATUTES

19 Okl. St. § 513 11

19 Okla. Stat. §§ 19, 47 12

28 USCS § 1254 2

42 USCS § 1983 7,8

Okla. Stat. Ann. tit. 19, §§ 513 & 547(A). 9

U.S. CONSTITUTION 14™ AMENDMENT §1 3

RULES

Fed.R.Civ.P. 56(c), 12

TREATISES

Antieau, Federal Civil Rights Acts § 51 8

Vii

CITATIONS OF THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS

ENTERED IN THE CASE BY THE COURTS (FULL

VERBATIM TEXT SET OUT IN APPENDIX 2)

1. An Order issued by the United States District Court for the

Western District of Oklahoma in Case No.: CIV-96-1369-A,

filed October 23, 1997.

2. Judgment issued by the United States District Court in

Case No.: CIV-9\6-1369-A, filed October 23, 1997.

3. An Order and Judgment issued by the United States Court

of Appeals for the Tenth Circuit in Case No.: 97-6390 filed

May 7, 1998.

BASIS FOR JURISDICTION

The date the judgment or order sought to be reviewed

was entered on May 7, 1998 in the United States Court of

Appeals for the Tenth Circuit. There was no request for

rehearing. The statutory provision believed to confer this

Court jurisdiction to review on a writ of certiorari the

judgment or order in question is 28 USCS § 1254.

Notification pursuant to SUPREME COURT RULE 29.4(b) is not

required.

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND REGULATIONS

INVOLVED IN THIS CASE (FULL VERBATIM TEXT

SET OUT IN APPENDIX 1)

1. FEDERAL RULES OF CIVIL PROCEDURE RULE 56.

2. 42 U.S.C. § 1983.

3. U.S. CONSTITUTION 14™ AMENDMENT §1.

STATEMENT OF THE CASE

This is a review of a judgment of the United States

Court of Appeals for the Tenth Circuit. The basis for the

initial Federal Jurisdiction was predicated on a federal

question. Accordingly, the basis of jurisdiction is couched

under 28 U.S.C. 1331. The facts of this case are as follows:

Petitioner was arrested on August 18, 1995 and detained

in the McClain County jail until August 25, 1995 without

an appearance before a judge. See Appendix 3.

Petitioner was arrested pursuant to an out of county

bench warrant based on an erroneous allegation of non-

support. See Appendix 4.

No written policy exists in McClain County with regard

to a bench warrant arraignment procedure. See Appendix

It is the policy of McClain County to utilize bench

warrants as a collection device. Consequently bond

amounts are set in the same amount as the arrearage

shown on the bench warrant. See Appendix 6.

Respondents knew of least 10 occasions where civil

arrestees were held without arraignment until they posted

a cash bond. See Appendix 7.

Respondent Anderson testified that his responsibilities

included (a) making sure that Petitioner was given an

initial court appearance; (b) making and implementing

the policies and procedures regarding arraignments; and

Petitioner was not in contempt of any order. See

Appendix 9.

8. Petitioner repeatedly requested to be brought before the

Court during his detention and informed the jail

personnel of his right to an arraignment. See Appendix

10.

ARGUMENT

THE COURT OF APPEALS ERRED IN SUSTAINING

THE DISTRICT COURT’S RULING THAT THE

RESPONDENT WAS NOT VICARIOUSLY LIABLE

FOR THE ACTS OF HIS EMPLOYEES.

This case is the epitome of the average American’s

nightmare. It is more egregious to Petitioner who routinely

serves, without pay, as a volunteer police officer, as he was

seized and forcibly taken from his job' pursuant to an

erroneous bench warrant. But that was just the start of

Petitioner’s nightmare. After being forcibly taken he was

then held in jail for almost a week without being taken in

front of a judge. Moreover, Petitioner was well aware of his

constitutional rights, as he is a police officer.” Ke repeatedly

beseeched the sheriff to afford him the most rudimentary of a

citizen’s rights — to go before a judge and was denied at

every turn. Unquestionably Petitioner’s civil rights were

violated. One would think that under the facts his redress

would certainly be available in our court system, but alas,

because Petitioner could not actually name the jail personnel

he is being denied what only amounts to fundamental justice.

The spirit of 28 U.S.C. 1983 was best stated by

Senator Thurman of Ohio when he stated:

It authorizes any person who is deprived of

any right, privilege, or immunity secured to

him by the Constitution of the United States,

to bring an action against the wrong-doer in

the Federal courts, and that without any limit

' Petitioner was a long time employee with the US postal service with a

spotless record.

* It is further noteworthy that he served his country during the Vietnam

war and is a disabled vetran.

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whatsoever as to the amount in controversy.

The deprivation may be of the slightest

conceivable character the damages in the

estimation of any sensible man may not be

five dollars or even five cents; they may be

what lawyers call merely nominal damages;

and yet by this section jurisdiction of that civil

action is given to the Federal courts instead of

its being prosecuted as now in the courts of

the States.

The facts of this case are certainly not complex.

Essentially Petitioner was arrested on a bogus bench warrant

issued by an out of county judge. The bench warrant was

apparently picked up on the teletype machine and the

McClain Sheriff's department arrested Petitioner. He was

wrongfully held for nearly a week, constantly demanding that

he be arraigned so that he might be released. His pleas

however fell to deaf ears and he was never taken in front of a

judge. The District Court ruled that summary judgment

should lie in this matter because Petitioner failed to show

“individual participation on the part of the sheriff.” Appendix

2. Petitioner named the jail personnel and deputies in his

complaint as “John Does,” and demanded their names but the

Respondent stated that they were unavailable. So then, we

must concern ourselves with the vicarious liability of the

sheriff. It has been acknowledged that the purpose of 42

USCS § 1983 is to provide a civil action to protect persons

against the misuse of power possessed by virtue of state law

and made possible because a defendant was clothed with the

authority of the state, and that such a defendant subjects

another person to deprivation of constitutional rights within

the meaning of the statute if he or she does an affirmative act,

participates in another's affirmative act, or omits

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to perform an act which he or she is legally required to do.’

Historically, in civil rights action against a sheriff, in order to

successfully pursue claim under 42 USCS § 1983 based upon

his alleged failure to adequately train or supervise

subordinate deputy officers, plaintiff had to provide proof of

gross negligence amounting to deliberate indifference, and

proof of simple negligence was insufficient to impose

liability on either chief or municipality; further, conduct

alleged had to be, but was not, proximate cause of

subordinate's violation of plaintiff's civil rights. Fratiello_v

Mancuso (1987, DC RI) 653 F Supp 775. Moreover the

Tenth Circuit recently held that the inadequacy of police

training may serve as basis for section 1983 liability when

failure to train amounts to deliberate indifference to rights of

persons with whom police come into contact. Allen v.

Muskogee, OKI., 119 F.3d 837 (10th Cir. 1997), cert. denied,

1998 WL 83676 (U.S. 1998) and cert. denied, 1998 WL

83679 (U.S. 1998). Additionally, in denying motions of a

county and a county sheriff to dismiss a section 1983 action,

the court, in Hill v Marinelli (1982, ND Ill) 555 F Supp 413,

held that arrestees, who claimed mistreatment and unlawful

arrest, stated a claim where they alleged, as in the case at bar,

that the deprivation of their constitutional rights was caused

by the county and the sheriff's negligent failure to instruct,

supervise, control, investigate, and discipline the officers

involved and by the supervisors' direct or indirect approval of

the officers' conduct. The court reasoned that although the

causal connection between the county's policies and the

arrestees might not be a strong one, the court could not

conclude that the arrestee could prove no set of facts that

would establish such a connection. The court further

observed that the sheriff could be held liable under section

1983 if he had personal knowledge of or direct involvement

in the complained-of actions. Similarly, with respect to

> See Antieau, Federal Civil Rights Acts § 51.

liability of supervisory defendants under Civil Rights Act, 42

USCS § 1983, complaint, in order to survive summary

judgment, must allege either that supervisor ordered or

directed constitutional violations, or that supervisor knew or

should have known of wrongdoing and did nothing to correct

situation even though he had legal obligation to do so, or that

supervisor maintained policy which encouraged disregard for

constitutional rights. Stoute v Berman (1982, DC Mass) 555

F Supp 507.

In short what the courts have sought is that

‘affirmative link' that exists between the [constitutional]

deprivation and either the supervisor's personal participation,

his exercise of control or direction, or his failure to supervise.

The Oklahoma Courts have found that “affirmative link”

under the state statute making sheriff accountable for proper

management of jail. Meade v Grubbs (1988, CA10 Okla) 841

F2d 1512, 10 FR Serv 3d 1137; Specht v. Jensen, 832 F.2d

1516, 1524 (10th Cir. 1987) (reh'g en banc granted on other

grounds, and judgment, but not opinion, vacated Feb. 4,

1988, 837 F.2d 940), quoting McKay v. Hammock, 730 F.2d

1367, 1374 (10th Cir. 1984). See also Rizzo v. Goode, 423

U.S. 362, 371, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976);

McClelland v. Facteau, 610 F.2d 693, 695 (10th Cir. 1979).

Under Oklahoma law, a sheriff is responsible for the proper

management of the jail in his county and the conduct of his

deputies. Okla. Stat. Ann. tit. 19, §§ 513 & 547(A). As a

result, a sheriff is statutorily liable in a section 1983 action

whenever a sheriff, in a position of responsibility, knew or

should have known of the misconduct, and yet failed to

prevent future harm. Anthony v. Baker, 767 F.2d 657, 666

(10th Cir. 1985).* In Meade the plaintiff alleged that Sheriff

Sharp customarily failed to properly supervise his deputies,

* See also Wolfenbarger v. Williams, 774 F.2d 358, 365 (10th Cir. 1985),

cert. denied, 475 U.S. 1065, 89 L. Ed. 2d 602, 106 S. Ct. 1376 (1986).

Ee nT

and that he was deliberately indifferent to Meade's

constitutional rights. Sheriff Sharp had no contact with the

plaintiff but was held liable to plaintiff on the basis of the

Oklahoma statute.* In Meade the Court reasoned that plaintiff

had sufficiently stated a section 1983 claim against Sharp in

his individual capacity for improperly hiring, training,

supervising and disciplining his deputies. Meade had alleged

that the assault was the result of Sheriff Sharp's "common

practice and pattern" of improperly hiring, training,

supervising and disciplining deputy sheriffs. Since Sheriff

Sharp was responsible for establishing the county's policy

regarding the use of force in the Oklahoma County jail, the

complaint sufficiently attributed the wrongdoing to a county

policy so as to withstand a motion to dismiss. See McKay v.

Hammock, 730 F.2d 1367, 1375 (10th Cir. 1984) (en banc);

see also. Rock v. McCoy, 763 F.2d 394, 397 (10th Cir.

1985) (holding that city may be liable under section 1983 if it

was grossly negligent in failing to train police officers who

allegedly assaulted the plaintiff); Varela v. Jones, 746 F.2d

1413, 1418 (10th Cir. 1984) ("custom or policy may include

[municipality's] continuing failure to train, supervise, or

discipline its police force"). Cf.Garcia v. Salt Lake County,

768 F.2d 303, 308-09 (10th Cir. 1985) (holding that the

Sheriffs policy concerning medical care in county jails

qualified as policy attributable to a municipal policymaker).

Thus the Meade Court held it was error to dismiss the section

1983 claim against the Sheriff since the court could not

affirmatively state that the plaintiff could not prove facts that

might establish wrongdoing attributable to the county, and

that dismissal must be reversed.

* See also City of Springfield v. Kibbe, 777 F.2d 801, 805-09 (Ist Cir.

1985), cert. dismissed as improvidently granted, 480 U.S. 257, 107 S. Ct.

1114, 94 L. Ed. 2d 293 (1987) (per curiam).

a oF he bite EE Oe

The Oklahoma Statute is unequivocal regarding the

liability of the sheriff as stated below:

19 Okl. St. § 513 (1997) Custody of jail The

sheriff shall have the charge and custody of

the jail of his county, and all the prisoners in

the same, and shall keep such jail himself, or

by his deputy or jailer, for whose acts he

and his sureties shall be liable.[Emphasis

Added]

See also 19 Okl. St. § 547 (1997) which provides that:

The sheriff shall be responsible for the official

acts of the undersheriff and deputy sheriffs,

and may revoke such appointments at the

pleasure of the sheriff.

It is the fundamental nature of the job that the sheriff

or the undersheriff may in writing depute certain persons to

do particular acts. A supervisor or municipality may be held

liable where there is essentially a complete failure to train, or

training that is so reckless or grossly negligent that, as in the

case at hand, future misconduct is almost inevitable. Hays v.

Jefferson County, 668 F.2d 869, 873-74 (6th Cir.), cert.

denied, 459 U.S. 833, 74 L. Ed. 2d 73, 103 S. Ct. 75 (1982).

See City of Springfield v. Kibbe, 480 U.S. 257.

The District Court relied on Andrews v. Philadelphia,

895 F.2d 1469, 1488 (3d Cir. 1990), in making its decision.

However such reliance is misplaced. In Andrews, the action

was based on a sexual discrimination case that turned on the

failure of the plaintiff to notify her supervisors of the

purported sexual discrimination. Apparently, the plaintiff

also could not recognize the harassers because the

harassment was made by anonymous phone calls. Unlike the

case at bar wherein jail personnel interacted with the

Petitioner, consistently and continually denying him his

SSS

constitutional rights. It is difficult to comprehend how the

District Court could equate a sexual harassment incident with

deliberate interference with a person’s liberty. Likewise,

because of the Oklahoma Statute quoted above, Petitioner

does not have to name the personnel responsible for the acts,

but only has to make the allegation, which he has done. It is

noteworthy that it was the Respondent that refused to provide

Petitioner with the names of the deputies and jail personnel

that abridged his civil rithts.

Additionally, the District Court opines that “plaintiff

has proffered no evidence regarding any county policy or

custom which could have caused his harm.” See Appendix 2.

This is absurd. It would highly unlikely that Respondent

would have had a policy, which would have denied Petitioner

his constitutional rights. This is not the test. The test is since

19 Okla. Stat. §§ 19, 47 impose liability on the Respondent,

and he is responsible for policy omissions that he knew or

should have known. Accordingly, such questions are fact

questions for a jury.

THE COURT OF APPEALS ERRED IN SUSTAINING

THE DISTRICT COURT’S RULING SUSTAINING

RESPONDENT’S MOTION FOR SUMMARY

JUDGMENT.

Summary judgment is appropriate only "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c), see Applied Genetics Int'l. Inc. v. First

Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

The factual record is viewed and reasonable inferences

therefrom in the light most favorable to the party opposing

summary judgment. Deepwater Invs. Ltd. v. Jackson Hole

Ski Corp., 938 F.2d 1105, 1110 (10" Cir. 1991). Under Rule

56(c), the moving party has the initial responsibility to show

images

that "there is an absence of evidence to support the

nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S.

317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the

moving party meets this requirement, the burden shifts to the

nonmoving party to make a showing sufficient to establish

that there is a genuine issue of material fact regarding "the

existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial." Id. at

322. The nonmoving party may not rest upon "the mere

allegations or denials of [her] pleading . . . .". Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202,

106 S. Ct. 2505 (1986). The nonmoving party must go

beyond the pleadings and establish, through admissible

evidence, that there is a genuine issue of material fact that

must be resolved by the trier of fact. Celotex, 477 U.S. at

324. "The mere existence of a scintilla of evidence in support

of the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff." Anderson, 477 U.S. at 252. Consequently, the

relevant inquiry is "whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law."

Carey v. US Postal Service, 812 F.2d 621 at 623. In the case

at hand the facts are unequivocally clear. Petitioner was

incarcerated for almost one week before being taken before a

judge. Appendix 3. Although he repeatedly asked to be taken

before a judge his requests were denied. Appendix 10. Add to

the foregoing facts the absence of any policy whatsoever to

insure that a prisoner’s constitutional rights are not violated

by Respondent® and combined with the statutory obligation

of the sheriff an almost certain issue of fact arises. As in the

foremost case, Meade v Grubbs (1988, CA10 Okla) 841 F2d

1512, 10 FR Serv 3d 1137, the sheriff customarily failed to

properly supervise his deputies, and that he was deliberately

* See Appendix 5.

indifferent to Petitioner’s constitutional rights. Although the

sheriff had no contact with the plaintiff he was held liable to

plaintiff on the basis of the Oklahoma statute imposing

liability on him for the actions of his personnel.’ Let us not

forget about what right we are discussing in this petition. It is

the right of freedom, and the most fundamental right of

system.

Freedom of movement in the very essence of

our free society, setting us apart. It makes all

other rights meaningful. Once it is curtailed,

all other rights suffer, just as when curfew or

detention is placed on a person. William O.

Douglas, Aptheker v. Secretary of State, 378

US 500, (1994)

Thus it was error to dismiss the section 1983 claim

against the Sheriff since the court could not affirmatively

state that the plaintiff could not prove facts that might

establish wrongdoing attributable to the county, and that

dismissal must be reversed.

Respectfully submitted,

221 S.W. 25"

Oklahoma City, OK 73109

” See also City of Springfield v. Kibbe, 777 F.2d 801, 805-09 (Ist Cir.

1985), cert. dismissed as improvidently granted, 480 U.S. 257, 107 S. Ct.

1114, 94 L. Ed. 2d 293 (1987) (per curiam).

(405) 235-3888

APPENDIX 1

1. USCS Fed Rules Civ Proc R 56 Summary Judgment

(a) For Claimant.A party seeking to

recover upon a claim, counterclaim, or

cross-claim or to obtain a declaratory

judgment may, at any time after the

expiration of 20 days from the

commencement of the action or after

service of a motion for summary judgment

by the adverse party, move with or

without Supporting affidavits See 2 8

summary judgment in the party's favor

upon all or any part thereof.

(b) For Defending Party. A party against

whom a claim, counterclaim, or cross-

claim is asserted or a declaratory

judgment is sought may, at any time, move

with or without supporting affidavits for

a summary judgment in the party's favor

as to all or any part thereof.

motion shall be served at least 10 days

before the time fixed for the hearing.

The adverse party prior to the day of

hearing may serve opposing affidavits.

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and

admissions on file, together with the

affidavits, if any, show that there is no

genuine issue as to any material fact and

that the moving party is entitled to a

judgment as a matter of law. A summary

judgment, interlocutory in character, may

be rendered on the issue of liability

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sneer ene enemmenamammemecnmaa ie CUO E AAI oS MST aie

alone although there is a genuine issue

as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion.

If on motion under this rule judgment is

not rendered upon the whole case or for

all the relief asked and a trial is

necessary, the court at the hearing of

the motion, by examining the pleadings

and the evidence before it and by

interroga-ting ccunsel, shall if

practicable ascertain what material facts

exist without substantial controversy and

what material facts are actually and in

good faith controverted. Lt shall

thereupon make an order specifying the

facts that appear without sub-stantial

controversy, including the extent to

which the amount of damages or other

relief is not in controversy, and

directing such further proceedings in the

action as are just. Upon the trial of the~

action the facts so specified shall be

deemed established, and the trial shall

be conducted accordingly.

(e) Form of Affidavits; Further

Testimony; Defense Required. Supporting

and opposing affidavits shall be made on

personal knowledge, shall set forth such

facts as would be admissible in evidence,

and shall show affirmatively that the

affiant is competent to testify to the

matters stated therein. Sworn or

certified copies of all papers or parts

thereof referred to in an affidavit shall

be attached thereto or served therewith.

The court may permit affidavits to be

supplemented or opposed by depositions,

answers to interrogatories, or further

affidavits. When a motion for summary

judgment is made and supported as

provided in this rule, an adverse party

may not rest upon the mere allegations or

denials of the adverse party's pleading,

but the adverse party's response, by

affidavits or as otherwise provided in

this rule, must set forth specific facts

showing that there is a genuine issue for

trial. If the adverse party does not so

respond, summary judgment, if

appropriate, shall be entered against the

adverse party.

(f) When Affidavits are Unavailable.

Should it appear from the affidavits of a

party opposing the motion that the party

cannot for reasons stated present by

affidavit facts essential to justify the

party's opposition, the court may refuse

the application for judgment or may order

a continuance to permit affidavits to be

obtained or depositions to be taken or

discovery to be had or may make _ such

other order as is just.

(g) Affidavits Made in Bad Faith. Should

it appear to the satisfaction of the

court at any time that any of the

affidavits presented pursuant to this

rule are presented in bad faith or solely

for the purpose of delay, the court shall

forthwith order the party employing them

to pay to the other party the amount of

the reasonable expenses which the filing

of the affidavits caused the other party

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to incur, including reasonable attorney's

fees, and any offending party or attorney

may be adjudged guilty of contempt.

2. 422. 0968. _§:'.1983::. Civil: action. for

deprivation of rights. Every person who,

under color of any statute, ordinance,

regulation, custom, or usage, of any

State or Territory or the District of

Columbia, subjects, or causes to _ be

subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation

of any rights, privileges, or immunities

secured by the Constitution and laws,

shall be liable to the party injured in

an action at law, suit in equity, or

other proper proceeding for redress,

except that in any action brought against

a judicial officer for an act or omission

taken in such officer's judicial

capacity, injunctive relief shall not be

granted unless a declaratory decree was

violated or declaratory relief was

unavailable. For the purposes of this

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of

the District of Columbia.

3. USCS Const. Amend. 14 @ 1 (1998).

Section 1. Citizens of the United

States. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

Property, without due Process of law; nor

deny to any person within its

Jurisdiction the equal Protection of the

laws.

APPENDIX 2

1. An Order issued by the United States District Court for the

Western District of Oklahoma in Case No.: CIV-96-1369-A,

filed October 23, 1997.

23, {i es i

ORDER

aR cae Rd lel i

Before the Court are cross motions for summary judgment.

Defendant Board of County Commissioners (the County) and

defendant Dwayne Anderson (the Sheriff) filed separate

motions on August 19,1997. Plaintiff filed a motion for

summary judgment on August 191 1997.

On August 18, 1995, plaintiff was arrested pursuant to a

bench warrant. The bench warrant, issued on August 11,

1997, indicates that plaintiff is charged with "Indirect Civil

Contempt and Meivin Harwick Fails to Appear.” The

warrant commands the sheriff to detain plaintiff until further

order of the Court. The warrant sets a $5,000 cash bond.

Plaintiff was not brought before a judge until August 25,

1995. Plaintiff was released on August25, 1997.

bt) BORN RL Ne Se Rs tt $A AEA 5 MgO ce ERM AEDS SRE

OO REGION

he ct EAE ALR pI,

Plaintiff brings a number of claims under 42 U.S.C. § 1983.

The complaint makes very general allegations of “violation

of constitutional rights" against the sheriff and John Does,

and claims against the County that it had a policy and

practice of wrongful imprisonment and denial of medical

treatment, and that it failed to adequately train its officers and

jailers. The complaint also charges the “Sheriff and/or

Jailers” with negligence! intentional infliction of emotional

distress, and "malicious abuse of process, false arrest, and

false imprisonment."'

' The Court can only consider claims against named defendants in the

case, not against John Does or unnamed “jailers.”

4 21

Summary judgment is appropriate if the pleadings and

affidavits show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P.56(c). "[A]

motion for summary judgment should be granted only when

the moving party has established the absence of any genuine

issue as to a material fact." Mustang Fuel Corp. V.

Youngstown Sheet & Tube Co., 561 F.2d 202, 204(1 0th Cir.

1977).

Motion of the County

Local governments may be sued under 42 U.S.C. § 1983

when they are alleged to have violated a plaintiffs civil rights

via a policy or custom either officially or unofficially

adopted by the local government. St Louis V. Praprotnik, 485

U.S. 112,121(1958). Plaintiffs claims against the County are

for having a policy and practice of wrongful imprisonment

and denial of medical treatment, and for failure to adequately

train its officers and jailers. Plaintiff sets out the elements of

these claims in the complaint itself but he does not allege

facts which support the claims against the County.

Plaintiff has only shown evidence of a single event; one

event does not demonstrate the existence of a policy. See

Monell v New York City Dept of Social Services, 438 U.S.

658 (1977). The only evidence of other similar occurrences

is the testimony of Undersheriff Delmar Barrow indicating

that on fewer than ten occasions civil arrestees had been held

without being taken directly to a judge. Undersheriff Barrow

is not a named defendant in this case. His testimony of other

incidents gives no detail as to the circumstances involved.

Some information on the circumstances of the other incidents

would be necessary to demonstrate the existence of a policy.

Harwick has shown no evidence that the County has failed to

adequately train its officers or jailers. This type of claim

requires a showing of “deliberate indifference to the rights"

of plaintiff. Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir.

1993). The complaint states that defendants acted with

"wanton indifference to and deliberate disregard for”

plaintiff's rights, but plaintiff alleges no specific fads which

support this claim.

Plaintiff has failed to make out a prima fade case against the

County. Summary judgment is GRANTED to the Board of

County Commissioners of McClain County.

Motion of the Sheriff

The Sheriff moves for summary judgment both in his official

and individual capacities. In his individual capacity, the

sheriff argues that he is protected by qualified immunity.

More to the point is the Sheriffs contention that Harwick has

failed to show that the Sheriff had any personal participation

in the events of

Harwick's detention. The Sheriff testified in deposition that

he had never heard of Harwick until after the filing of this

action. Thus he cannot be individually liable for any claim

under section 1983 based on his own conduct, nor can he be

individually liable for any state law tort.

Summary judgment is GRANTED to the Sheriff in his

individual capacity.

In cases under section 1983, “[a]n official-capacity suit is, in

all respects other than name, to be treated as a suit against the

entity.” Kentucky v. Graham, 473 U.S. 159,166 (1985)

(quoted in Taylor v. Meacham, 82 F.3d 1556,1564 (1996).

Thus, the claims against the Sheriff in his official capacity

must be treated as claims against the County. As with the

claims against the County discussed above, Harwick has

failed to show any facts that make out a claim of policy or

custom, or failure to train.

Harwick has failed to establish that the Sheriff in his official

capacity is liable for any state law tort. As discussed above,

the Sheriff had no personal involvement in the events of

Harwick's detention. To establish respondeat superior

liability for a ton, Harwick would have to allege a tort

committed by named person who can be shown to be an

employee of the Sheriff. Harwick has failed to show that the

sheriff is Table in his official capacity for state law torts.

Summery judgment is GRANTED to the sheriff in his

official capacity.

Conclusion

The complaint includes claims under the Oklahoma

Governmental Tort Claims Act, however these claims were

“withdrawn” by plaintiff in his response to the motion of the

County. Therefore, claims under the Oklahoma

Governmental Tort Claims Act are DISMISSED.

Although the circumstances Of Harwick's detention amount

to a prima fade case of violation of due process under 42

USCS § 1983, Harwick has not named any undersheriff or

jailer that might be a proper defendant in this action.

Accordingly, for the reasons discussed above, Harwickls

motion for summary judgment is DENIED. Summary

judgment is GRANTED to the County of McClain and to

Sheriff Anderson.

WAYNE E. ALLEY

UNITED STATES DISTRICT JUDGE

2. Judgment issued by the United States District Court in

Case No.: CIV-9\6-1369-A, filed October 23, 1997.

JUDGMENT

eR tet ee

;

{

;

Chea ise A ahatio Baaiiet iE NEST YE ABEL lt ep eA ANSE Nis EES NO MEAP CRORE

Ce ce ree

Pursuant to the Order issued October 23 1997, judgment is

entered in favor of the defendants, the Board of County

Commissioners of McClain County, Oklahoma, and Dwayne

"Andy"" Mderson1 individually and in his official capacity

as Sheriff of McClain County, Oklahoma, and against the

plaintiffl Melvin E. Harwick.

WAYNE E. ALLEY

UNITED STATES DISTRICT JUDGE

ENTERED ON JUDGMENT DOCKET ON

OCTOBER 23, 1998

3. An Order and Judgment issued by the United States Court

of Appeals for the Tenth Circuit in Case No.: 97-6390 filed

May 7, 1998.

ORDER AND JUDGMENT’

Before TACHA, LOGAN, and LUCERO, Circuit Judges

After examining the briefs and appellate record, this panel

has determined unanimously that oral argument would not

materially assist the determination of this appeal. See Fed. R.

App. P.34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Melvin E. Harwick was arrested pursuant to a bench

warrant issued by a state court judge which stated on the face

* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an

order and judgment may be cited under the terms. and conditions of 10th

Cir. R. 36.3.

of the warrant that plaintiff would be released upon the

posting of a $5000 cash bond. Plaintiff was detained in the

McClain County, Oklahoma, jail for seven days before being

arraigned.

He brought this action under 28 U.S.C. § 1983 alleging

violation of his constitutional rights as a result of the delay in

the arraignment and because of insufficient attention to his

medical needs while incarcerated. Plaintiff also brought

various state-law-based tort claims. As defendants, plaintiff

named Dwayne Anderson, individually and as sheriff of

McClain County; McClain County, by and through its Board

of County Commissioners; and John Does unknown jailers

and deputies.

In granting summary judgment for defendants, the district

court found that plaintiff failed to allege facts to establish a

county policy of wrongful imprisonment and denial of

medical treatment and, therefore, could not maintain his

claim against the county. As to the sheriff, who was sued

both individually and in his official capacity, the court held

that plaintiff had failed to show any individual participation

on the part of the sheriff, thus dooming plaintiff's effort to

establish individual liability. With regard to the official

capacity claims against the sheriff, the court again concluded

that plaintiff had failed to set out facts tending to establish an

official policy or custom or failure to train on the part of the

sheriff. Because there was no showing of any personal

involvement on the part of the sheriff; state law tort claims

against him individually similarly- failed. Further, because no

individuals in the sheriff's employ were named as defendants,

plaintiff failed to establish respondeat superior liability in tort

to sustain the official capacity suit. Finally, the court found

that plaintiff had withdrawn his claims brought under the

Oklahoma Governmental Tort Claims Act.

In our de novo review of the grant of summary judgment, we

apply the same standard as that used by the district court. See

(oa Rp URS Cab aia eid LAER

Jenkins v_ Wood, 8! F.3d 988, 990 (10th Cir. 1996). That

standard is a familiar one: a court correctly grants summary

judgment only where "there is no genuine issue as to any

material fact and [] the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P.56(c). As is required, we

have examined the record in the light most favorable to

plaintiff; as the nonmoving party, and have extended to him

all reasonable factual inferences. See Jenkins, 81 F.3d at 990.

We affirm.

The court properly granted the motion for summary judgment

filed by the McClain Board of County Commissioners.

"Under Oklahoma law, the Board has

no statutory duty to hire, train, supervise or discipline the

county sheriffs or their deputies.". Meade v. Grubbs, 841

F.2d 1512, 1528 (10th Cir. 1988). Only by showing that the

Board "voluntarily undertook responsibility for hiring or

supervising [McClain] county law enforcement officers," id,

would plaintiff even be able to state a claim against the

Board under these circumstances. Plaintiff made no such

allegation. To the extent plaintiff attempts to establish

liability on the part of the county through a theory of

respondeat superior, his effort fails because § 1983 does not

encompass respondeat superior liability on the part of a

municipality. See Monell v. Department of Social Servs., 436

U.S. 658, 691 (1978).

Turning to the sheriff individually, our review of the record

reveals no evidence of any personal participation by the

sheriff in the incidents involving plaintiff. It is undisputed

that the sheriff had no knowledge of plaintiffs long

incarceration without arraignment or the alleged denial of

medical treatment until he was informed by his attorney of

this lawsuit. The sheriff, therefore, cannot be held

individually liable for the situation that befell plaintiff. See

Bennett v Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)

("Personal participation is an essential allegation in a § 1983

claim."); see also Mee v.Otega 967 F 2d 423, 430-31(10th

Cir. 1992) (finding no § 1983 liability where there was no

affirmative link between the constitutional violation and the

supervisor's own actions, citing Meade, 841 F.2d at 1527).

Further, because plaintiff did not identify a specific

defendant or defendants who personally participated in the

alleged harm, he cannot maintain a cause of action against

the sheriff individually based on respondeat superior liability.

See Andrews v. Philadelphia, 895 F.2d 1469, 1488 (3d Cir.

1990).

Plaintiff also sued the sheriff in his official capacity, thus, in

reality attempting to impose liability on McClain County.

See Meade, 841 F.2d at 1529. "For a county to be held

responsible, it must have caused the harm through the

execution of its own policy or custom by those whose edicts

or acts may fairly be said to represent official policy." Id.

Plaintiff has proffered no evidence regarding any county

policy or custom which could have caused his harm. He

merely testified to his own knowledge of practices in other

sheriff's departments and surmised that the policies and

customs of defendant must have been the genesis of the harm

to him. This is insufficient to sustain a claim against the

sheriff in his official capacity.

Plaintiff argues that the testimony of Undersheriff Barrow is

sufficient evidence of county policy. We disagree. Mr.

Barrow testified as follows:

' Plaintiff complains that he was unable to specifically name defendants

because jail personnel did not wear nametags. We note that the district

court docket sheet reflects as least two extensions of the discovery

deadline and an order authorizing the issuance of a subpoena for

disclosure of records and appearance for deposition and trial. Given these

and other mans available to plaintiff under the Federal Rules of Civil

Procedure, plaintiff should have been able to identify specific defendants.

NRO R IIS pean hd.

Q: [H]ave you had other civil cases where the judges say till

they meet the face of the bond, don't bring them over for an

arraignment?

A. On occasion.

Q. On occasion? Can you tell me now many times?

A. I honestly don't remember.

Q. More than 10?

A. Less than 10.

I R. tab 39, Barrow deposition at 24-25.

We agree with the district court that this evidence is

insufficient to establish a practice or policy on the part of the

Sheriffs Department. Plaintiff provided no detail of the

circumstances of those prior incidents. At best, the evidence

identifies a practice of the county judges and not one of these

defendants.

To the extent plaintiff claimed that the sheriff was liable for

failure to train his deputies, plaintiff must put forth evidence

tending to establish that "the failure to train amounts to

deliberate indifference to the rights of persons with whom the

police come into contact." City of Canton v. Harris, 489 U.S.

378, 388 (1989). In order to be liable, the sheriff must have

had notice that his departmental procedures were inadequate

and substantially certain to result in a violation of plaintiff's

constitutional rights. See id. at 396 (O'Connor, J., concurring

in part). Specifically with regard to a failure to train claim,

plaintiff "must prove 'the need for more or different training

is so obvious, and the inadequate so likely to result in the

violation of constitutional rights, that the..[sheriff] can

reasonably be said to have been deliberately indifferent to the

need' for additional training." Jenkins, 81 F.3d at 994

(quoting Haris, 489 U.S. at 396). Because plaintiff here seeks

to establish liability on the basis of a single incident, he

"must show the particular illegal course of action was taken

pursuant to a decision made by a person with authority to

make policy decisions on behalf of the entity being sued." Id.

While the parties do not dispute that the sheriff had the

authority to make decisions concerning the operation of the

jail, there is no evidence that the failure to arraign plaintiff in

a timely manner or the alleged failure to provide medical care

were due to any action, inaction, or decision of the sheriff.

Plaintiffs claims against the sheriff in his official capacity,

therefore, must fail.

Plaintiff states in his opening brief that the federal court had

no authority to dismiss his state court action. The federal

court did not dismiss a state court action; it granted summary

judgment to defendants on plaintiff's state law claims which

were part of the federal lawsuit. The federal court had the

power to do this and, indeed, was required to so act when

plaintiff failed to establish a basis upon which he could

prevail against defendants on the state law tort claims.

Finally, plaintiff asserts that the district court erred because it

failed to consider the wording on the face of the warrant

which directed the sheriff to take plaintiff to the nearest

magistrate. These words add nothing to the analysis and do

not change the outcome of this case. The district court

acknowledged that plaintiff's detention amounted to a prima

facie due process violation under § 1983. Unfortunately for

plaintiff, however, he was unable to show that the defendants

he sued were liable for that violation. AFFIRMED.

Entered for the Court

James K. Logan Circuit Judge

APPENDIX 3

Deposition of Sheriff Anderson taken on May 16, 1997 at pg.

43:

A Yes, sir.

Q He's, I guess, the person you look to far legal

advice?

A. Yes, sir, especially on Civil cases.

Q Okay. Do you have any personal knowledge as to

why Mr. Harwick was . arraigned on Friday?

No, sir.

And why he wasn't arraigned on Monday?

No, sir.

Or Tuesday?

No, sir-

Q Or Wednesday?

A_ No, sir.

Q Or Thursday?

A No, sir.

I believe he was let go the following Friday,

released that Friday afternoon. Do you know?

A No, sir.

Q Okay. Do you have any way to contact a judge on

weekends - -

A Yes, sir.

Q for arraignments? Have you ever done that for an

arraignment?

A_ Not on weekends for arraignments.

Deposition of Delmar Barrow, Undersheriff taken

on May 16, 1997 pages 18-22:

A Yes, sir.

Q_ Did you ever discuss with Judge Ewing yourself

that we need to bring this man before the court on an

arraignment?

A No.

Q Did you ever have any discussions with the

secretary/bailiff that we need to bring this man before the

court on an arraignment?

A __ I requested twice to get him before the court and

was refused twice.

Q Okay. So you requested Friday afternoon?

A Yes.

Q And the secretary/bailiff said they were over, or

did you talk to Judge Ewing on Friday afternoon?

A I talked to the secretary/bailiff.

Q By secretary/bailiff we're going to refer to her as

A APRA AORTA PAA, ithe ns

A At that time crystal wells.

Q Okay. And then Monday you attempted again?

A Yes. Monday I had him on the arraignment list

and was -- and was told, no, and scratched his name off.

Q Okay. Let me hand you what's been previously

marked Plaintiff's Deposition Exhibit 8 and ask you if that is

a copy of the arraignment list you're discussing for Monday,

August 21° 1995?

A Yes.

Q And so when the secretary/bailiff said don't bring

him over we're not going to give him an arraignment, you

scratched his name off?

MS. JONES: | object to the form.

THE WITNESS I can’t answer that yes or no.

(BY MR. BOREN) Let me rephrase. So when the

secretary/bailiff said don't bring him over, what did you do?

A When they called for arraignments that day! she

said all of your arraignments except Harwick.

Q And do you know why she specifically excepted

Harwick?

A Ido not, no.

Q Have you had an occasion to ask Judge Ewing

since lawsuit was filed?

A No.

Q What is Judge Ewing's typical reputation or

character, or how would you describe it?

MS. JONES: Is this a fair question?

MR. BOREN. I think in this lawsuit it is.

THE WITNESS: I would answer that off the record.

Judge Ewing may not always be right, but he is the judge.

Q (BY MR. BOREN) Okay. So Tuesday, the next

day, what did you do? Did you put him on the arraignment

list again?

A No, I did not.

Q_ And why didn't you do that?

A Monday when we were told not to -- to except

him and not bring him to court, I was again given the answer,

be governed by the bond on the face of the warrant. I just

done that.

Q. Okay.

A In other words, as far as I was concerned, the

bond at $5,000 cash.

Q Okay. But didn’t you also realize at that time that

were other prisoners that had bonds on their warrants were

being taken before the court for an arraignment?

MS. JONES Object to the form.

(BY MR. BOREN) Did you realize at that time - - go

on and answer. I mean she objected to it, but you can still

A Yes.

‘

;

“

Q Did you believe that was fair or right?

A_ I -- we need to go off the record with that.

MS. JONES: You can answer him. He wants to

know your opinion.

THE WITNESS: Whether I thought it was fair or

not doesn't matter.

MS. JONES: Well he's just asking you what you

think. Go ahead.

THE WITNESS. No, I did not think it was fair.

Q (BY MR. BOREN) And then Tuesday what did

you do to try to yet him on the arraignment -- or try to get

him an arraignment? Let me rephrase that. Tuesday, what

did you do to try to get him on the arraignment list again or

to bring tim before the court for an arraignment?

A I don’t recall.

Q Well, did you at that time just give up trying to

get him before the court, or did you just consider at that time

A I considered at that time that his bond was $5,000

cash

Q And until he could post $5,000 cash, he would

stay here?

A Yes.

Q And he would stay there without the opportunity

for an arraignment?

A Without the opportunity for arraignment., yes.

Q__ And did you believe that to be true again on

Wednesday?

A Yes, I did.

Q And how about on Thursday?

A Yes I did.

Q And what happened Friday?

A Friday, for some reason, when they called for

Arraignments they told me to bring Melvin Harwick before

the court.

Q And when you say they?

A Judge Ewing through his bailiff.

Q_ The same bailiff we've discussed before?

A Ye.

Q_ And why did they at that time decide to conduct

an arraignment?

A I can't answer that. I don't know.

Q_ They just said bring him?

A Yes.

Q_ Okay. If they had not called, how long do you

think Mel Harwick would have stayed in McClain County

Jail, if that call had not occurred?

A In lieu of bond?

CEPT TL RPO

‘

Q In lieu of bond.

A_ I don’t know. I can't answer that.

Q Okay. Could have been indefinitely?

MS. JONES: object to the form.

THE WHNESS: I don't know.

Q (BY MR. BOREN) Well, how long before the

sheriff's department would have done something on their

own or just let Mr. Harwick go before he had an

alraignment?

A Wecouldn't let him go. He was being held in lieu

of bond

Q Without an arraignment?

MS. JONES: Object to the form. You understand

his question?

APPENDIX 4

Deposition of Judge Ewing taken on July 31, 1997:

holiday, it tends to be even worse. You might have I've had

as high as in the 20's to arraign. And when you do that,

probably two-thirds of them have made bond. If it's a

warrant arrest, we have a practice of puttin9 bonds on there

in advance so they can make bond immediately after their

arrest. They call the bondsman or post cash, or, you know,

put up - there's no procedure for putting up property, but if

they've got the cash or a bondsman, they get out of jail.

Q Is that the procedure in a civil warrant?

sae

A Right, right There's a slot on the civil warrants for

setting bond, and generally, those are child support matters.

Probably 80 to 90 percent of them are child support matters,

and usually, it's being - the plaintiffls attorney will be there

asking for it, and the amount will be the approximate value of

the arrearage of the support plus a reasonable attorney's fee

for the prosecution of the contempt citation, and I round it

off.

Q_ well, let me hand you -- I think you're looking at the

same thing.

A Right.

Q_ This one has been marked as Plaintiff's Deposition

Exhibit Number 1?

A Right.

Q_ And ask you to identify that bench warrant?

A That looks like the one on Mr. Harwick. It doesn't have

a file stamp on it, this one doesn’t. The one I have has a file

stamp on August 22" 1995.

Q Is that an extra copy, the one you have, or is that the

court file?

A This is the one Ms. Jones provided me.

MR. BOREN: Do you mind if we mark that as an extra

copy?

MS. JONES: That's fine.

MR. BOREN: Since he's referring to that one, also

Q (By MR. BOREN) I'll mark the one that is file stamped

as Plaintiff's Deposition Exhibit Number 2.

BS a a ere a

A Okay.

Q But right now, regarding civil bench warrants, you

indicated there was a cash bond or some bond that is set?

A Right, right. The distinction being if it's a contempt

situation, you're dealing with a slightly different critter from

an ordinary criminal citation. There's an equitable maxim

that says contempt is Coercive, and I would, rather than lead

those people to believe that it's a good deal to pay a

bondsman, which a bondsman, I would assume, would

charge at least 10 percent, I would rather see the man's or the

woman's spouse, or whoever the aggrieved party is, get the

money than a bondsman.

Q And that's the reason that, for example, the cash bond

was —

APPENDIX 5

A Yes, sir.

Q So, basically, when Mr. Harwick was incarcerated, the

~ standards by plaintiff's Exhibit Number | were basically the

exact same?

A Yes.

Q Okay. And if there's anything material in the difference

of the old jail standards and the new jail standards as we

discuss this, you'll let me know?

A Yes, I'll let you know, but I don't think there will be.

Q Okay. Is there anything in Defendant's -- or excuse me,

plaintiffls Deposition Exhibit Number 2 that talks about

arraignment procedures?

A No

Q Okay. What does McClain County utilize as a policy for

basis for arraignment procedures?

A We're governed by the court.

Q Okay. So it's the custom of what you've been doing, or

do you have a specific court order that says how the

arraignments are to be utilized or followed?

A_ No, not to my knowledge.

Q Okay. So you don't have a court order for them?

MS. JONES: He asked you do you have a court order.

THE WITNESS: No.

Q (BY MR. BOREN) Okay. When you say you're

governed

Sees RR inrcldan ee

APPENDIX 6

by the court, will you explain what you mean by that?

A It's the judges' practice here that we have our

arraignments daily, Monday through Friday. They're

generally done at 1:30 in the afternoons, 1.30 p.m, and

whichever judge has the clear docket is the one that will call

to do the arraignments, and he'll call downstairs and say

bring all your prisoners for arraignment before my court.

Q And then the sheriff takes all the prisoners that have

not had an arraignment before that judge?

A We do, yes.

Q You're not contending that that was done with Mr.

Harwick for approximately one week, are you?

MS. JONES: Not contending what?

Q (BY MR. BOREN) That he was taken up for one

week?

A Mr. Harwick, for some reason, - -

MS. JONES: Just answer his question.

THE WITNESS: All right. May I have the question

again?

Q (By MR. BOREN) You're not contending that Mr.

Harwick was taken before a judge prior to the end of one

week or eight days, are you?

A No.

Q Okay. And what were you going to say in your

explanation?

A Mr. Harwick, for some reason, was excepted by the

APPENDIX 7

A Yes.

Q_ To set bond without -

A That’s what I --

MS. JONES: wait for his question.

Q (BY MR. BOREN) Okay. But as undersheriff you

know that indefinite detention without due process or an

arraignment violates somebody's Civil rights, do you not?

A That's not a yes or no answer either. His bond was set.

Q You don't believe that an individual should be taken an

independent judge upon arrest to determine and the warrant

and set a bond?

A Ina criminal case, yes. In a civil case, the judge that

issues the bench warrant should be the judge that reviews --

that does the arraignment or reviews the warrant.

Q___ So you say there's a difference between criminal and

civil cases?

A Yes.

Q Is that the policy of McClain County sheriff's

Department?

A No.

Q__Is that normal? I mean have you had other civil where

the judges say till they meet the face of the don,t bring them

over for an arraignment?

A On occasion.

Q On occasion? Can you tell me how many times?

A_ I honestly aon't remember.

Q More than 10?

A Less than 10.

Qs And that's less than 10 since you've been here or since

1989 since you've been undersheriff?

A Yes

Q You heard Mr. Harwick's testimony yesterday, did you

not?

A Yes.

Q Are you in agreement with him that upon arrest an

individual is entitled to an arraignment as quickly as

reasonably is possible?

A Yes.

APPENDIX 8

Deposition of Sheriff Anderson taken on May 16, 1997:

Q Youdon't know? He never told you about those?

A_ No, sir.

Q_ okay. would you say it's true that the sheriff is typically

responsible for making sure that the constitutional rights of

inmates in his jail are not violated?

A Yes.

Q And isn't it true that the sheriff is responsible to make

sure that an inmate that is incarcerated in his jail will go to

court after the initial arrest?

A Yes.

Q Do inmates in the McClain County Jail have a certain

period of time to wait before they are taken before the court

after their arrest

A Certain period of time, no, unless they're intOoxicated.

Q Okay. Do you have a period of time that you make sure

they get before a court after their arrest? what's your policy

regarding that?

A The DA’rs office and the court is notified every morning

of who is back there and the ones that have not been

arraigned and so forth.

~— APPENDIX 9

Deposition of Melvin E. Harwick taken on May 15, 1997:

A Yeah, that's what's later, but I was never As I said, I didn't

know anything about it.

I'll hand you the bench warrant on what you were and

ask you to take a moment and look at that.

a * | 2 £8?

Very well.

Have you had a chance to look at that?

Uh~huh.

Is that yes?

Yes, 1 have ‘ooked at this.

Before today have you seen a copy of this bench

warrent

o> £6 56 2S OP

Yes, I have.

And do you remember the first time you saw it?

No, I do not.

Was it --

Sometime while I was incarcerated.

And you see clearly that it says on there $5,000 cash

Cash bond, yes.

Do you have any complaints --

Somebody has crossed out surety or property, see.

Right.

I was made aware of this when I tried to get that bond

when I was down there in jail.

APPENDIX 10

Deposition of Harwick taken on May 15, 1997:

Page 212 line 23:

A. The judge was made aware that I was here. He was made

aware that I wanted an arraignment and a bond.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.