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

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). 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.

Plaintiff argues that the city officials are vicariously liable under 42 U.S.C. §§ 1983 and 1988 because, under state law, the doctrine of respondeat superior imposes personal liability on them. No act of misconduct or negligence is alleged on the part of any respondent.

We have held that when a state, by statute, has imposed upon a sheriff liability for the…