Opinion · Court of Appeals for the Ninth Circuit

Mary I. Boettger, Administratrix of the Estate of Clarence Stensrude, Jr., Deceased v. Dave Moore

483 F.2d 86

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1973-07-31
Topic
general

ALFRED T. GOODWIN, Circuit Judge: The administratrix of a decedent’s estate sued two police officers, the chief of police, the mayor, and eight city councilmen of Havre, Montana, for damages under 42 U.S.C. § 1983, for depriving the decedent of his civil rights by shooting him to death in the course of police work. The district court dismissed the action against the mayor and councilmen. The action continues against the remaining defendants. The plaintiff filed a premature notice of appeal without receiving from the District Court the certificate required by Fed.R.Civ.P. 54(b).

Citator

UpLaw has not yet analyzed Mary I. Boettger, Administratrix of the Estate of Clarence Stensrude, Jr., Deceased v. Dave Moore. The absence of a flag is not a finding that it is good law.

Cited by
15 opinions
BOETTGER v. MOORE,483 F.2d 86(9th Cir. 1973)
MARY I. BOETTGER, ADMINISTRATRIX OF THE ESTATE OF CLARENCE STENSRUDE, JR.,
DECEASED, APPELLANT, v. DAVE MOORE ET AL., APPELLEES.
No. 72-1261.
United States Court of Appeals, Ninth Circuit.
July 31, 1973.
Page 87
Jess L. Angstman, Havre, Mont., John F. Bayuk, Shelby, Mont., D. Patrick McKittrick, of Hilley McKittrick, Great Falls, Mont., for appellant.

Smith Emmons Baillie, Great Falls, Mont., for appellees.
Appeal from the United States District Court for the District of Montana.
Before KOELSCH, HUFSTEDLER, and GOODWIN, Circuit Judges.
ALFRED T. GOODWIN, Circuit Judge:
[1] The administratrix of a decedent's estate sued two police officers, the chief of police, the mayor, and eight city councilmen of Havre, Montana, for damages under42 U.S.C. § 1983, for depriving the decedent of his civil rights by shooting him to death in the course of police work.

[2] The district court dismissed the action against the mayor and councilmen. The action continues against the remaining defendants. The plaintiff filed a premature notice of appeal without receiving from the District Court the certificate required by Fed.R.Civ.P. 54(b). The certificate was subsequently obtained and is now a part of the record on appeal. We treat the Rule 54(b) certificate as filed with leave of this court, because it was filed in response to a court-directed inquiry from the clerk concerning an obvious deficiency in the record.

[3] Plaintiff argues that the city officials are vicariously liable under42 U.S.C. § 1983and 1988 because, under state law, the doctrine ofrespondeat superiorimposes personal liability on them. No act of misconduct or negligence is alleged on the part of any respondent.

[4] We have held that when a state, by statute, has imposed upon a sheriff liability for the misconduct of his appointees, the sheriff can be used under §§ 1983 and 1988. Hesselgesser v. Reilly,440 F.2d 901(9th Cir. 1971).Hesselgesserposed a two-part question: (1) does the Civil Rights Act give recognition to the laws of the states pertaining to such vicarious liability, and (2) do the laws of the particular state where the action arose create such liability. 440 F.2d at 903.

[5] The traditional rule is that higher city officials are not liable under the doctrine ofrespondeat superiorfor the acts of lower officials because the lower officials are not the employees of the higher officials; both are fellow servants of the city, an immune governmental agency. Restatement (Second) of Agency § 245, comment h (1957).SeeRobertson v. Sichel,127 U.S. 507, 88 S.Ct. 1286, 32 L.Ed. 203 (1888). This is also the rule in Montana. Boettger v. Employers Liability Assurance Corp.,158 Mont. 258,490 P.2d 717(1971).

[6] Thus, assuming thatHesselgesserrequires the district court to look to state law, the district court correctly found no liability. Montana has not imposed vicarious liability upon its city officials in this type of case. Boettger v. Employers Liability Assurance Corp.,supra. See alsoCockrum v. Whitney,479 F.2d 84(9th Cir. 1973).

[7] Affirmed.Page 99