815 F. 2d 76 - Davis v. City of Chattanooga Tennessee

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the parties' briefs, this panel agrees unanimously that oral argument is unnecessary. Rule 34(a), Federal Rules of Appellate Procedure.

In this action pursuant to 42 U.S.C. Sec. 1983, plaintiff alleges a violation of his constitutional rights as the result of an alleged assault by an employee of the Chattanooga Humane Society. Plaintiff brought this action against defendant the City of Chattanooga on a theory of respondeat superior. The district court construed defendant's motion to dismiss as one brought pursuant to Federal Rule of Civil Procedure 56 and granted summary judgment in favor of the City of Chattanooga. This appeal followed.

A review of the record indicates that the Chattanooga Humane Society is an incorporated, non-profit organization totally separate as an entity from the City of Chattanooga. Thus, there can be no cognizable Sec. 1983 claim against the city of Chattanooga for the actions of an employee of the Chattanooga Humane Society. Furthermore, plaintiff fails to state a claim under 42 U.S.C. Sec. 1983 because he has not alleged any policy or custom on the part of defendant to violate his constitutional rights. Defendant cannot be held liable under the doctrine of respondeat superior solely because, as plaintiff alleges, it employs a tortfeasor. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-91 (1978); see also Jones v. City of Memphis, Tenn., 586 F.2d 622, 624 (6th Cir. 1978). We affirm.

The questions upon which this case depends are so unsubstantial as not to require further argument. Rule 9(d)(3), Rules of the Sixth Circuit. It is therefore ORDERED that the final order of the district court be affirmed.