Bryson v. City of Edmond

Page 1386

905 F.2d 1386

Ruth Ann BRYSON, individually and as administratrix of the estate of Patty Husband; Gary Chambers, individually and as administrator of the estate of Patty Chambers and as guardian and next friend of Tricia Chambers; Janet Esser individually and as administratrix of the estate of Richard Esser and as guardian and next friend of Richard Esser, III and Shannon Esser; Lisa Hamilton, individually and as representative of the estate of Patricia Gabbard; Kim Baker, individually and as representative of the estate of Patricia Gabbard; Judith Morey, individually and as administratrix of the estate of Kenneth Morey; Robert Morey, individually; Carla Phillips, individually and as executrix of the estate of Leroy O. Phillips and as guardian and next friend for Craig Arthur Phillips and Christopher Lee Phillips; Dorothy Pyle, individually and as executrix and personal representative of the estate of Jerry Pyle Lynda Rockne, individually and as administratrix of the estate of Paul Rockne and as guardian and next friend of Damien Rockne; Gene Bray; Lois Bray; Ron Blackwell William Nimmo; Tracy Sanchez; Steven Vick; and Judy Walker, Plaintiffs-Appellants, v. CITY OF EDMOND, a municipal corporation; Clent Dedek individually and in his official capacity as Chief of Police of the City of Edmond; John Doe, individually; William Savage, individually; and Dale Fowlkes, individually, Defendants-Appellees.

No. 89-6100.

United States Court of Appeals, Tenth Circuit.

June 12, 1990.

Steven M. Angel, Oklahoma City, Okl., for plaintiffs-appellants.

Robert J. Turner and Richard J. Goralewicz, of Turner, Turner & Braun (Kenneth W. Turner, with them on the brief), Oklahoma City, Okl., for defendants-appellees City of Edmond and Clent Dedek.

Wm. Lee Borden, Jr., Asst. U.S. Atty. (Robert E. Mydans, U.S. Atty., and John E. Green, First Asst. U.S. Atty., with him on the brief), Oklahoma City, Okl., for defendants-appellees Dale Fowlkes and William Savage.

Before ANDERSON and EBEL, Circuit Judges, and CHRISTENSEN ^*, Senior District Judge.

CHRISTENSEN, Senior District Judge.

In this civil rights action, the plaintiffs-appellants have appealed from orders of the district court granting the defendants' motions to dismiss the complaint for failure to state claims on which relief can be granted and dismissing the action.

The plaintiffs or their decedents were injured or killed on August 20, 1986, when shot by a deranged fellow post office employee, Henry Patrick Sherrill, inside the Edmond, Oklahoma, post office. The Edmond city police arrived at the scene within minutes of the outset of the shooting but classified the massacre as a hostage situation and did not attempt to enter the building for more than an hour and a half.

I. STATEMENT OF THE CASE

Plaintiffs brought the action against the city of Edmond, its police chief Clent Dedek, the postmaster Dale Fowlkes, and two officers of the Oklahoma Air National Guard, William Savage and an otherwise unidentified and unserved John Doe from whom Sherrill allegedly obtained his weapons. The plaintiffs alleged they were deprived of substantive due process and associational rights in violation of the Fifth and Fourteenth Amendments. The claim against the city, the police chief and the guardsmen was designated as a 42 U.S.C. Sec. 1983 action and the claim against the postmaster a Bivens action. ¹ In addition, a pendent wrongful death claim was asserted, which was dismissed by the district court without prejudice when the federal claims failed.

The district court held that plaintiffs failed to state a section 1983 claim because no liberty interest ² was implicated and the plaintiffs did not allege the requisite intent or level of conduct for a constitutional violation. The plaintiffs were afforded opportunity to amend but elected not to do so, and all their claims were dismissed.

On appeal, the plaintiffs insist they did state cognizable section 1983 and Bivens claims. Specifically they argue that a substantive due process claim was stated against the city and its police officers and a claim for deprivation of associational rights was stated against the postmaster and the guardsmen.

The factual allegations concerning the conduct of the defendants, eliminating redundancies, are set out in the margin. ³

The allegations of the complaint concerning the state of mind or intent of all the defendants while engaging in such conduct employed essentially these terms: that they "acted intentionally, wilfully and with wanton disregard for plaintiffs' rights and/or through gross negligence." See R.Vol. I, Tab 1, p 25 at 6; p 31 at 12; p 31 at 13; p 36 at 19. Concerning the conduct of the guardsmen and the postmaster particularly, the complaint added that by "their acts and conduct defendants intentionally, or with conscious disregard for plaintiffs' rights, deprived plaintiffs and those whom they represent [of] associational rights." Id. p 33 at 14; p 36 at 19.

The Honorable Ralph G. Thompson, Chief Judge of the United States District Court for the Western District of Oklahoma, dealt with the defendants' motions to dismiss the complaint in two orders. In the first, concerning the situations of the city and police chief Dedek (the "city defendants"), he characterized plaintiffs' claims as essentially premised upon an alleged failure to successfully rescue the victims of a third party. He distinguished cases of shooting by police relied upon by plaintiffs such as Grandstaff v. City of Borger, Texas, 767 F.2d 161 (5th Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987), and Thompson v. Spikes, 663 F.Supp. 627 (S.D.Ga.1987), and observed that Taylor v. Watters, 655 F.Supp. 801 (E.D.Mich.1987), Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984), and Escamilla v. City of Santa Ana, 796 F.2d 266 (9th Cir.1986), denying recoveries, were more analogous. And he determinatively applied against the city defendants a negligence analysis, relying upon Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and citing Watson v. City of Kansas City, Kan., 857 F.2d 690 (10th Cir.1988), Ellsworth v. City of Racine, 774 F.2d 182 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986), and Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984). ⁴

In the second order, the district court dismissed the Bivens claim against postmaster Fowlkes and the section 1983 claim against the guardsman Savage, relying upon Trujillo v. Board of County Comm'rs, 768 F.2d 1186 (10th Cir.1985). ⁵

Because of the dismissal of the federal law claims and the election of plaintiffs not to amend within the time allowed, the court concluded that it should not exercise pendent jurisdiction over the state law claims, and they were dismissed without prejudice. Final judgment was entered February 16, 1989, and plaintiffs timely appealed.

II. ISSUES ON APPEAL

The issues of this appeal as framed in plaintiffs' brief are:

1. [Have plaintiffs] stated a cause of action against the City of Edmond, and its police officers, under the 14th Amendment to the Constitution of the United States arising from their actions which contributed to the death and injury of plaintiffs during the 1986 Edmond Post Office massacre?

2. [Have plaintiffs] stated a cause of action against various federal officers under the 5th Amendment to the Constitution of the United States arising from their actions which contributed to the death and injury of plaintiffs during the 1986 Edmond Post Office massacre?

Within these broad issues, particular questions are whether the charged conduct of the defendants was actionable as a violation of any constitutional duty owed to plaintiffs or their decedents either by reason of its intrinsic nature or the state of mind motivating it; for the purpose of this determination, the extent, if any, which conclusory allegations of the complaint characterizing the defendants' state of mind may prevail over the situation clearly appearing from specific allegations; and whether the situation at the post office when the shooting occurred gave rise at all to, or rendered causally relevant, the constitutional duties upon which plaintiffs premise their case.

III. STANDARD OF REVIEW

Reviewing de novo the sufficiency of the complaint, we must accept its well-pleaded allegations as true and construe them in the light most favorable to the pleader. Zinermon v. Burch, --- U.S. ----, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); National Commodity & Barter Ass'n. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir.1989). Dismissal was proper only if it appears beyond reasonable doubt that the plaintiff can prove within such allegations no set of facts in support of the claim which would entitle him to relief. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). While reasonable inferences drawable therefrom must be accepted, mere conclusions characterizing pleaded facts are not, Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 57, 58 S.Ct. 466, 467, 82 L.Ed. 646 (1938), nor are "unwarranted inferences drawn from the facts or footless conclusions of law predicated upon them." Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir.1957).

Viewing the complaint accordingly, we conclude that the district court did not err in granting defendants' motions and in dismissing the action.

IV. DISCUSSION

A.

Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), in a prison situation, firmly establishes the rule with its constitutional and decisional rationale that negligent conduct does not implicate the due process clause of the Fourteenth Amendment to afford section 1983 relief.

As has been seen, the district court employed a negligence analysis in light of Daniels to support the dismissal of plaintiffs' action against the city defendants, and we do not disagree with the result. The...