Basista v. Weir

• Decision Date: 08 January 1965
• Docket Number: No. 14816.,14816.
• Parties: Frank BASISTA, Appellant, v. Walter WEIR, Chief of Police, City of Duquesne, Charles Scalese, Captain of Police, and Vernon Smith, Police Officer, All of the City of Duquesne, Allegheny County, Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

340 F.2d 74 (1965)

Frank BASISTA, Appellant, v. Walter WEIR, Chief of Police, City of Duquesne, Charles Scalese, Captain of Police, and Vernon Smith, Police Officer, All of the City of Duquesne, Allegheny County, Pennsylvania.

No. 14816.

United States Court of Appeals Third Circuit.

Argued June 3, 1964.

Decided January 8, 1965.

COPYRIGHT MATERIAL OMITTED

Harry Alan Sherman, Pittsburgh, Pa., for appellant.

John E. Evans, Jr., Evans, Ivory & Evans, Pittsburgh, Pa., for appellees.

Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.

BIGGS, Chief Judge.

I. STATEMENT OF FACTS

The plaintiff-appellant, Frank Basista, a resident of Duquesne, Allegheny County, Pennsylvania, brought suit under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C.A. § 1983, the Fourteenth Amendment, section 1, and the Fourth Amendment of the Constitution of the United States. The defendants are Walter Weir, Chief of Police of Duquesne, Captain Charles Scalese, and Patrolman Vernon Smith of the Duquesne police force. Jurisdiction lies in the court below under § 1343, Title 28 U.S.C. See Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).

Basista alleged that while in his home, Scalese and Smith or one of them, struck him in the back of his head without provocation and thus committed an assault and battery on him; arrested him without provocation or a warrant; denied him or failed to permit him to post bail or bond; and denied him counsel and medical aid while he was in jail.

The court below directed a verdict for Police Chief Weir on the basis that there was a failure of proof.¹ Motions for directed verdict on behalf of the defendants Smith and Scalese were denied. The case was submitted to the jury which found for the defendant Smith but against the defendant Scalese, awarding Basista $1500 as punitive damages but no compensatory damages. The trial judge set aside the jury verdict, granting Scalese's motion for a directed verdict. Rule 50(b), Fed.R.Civ.Proc., 28 U.S.C. Basista v. Weir, 225 F.Supp. 619 (1964). Basista has appealed.

The operative facts are as follows: In the early evening on July 17, 1959, Smith and Scalese, both on duty and cruising in a patrol car, answered a complaint received from a Mrs. Blake, a sister-in-law of Scalese. Being informed that Basista had been there and had annoyed her, the two officers then proceeded to the rear of Basista's home which was a short distance from Mrs. Blake's home. When they arrived to investigate the complaint, Basista testified that while he had been drinking, he was not drunk and that he invited the police officers into his home; that Scalese entered the house while Smith remained on the porch, seated on a concrete banister. The conversation between Scalese and Basista became heated and twice Basista challenged Scalese to a man-to-man fight behind a shed or in a rock quarry to settle their personal differences. Scalese refused.

At this point their stories as they appear from the testimony differ widely. Basista testified that he asked Scalese whether he had a warrant and upon Scalese's answer that he had none, asked Scalese to leave. Basista testified that after asking Scalese to leave he, Basista, sat down facing away from the door whereupon he was struck on the back of the head by Scalese or Smith and was then dragged from his house, in view of his wife, his children and his neighbors. He then began to resist violently whereupon Smith came to Scalese's aid and Basista alleges he was thrown to the ground face down, handcuffed, and placed in a police car; that while in the car Scalese whipped him about his head with a billy club; and that Smith with Scalese then drove him to the Duquesne jail.

The testimony of Scalese and Smith was that Basista became loud, abusive and used foul language which could be heard by neighbors and passersby and by children playing in the street. Scalese testified that he warned Basista that if he continued such behavior that he would be arrested for disorderly conduct. Scalese testified that Basista continued his tirade and attacked the Duquesne police force as a "bunch of yellow-bellies" at which point he, Scalese, told Basista that he was under arrest. At this point Basista is alleged to have pushed through the door knocking Scalese onto Smith, both Smith and Scalese wrestled Basista to the ground, subduing him and hand-cuffing him but using no more force than was necessary. Basista is alleged to have then ceased struggling and entered the police car peaceably only immediately thereafter to kick Smith who was in the driver's seat, in the back at his left shoulder. After this, according to the officers' testimony, he braced himself against the left rear door of the car, and rammed his head and shoulder into Scalese's stomach as he was entering the right rear door. The officers testified that Smith drove the car to the police station with Scalese and Basista in the somewhat unusual position indicated. It is not disputed that the siren was used on at least a part of the trip to the police station.

Upon arriving at the police station Basista was placed immediately in a cell. He testified that he was in a dazed, injured, bleeding condition and requested medical aid, counsel and bail. It was not established to whom he made these requests. At any rate Scalese went about his duties and Smith returned to patrol. Both officers testified, and it was not contested, that once a prisoner is placed in a cell, as a matter of regular procedure it is the duty of the desk sergeant, who is also "turnkey," to inquire of a person in a cell as to whether he needs or wants medical aid, counsel, or bail.

In view of the jury's verdict, we must assume the facts were as testified to by the plaintiff's witnesses and must take those inferences from the evidence most favorable to Basista.

On the following morning Basista was given a hearing before a magistrate of the City of Duquesne and he was found guilty of disorderly conduct² and fined $10 plus costs which were paid. He was held for court on two charges: (1) resisting arrest, and (2) assault and battery. The Court of Quarter Sessions of the Peace of Allegheny County, Pennsylvania, after a non-jury trial, dismissed the charge of resisting arrest because of the failure of the police to have a warrant and found Basista guilty of assault and battery as set out more particularly hereinafter. He failed to appeal from this judgment and it became final. He then brought this action.

Prior to the date on which the operative facts, the basis of this action, occurred, and on May 9, 1959, Basista had been arrested on a charge of beating his wife. He was incarcerated over night and when he failed to appear before the magistrate on the next morning,³ a summary judgment was entered against him, and $200 which he had posted as bail was "forfeited." Basista attempted to obtain the return of this money the afternoon of July 17, 1959. He had a meeting with the Mayor and for some reason unexplained by the record this meeting was also attended by Scalese and Chief Weir. Basista was informed that the money was paid into the city treasury and could not be returned.⁴

It does not appear with certainty who notified the police or who swore out the complaint on the wife-beating charge against Basista, but the inference can be drawn that it was Mrs. Blake. It seems that it was in respect to this charge that Basista went to Mrs. Blake's home on July 17, allegedly to "straighten her out." While Captain Scalese investigated the complaint regarding wife-beating, he did not arrest Basista on that charge. It appears also that Smith drove the patrol car when Basista was arrested for wife-beating. Chief Weir took no part in the arrest. The impact of these facts here is not too apparent. They are included herein by way of background material as a possible explanation of the cause of some of Basista's difficulties with the police.

II. WAS THERE A CAUSE OF ACTION UNDER THE CIVIL RIGHTS ACT?

The Civil Rights Act, § 1983, provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The Act prescribes two elements as requisite for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. Marshall v. Sawyer, 301 F.2d 639, 646 (9 Cir. 1962). Of what rights was Basista deprived?

Basista asserts that he was denied the right to bail for a bailable offense, a right secured to him by the Eighth Amendment of the Constitution of the United States. Chief Weir in his testimony indicated that he, at Basista's request, telephoned a Mr. Pucci with regard to obtaining bail. It is undisputed that Chief Weir was told, and that this was relayed to Basista, that bail would be furnished Basista the next day. In addition, it is not disputed that no one acting on Basista's behalf came to the jail and tendered bond or bail to the desk sergeant, who was in charge. It thus appears that if Basista remained in jail overnight, it was not because he was denied bail by any of these defendants, but because no one appeared on Basista's behalf to post bail. There is insufficient evidence to support Basista's charge of denial of bail.

Basista further alleges that he was denied medical aid. While Basista offered evidence of his need for medical aid, it does not appear that he requested the defendants to provide such aid. Nor do we think, at...