The opinion of the court was delivered by: EISELE
GARNETT THOMAS EISELE, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiffs in this civil rights action are the administrix of the estate of Marilyn Denise York (who was killed in a car crash following a police officer's pursuit of a car thief), members of her family and the owner of an automobile damaged in the collision. Defendants are a Little Rock police officer, the Little Rock Chief of Police and the City of Little Rock.
Plaintiffs allege that the officer's pursuit of the suspect was, for reasons alleged in the Complaint, in "wanton and reckless disregard to the safety of the public," that the officer "breached his duty to use due care, or at least a duty to refrain from reckless, willful or wanton conduct," that the officer "acted with total disregard to the safety of the public," and that he acted with "willful, reckless and wanton negligence" in conducting the chase. This conduct is alleged to have deprived plaintiffs of constitutional rights secured to them by the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and it is asserted that plaintiffs are entitled to relief under 42 U.S.C. § 1983. The police chief and the city are alleged to be legally responsible for the injuries the officer inflicted on Ms. York and the other plaintiffs.
All of the defendants have moved to dismiss the complaint. Attached to the motions were various papers, so the Court notified plaintiffs that the motions would be deemed ones for summary judgment. See Order of March 28, 1989; Fed. R. Civ. P. 12(b), 56. Plaintiffs were granted approximately 6 weeks within which to take requested discovery and to respond to defendants' motions. Fed. R. Civ. P. 56(f). They have timely filed their response, with supporting evidence. Defendants have replied with additional evidentiary material.
Plaintiffs have also moved for summary judgment. Defendants have responded to that motion, and all the issues raised in the cross motions are now ripe for adjudication.
The Amended Complaint alleges violations of the First, Fifth, Sixth and Fourteenth Amendments to the Constitution. Most of these are not even colorable, and are not argued in plaintiffs' papers. Plaintiffs do not allege that any of the rights protected by the First and Sixth Amendments have been violated. The Fifth Amendment only applies to the federal government, which is not alleged to be involved here. Finally, there is no argument that plaintiffs have been deprived of procedural due process. Thus, the claims for relief under those provisions may be dismissed in the early going.
What plaintiffs actually complain of are alleged deprivations of life, liberty and property interests in violation of the substantive due process component of the Fourteenth Amendment. Plaintiffs concede as much in their Response to Motion to Dismiss Amended Complaint: "Plaintiffs' complaint states sufficient facts to support its allegation that defendants violated the constitutional right to substantive due process by acting with gross negligence or with reckless indifference to Marilyn Denise York's safety."
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient 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. "The standard for granting summary judgment mirrors the standard for a directed verdict under Federal Rule of ...