Owens v. Haas, 77 C 668.

• Decision Date: 12 September 1978
• Docket Number: No. 77 C 668.,77 C 668.
• Citation: 456 F. Supp. 1009
• Parties: DeWitt OWENS, Plaintiff, v. John HAAS, Alonzo Quarles, Peter Skalkos, James J. Britt, William R. Kessler, Joseph Chotkowski, Michael Allen, Walter J. Flood and The County of Nassau, Defendants.
• Court: U.S. District Court — Eastern District of New York

456 F. Supp. 1009

DeWitt OWENS, Plaintiff, v. John HAAS, Alonzo Quarles, Peter Skalkos, James J. Britt, William R. Kessler, Joseph Chotkowski, Michael Allen, Walter J. Flood and The County of Nassau, Defendants.

No. 77 C 668.

United States District Court, E. D. New York.

September 12, 1978.

Philip K. Howard and Steven E. Harbour, New York City, for plaintiff.

Edward G. McCabe, County Atty. for the County of Nassau, Mineola, N. Y., for the individually named defendants.

Newman & Schlau, P. C., New York City, for the County of Nassau.

MEMORANDUM AND ORDER

GEORGE C. PRATT, District Judge:

By motion submitted on July 20, 1978, defendant County of Nassau seeks an order granting summary judgment dismissing the complaint against it. Although the motion is captioned as one for summary judgment, the county has not filed a statement of undisputed facts pursuant to EDNY Rule 9(g), stating that it is inapplicable to this motion. Therefore, the court will consider the motion as one for judgment on the pleadings pursuant to FRCP 12(c).

According to the complaint, plaintiff is a federal prisoner who, on August 8, 1976, was transferred from federal custody to the Nassau County jail in Hicksville for the purpose of insuring his safety. The transfer was made under a general agreement between the United States and Nassau County entered into pursuant to 18 U.S.C. § 4002, under which the federal government for a fee may house federal prisoners in county facilities. The complaint alleges that on October 27, 1976, the individual corrections officers named as defendants herein inflicted serious physical injuries on the plaintiff, by "choking him and beating him with their fists about the head and body", thereby rendering him unconscious. Complaint, ¶ 15.

Seeking compensatory damages, punitive damages, and attorney's fees, plaintiff sues under 42 U.S.C. §§ 1983 & 1985, as well as directly under the fourteenth amendment, alleging violations of constitutional rights under the fifth, eighth, and fourteenth amendments. Plaintiff also claims third party beneficiary rights under the county's contract with the United States, and further asserts pendent claims of liability under state law.

The county seeks dismissal, claiming that as a municipal corporation it cannot be held responsible in this court for the alleged acts of the individual defendants.

§ 1983 CLAIM

Until recently, indeed, even when this motion was originally made, political subdivisions of a state were not considered "persons" subject to suit under § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). On June 6, 1978, however, the Supreme Court expressly overruled Monroe v. Pape, supra, and its progeny, insofar as they had held that a local government was not a "person" suable under § 1983. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But the shield against municipal liability was only partially lifted. In Monell, the court specifically stated that:

local governing bodies * * * can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where * * * the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, * * * local governments * * * may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.

* * * * * *

On the other hand, * * * Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tort feasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. Id., 98 S.Ct. at 2035-36 (emphasis in original)

Under Monell's new reading of § 1983, therefore, the governmental entity may be liable for its employees' acts, but only when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury * * *." Id., 98 S.Ct. at 2038.

In an earlier case, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the Supreme Court denied injunctive relief against city officials on a § 1983 claim involving actions of the city's police officers. The Second Circuit recently commented on that case:

The plaintiffs * * * did not demonstrate that the random actions of the police officers were part of a concerted plan or pursuant to any departmental policy — express or otherwise. This failure to prove any "causal link" between individual incidents and the behavior of those in authority was fatal to their claim. We are permitting municipal liability only where the governmental entity authorizes, sanctions, or ratifies the actions of its employees * * *. Turpin v. Mailet, 579 F.2d 152 at 167 (CA2 1978).

Plaintiff urges that under Monell, a municipality's mere failure to supervise its employees would provide a basis for imposing liability, see Monell v. Dept. of Social Services, supra, 98 S.Ct. at 2037 n. 58; Rizzo v. Goode, supra, 423 U.S. at 370-71, 96 S.Ct. 598, reasoning that the county's failure to maintain an adequate prison-guard training program produces guards of the type who allegedly assaulted the plaintiff. Such a theory, however, is one step removed from the situations envisioned by Monell. Plaintiff asserts here not a repeated course of conduct, but only an isolated incident. He does not allege that the county was aware of any past violent propensities of the defendant corrections officers, nor does he attribute any custom or policy to the county. In short, on the pleadings before the court, there is simply no "causal link" to connect the assault on plaintiff with any sort of official county policy or custom.

Finally, in Monell the Supreme Court reaffirmed Monroe v. Pape, supra, "insofar as it holds that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees." 98 S.Ct. at 2022 n. 7. To the extent that the complaint suggests liability under § 1983 predicated on respondeat superior, it therefore errs. Despite Monell, then, plaintiff's action against the county, insofar as it is based on § 1983, must be dismissed.

§ 1985 CLAIM

Plaintiff also seeks to hold the county liable under 42 U.S.C. § 1985. Prior to Monell, a § 1985 damage claim could not be maintained against a municipality because the latter was not a "person". See Bosely v. City of Euclid, 496 F.2d 193 (CA6 1974); see also Weathers v. W. Yuma County School District, 387 F.Supp. 552 (D.Colo. 1974); Potts v. Wright, 357 F.Supp. 215 (E.D.Pa.1973). Now, however, the Supreme Court's current reading of legislative history to classify a municipal corporation as a "person" under § 1983 presumably is equally applicable to § 1985, each of whose subdivisions proscribes conduct by "two or more persons".

Assuming without deciding that a municipal corporation is a "person" capable of entering into a conspiracy in violation of § 1985, it is nevertheless clear that plaintiff here has alleged no such conspiracy. As under § 1983, liability of a municipality for conspiracy to violate plaintiff's civil rights must derive from more than conspiratorial conduct by a low level employee. Necessarily, it must reflect an officially adopted policy or custom of the municipality. Since plaintiff here has alleged no facts which would implicate a municipal policy or custom of conspiring to violate plaintiff's rights, his claim under 42 U.S.C. § 1985 must be dismissed.

FOURTEENTH AMENDMENT CLAIM

Plaintiff also seeks to keep the county in the action under the Second Circuit's recent decision in Turpin v. Mailet, 579 F.2d 152 (CA2 1978), upholding a damage claim asserted against a municipal corporation directly under the fourteenth amendment. In his concurring opinion in Monell, Mr. Justice Powell indicated that one of the considerations moving him to overrule the Supreme Court's interpretation of the statutory term "person" established in Monroe v. Pape, was the difficulty presented by the Supreme Court's decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) in which a cause of action for damages had been implied directly from the fourth amendment. According to Justice Powell, he would rather overrule Monroe "than constitutionalize a cause of action against local government that Congress intended to create in 1871". Monell, supra, 98 S.Ct. at 2047. At least one Supreme Court Justice, therefore, resists the concept of a damage claim against a municipality directly under the fourteenth amendment.

Nevertheless, one day before the Monell decision, the Second Circuit in Turpin expressly upheld such a direct claim. In doing so, however, the Second Circuit imposed...