Boulware v. Battaglia

• Decision Date: 20 May 1971
• Docket Number: Civ. A. No. 3869.
• Citation: 327 F. Supp. 368
• Parties: Edwin D. BOULWARE et al., Plaintiffs, v. Victor F. BATTAGLIA et al., Defendants.
• Court: U.S. District Court — District of Delaware

327 F. Supp. 368

Edwin D. BOULWARE et al., Plaintiffs, v. Victor F. BATTAGLIA et al., Defendants.

Civ. A. No. 3869.

United States District Court, D. Delaware.

May 20, 1971.

Emmett J. Conte, Jr., Wilmington, Del., for plaintiffs.

Andrew B. Kirkpatrick, Jr., and Walter L. Pepperman, II, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendants.

OPINION

CALEB M. WRIGHT, Chief Judge.

This action comes before the Court on the defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Although the complaint contains no jurisdictional allegations, the Court's jurisdiction has not been challenged. However, the Court notes here that which will become apparent hereafter—28 U.S.C. § 1343 provides the jurisdictional basis for this action.

Plaintiffs¹ were at all pertinent times employees of the City of Wilmington, Department of Public Safety. All of the defendants² with the exception of Victor F. Battaglia were also so employed. Defendant Battaglia was the Director of the Law Department of the City of Wilmington. Complaint, ¶ 1.

Since this is a motion to dismiss the complaint for failure to state a claim, the facts alleged in the complaint must be taken as true for purposes of this motion. In brief, the complaint indicates that plaintiff police officers were subjected to internal police disciplinary proceedings, based upon an investigation alleged to have been controlled by defendant Battaglia, and thereafter disciplined in accordance with the decision of a "Trial Board" constituted pursuant to the Regulations of the Bureau of Police. Plaintiffs allege that during this process certain of their civil rights were violated and that each of the defendants participated in, conspired together to effect and/or directed and controlled the denial of these civil rights.

The complaint alleges that from April 11 through April 14, 1969, certain telephone conversations between some of the parties to this litigation were illegally transcribed by the defendants Chickadel and Valiante, in violation of plaintiffs' civil rights, and under orders from defendant Battaglia. Complaint, ¶ 19. The defendants are also alleged to have violated plaintiffs' civil rights in that they interrogated plaintiffs without benefit of counsel on both April 14 and 17, 1969, and accused them of criminal conduct. Complaint, ¶¶ 20, 21.

On May 2, 1969, defendants White and Sylwestrzuk preferred charges against each of the plaintiffs alleging violations of the Rules and Regulations governing the Bureau of Police. Plaintiffs Boulware, Maloney, McNair and Smith were charged with neglecting to report violations of the Rules and Regulations governing the Bureau of Police of which they had knowledge to their commanding officer. Smith was also charged with conduct unbecoming an officer as was plaintiff Shahan. Plaintiffs allege that the filing of the charges violated their civil rights. Complaint, ¶ 22.

The specifications of charges against the plaintiffs are set out in the margin;³ these reveal the nature of the conduct of which plaintiffs were accused. The veracity of the charges, however, need not concern the Court at this point. Plaintiffs allege that the specifications noted in the margin violated their civil rights "in that no competent evidence substantiated any specification." Complaint, ¶ 24.

On May 14, 1969, the defendants convened a Trial Board, which plaintiffs allege to have violated their civil rights. The composition of the Trial Board—defendants Bozman, Shockley and Turner —is also alleged to have violated plaintiffs' civil rights. Complaint, ¶ 23. On May 21, 1969, the Trial Board announced its decision which, the complaint states, was "ordered by defendant McCool and approved by defendant O'Rourke." Complaint, ¶ 25. The Trial Board found all the plaintiffs guilty as charged, and these guilty verdicts are alleged to have been in violation of the plaintiffs' civil rights because the Board failed to follow the Rules and Regulations of the Board and "employed no recognized procedure to insure due process for the admission and exclusion of evidence and for determination of burden of proof." Complaint, ¶ 26.

The plaintiffs were thereafter sentenced to varying periods of probation, extra duty (without pay) and reduction in rank,⁴ although the complaint does not state which of the defendants imposed sentence. Complaint, ¶ 27. The complaint further alleges that the sentences were served by each plaintiff and that they violated plaintiffs' civil rights.

The final allegation of defendants' infringing plaintiffs' civil rights is that defendants required each of the plaintiffs to submit "written reports" concerning the incident

with knowledge that this requirement contradicted the advice of counsel each plaintiff sought and received; in the failure to provide any avenue of review; in the fact that no investigation and no evidence indicated any conspiracy as charged; in the refusal to provide, after legitimate request, copies of statements made by all plaintiffs, which refusal continues to the present date, in the delay of the transcription of the Trial Board proceedings. Complaint, ¶ 28.

The complaint states that these activities of the defendants were in violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985 and 47 U.S.C. § 605. The question of whether the plaintiffs have asserted a claim under § 1983 is a relatively close one and will be discussed at some relative length. Any reliance on the other two statutes is frivolous to say the least, and these will be dispensed with first.

First, in their briefs plaintiffs assert that subsections (2) and (3) of § 1985 are applicable to this case.⁵ It is perfectly apparent, however, that there is no allegation in the complaint that would be sufficient, no matter how liberally the complaint is interpreted, to ground an action under any provision of § 1985. Plaintiffs have not alleged willful discrimination nor have they suggested that this case involves a denial of equal protection or equal rights. Section 1985 is not applicable to a case that does not involve these factors. See, e. g., Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Elmwood Properties, Inc v. Conzelman, 418 F.2d 1025, 1028 (7th Cir. 1969); Kletschka v. Driver, 411 F.2d 436, 447 (2nd Cir. 1969); Meredith v. Allen County War Mem. Hosp. Commission, 397 F.2d 33, 35 (6th Cir. 1968); Birnbaum v. Trussell, 371 F.2d 672, 676 (2nd Cir. 1966); Hoffman v. Halden, 268 F.2d 280, 292 (9th Cir. 1959). Thus, it is quite obvious that § 1985 has no place in this action, or at least that plaintiffs have not stated a claim under § 1985 upon which relief can be granted.

Second, plaintiffs' citation of 47 U.S.C. § 605 in the context of this case is quite puzzling. As defendants note in their brief, § 605 was amended by the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 82 Stat. 197. The revised statute and legislative history indicate that the applicability of § 605 to the allegations in this case in 1969 is subject to serious doubt. Section 605 refers only to radio communications except for the opening provision which apparently covers telephones but is limited to "communications personnel." See, Senate Report No. 1097 (90th Cong., 2nd Sess.1968), 2 U.S.Code Cong. & Admin.News 2196-2197 (1968). Since all of the defendants are city employees, they are not communications personnel. Also, plaintiffs allege that the intercepted communications were by telephone rather than radio. Complaint, ¶ 19. Therefore, § 605 could not apply.

The defendants suggest in their brief that the statute for which plaintiffs were searching is 18 U.S.C. § 2511, and the Court is quite certain that Chapter 119 of Title 18 has important bearing on the question of whether plaintiffs' civil rights could have been violated by the interception or transcription of telephonic communications by eavesdropping devices or other means as they allege in their complaint. It may be that the interceptions were authorized pursuant to 18 U.S.C. §§ 2516-2518, or that prior consent or cooperation was obtained. 18 U.S.C. § 2511(2) (c). Of particular importance, of course, is 18 U.S.C. § 2520 authorizing civil damages for violations of Chapter 119.

Plaintiffs have not adequately explored the legal theories pertinent to their case in this area of the law, and the Court need not develop plaintiffs' case for them in this opinion. Suffice it to say that the complaint, liberally construed, does not state a claim for relief under a statute or constitutional provision on the basis of illegal interception of telephone calls.⁶

Plaintiffs' main argument is that they have stated a claim under 42 U.S.C. § 1983⁷ since they have alleged that defendants have subjected them to the deprivation of a number of rights secured to them by the U. S. Constitution and federal laws. Interpreting the complaint liberally plaintiffs have alleged that the defendants have deprived them of several fundamental constitutional rights—the right to counsel, the right not to incriminate themselves,⁸ the right to due process of law and perhaps the right to be free of unreasonable searches and seizures.⁹ Plaintiffs have alleged these deprivations in conclusory terms. The sole question before the Court is whether the facts alleged support the allegation that these plaintiffs were deprived of their civil rights in violation of § 1983.

At the outset of this discussion, it might be best to state clearly what is not involved in the Court's decision today. Defendants main argument in support of their motion for dismissal of the complaint is that the plaintiffs have no federally protected right to be employed on the police force of the City of Wilmington and, therefore, their disciplinary proceedings are a matter of state administrative law not subject to federal review in an action such as...