324 F.2d 450 (9th Cir. 1963), 18280, York v. Story

Docket Nº:18280.
Citation:324 F.2d 450
Party Name:Angelynn YORK, Appellant, v. Ron STORY and Louis Moreno, Appellees.
Case Date:October 28, 1963
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 450

324 F.2d 450 (9th Cir. 1963)

Angelynn YORK, Appellant,

v.

Ron STORY and Louis Moreno, Appellees.

No. 18280.

United States Court of Appeals, Ninth Circuit.

October 28, 1963

Page 451

A. L. Wirin and Fred Okrand, Los Angeles, Cal., and Albert J. Fink, Beverly Hills, Cal., for appellant.

Aidlin, Martin & Mamakos, and Bonnie Lee Martin, Los Angeles, Cal., for appellee.

Before HAMLEY and BROWNING, Circuit Judges, and MacBRIDE, District Judge.

HAMLEY, Circuit Judge.

This action was brought by Angelynn York against three officers of the Police Department of the City of Chino, California, to recover damages for taking and distributing photographs of her in the nude. District court jurisdiction was asserted under 28 U.S.C. § 1343(3) and (4) (1958), 1 it being alleged that the claim arises under Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983 (1958). 2 The

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action was dismissed on motion. Plaintiff appeals. 3

We first state the allegations of the amended complaint. In October, 1958, appellant went to the police department of Chino for the purpose of filing charges in connection with an assault upon her. Appellee Ron Story, an officer of that police department, then acting under color of his authority as such, advised appellant that it was necessary to take photographs of her. Story then took appellant to a room in the police station, locked the door, and directed her to undress, which she did. Story then directed appellant to assume various indecent positions, and photographed her in those positions. These photographs were not made for any lawful or legitimate purpose.

Appellant objected to undressing. She stated to Story that there was no need to take photographs of her in the nude, or in the positions she was directed to take, because the bruises would not show in any photograph. A policewoman was present at the police station but was not requested to be present in the room where the pictures were taken, and was not present. No person except appellant and Story was present in the room when the pictures were taken.

Later that month, Story advised appellant that the pictures did not come out and that he had destroyed them. Instead, Story circulated these photographs among the personnel of the Chino police department. In April, 1960, two other officers of that police department, appellee Louis Moreno and defendant Henry Grote, acting under color of their authority as such, and using police photographic equipment located at the police station made additional prints of the photographs taken by Story. Moreno and Grote then circulated these prints among the personnel of the Chino police department. Appellant did not learn of the described actions of Story, Moreno and Grote in distributing these photographs until December, 1960. The amended complaint closes, save for the prayer, with the two paragraphs quoted in the margin. 4

In dismissing the action the district court held that the amended complaint did not state a claim under section 1979, and that the court was therefore without jurisdiction to entertain the suit.

The holding of the district court that it lacked jurisdiction must be regarded as surplusage. Under 28 U.S.C. § 1343(3), a federal district court has jurisdiction, among other things, to entertain a suit to recover damages suffered by reason of the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States. Under 28 U.S.C. § 1343(4), a federal district court has jurisdiction, among other things, to entertain

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a suit to recover damages under any act of Congress providing for the protection of civil rights.

In the amended complaint appellant, specifically invoking these subsections as a basis for jurisdiction, attempted to state a claim under section 1979. This was enough to establish district court jurisdiction, whether or not appellant succeeded in stating such a claim.

Where, as here, the Constitution and laws of the United States, if given the meaning ascribed to them by the plaintiff, establish a claim for relief in the federal courts on the basis of the facts alleged, the problem of determining whether the Constitution and laws have that meaning presents not a jurisdictional question but only one as to the sufficiency of the pleading to state a claim. 5 The court in fact assumed jurisdiction when it decided, on the merits, that the amended complaint did not state a claim under section 1979.

The only question before us, therefore, is whether the district court erred in holding that the amended complaint did not state a claim under section 1979. In determining that question due regard must be had for the accepted rule that a complaint is not subject to dismissal on the ground that there is a failure to state a claim upon which relief can be granted, 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 102, 2 L.Ed.2d 80. This rule is applicable in civil rights actions. Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 647; Cohen v. Norris, 9 Cir., 300 F.2d 24, 31.

A complaint states a claim under section 1979, if the facts alleged show that the defendant: (1) while acting under color of state or local authority, (2) subjected the plaintiff, or caused the plaintiff to be subjected, to the deprivation of any rights, privileges or immunities secured to the plaintiff by the Constitution and laws of the United States. Marshall v. Sawyer, at page 646; Cohen v. Norris, at page 30.

The facts alleged in a complaint are sufficient with regard to the first of these elements if they lay a groundwork for proof that, at the time in question, the defendant was clothed with the authority of state or local government and was purporting to act thereunder. Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495; Marshall v. Sawyer, 301 F.2d at page 646.

As a foundation for proving that appellees were at the relevant times, clothed with such authority, it was alleged that they were then police officers of the City of Chino. As a foundation for proving that, in performing the acts complained of, appellees were purporting to act under such authority, it was alleged that all such acts were performed at the police station, police equipment was used, the initial photographing was done in purported processing of a complaint appellant had made to the police, and the distribution of the photographs was to other members of the police department. There was also the general allegation, quoted in note 3, that 'all of the acts of the defendants were as police officers of said Chino Police Department. * * *'

It does not appear to us beyond doubt that appellant cannot, under these allegations, prove a set of facts establishing that, at the times in question, appellees were clothed with the authority of local government and that, in performing the acts complained of, they were purporting to act under such authority. It follows, to apply the rule recognized in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80, that the amended complaint was not subject to dismissal on the ground that it fails to allege facts showing that appellees were acting under color of local authority.

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Our view in this regard apparently accords with that of the district court, since the amended complaint was not dismissed on the ground of failure to allege that appellees were acting under color of local authority. It is also to be noted that appellees do not contend that the amended complaint is deficient as to this ingredient of a civil rights action. 6 It hardly need be added that the question of whether appellant can prove that appellees were clothed with local authority, and were purporting to act pursuant thereto in doing the things complained of, does not concern us now.

The district court's determination that this pleading does not state a claim under section 1979 rests solely upon the ground that, under the allegations of the amended complaint, appellant had not been deprived of any federally-protected right.

Contending that the...

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