Brandon v. Holt Brief for Respondent

    No. 83-1622

In the Supreme Court of the United States
October Term, 1984

ELIZABETH BRANDON, et clI., 
Petitioners,

vs.
JOHN D. HOLT, etc., et ah. 

Respondents.

On  W rit of Certiorari to the U nited S tates 
Court of A ppeals 

FOR THE S ixth  Circuit

BRIEF FOR RESPONDENT

Henry L. Klein  (Counsel of Record) 
1500 First Tennessee Building 
Memphis, Tennessee 38103 
(901) 523-2363

Clifford D. P ierce, Jr.
City Attorney

Charles V. H olmes 
Senior Assistant City Attorney

P aul F. Goodman 
Assistant City Attorney 
314-125 North Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Respondent

E. L. M endenhall, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030





QUESTIONS PRESENTED

I.
Was the Court of Appeals correct in holding that a po­

lice supervisory official was entitled to a qualified im­
munity defense based upon good faith?

II
Was this case tried on the proper standard to impose 

liability against the Police Director in his official ca­
pacity?

III.
Does the decision of the Court of Appeals create a 

conflict among the Circuits?



II

LIST OF PARTIES
The plaintiffs in this action are Elizabeth A. Brandon 

and James D. Muse. The defendants are Robert J. Allen 
and E. Winslow Chapman, Director of Police, City of 
Memphis. While the case was pending in the Court of 
Appeals, Petitioners sought to substitute John D. Holt 
for E. Winslow Chapman by operation of Rule 43(c) (1), 
Federal Rules of Appellate Procedure.



I l l

TABLE OF CONTENTS

Questions Presented ..................................................... i
List of Parties .....................................................   ii
Table of Authorities ........................................    iv
Opinions Below .............................................................. 1
Jurisdiction ..................................................................... 2
Statement of the Case .................................................  2

(a) Proceedings Below ..........................................  2
(b) The Incident of March 5, 1977, Involving Of­

ficer A llen..........................................    4
(c) Background of Officer Allen............................ 4
(d) Role of Director Chapman.........................    6

Summary of Argument .................................................  8
Argument—

I. The Court of Appeals was correct in holding
that a police supervisory official was entitled 
to a qualified immunity defense based upon 
good faith ....................................   10

II. The case was not tried on the proper stan­
dard to impose liability against the Police 
Director in his official capacity ........ ,...........  16

III. The decision of the Court of Appeals does not
create a conflict among the Circuits .............  20

Conclusion ..................................................................... 21



IV

TABLE OF AUTHORITIES
Cases:
AdaTus V. Pate, 445 F.2d 105 (7th Cir.1971) .................  12
Amen v. Dearborn, 532 F.2d 554 (6th Cir.1976) ..........  10
Batista v. Rodriguez, 702 F.2d 393 (2d Cir.1983) ......  16
Berry v. McLemore, 670 F.2d 30 (5th Cir.1982) ..........  19
Bonner v. Coughlin, 545 F.2d 565 (7th Cir.1976)  .....  11
Brandon v. Allen, 719 F.2d 151 (6th Cir.1983) .............  1
Brandon V. Allen, 516 F.Supp. 1355 (W.D.Tenn.l981) .... 1
Brown v. U.S., 486 F.2d 284 (8th Cir.1973) .................  11
DeVasto v. Faherty, 658 F.2d 859 (1st Cir.1981) ......  19
Delaney v. Giarrusso, 633 F.2d 1126 (5th Cir.1981) ..... 16
Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.

1980) .............................................................. .............. 14
Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir.

1981) ...........   19
Howell V. Cataldi, 464 F.2d 272 (3d Cir.1972) ..........  11
Hughes v. Blankenship, 672 F.2d 403 (4th Cir.1982),

rehearing and rehearing en banc denied ..................14,18
Jennings v. Davis, 476 F.2d 1271 (8th Cir.1973) ..........  12
Key V. Rutherford, 645 F.2d 880 (10th Cir.1981), re­

hearing denied .......................................................... 14,18
Knipp V. Weikle, 405 F.Supp. 782 (N.D.Ohiol975) ....... 12
Kostka V. Hogg, 560 F.2d 37 (1st Cir.1977) .................  11
Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.

1978) ............................................................................  11
Lewis V. Kugler, 446 F.2d 1343 (3d Cir.1971) ..........  17
McLaughlin v. City of LaGrange, 662 F.2d 1385 (11th 

Cir.1981), rehearing and rehearing en banc denied 
(1982) ....................................................   19



Monell V. New York Department of Social Services,
436 U.S. 658 (1978) ..........................10,12,13,15,16,20

Moore v. Buckles, 404 F.Supp. 1382 (E.D.Tenn.l975) —. 12 
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) .... 13 
Owen V. City of Independence, 445 U.S. 622 (1980) ....9,14,

19, 20
Page v. Sharpe, 487 F.2d 567 (1st Cir.1973) .............  11
Polk County v. Dodson, 454 U.S. 312 (1981) .............  16
Procunier v. Navarette, 434 U.S. 555 (1978) ...............  15
Richardson v. City of Indianapolis, 658 F.2d 494 (7th

Cir.1981)....................................................................... 19
Scheuer v. Rhodes, 416 U.S. 232 (1974) ..................... 18
Shannon v. Lester, 519 F.2d 76 (6th Cir.1975) ..........  12
(Smith V. Ambrogio, 456 F.Supp. 1130 (D.Conn.l978) .... 17
Tyler v. Woodson, 597 F.2d 643 (8th Cir.1979) ..........  19
Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir.1980) .... 14 
Walters v. City of Ocean Springs, 626 F.2d 1317 (5th

Cir.1980)......................................................................  19
Williams v. Vincent, 508 F.2d 541 (2d Cir.1974) ......  11
Wood V. Strickland, 420 U.S. 308 (1975), rehearing 

denied 421 U.S. 921 ...................................................  15

Constitutional and Statutory Authorities:
U.S. Constitution Amend. XIV .....................................2,10
28 U.S.C. §1254(1) .......................................................  2
28 U.S.C. §1331 ............................................................. 10
42 U.S.C. §1983 ....................................................... 2,12,16
42 U.S.C. §1988 ............................................................ 2,18

Other Authorities
3B Moore’s Federal Practice |f^25.01[13], 25.09[3] ......  15

V



'M



No. 83-1622

In the Supreme Court of the United States
October Term, 1984

ELIZABETH BRANDON, et al, 
Petitioners,

vs.
JOHN D. HOLT, etc., et al., 

Respondents.

On Writ of Certiorari to the U nited S tates 
Court of A ppeals 

for the S ixth Circuit

BRIEF FOR RESPONDENT

OPINIONS BELOW
The decision of the United States Court of Appeals for 

the Sixth Circuit is reported at Brandon v. Allen, 719 F.2d 
151 (6th Cir.1983). The Order Denying Petition for Re­
hearing en Banc, which is not reported, was filed Decem­
ber 2, 1983. A. 44a.̂  The Findings of Fact, Conclusions 
of Law, and Order of the District Court are reported at 
516F.Supp. 1355 (W.D.Tenn.l981).

1. Citations to the opinions below are to the appendix to
the petition for a writ of certiorari and are designated as A. ......
Citations to the record below are to the Joint Appendix and are 
designated as App..........



JURISDICTION
The Judgment of the Court of Appeals was entered on 

October 11, 1983. The Petition for Rehearing en Banc was 
denied on December 2, 1983. The Petition for Writ of Cer­
tiorari was filed on March 30, 1984, and was granted on 
May 21, 1984. Jurisdiction of this Court is invoked under 
28 U.S.C. §1254(1).

STATEMENT OF THE CASE

A. The Proceedings Below
This action was commenced on February 22, 1978, by 

plaintiffs Elizabeth A. Brandon and James S. Muse seek­
ing damages for assault and battery and declaratory relief 
under 42 U.S.C. §§1983, 1988, and the Fourteenth Amend­
ment of the Constitution, arising out of an incident on 
March 5, 1977, involving Memphis Police Officer Robert 
J. Allen. Complaint Paragraph 1; App. 3a. Named as 
defendants were Wyeth Chandler, Mayor of Memphis, 
Tennessee; E. Winslow Chapman, Director of Police, and 
Robert J. Allen, an employee of the Memphis Police De­
partment. Complaint Paragraphs 4, 5, 6; App. 5a, 6a. The 
Complaint alleges that defendants Chapman and Chandler 
knew Or should have known that Officer Robert J. Allen 
was not a good and proper person to be entrusted with 
the authority and responsibility of a police officer. Com­
plaint Paragraph 26; App. 10a. The Complaint further 
alleges that defendants Chapman and Chandler acted in 
a reckless, willful, and wanton manner and that, by their 
continued employment of defendant Allen, they deprived 
plaintiffs of due process of law under the color of state 
law. Complaint Paragraph 27; App. 11a.



On July 13, 1978, pursuant to a Motion for Summary 
Judgment filed by defendants Chandler and Chapman, an 
Order was entered granting Summary Judgment for de­
fendant Chandler. Because there was some question 
whether defendant Chapman knew of any dangerous pro­
pensities of Allen, his motion was denied. App. 13a-18a. 
Due to his failure to appear and answer the charges in 
the Complaint, a default judgment was entered against 
defendant Robert J. Allen. App. la.

The case went to trial against defendant Chapman 
without intervention of a jury. Both parties to this case 
agreed that Mr. Chapman had no actual knowledge of 
Officer Allen’s dangerous propensities. A. 20a. The sole 
issue before the Court was whether Director Chapman 
should have known that Officer Allen’s dangerous pro­
pensities created a threat to the rights and safety of cit­
izens. A. 20a. Following the trial, the case was taken 
under advisement, and on July 8, 1981, the Court entered 
an Order finding that because Director Chapman should 
have known of Officer Allen’s dangerous propensities and 
because he should have taken steps to dismiss Officer Allen 
from the police force, his unjustified inaction was the cause 
of plaintiffs’ damages and injuries. A. 20a, 21a, 26a.

A Judgment was entered against both Chapman and 
Allen, and the Court referred the case to the Magistrate 
for a determination of damages. A. 27a, 28a. The Magi­
strate filed a Report and Recommendation. App. 20a-34a. 
Exceptions were filed by plaintiffs and defendant Chap­
man. On May 4, 1982, the District Judge entered an Order 
Approving and Adopting the Report and Recommendation 
of the Magistrate. App. 35a.

Both plaintiffs and defendant Chapman appealed. 
App. 2a. The Court of Appeals, Judges Lively, Merritt and



Peck reversed, holding that the District Court erred by 
finding Director Chapman liable for the acts of Officer 
Allen. A. 33a. The Court found that Chapman acted in 
good faith and was entitled to immunity. A. 38a. Peti­
tion for Rehearing en Banc was denied. A. 45a-47a. Peti­
tion for Certiorari was filed on March 30, 1984, and Cer­
tiorari was granted on May 21, 1984.

B. The Incident of March 5, 1977 Involving Officer 
Allen

Respondent adopts the statement of facts relative to 
this incident set out in the opinion of the United States 
Court of Appeals, decided and filed October 11, 1983. A. 
31a-33a.

C. Background of Officer Allen
A review of Officer Allen’s disciplinary resume in­

dicated that there were only two matters which reflected 
either unnecessary force or physical abuse. Tr. 221. On 
a prior occasion Allen, who had been assigned to the city 
jail, became involved in an altercation with a prisoner. 
Disciplinary action was taken because Allen acted in vio­
lation of a departmental regulation which required that 
at least two officers be present prior to transferring a 
prisoner from one cell to another. Allen violated that 
regulation by attempting to handle a prisoner alone, result­
ing in the altercation and minor injuries. Tr. 223-224. 
The physical abuse complaint from Mrs. Jean Deblock 
could not be substantiated and was not sustained. Tr. 221, 
222. Mrs. Deblock testified at the trial that she was abused 
and threatened by Allen after being stopped in her car on 
an interstate highway. After Allen gave her a ticket 
charging her with speeding and no driver’s license, she 
testified she called him a “rotten punk,” and that he then



physically abused her. Tr. 120. She was then arrested 
and taken to jail. Tr. 120. The case went to City Court 
and Mrs. Deblock was fined and reprimanded by the Judge 
for using abusive language and not cooperating with the 
officers. Tr. 128, 137, 139. In 1975 Allen was involved in 
an incident in which he shot and killed a burglary suspect 
caught in the act of stealing television sets from a Holi­
day Inn. Tr. 243-244. The shooting was determined by 
the Police Department to be justifiable and, after presenta­
tion to the Attorney General as to whether it was to go 
to the Grand Jury, no action was taken. Tr. 157.

Former police officer Joe Davis testified that he had 
expressed his concerns about Officer Allen to his superior, 
Captain Moore, by telling Moore that Allen had bragged 
about the shooting incident in 1975 and also about the use 
of his “killing gloves.” Davis told the captain that he did 
not want to ride with Allen any more as a fellow officer. 
Tr. 158. Captain Moore denied that Davis ever expressed 
concern to him about Allen or that he had objected to 
riding with him. Tr. 242-243. Moore was familiar with 
the shooting incident in 1975 involving Allen but did not 
recall Davis ever telling him of Allen’s bragging about 
the incident or the use of his black gloves. Tr. 243.

Other supervisory officers who had Allen under their 
command testified that they had no problems with him 
other than two or three automobile accidents. Tr. 230. 
They did not notice anything unusual about him in the 
performance of his duty or in his behavior. Tr. 237. As 
an officer, he was rated average or a little above. Tr. 230. 
Both defendant Chapman and Deputy Director Holt tes­
tified that nothing in his disciplinary resume would have 
given them cause to discharge Allen prior to the incident 
complained of in this cause. Tr. 192, 222. There were 
several commendations in Allen’s file both from inside the



department and from citizens. Tr. 217-218. In February 
of 1977, just a month prior to the incident involved in this 
case, he assisted a lady who was stranded on the interstate 
at night and took her home. Tr. 218-219. On another 
occasion he was commended for saving the life of a motor­
ist who was involved in a serious accident on the inter­
state; while off duty he broke into a burning car to save 
the driver who was trapped and unconscious. Tr. 219. 
There were other commendations from commanding of­
ficers in regard to job performance, arrests, and the manner 
in which they were handled. Tr. 219-220.

D. Role of Director Chapman
Defendant Chapman became Police Director of the 

Memphis Police Department in September of 1976, ap­
proximately six months before the incident of March 5, 
1977. Tr. 167. Prior to Chapman’s appointment, the In­
ternal Affairs Bureau, which handled complaints against 
police officers, answered directly to the Chief of Police. Tr. 
170. Director Chapman began to make changes through­
out the department during this six-month period, one of 
which was to institute a procedure whereby Internal Af­
fairs would answer directly to him. Tr. 172, 173. The 
Commander of Internal Affairs became a direct advisor to 
the Director. Tr. 176. Complaints involving serious in­
juries with respect to the use of firearms, aggravated cases 
of alleged brutality, allegations of graft or corruption, 
and other similar matters would be called to the attention 
of the Director. Tr. 175. The routine matters would be 
handled at the precinct level by the precinct commander. 
Tr. 176. The more serious matters would be handled at 
the Deputy Chief’s level, and those deemed most serious 
would be handled at the Director or Deputy Director’s 
level. Tr. 176. A case such as the one involving the in-



cident of March 5, 1977, would have been heard at the high­
est level. Tr. 177. Under the procedure set up by Director 
Chapman there was nothing about Allen’s record prior to 
this incident which, if called to his attention, would have 
required that any additional action be taken. Tr. 177. In 
some cases involving officers with questionable records, 
a transfer could alleviate the situation; however, prior to 
1980, the Director was prohibited from taking such action 
because the union contract prohibited such transfers. Tr. 
192. This system was changed at Director Chapman’s in­
sistence with good results, because he felt that such trans­
fers could effect a positive change in an officer. Tr. 193. 
The Director felt so strongly about the needed changes that 
he insisted on being a part of the labor negotiating team 
and was a signatory to the contract. Tr. 199. Director 
Chapman implemented changes to attempt to correct the 
problem within the Memphis Police Department of of­
ficers who were unwilling to come forward and make or 
confirm allegations against a fellow officer. He estab­
lished a psychological service program for officers. Tr. 
204. He established certain reporting and disciplinary 
procedures and tightened the lines of responsibility in 
order that first line supervisors were better able to identify 
and deal with problems with individual officers. Tr. 204. 
Chapman conceded that in the history of the Memphis 
Police Department there were many things that he did 
not agree with or disapproved of and stated that he aspired 
to become Police Director in order that he could institute 
changes. Tr. 208. The Trial Court in its Order commented 
on the performance by Director Chapman:

The disposition of this case, upon all of the evidence 
presented at the hearing, does not blind the Court to 
the fine record of Mr. Chapman. Neither is the Court 
unaware that the Memphis Police Department is



8

staffed by very fine men and women. This Court can 
note with satisfaction the progress made by that De­
partment under the progressive Directorship of Mr. 
Chapman. A. 26a.

SUMMARY OF ARGUMENT
The decision of the Court of Appeals was correct and 

should be affirmed. As the Court of Appeals found, this 
was a lawsuit against a Police Director individually, de­
spite plaintiffs’ assertions they sued the Director in his 
official capacity. The Complaint did not name the City as 
a defendant, nor did it specify in what capacity defendant 
Chapman was sued. For that matter, there was never any 
attempt to bring the City in as a party defendant. Yet 
throughout the case. Petitioners have participated in an 
exercise in legal gymnasics to label it as an official capacity 
action in an apparent attempt to reach the “deep pocket” 
of the City. An examination of the language in the Com­
plaint leaves little doubt that it was an action against the 
Police Director individually. Any doubt was clarified in 
the Court’s order on the Motion for Summary Judgment 
and the Court’s framing of the issue which controlled the 
trial of the case. Unfortunately the Trial Judge reached 
an inconsistent conclusion in holding defendant Chapman 
liable in his official capacity, based upon a finding on an 
issue which could only apply to an action against an in­
dividual. If the case had been truly an official capacity 
action, it would have to have been tried in accordance with 
the Monell standard. Since it was an individual capacity 
lawsuit, defendant Chapman was entitled to a good faith 
immunity defense.

This case demonstrates not only the confusion that can 
arise from trying to distinguish between individual capacity



and official capacity actions but the need for some clari­
fication by the Court. If a party is seeking to impose lia­
bility on a municipality or other governmental entity, such 
should appear clearly in the Complaint. Furthermore, if 
the entity is to be subject to such an action, it should 
be a party to the litigation. Obviously it is important in 
the defense of such a case to be put on notice as to the 
nature of the action, the relief sought and against whom 
the relief is being sought, in order that a proper defense 
can be maintained. This is especially significant since 
a good faith defense is not available to municipalities 
in view of the Court’s holding in Owen v. City of Inde­
pendence, 445 U.S. 622 (1980).



10

ARGUMENT

I.
THE COURT OF APPEALS WAS CORRECT IN 
HOLDING THAT A POLICE SUPERVISORY OFFI­
CIAL WAS ENTITLED TO A QUALIFIED IMMUNITY 
DEFENSE BASED UPON GOOD FAITH.

1. The real question involved in this case is whether 
defendant Chapman was in fact sued in his official ca­
pacity and whether the action was maintained against him 
in his official capacity or individually. The Complaint in 
this cause named as defendants Robert J. Allen, an em­
ployee of the Memphis Police Department; Wyeth Chan­
dler, Mayor of Memphis, and E. Winslow Chapman, Di­
rector of Police. App. 4a, 5a. The City of Memphis was 
not named as a defendant nor was there ever any at­
tempt to amend the pleadings to include the City. Al­
though the Complaint was filed on February 22, 1978, 
which was prior to this Court’s decision in Monell v. New 
York Department of Social Services, 436 U.S. 658 (1978), 
there was authority existing at the time which would per­
mit a direct action against a municipality pursuant to 28 
U.S.C. §1331 and the Fourteenth Amendment to the Con­
stitution. Amen v. Dearborn, 532 F.2d 554 (6th Cir. 
1976).

The Complaint did not state specifically whether Chan­
dler and Chapman were sued in their individual capacities, 
official capacities, or both. The alleged basis for the lia­
bility of Chandler and Chapman was that they “knew or 
should have known that Robert J. Allen was not a good and 
proper person to be entrusted with authority, power and 
responsibility of a police officer,” “that by their con-



11

tinned employment of Officer Robert J, Allen [they] acted 
in a manner which was reckless, willful and wanton against 
the plaintiffs,” and that “by this continued employment of 
Officer Robert J. Allen, defendants Chandler and Chapman 
have intentionally and under color of state law deprived 
the plaintiffs of due process of law.” Complaint Para­
graphs 25, 26; App. 10a, 11a. These are simple allegations 
of negligent retention involving a single incident, typical 
of the allegations found in cases brought against super­
visory personnel in their individual capacity. Kostka v. 
Hogg, 560 F.2d 37 (1st Cir.1977); Bonner v. Coughlin, 545 
F.2d 565 (7th Cir.1976); WilliaTus v. Vincent, 508 F.2d 541 
(2d Cir.1974); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 
1972); Page v. Sharpe, 487 F.2d 567 (1st Cir.1973); Brown 
V. U.S., 486 F.2d 284 (8th Cir.1973); Leite v. City of Provi­
dence, 463 F.Supp. 585 (D.R.I.1978). The allegations in 
the Complaint made no real distinction between Chandler 
and Chapman, other than that one was Mayor and the 
other Police Director. App. 10a, 11a. Both were described 
as supervisory personnel.

2. Pursuant to a motion for summary judgment on 
behalf of both Chapman and Chandler, the Court entered 
an Order granting Chandler’s motion; although Chapman’s 
motion was denied, the Court granted leave to file a re­
newed motion if additional discovery showed that there 
was no genuine issue as to Chapman’s lack of knowledge 
of Officer Allen’s dangerous propensities. App. 18a. It 
was obvious that the Court was considering Chapman and 
Chandler together in their capacity as supervisory per­
sonnel. The issues as to both were exactly the same. If 
this was in fact an official capacity lawsuit, there would 
have been no basis for granting a summary judgment for 
either of these defendants based on the issues before the 
Court. Certainly in an official capacity lawsuit, Chandler



12

who was the Mayor of the City would have been the more 
likely representative and the individual who would have 
had more influence on the policies of the City. Further­
more, it is apparent that the Court in ruling on the motion 
considered Chandler and Chapman in their individual ca­
pacities when it held as follows:

A §1983 action is not maintainable on a respondeat 
superior theory against superior officers who have 
neither caused nor participated in alleged deprivations 
of constitutional rights committed by subordinates. 
Jennings v. Davis, 476 F.2d 1271 (8th Cir.1973); Adams 
V. Pate, 445 F.2d 105 (7th Cir.1971); Moore v. Buckles,
404 F.Supp. 1382 (E.D.Tenn.1975); Knipp v. Weikle,
405 F.Supp. 782 (N.D.Ohiol975). See Shannon v. 
Lester, 519 F.2d 76, 81 (6th Cir.1975), indicating that 
the Sixth Circuit has yet to rule on this question. 
Cf. Monell v. Dep’t of Social Services, 436 U.S. 658, 
46 U.S.L.W. 4569 (June 9, 1978) (Monell held that a 
municipality could not be held liable under §1983 on 
a strict respondeat superior theory. The rationale of 
this holding would seem to preclude respondeat su­
perior liability for superior officials, as well). . . . App. 
16a, 17a.

A review of the cases cited by the District Judge in his 
Order reveals that they were basically actions against 
supervisory personnel in their individual capacities.

3. In the trial of the case the sole issue was whether 
Director Chapman should have known that Officer Allen’s 
dangerous propensities created a threat to the rights and 
safety of citizens. A. 20a. Petitioners in their brief place 
emphasis on the fact that, in their response to the motion 
for summary judgment filed by Chapnaan and in counsel’s 
opening statement, they maintained that Director Chap-



13

man was being sued in his “official capacity.”  ̂ In spite 
of these assertions the record is clear that there was never 
any effort to amend the pleadings to specifically assert that 
this was an official capacity action or to redefine the issues. 
This becomes especially significant in view of the standards 
by which an official capacity lawsuit must be tried. See 
Monell V. New York Department of Social Services, supra, 
436 U.S. at 694.

The Trial Court concluded that Director Chapman 
should have known of Allen’s dangerous propensities and 
found him liable in his “official capacity.” A. 21a. Its 
opinion is inconsistent in that it delineates the issue as 
being what Director Chapman should have known and 
then makes a finding that he is liable in his official capacity, 
clearly ignoring the Monell standards which were in effect 
at the time of the decision.

4. After the Trial Judge made his findings he referred 
the case to the Magistrate for a hearing on the issue of 
damages. A. 27a, 28a. Petitioners make a point that, in 
his Reply Brief on the issue of damages, counsel for de­
fendants relied upon the Trial Judge’s decision to avoid an 
award of punitive damages citing Newport v. Fact Concerts, 
Inc., 453 U.S. 247 (1981), and that this argument advanced 
by defendant’s counsel made no sense unless he too under­
stood that the award against Chapman in his official 
capacity was in fact an award against the City of Memphis.® 
The Court had ruled the Director was liable in his official 
capacity, and the Magistrate was making his findings based 
upon this ruling. It would be naive indeed to believe that 
counsel would come forward and concede that his client

2. Brief for Pet., 19, 20, 21.
3. Brief for Pet., 24.



14

was subject to punitive damages because he was individ­
ually liable and not liable in an official capacity. De­
fendant Chapman excepted to the findings of the Magis­
trate because it was his position he was not liable and 
therefore not subject to any award of damages.^

5. The position taken by the plaintiffs before the 
Court of Appeals was that since this is an action for dam­
ages against a party in his official capacity, it is in essence 
an action against the governmental entity of which the 
officer is an agent. Hughes v. Blankenship, 672 F.2d 403, 
406 (4th Cir.1982); Van Ooteghem v. Gray, 628 F.2d 488, 
496 (5th Cir,1980). In other words, the City of Memphis 
was liable for the acts of Director Chapman. Furthermore, 
they contended that since Chapman was acting in his 
official capacity he was not entitled to qualified immunity. 
Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir.1980); 
Key V. Rutherford, 645 F.2d 880, 883 n.5 (10th Cir.1981), 
rehearing denied.

The Court of Appeals disagreed with plaintiffs’ rea­
soning that Chapman was not entitled to a good faith de­
fense, stating that:

The plaintiffs’ argument that the qualified immunity 
is inapplicable simply because they sued Chapman 
in his official capacity is unavailing. Under Owen 
V. City of Independence, 445 U.S. 622 (1980), a mu­
nicipality is not entitled to claim the qualified im­
munity that the city’s agents can assert. But this is a 
suit against an individual, not the city. In reality, 
plaintiffs are attempting to amend their complaint so 
as to treat the Police Director as though he were the 
City in order to avoid the qualified immunity which

4. Exception of Defendant E. Winslow Chapman to Report 
and Recommendation of U. S. Magistrate filed February 12, 1982.



15

shields Director Chapman. Such an argument is 
without support in precedent or reason. (Emphasis 
supplied) A. 39a.

The findings of the Court of Appeals were correct. 
Regardless of the label placed upon this set of facts by the 
Trial Court and plaintiffs, this is nothing more than an ac­
tion against an individual who at the time was acting as an 
official of the city. This is evident from the way the case 
was originally filed and the way it was tried. To hold the 
city liable in this instance would be to find it liable be­
cause it is the employer of Director Chapman. It is clear 
that a municipality is not liable under the theory of re­
spondeat superior for injuries inflicted solely by its agents 
or employees. Monell v. New York Department oj Social 
Services, supra. Under the circumstances, Director Chap­
man was entitled to immunity based upon good faith. 
Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. 
Strickland, 420 U.S. 308 (1975), rehearing denied 421 
U.S. 921.

6. After the notice of appeal was filed in this cause 
on May 20, 1982, Petitioners sought to invoke Rule 25(d), 
Federal Rules of Civil Procedure, and Rule 43(c), Federal 
Rules of Appellate Procedure, to substitute the current 
Director of Police, John D. Holt, for Chapman. This was 
an obvious attempt to lend credence to their argument that 
this was an official capacity lawsuit. Petitioners contend 
that the decision of the Court of Appeals for all practical 
purposes abrogates these rules. This would be true if this 
was in fact an official capacity case; however, the finding 
that this was an action against an individual abrogates 
application of these rules here.®

5. 3B Moore’s Federal Practice, paragraph 25.09 [3]; para­
graph 25.01 [13].



16

II.
THE CASE WAS NOT TRIED ON THE PROPER 
STANDARD TO IMPOSE LIABILITY AGAINST THE 
POLICE DIRECTOR IN HIS OFFICIAL CAPACITY.

If, in fact, an action for damages against a party in 
his official capacity is in essence an action against the 
governmental entity of which the officer is an agent, it 
necessarily follows that the same standard's which apply 
to a direct action against a municipality would apply in 
this case. In deciding that municipalities may be sued 
directly under §1983 for constitutional deprivations, the 
Court in Monell held that the liability imposed must be 
based upon a governmental policy or custom which is 
proved to be “the moving force of the constitutional viola­
tion.” 436 U.S. at 694. In order to hold a city liable under 
§1983 for the unconstitutional actions of its employees, a 
plaintiff is required to plead and prove three elements: 
(1) an official policy or custom that (2) causes the plain­
tiff to be subjected to (3) a denial of a constitutional right 
(emphasis supplied). Batista v. Rodriguez, 702 F.2d 393 
(2d Cir.1983). If the allegations with regard to official 
policy are insufficient the case cannot be maintained. 
Polk County v. Dodson, 454 U.S. 312, 326 (1981); Delaney 
V. Giarrusso, 633 F.2d 1126 (5th Cir.1981). There is no 
allegation in the original Complaint with regard to policy 
or custom, and, even though the original Complaint pre­
dates Monell, there was never any attempt to amend to 
conform with Monell. As stated herein, Monell was de­
cided while this case was pending and before it came to 
trial. There can be no question that counsel for Petitioner 
was aware of Monell, as is reflected in the pretrial plead­
ings.® Furthermore, not only is there a requirement for

6. Brief for Pet., 19.



17

such an allegation in the pleadings, but such allegations 
must be in some detail. In Smith v. Ambrogio, 456 F.Supp. 
1130 (D.Conn. 1978), the Court enunciated the pleading 
requirements beginning at page 1137:

The standard for municipal liability predicated on 
inaction of senior personnel must be frankly acknowl­
edged as difficult to meet, A claim of this sort should 
not be initiated unless there is a sufficient factual basis 
to justify the extensive litigation that such a claim en­
tails. The typical §1983 suit against a police officer for 
his allegedly unconstitutional action generally involves 
a single episode. Discovery and trial are entirely 
manageable. But a claim of municipal liability based 
on an alleged policy reflected by a pattern of prior 
episodes will inevitably risk placing an entire police 
department on trial. Sweeping discovery will be 
sought to unearth episodes in which allegedly similar 
unconstitutional actions have been taken, and the trial 
will then require litigation of every episode occurring 
in the community that counsel believes can be shown 
to involve a similar constitutional violation. Even 
if a trial of that scope is warranted by a complaint that 
does allege overt acts with requisite particularity, 
see Lewis v. Kugler [446 F.2d 1343, 1345 (3d Cir. 
1971)] (complaint contained “detailed factual recita­
tions relating to 25 separate incidents”), neither a 
federal court nor a municipality should be burdened 
with such an action unless a detailed pleading is pre­
sented.

This sole issue upon which the case was tried was 
whether Director Chapman should have known of Officer 
Allen’s dangerous propensities, not whether there was a 
municipal policy or custom which resulted in a deprivation 
of constitutional rights. Where the injury did not arise 
from the execution of a governmental policy or custom,



18

the defendant cannot be held liable in his official capacity. 
Hughes v. Blankenship, supra, 672 F.2d at 406. The fashion 
in which the case was maintained clearly demonstrates 
that it was an individual capacity lawsuit.

In Scheuer v. Rhodes, 416 U.S. 232 (1974), the district 
court categorized plaintiffs’ §1983 action against various 
state officials as being, in actuality, an action against the 
state, barred under the Eleventh Amendment. After 
analyzing plaintiffs’ allegations in their complaints, the 
Supreme Court reversed, noting that ‘‘petitioners allege 
facts that demonstrate they are seeking to impose individ­
ual and personal liability on the named defendants for 
what they claim—but have not yet established by proof— 
was a deprivation of federal rights by these defendants 
under color of state law.” 416 U.S. at 238.

The Complaint herein demonstrates that the action 
was brought only against individuals. Mayor Wyeth Chan­
dler and Police Director Winslow Chapman, alleging that 
they “knew or should have known that Robert J. Allen 
was not a good and proper person to be entrusted with 
the authority, power and responsibility of a police officer.” 
App. 10a. Basically, the Complaint alleges defendants 
Chandler and Chapman negligently retained Allen as a po- 
ice officer. There was no allegation of a policy, practice, 
or custom of the defendants or the City of Memphis that 
deprived plaintiffs of constitutional rights. The Complaint 
sought damages only, no declaratory or injunctive relief. 
App. lla-12a.

Although the Complaint herein was filed prior to the 
Court’s holding in Monell that municipalities could be sued 
under §1983, plaintiffs never sought to amend their plead­
ings to allege a policy, practice, or custom, as was done, 
for example, by plaintiff in Key v. Rutherford, supra, 
645 F.2d at 881 n.l.



19

In DeVasto v. Faherty, 658 F.2d 859 (1st Cir.1981), 
plaintiff’s attempt to amend three months’ prior to trial, in 
order to add the city as a defendant and allege an un­
constitutional “practice, custom or policy,” was denied by 
the district court, which held that the city had already 
proven its entitlement to the qualified immunity of good 
faith. Relying on the intervening decision of Owen v. 
City of Independence, 445 U.S. 622 (1980), the Court of 
Appeals reversed, holding that the plaintiff should have 
been allowed to amend his complaint.

Where plaintiffs have failed to allege or prove un­
constitutional practices, policies, or customs, and have 
therefore failed the standard of proof required by Monell 
against a local government, dismissals have been properly 
allowed. Berry v. McLemore, 670 F.2d 30, 32-34 (5th Cir. 
1982); Harris v. City of Rosehurg, 664 F.2d 1121, 1130 (9th 
Cir.1981); McLaughlin v. City of LaGrange, 662 F.2d 1385, 
1388 (11th Cir.1981), rehearing and rehearing en banc de­
nied (1982); Richardson v. City of Indianapolis, 658 F.2d 
494, 501 (7th Cir.1981); Walters v. City of Ocean Springs, 
626 F.2d 1317, 1323 (5th Cir.1980); Tyler v. Woodson, 597 
F.2d 643, 644 (8th Cir.1979).

Even if plaintiffs herein were correct that an action 
against the police director in his “official capacity” was 
the equivalent of an action against the city, their failure 
to allege or prove a policy, practice, or custom of the 
city that resulted in the alleged constitutional deprivation 
is a fatal defect.

The Sixth Circuit Court of Appeals clearly under­
stood that plaintiffs were attempting to amend their Com­
plaint post-trial to add the city as a defendant. Despite 
plaintiffs’ references before the trial court to “official ca­
pacity,” the record below inescapably demonstrates that all



20

parties understood that the only issue was whether or not 
Director Chapman should have known of Officer Allen’s 
dangerous propensities. Between the decision in Monell 
and the trial of this cause, a period of approximately 
three years, plaintiffs never sought by amendment to add 
the city as a defendant or to make additional allegations 
of policy, practice, or custom. As the standard for liability 
was based on assertions of individual, not municipal, culp­
ability, the Sixth Circuit Court of Appeals was correct in 
holding that as a matter of law Director Chapman was 
entitled to the qualified immunity of good faith.

III.
THE DECISION OF THE COURT OF APPEALS DOES 
NOT CREATE A CONFLICT AMONG THE CIR­
CUITS.

The Court of Appeals’ opinion in this case is not in con­
flict with the other circuits. As the Court said, “. . . this 
is a suit against an individual, not the City.” A. 39a. No 
official policy or custom is involved. There is no real in­
consistency with the decisions of the Fourth, Fifth, Sev­
enth, and Tenth Circuits, or for that matter with the 
decisions of this Court in Monell and Owen, supra.



2 1

CONCLUSION
The Judgment of the Court of Appeals should be af­

firmed.
Respectfully submitted,

H enry L. K lein

Staff Attorney - Attorney of Record 
for Respondent 

1500 First Tennessee Building 
Memphis, Tennessee 38103 
901/523-2363

Clifford D. P ierce, Jr.
City Attorney

Charles V. H olmes 
Senior Assistant City Attorney

P aul F. Goodman 
Assistant City Attorney 
314-125 North Mid-America Mall 
Memphis, Tennessee 38103 

(901) 528-2614 
Attorneys for Respondent



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