Hutsell v. SayreHutsell v. Sayre
John C. Darsie, Jr., Office of Legal Counsel University of Kentucky, Stephen L. Barker (argued and briefed), Phillip M. Moloney, Sturgill, Turner & Truitt, Lexington, KY, Walter G. King, John T. Ballantine, Ogden, Newell & Welch, Louisville, KY, Paul C. Van Boven, University of Kentucky Office of Legal Counsel, Lexington, KY, for defendants-appellees.
SUHRHEINRICH, Circuit Judge.
In this
UK student Stacey Prieshoff was assaulted by an unknown assailant on Saturday, September 22, 1990, between 1:30 and 2:00 a.m., on the university campus. Defendant UK police officers Sayre and Hayes were dispatched to the scene shortly after the assault occurred.
Officer Sayre took Prieshoff to the UK Medical Center for examination and treatment of a gash in the back of her head. Prieshoff told Sayre that her assailant struck her in the back of the head with something. She described her assailant as a black male, 5‘10“, 170 pounds, medium build, black short afro, stubble on his face, ruddy complexion, no glasses, and wearing a dark jacket, a light colored shirt, and blue jeans.
While Sayre and Prieshoff were at the hospital, Hayes investigated the scene of the assault. Two individuals, Michael Fox and Darren Birch, handed Hayes a white bandanna, a shoe and a wallet which they found on the ground. Prieshoff identified the bandanna and the shoes as hers. The wallet contained plaintiff‘s driver‘s license and his Lexington transit identification card.
At approximately 5:30 a.m. that morning, Hayes telephoned plaintiff‘s residence, but received no response. Later that morning, two other officers went to two addresses listed on plaintiff‘s identification cards. Hutsell was at neither. The pair then proceeded to the Lexington Transit Bus Garage where plaintiff worked. They were informed that he was not scheduled to work that day.
The next day, September 23, 1990, Prieshoff went to the UK Police Department to assist in the construction of a composite drawing of her assailant. Sayre testified that Prieshoff identified her assailant as Negro, male, between 21 and 25 years of age, medium build, and black hair. At the time, plaintiff, a black male, was 44 years old, with balding gray hair and a mustache.
On September 24, 1990, Hayes ran a criminal history check on plaintiff, which revealed that plaintiff had a previous arrest for criminal solicitation-prostitution. Hayes obtained a photograph of plaintiff from Lexington Metro Central Records and, with the assistance of Lexington-Fayette Urban County Police Department, prepared a photographic lineup of plaintiff and five other black males with a history of arrests or convictions for sexual offenses, and who resembled plaintiff in appearance.
That afternoon, Hayes went to Prieshoff‘s apartment with the photographic lineup. Prieshoff selected plaintiff‘s photograph as most resembling her assailant; however, she told Hayes that she could not be 100% certain because it was more difficult to identify someone in a photograph than in person. Prieshoff explained that was the person, you know, out of the line-up [sic], I was drawn to that picture and I felt that, you know, he was--he was the one.
Also on the morning of the 24th, Hayes reached plaintiff by telephone, informed him that his wallet had been found and requested that plaintiff come to the station to identify it. When Hutsell appeared, he was advised that he was a suspect in an attempted rape and was advised of his rights. Plaintiff agreed to be interviewed by Hayes and Sayre. He told the officers that his wallet had been missing since Thursday, September 20, 1990. Plaintiff stated that he thought he had lost it at the UK hospital while visiting his wife, who was a patient there. Sayre subsequently checked the hospital‘s records; plaintiff‘s wife had not been a patient there since 1986. Plaintiff also consented to a search of his vehicle. The search of his vehicle revealed a baseball bat and work gloves in his trunk.
Hayes‘s involvement on the case ended on September 26, 1990. Sayre continued to investigate the matter. He interviewed Fox, who told Sayre that Prieshoff had stated that a black man attempted to rape her and struck her in the back of the head with a bat or something like that.
Based upon this information, Sayre approached Fayette District Judge Thomas Clark in order to obtain a criminal complaint against plaintiff. Judge Clark issued a warrant for plaintiff‘s arrest on December 14, 1990, after reviewing Sayre‘s affidavit and revised complaint.
Plaintiff was indicted and tried in state court. On March 26, 1991, he was acquitted of the charge of Criminal Attempt, Rape 1st Degree. Plaintiff brought this suit on September 23, 1991, in federal court under
II.
A.
Because plaintiff‘s suit implicates the Eleventh Amendment, which presents a potential jurisdictional bar,1 and Congress has not abrogated state sovereign immunity in suits under
When suit is brought against a public agency or institution, and/or its officials, the application of the Eleventh Amendment turns on whether said agency or institution can be characterized as an arm or alter ego of the state, or whether it should be treated instead as a political subdivision of the state. Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 301 (6th Cir.1984) (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977)), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985). See also Estate of Ritter v. University of Mich., 851 F.2d 846, 848 (6th Cir.1988) (federal question of whether the Eleventh Amendment is applicable entails consideration of the status of the state agency under state law). The most important factor in resolving this question, however, is whether any monetary judgment would be paid out of the state treasury. Ritter, 851 F.2d at 850 (citation omitted).
That UK is considered an arm of the state under state law and not merely a political subdivision is apparent from the statutory scheme which governs it. To begin with, the university‘s statutory existence is found in Chapter 164 of the Kentucky Revised Statutes, which is entitled State Universities and Colleges; Regional Education; Archaeology. It is required by statute that UK be maintained by the state with such endowments, incomes, buildings and equipment as will enable it to do work,
More importantly, any claim for money damages against the UK, to the extent authorized, is classified by statute as a claim against the state treasury. Chapter 44, Claims Upon the Treasury, states in pertinent part that:
44.073. State institutions of higher education declared agencies of state government; jurisdiction of board of claims; sovereign immunity. (1) For purposes of KRS 44.072, state institutions of higher education under KRS Chapter 164 are agencies of the state. (Emphasis added).
Section 44.072 authorizes claims for negligence against the Commonwealth, or any of its agencies, departments, officers or employees, but expressly reserves sovereign immunity3 in all situations except where sovereign immunity is specifically and expressly waived as set forth by statute.
This statute is hardly what the Supreme Court envisioned when it wrote we will find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction. Edelman, 415 U.S. at 673, 94 S.Ct. at 1361 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)). Needless to say, we find plaintiff‘s argument that Kentucky has consented to this suit unconvincing.
Cowan, 900 F.2d at 941. Given that UK also qualifies as a state institution of higher education, our interpretation of Sec. 164.2871 applies with equal force here.
In support of his argument that UK is not a state agency for purposes of Eleventh Amendment immunity, plaintiff relies on Kentucky Ctr. for the Arts Corp. v. Berns, 801 S.W.2d 327 (Ky.1990).7 In Berns, the plaintiff sued for negligence in state court, the Kentucky Center for the Arts (KCA) after he slipped and fell on KCA‘s premises. The Kentucky Supreme Court held that KCA is not under the direction and control of the central state government and can not therefore be considered the Commonwealth under the Kentucky Constitution for purposes of sovereign immunity. The court reasoned that KCA was created to serve as a catalyst in the development of Louisville and Jefferson County as a major convention and entertainment center ...,
The court therefore concluded that KCA, which performs substantially the same functions as any private business engaged in the entertainment business, albeit in the name of promoting tourism and thus the economic welfare of Louisville and Jefferson County compelled the conclusion that our constitutional fathers would not view this activity as qualifying for sovereign immunity. 801 S.W.2d at 331.8
We are not persuaded. In contrast with entertainment, higher education has long been recognized as a governmental function. Hall, 742 F.2d at 305; Ranyard v. Board of Regents, 708 F.2d 1235, 1239 (7th Cir.1983) (and citations therein). Although UK‘s Board of Trustees is designated as a body corporate, it does not have full corporate powers like KCA. Further, unlike KCA, UK shall be maintained by the state through endowments and incomes.
In summation, we conclude that a suit against the UK Board of Trustees and its employees in their official capacity is fairly characterized as a suit against the state for purposes of Eleventh Amendment immunity. The district court therefore properly dismissed the claims against UK and its officials.10
B.
This leaves plaintiff‘s claim against the officers in their individual and personal capacities, for which the Eleventh Amendment provides no immunity. Hafer v. Melo, 502 U.S. 21, 31, 112 S.Ct. 358, 364, 116 L.Ed.2d 301 (1991); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Moreover, because they are sued in their individual capacities, defendants are considered persons within the meaning of Sec. 1983. Hafer, 502 U.S. at 25-27, 112 S.Ct. at 362-63.
Defendants may, however, assert the defense of qualified immunity to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The proper analysis for a defendant‘s entitlement to qualified immunity consists of: (1) whether the plaintiff has asserted a violation of known civil constitutional right; and (2) whether the constitutional right was so clearly established at the time in question that a reasonable official in the defendant‘s position would have known that he was violating the plaintiff‘s constitutional rights. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). A court must rule in the affirmative on the first issue before considering the second. Id. Our review is de novo. Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 339 (6th Cir.1990).
Plaintiff claims that the manner in which defendants investigated his involvement in the assault on Prieshoff, which culminated in his being charged with and tried for attempted rape in the first degree, violated clearly-established constitutional rights of which a reasonable officer would have known. Plaintiff attacks: (1) the affidavit signed by Sayre when he applied for plaintiff‘s arrest warrant, which plaintiff claims failed to establish probable cause; and (2) the photographic identification procedure used by Hayes as impermissibly suggestive. We address each specific contention in turn.
1.
If a police officer obtains a warrant through material false statements made either knowingly or in reckless disregard for the truth, he may be sued for under Sec. 1983 for a Fourth Amendment violation. Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir.1989) (citations omitted). Police officers are entitled qualified immunity however, unless the warrant is so utterly lacking in probable cause that no officer of reasonable competence would have concluded that a warrant should issue. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th Cir.1989).
Plaintiff‘s attack on the affidavit is threefold: (1) that a reasonable officer in Sayre‘s position would have known that the portion of the affidavit swearing that the Complainant advises that she was struck from behind ... by a subject she later identified does not provide enough facts for a reasonable judicial officer to conclude that Prieshoff identified plaintiff; (2) that a reasonable officer would have known that the complaint, by omitting plaintiff‘s name in the charging portion, failed to identify plaintiff as the individual to be charged with the claimed offense; and (3) assuming the affidavit did identify plaintiff as the subject Prieshoff later identified, a reasonably well-trained officer in Sayre‘s position would have known that statement to be false.
Plaintiff‘s assertion that the charging portion of the criminal complaint were insufficient to establish probable cause is patently ridiculous. Plaintiff‘s name appeared at the top of the single page document and that the blank space was immediately preceded by the wording the above named.11 Its meaning was clear.
The gist of plaintiff‘s third argument is that a reasonable officer would have known that the statement that Prieshoff identified complainant was false and intentionally reckless because Sayre knew before filing the affidavit that (1) Prieshoff had not positively identified plaintiff, but had stated that she was not 100% sure of the identification, absent hearing and seeing the suspect; (2) Prieshoff had described her assailant as a 21-25 year old black male without a mustache and that plaintiff was a 44-year-old, graying, balding, black male with a mustache.
Although Prieshoff‘s description was not identical to that of plaintiff‘s, it was not so far off the mark as to render the statement in the affidavit in reckless disregard for the truth. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (affidavits are to be evaluated in common sense, rather than hypertechnical manner). The statement was bolstered by Sayre‘s additional knowledge that: (1) plaintiff‘s wallet was found at the scene of the assault; (2) plaintiff could not be located on the morning of the attack; (3) he had been previously arrested for a sexual offense; (4) the assault victim identified plaintiff in a photographic lineup; (5) plaintiff had given inconsistent statements to investigating officers; and that, (6) plaintiff had a baseball bat in his trunk and that UK student Fox had stated that Prieshoff thought she had been hit with a bat. In the face of all this information, Sayre clearly had sufficient indicia of probable cause to believe that plaintiff had committed the crime. The district court correctly determined that plaintiff failed to raise genuine issues of material fact that the statements made in the affidavit were false or in reckless disregard of the truth. See Yancey, 876 F.2d at [1243] (generally presence of probable cause is jury question unless there is only one reasonable determination).
2.
Plaintiff argues that the composite Prieshoff constructed of her assailant would have ruled him out as a subject; and secondly, that plaintiff‘s photo stood out because his mustache was less prominent than the others, his skin tone much darker, and that some of the other photos were obscured by dark shadows.
The Supreme Court has held that whether a defendant‘s due process rights are violated by the admission at trial of an unnecessarily suggestive lineup depends upon the totality of the circumstances surrounding the lineup or confrontation. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the court described its holding in Stovall as protecting an evidentiary interest, id. at 113, 97 S.Ct. at 2252, and stated that a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest. Id. at 113, n. 3, 97 S.Ct. at 2252, n. 3. This led the Seventh Circuit in Hensley v. Carey, 818 F.2d 646 (7th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 395 (1987), a Sec. 1983 action for an allegedly improper lineup, to state that:
the procedural safeguards established in Brathwaite and Stovall protect only against the admission of unreliable evidence at trial and does [sic] not establish a constitutional right to be free of suggestive lineups.... The rule against admission of evidence from unnecessarily suggestive lineups is a prophylactic rule designed to protect a core right, that is the right to a fair trial, and it is only the violation of the core right and not the prophylactic rule that should be actionable under Sec. 1983.
Although this case is distinguishable from Hensley to the extent that Hutsell was tried, and the lineup was presumably used at trial,13 this difference fails to save his claim. Plaintiff‘s complaint alleges that the manner in which Hayes conducted the photographic lineup caused plaintiff to be unreasonably seized without probable cause and deprived of his liberty without due process of law in violation of the 14th Amendment. As in Hensley, plaintiff is not challenging a violation of the core right to a fair trial, but merely the purported violation of a prophylactic rule which resulted in the deprivation of his liberty. Nor has he alleged any extraordinary circumstances which would give rise to a constitutional violation. Having failed to state a claim for an alleged violation of a known constitutional right, our inquiry is at an end. Siegert, 500 U.S. at 232, 111 S.Ct. at 1793.
Were we to evaluate the lineup, we would hold that the photo lineup was not unduly suggestive. As observed in Hensley, [t]he police are not required to conduct a search for identical twins in age, height, weight or facial features ... [w]hat is required is the attempt to conduct a fair lineup, taking all steps reasonable under the totality of the circumstances to secure such result. Hensley, 818 F.2d at 650 (citation omitted). The six photos were of men who bore a resemblance to plaintiff and who had a record for previous sexual offenses. Furthermore, the fact that plaintiff‘s wallet was found at the scene of the assault made it perfectly reasonable to include his picture in the lineup. The totality of circumstances support the district court‘s finding that the lineup was not unduly suggestive.
C.
Lastly, plaintiff claims that the district court erred in denying his motion for leave to file a second amended complaint in order to add a state law claim for malicious prosecution and a federal claim under
For all the foregoing reasons, the judgment of the district court is AFFIRMED.
SUHRHEINRICH
CIRCUIT JUDGE