Memorandum in Support of Motion to Dismiss

    IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, father and 
next of kin of EDWARD EUGENE 
GARNER, a deceased minor.

Plaintiff,
VS.
MEMPHIS POLICE DEPARTMENT;
CITY OF MEMPHIS, Tennessee; 
WYETH CHANDLER, Mayor of 
Memphis; JAY W. HUBBARD, 
Director of Police of Memphis; 
and E. R. HYMON, Police Officer 
of the City of Memphis,

Defendants.

CIVIL ACTION 
No. C-75-145

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

' 1. The City of Memphis and the Memphis Police
Department are not persons within the meaning of the Civil 
Rights Act. Monroe v. Pope, 365 U.3. J.67; Egan v. City of 
Aurora, 365 U.S. 514; Khan v, Garan2:ini, 411 F.2d ?10 (CA6, (1569)
The above referred to cases deal with actions brought pursuant 
to 42 use § 1983. In Besely v. City of Euclid, 496 F.2d 193 
(CA6, 1974), the Court also held that a city was not a person 
in an action arising out of alleged violations of 42 USC § 1983, 
1985 and 1986 and that there is no distinction between the use 
of the word "persons" in 1983 actions and 1985(3) and 1986 actions 
Also see Ryan v. New Castle County, et al, 365 F.Supp. 124 
(DC Del. 1973), where the Court held that liability cannot be 
imposed upon municipal or county governments under 42 USC § 1988 
citing Moor v. County of Alameda, 411 U.S. 693.

A Police Department is not a person within the meaning 
of the Act. United States ex rel Lee v. Illinois, 343 F.2d (7th 
Cir. 1965); Burmeisber v. N.Y. City Police Department, 275 F.Supp. 
690 (DC NY 1967) .



2. The City of Memphis is not a person within the 
meaning of the Civil Rights Act which would make it subject to 
equitable relief. In Deane Hill Country Club, Inc, v. City of 
Knoxville, 379 F.2d 321 (CA6, 1967), the Court held that under the 
Supreme Court decision of Monroe v. Pope, supra, equitable relief 
could not be obtained against a municipality under § 1983. In the 
case at bar. Plaintiff seeks a form of equitable relief which is 
an action for Declaratory Judgment. Defendants assert that such 
an action cannot be maintained against the City of Memphis under 
the holding in the Deane Hill Country Club case, supra.

Defendants recognize that in other circuits, actions 
have been maintained against a municipality where the only relief 
sought is injunctive or declaratory in nature, however, this 
relief may be granted only when there is no action for tort or 
daraages. Garren v. City of Winsfon Salem, N.C., 439 F.2d 140 (CA4, 
1971); Adams v. City of Park Ridge, 293 F.2d 585 (CA7, 1961).

3. The Doctrine of Respondeat Superior is not applicable 
to the City of Memphis and the Mem.phis Police Department under the 
Civil Rights Act and the laws of the State of Tennessee. Ryan v. 
New Castle County, supra; Bricher v. Sims, et al, 195 Tenn. 261,
259 S.W.2d 661; Davis v. Knoxville, 90 Tenn. 599, 18 S.W. 254.

4. The City of Memphis is not liable for torts com­
mitted by its police officers under the Doctrine of Governmental 
Immunity.

The operation of a municipal police department and that 
of a sheriff's department is a governmental function, and under 
the Doctrine of Governmental Immunity, a municipality and a county 
are not liable for torts committed by its policemen or sheriffs. 
Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429; Johnson 
V. City of Jackson, 194 Tenn. 20, 250 S.W.2d 1; Bobo v. City of 
Kenton, 186 Tenn. 515, 212 S.W.2d 363; Combs v. City of 
Elizabethton, 151 Tenn. 363, 31 S.W.2d 691.

The Dochri.na of Governmental Immunity of municipalities 
in the performance of governmental functions is without question

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the law of Tennessee. In the early case of Combs v. City of 
Elizabethton, 161 Tenn. 353, 31 S.W.2d 691 (1930), the city was 
held not liable for the acts of its known violent policemen who 
slapped, arrested and jailed an automobile driver's wife while 
arresting the automobile driver.

The city of Kenton, Tennessee, was held not liable for 
the tortious acts of its known insane police chief, in a situation 
where the police chief shook hands with a traffic violator, backed 
up and announced his intention to shoot the man and did so. The 
Supreme Court stating:

" . . .  there is no question but that the employment 
of a police officer, and also his retention in 
office, is governmental. Thus we have held that 
a city is not liable for the torts of its police­
men in making arrests. Pesterfield v. Vicker,
43 Tenn. 205; Davis v. Knoxville, 90 Tenn. 599,
18 S.W. 254. In the latter case it was held that 
there is no liability 'however negligent and 
tortuous' the act may be, citing numierous cases."
Bobo V. City of Kenton, 186 T 515, 212 S.W.2d 363 (1948).

In the case of Coffman v. City of Pulaski, 220 Tenn.
642, 422 S.W.2d 429 (1967), the Supreme Court, in a unanimous 
decision speaking through Mr. Justice Humphreys, makes it un­
mistakably clear that in situations involving municipal policemen, 
the Doctrine of Governmental Immunity is the law of Tennessee. In 
the Coffman case the Supreme Court traces the Doctrine of Govern­
mental Immunity from its earliest beginning. It finds the doctrine 
to be of legitimate origin both under the common law of England 
and as a judicial doctrine of this state.

5. The Doctrine of Respondeat Superior is not applicable 
to Wyeth Chandler, Mayor of Memphis, and Jay W. Hubbard, Director 
of Police of Memphis, and these Defendants are not liable under 
the Civil Rights Act while acting in a supervisory capacity, absent 
allegations xn the Com.plaint of direct personal participation.

In Richardson v. Snow, 340 F.Supp. 1261 (D.C. Md 1972), 
the Court in dismissing the Chief of Police stated as follows at 
Page 1262:

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"As a general rule, an official will not be liable 
in an action brought under the Civil Rights Act,
42 U.S.C. § 1983, unless he directly and per­
sonally participates in conduct under color of 
state law which deprives the plaintiff of rights, 
privileges, and immunities secured him by the 
Federal Constitution. E.g. Sanberg v. Daley,
306 F.Supp. 277 (N.D. 111. 1969); Runnels v.
Parker, 263 F.Supp. 271 (C.D. Cal. 1967). It is 
not sufficient to hold a chief of police liable 
for the wrongful acts of his subordinates merely 
to show that rhe wrong-doer was acting under the 
general supervision of the chief. Barrows v. 
Faulkner, 327 F.Supp. 1190 (N.D. OkTT 1971);
Fanburg v. City of Chattanooga, 330 F.Supp. 1047 
(E.D. Tenn. 1968); Sanberg v. Daley, supra; see 
also Bennett v. Gravelle, 323 F.Supp. 203, 214 
(D. Md. 1971), aff'd, 451 F.2d 1011 (4th Cir.
1971)."

In Jennings v. Davis, 339 F.Supp. 919 (DC Mo. 1972), 
the Court said at Page 921:

"Plaintiffs' claims against defendants Davis, 
Kelly, Gilmore, Willits, Wells and Kelley under 
the provisions of 42 U.S.C. § 1983 should and 
will be dismissed for failure to state a claim 
upon which relief can be granted. Where the 
relief sought under the Civil Rights Act is 
monetary damages, rather than equitable relief, 
the doctrine of respondeat superior is not 
available to impose vicarious liability upon a 
defendant who has no personal involvement in the 
alleged deprivation of plaintiff's federally- 
protected rights. Adams v. Pate, 445 F.2d 105 
(7th Cir. 1971); Kish v. County of Milwaukee,
441 F.2d 901, 905 (7th Cir. 1971); Anderson v. 
Nosser, 438 F.2d 183, 199 at n. 13 
1971) Dunham v. Crosby, 

Barrows(1st cir. 1970);
1190 (N.D. Okl. 1971)
F.Supp. 314, 315 (N.D 
Daley, 306 F.Supp. 277 (N.D. 
V. Williams, 302 F.Supp. 972 

Mack V

(5th Cir.
435 F.2d 1177, 1180 
V. Faulkner, 327 F.Supp. 

Nugent v. Sheppard, 318 
Ind. 1970); Sandberg v.

Roberts

Patrum v

111. 1969) ___
987 (N.D. Miss. 

Lewis, 298 F.Supp. 1351 (S.D. 
Martin, 292 F.Supp. 370 

223
1969)
Ga. 1969); ____________
(W.D. Ky. 1968); Jordan v. Kelly, 223 F.Supp. 
731, 737 (W.D. Mo. 1963). Rather, in order for 
there to exist liability for monetary damages 
under the Civil Rights Act, there must be a 
showing that the defendant personally and 
directly participated in the acts which were 
allegedly violative of plaintiff's rights under 
federal law. Such involvement, either direct or 
indirect, is not indicated by the allegations of 
plaintiffs in their complaint. Further, by 
merely continuing to employ defendants Lewis, 
Carr, and Noffke and nothing more, these 
defendants did not, as a matter of law, ratify 
the allegedly wrongful conduct." Chaney v. 
Frigidaire Corp., 31 F.2d 977 (5th Cir. 1969);

____  264 F.Supp. 635 (D.S.C. 1967);
Humpty Dumpty Supermarkets, 463 P.2d

69
Higgins v. Moore
Urabazo v,

Mallory v. O'Neil,
Grattan v.

352 (Okla.App. 1969);
So.2d 313 (Fla. 1954) ___________________
144 Mo.App. 719, 129 S.W. 1038 (Mo.Ct.App. 
Annot., 34 A.n.R.2d 372, 381 (1954).

Suedmeyer,
1910)

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In Patrum v. Martin, 292 F.Supp. 370 (W.D. Ky. 1968), 
the court dismissed the mayor from a suit even though there was an 
allegation in the complaint that the officers were acting pursuant 
to orders and directions from defendant city by and through its 
mayor, and further that the mayor knew of the officers' dangerous 
propensities. These allegations the court found to contain no 
definite assertion of the mayor's personal participation in the 
wrongful acts, and not sufficient to render him liable under the 
Civil Rights Act. The often-cited case of Sandberg v. tialey,
306 F.Supp. 277 (111. 1969), clearly excuses the mayor, super­
visory personnel, and others not directly participating, including 
those charged with the duty to properly train, restrain and super­
vise the activities of the defending policemen. The court in this 
case stated as follows:

"The doctrine of respondeat superior has no 
place under the civil rights statutes, for 
•personal involvement is contemplated.' Salazar 
v. Dowd, 256 F.Supp. 220, 223 (D. Cole. *1966). 
Premised on personal culpability, rhese statutes 
are aimed at those who subject others to a 
deprivation of their constitutional rights, 
rather than at the state or city vrhich employs 
them or the official with ultimate authority 
over them in the governmental hierarchy.
"Of course, supervisory personnel may be liable 
in damages if they personally participate in 
or direct the infliction of injury. Plaintiff 
does not charge, however, that the named defen­
dants struck the blows, nor does he allege that 
they ordered the attack on plaintiff. And the 
courts have uniformly held that police super­
visory personnel are not liable for damages to 
one injured by police misconduct absent direct 
personal participation. Jordan v. Kelly, 223 
F.Supp. 731 (W.D. Mo. 1963); Pritchard v. Downie, 
216 F.Supp. 621, 627 (E.D. Ark. 1963); Runnels v. 
Parker, 263 F.Supp. 271 (C.D. Calif. 1967);
Patrum v. Martin, 292 F.Supp. 370 (W.D. Ky.
1968); Mack v. Lewis, 298 F.Supp. 1351 (S.D.
Ga. 1969). The established rule was stated in 
Jordan v. Kelly, supra, 223 F.Supp. at 737:

"'Even though he (the police chief) 
may be charged with the duty of 
selecting the mem.bers of the force, 
he is not responsible for their acts 

, unless he has directed such acts to 
\be done, or has personally cooperated 
in the offense, for each police 
officer, is, like himself, a public 
servant.'

Also see Memorandum Decision of Chief Judge Bailey 
Brov/n in the case of Clinton Ghoston v. The City of Memphis, et al.

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United States District Court for the Western District of Tennessee, 
Civil Action No. C-73-243, citing Jennings v. Davis, 339 F.Supp.
919 (W.D. Mo. 1972) and Fanburg v. City of Chattanooga, 330 F.Supp. 
1047 (E.D. Tenn. 1968).

6. The Complaint fails to state a cause of action upon 
which relief can be granted with regard to the hiring practices and 
training programs implemented by the City of Memphis, the Memphis 
Police Department and Jay W. Hubbard, Director of Police.

See Patrum v. Martin, supra, wherein the Court said:

"Furthermore, although the rules of pleading in 
federal courts are to be liberally construed, 
they do not authorize complaints framed in merely 
conclusory and general terms. Huey v. Barloga,
277 F.Supp. 864, 867 (N.D. 111. 1967). The 
thrust of the charges against these named defen­
dants is that they are liable for plaintiff's 
injuries because of alleged gross failures to 
properly train, restrain and supervise the 
activities of the offending policemen. These 
allegations fail to state the personal, specific 
and factual involvement in the complained of 
attack necessary to impose liability."

7. The Complaint fails to state a cause of action upon 
which relief can be granted with regard to Wyeth Chandler, Mayor 
of Memphis, and his "public support" of the policies and practices 
of the I4emphis Police Department and its officers.

Under the holdings in the authorities cited hereinabove 
the alleged "public support" by the Mayor of the policies and 
practices of the Memphis Police Department would not constitute 
such participation and involvement as to make him liable under the 
Civil Rights Act.

8. Memphis Police Department, City of Memphis, Wyeth 
Chandler, and Jay W. Hubbard are not liable for any claims based 
upon violation of State law under Doctrine of Pendent Jurisdiction.

If the City, the Police Department, the Police Director, 
and the Mayor are not liable under the Civil Rights Act, then the 
law does not permit the joinder of parties in an action where no 
federal claim is made or can be supported. In Jennings v. Davis,

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supra, the Court determined that since the federal claims were 
dismissed, any claims based upon State law would have to be dis­
missed also. The Court said at Page 922:

"And while the doctrine of pendent jurisdiction 
permits the joinder of federal and non-federal 
claims which arise out of a common nucleus of 
operative fact, it does not permit joinder of 
parties against whom no federal claim, is made or can be supported."

Respectfully submitted.

\jtUMA
//

Henry Jl. Klein, Staff Attorney 
City or Memphis 
Attorney for Defendants 
Suite 3500 - 100 N. Main Bldg. 
Memphis, Tennessee 38103

Certificate Of Se.rvice

I, Henry L. Klein, hereby certify that a copy of the 
fox'egoing Memorandum in Support of Motion to Dismiss ha.s been 
fcrwa.rded to Mr. Walter Lee Bailey, Jr., Suite 901, Tenoke Building, 
161 Jefferson Avenue, Memphis, Tennessee 38103, and Mr. Drew S. 
Days, III, 10 Columbus Circle, New York, New York 10019, Attorneys 
for Plaintiff, on this the day of May, 1975.

i W  L-Hen] Klein

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