Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. 94 C 1299 Larry J. McKinney, Judge.
Before POSNER, Chief Judge, and HARLINGTON WOOD, JR. and RIPPLE, Circuit Judges.
This is a suit for damages under the Civil Rights Act of 1871, 42 U.S.C. sec. 1983, brought on behalf of a minor, Amanda West, against Brad Waymire, a former police officer of the Town of Frankton, Indiana, and against the Town itself. (The Town is erroneously called "City of Frankton" by the lawyers for both sides.) The naming of the Town's Police Department as a defendant adds nothing; it is almost certainly not a suable entity separate from the Town. See Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); Ricketts v. City of Hartford, 74 F.3d 1397, 1400 n. 1 (2d Cir. 1996); Martinez v. Winner, 771 F.2d 424, 444, modified on other grounds, 778 F.2d 553 (10th Cir. 1985), vacated on other grounds under the name Tyus v. Martinez, 475 U.S. 1138 (1986).
The suit alleges an infringement of rights protected by the due process clause of the Fourteenth Amendment, arising from the following facts. Between sometime in 1992 and September 1993, defendant Waymire (who was 28 years old at the beginning of the period, and married) engaged in sexual acts with plaintiff West, although she was only 13 at the beginning of the period. He was eventually convicted of child molesting on the basis of these acts and sentenced to prison for eight years. We may assume that Waymire was acting under color of state law and that the sexual acts that he perpetrated on West with or without her consent and that she claims caused her extreme and lasting humiliation and psychological injury deprived her of liberty within the meaning of the due process clause of the Fourteenth Amendment, Doe v. Taylor Independent School District, 15 F.3d 443, 450-52 (5th Cir. 1994) (en banc); Scott v. Moore, 85 F.3d 230, 234-35 (5th Cir. 1996); Abeyta v. Chama Valley Independent School District, 77 F.3d 1253, 1255 (10th Cir. 1996); Stoneking v. Bradford Area School District, 882 F.2d 720, 727 (3d Cir. 1989), and hence that she has a good claim under section 1983 against him. Waymire did not bother to appear in the suit, and the plaintiff obtained a default judgment against him, leaving the Town as the only defendant -- and the district judge granted summary judgment for the Town on the ground that it was not liable for Waymire's acts. West's complaint included a supplemental state-law claim against the defendants, but the district judge relinquished jurisdiction over it, and West has since refiled it in an Indiana state court.
The case was not over in the district court. Damages remained to be assessed against Waymire on the default judgment. But the district court entered a final judgment under Fed. R. Civ. P. 54(b) in favor of the Town, and it is from that judgment that West appeals. Since West's federal claim against Waymire remained pending in the district court, the judge's action in relinquishing jurisdiction over the supplemental state-law claim was premature. But as the plaintiff is not complaining about the dismissal, we shall treat it as voluntary on her part and let it stand. The judge later entered judgment against Waymire for $600,000; we do not know how much if any of this judgment the plaintiff has been able to collect.
The facts, at least when viewed as favorably to the plaintiff as the record will permit, as we are obliged to do when summary judgment is granted for the defendant, reveal a pattern of official irresponsibility. Waymire was hired in 1991 to be only the third full-time police officer in the town (Frankton has a population of only 2,000), one of the other full-time officers being the chief of police, Calvin Pulley. Waymire was hired after a brief and superficial interview. He had no background as a police officer (though he had studied criminal justice in college); yet he was given only four weeks of police training, and it did not touch on the proper treatment of juveniles encountered in the course of a police officer's work; the Frankton police department had formulated no procedures for this delicate aspect of police work. Nor, after he was hired, did the department, which is to say the chief, supervise Waymire or the other line officer, David Huffman -- with whom Waymire had from the start poor relations. Huffman seems not to have been a star police officer. A petition that he be fired garnered the signatures of 300 Frankton residents. The town board's response was to show the petition to Huffman so he'd know whose names were on it. He was, however, reprimanded for using baby talk in his log sheet ("I helped a little bitty baby rabbit because a big, bad, mean car ran over it").
Waymire correctly believed that being a Frankton police officer would provide him with opportunities for extramarital sex. He had heard that police officers had been known to engage in sexual intercourse in the Frankton police station and that a "first offense" of this kind, if detected, would result only in a reprimand. In March of 1992, responding to an emergency call from Huffman's girlfriend (now wife), whose home had been burglarized by a friend of Waymire's, Waymire told Mrs. Huffman (as she now is) that unless she performed fellatio on him he would report that she had fabricated the burglary. She didn't tell Huffman about this incident, but did tell him about a subsequent incident in which Waymire grabbed her buttocks and tried to kiss her. Although the Huffmans did not complain and there is no direct evidence that either incident involving Mrs. Huffman was known to Chief Pulley or the Town's board of supervisors, the plaintiff points out that not only is Frankton a very small town but Waymire is related to a number of its residents; indeed he testified in his deposition, we hope with some exaggeration (for otherwise Frankton has a severe problem of inbreeding), that he is related to a "majority" of the people of Frankton. In explanation of why she hadn't complained about Waymire, Mrs. Huffman testified in her deposition that Frankton is so small that "once one person knows, it seems like everybody knows, and that's not me. I like to keep to myself."
Another series of acts by Waymire before his molesting of Amanda West did give rise to a complaint. Evelyn Burger (Evelyn Harmon during the relevant period) was afraid of her ex-husband, who had just been released from prison. So she asked Waymire to escort her home, which he did -- but as he left, he said, "Come here. . . . I'd like to kiss you . . . . Come on baby, I've got a hard on." She refused to let him kiss her. On another occasion Waymire was in the store where Burger worked. Her daughter, a 13 year old, was there too. Waymire remarked that "no 13 year old looks that good in a pair of jeans," and he asked the girl whether she'd "like to baby-sit my kids or me." Officer Huffman learned about these incidents and told Chief Pulley, who told Huffman to speak with Burger. He did so. Later, Pulley, Huffman, and another Waymire --Brad's cousin Myron, who happened to be the president of the town board and who had originally recommended that the police department hire Brad -- interviewed Burger at her place of work. (Only minutes before, Brad Waymire had begged her not to complain about him.) The cousin thought her allegations no big deal. The chief decided to drop the investigation because Burger had not filed a written complaint -- though she hadn't been told that a written complaint was necessary and had told the chief and his companions that she was scared to sign anything. She "didn't want to be bothered by cops," and believed that Brad's cousin, being on the town board, would protect him.
In March of 1993, about midway in Waymire's course of molesting Amanda, he had the effrontery to request an executive meeting of the town board to enable him to clear himself of allegations that he claimed were ruining his reputation. The reference was to the Burger incidents; and at the hearing he pointed out, apparently alluding to his remarks to her daughter, that it was rumored that he was "messing around with 13 year old girls." Huffman attended the meeting also. The Burger incidents were ventilated, but there was no reference to any misconduct with minors and the board members formed the impression that the root problem was bad blood between Waymire and Huffman and that the solution was for the two of them to work out their differences between themselves.
Here is how the molestation of Amanda West occurred. Frankton had a curfew, which Amanda, a disturbed child from a disordered home, regularly violated. Often when this happened Waymire would give her a ride home. Their conversations during these late-night rides soon took a sexual turn, and Waymire would sometimes fondle her breasts and buttocks. Once he took her to the police station on the pretext of giving her a breathalyzer test, and at the station forced her to undress and to perform fellatio on him. Eventually her mother discovered what was going on and reported it to Chief Pulley, who, this time not insisting on a written complaint, referred the matter to the county sheriff. The sheriff conducted an investigation that led to the successful prosecution of Waymire.
The record contains evidence of other sexual misconduct by Waymire, including exposing himself to a co-worker of Burger's, although there is no evidence that the police chief or the town board knew about any of this other misconduct. Apart from the remarks about Burger's daughter and, of course, his conduct with Amanda, none ...