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Gammon v. Blakeley12/4/1997
to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp v. Catrett (1986), 477 U.S. 317, 322.
Although appellant's assignment of error addresses the claims for failure to train and monitor and for wrongful death, those causes of action will not be addressed. The failure to train and monitor claim was against the City of Euclid only, not the individual officers. It was disposed of in the first appeal in which summary judgment for the City of Euclid was affirmed. Appellant never addressed her claim for wrongful death in either her brief in opposition to motion for summary judgment or in her brief on appeal. As appellant apparently did not dispute the grant of summary judgment on that claim, it is not now before this court.
Appellant's remaining cause of action was for a violation of 42 U.S.C. Section 1983.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.
Section 1983 provides a remedy for violations of substantive rights created by the United States Constitution or federal statute. Roe v. Franklin Cty. (1996), 109 Ohio App.3d 772, 778. The statute is limited to deprivations of federal constitutional and statutory rights. State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 92.
In order to bring a Section 1983 action, two requirements must be met. The plaintiff must allege that some person has deprived him of a federal right and that the person acted under color of law. Gomez v. Toledo (1980), 446 U.S. 635, 640. The officers clearly were acting under the color of law; whether Jason Gammon was deprived of a federal right is a question to be resolved as well as whether the officers are immune.
One of the defendants in the instant case is the chief of police, Chief Wayne Baumgart. Chief Baumgart was not present at Abby Avenue that evening but remained at the police station. In actions brought under Section 1983, the liability of supervisory personnel must be based on more than the right to control employees. The failure of a supervisor to supervise, control, or train offending individual officers is not actionable absent a showing that the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it. A plaintiff must demonstrate the supervisor at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the police officers. Caplan v. Roseman, 667 F.Supp. 549 (N.D.Ohio 1987). There is no allegation or evidence in the record t
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