815 F2d 79 Rayford v. City of Toledo

815 F.2d 79

Henry E. RAYFORD; Shirley M. Rayford; Anthony L. Rayford,
Plaintiffs- Appellants,
v.
The CITY OF TOLEDO, Municipal Corp.; Mayor, City of Toledo,
Officer and Administrator; Manager, City of Toledo, Officer
and Administrator; Eight Councilman, City of Toledo,
Officers and Administrators; Commissioner of Treasury
Division, City of Toledo, Officer and Administrator; James
A. Foster, City of Toledo, Agent/Employee; Mark F. Vitou,
Attorney; Burton Kalniz, Attorney; Walter M. Lehman,
Attorney; Joseph N. Perlman, Attorney George L. Bolotin,
Attorney; Larry M. Coe, Attorney; James D. Caruso,
Attorney; Marcus L. Friedman, Attorney; Geoffrey H. Davis,
Attorney Defendants-Appellees.

No. 86-3260.

United States Court of Appeals, Sixth Circuit.

Feb. 2, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before RYAN and BOGGS, Circuit Judges, and BROWN, Senior Circuit Judge.

ORDER


Advertisement
view counter
1

This matter 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 briefs, this panel agrees unanimously that the questions presented in this appeal are manifestly so unsubstantial as not to require further argument. Rule 9(d)(3); Federal Rule of Appellate Procedure 34(a).

2

In this action under 42 U.S.C. Secs. 1983 and 1985, plaintiffs allege a racially-motivated conspiracy in their treatment by various defendants following an automobile accident with an employee of the City of Toledo. The magistrate to whom the matter was referred recommended dismissing the complaint upon motion by the City of Toledo and other municipal defendants. The district court adopted the magistrate's report and dismissed the complaint over plaintiffs' objections. This appeal followed. Both sides have briefed the issues.

3

Upon consideration we find that plaintiffs have failed to effect proper service on all parties, except defendant City of Toledo, pursuant to Rule 4 of the Federal Rules of Civil Procedure. Thus, we affirm dismissal of this action in regards to all parties except the City of Toledo under Rule 12(b)(4) and (5) of the Federal Rules of Civil Procedure.

4

As for defendant City of Toledo, plaintiffs have failed to state a claim upon which relief can be granted because plaintiffs have not alleged any governmental policy or custom of racial discrimination as required to sue a municipality under 42 U.S.C. Sec. 1983. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91 (1978). The doctrine of respondeat superior cannot be used as a basis for liability solely because a municipality employs a tortfeasor. Id. Thus, dismissal is proper under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Furthermore, plaintiffs have failed to state a claim under 42 U.S.C. Sec. 1985 because even in the most liberal construction the complaint merely alleges broad, conclusory language without the factual allegations necessary to support a conspiracy theory. Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir.1984); Blackburn v. Fisk, 443 F.2d 121 (6th Cir.1971). We affirm. Rule 9(d)(3), Rules of the Sixth Circuit.

5

It is therefore ORDERED that the final order of the district court be affirmed.