Leite v. City of Providence, Civ. A. No. 78-320.

• Citation: 463 F. Supp. 585
• Decision Date: 21 December 1978
• Docket Number: Civ. A. No. 78-320.
• Parties: Homero F. LEITE v. CITY OF PROVIDENCE, by and through its Treasurer Donald E. McKiernan and John Does numbered one through five, Individually and in their capacities as officers of the Providence Police Department, whose names are presently unknown to the Plaintiff.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

463 F. Supp. 585

Homero F. LEITE v. CITY OF PROVIDENCE, by and through its Treasurer Donald E. McKiernan and John Does numbered one through five, Individually and in their capacities as officers of the Providence Police Department, whose names are presently unknown to the Plaintiff.

Civ. A. No. 78-320.

United States District Court, D. Rhode Island.

December 21, 1978.

COPYRIGHT MATERIAL OMITTED

Gerald McG. DeCelles, Providence, R. I., for plaintiff.

Joseph F. Penza, Jr., Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

The plaintiff Homero Leite alleges that five Providence policemen verbally and physically abused and mistreated him. Leite brings the present action pursuant to numerous federal civil rights statutes, relying primarily upon 42 U.S.C. § 1983 and asserting a cause of action under various constitutional amendments as they are incorporated into the fourteenth amendment with jurisdiction under 28 U.S.C. § 1331.¹ The complaint names the five unknown officers, in their official and individual capacities, and the City of Providence; the complaint solely seeks monetary damages. The City of Providence has filed a motion to dismiss and primarily depends upon the inability to sue a municipality under section 1983. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The plaintiff vigorously opposes the City's motion and cites Monell et al. v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the recent United States Supreme Court case that modified Monroe v. Pape and allowed some section 1983 claims to be brought against a municipality.

In deciding this motion to dismiss, it is necessary to examine the effect of Monell upon the body of precedent spawned by Monroe v. Pape. Essentially this Court must begin to define, in the wake of Monell, the contours of municipal immunity and pendent jurisdiction under section 1983.

The ramifications of Monell are significant. The decision reconsidered the legislative history of section 1983 and overruled that portion of Monroe v. Pape holding that municipalities are not "persons" in the context of section 1983. The Court held that local governments can be sued directly under section 1983 for allegedly unconstitutional acts that are the result of implementing or executing an officially sanctioned policy, ordinance, regulation, or custom. The action sued upon must be taken "pursuant to official municipal policy"; the liability cannot be based solely upon a respondeat superior theory.

The plaintiff in this case first argues that he need not rely upon section 1983 or the Monell decision because he asserts a claim based directly upon the fourteenth amendment with jurisdiction grounded in 28 U.S.C. § 1331. Leite cites this Court's decision in Panzarella v. Boyle, 406 F.Supp. 787, 794-97 (D.R.I.1975) as authority for this proposition. There has been much doctrinal change since Panzarella, however, and its reasoning has been undermined considerably. The First Circuit refuses to imply a cause of action under the fourteenth amendment for monetary damages against a municipality. Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). And this Court has followed suit. Lembo v. Rossi, et al. (C.A. # 75-240) (unreported mem. op. 12/20/77). The First Circuit's Kostka decision did draw support from the fact that Monroe v. Pape prohibited all section 1983 claims against a municipality. The Monell decision, therefore, might alter the Kostka reasoning, but not its result. Because Congress did provide an adequate remedy under the reinterpreted section 1983, there is little reason to imply a constitutional cause of action against municipalities by analogy to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In his Monell concurrence, Justice Powell specifically mentioned that little reason now existed for resorting to a Bivens -type cause of action and concluded that "rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today". Monell, supra 436 U.S. at 713, 98 S.Ct. at 2047. Under Monell, Leite should not premise a cause of action against a municipality directly upon the fourteenth amendment; rather, he should assert a claim under section 1983.

Leite has asserted a section 1983 claim recognizable under Monell. Although Leite's complaint is largely phrased in terms of a respondeat superior claim, he does assert that "the City of Providence is liable to your petitioner in that it was negligent in hiring, training, continuing to employ and/or failing to discipline and/or supervise its employees . . ." Such a claim asserts that official municipal policy was one of the direct causes of the alleged harm. Therefore, the City of Providence is not being sued solely on the basis of a respondeat superior theory.

Because Monell makes the City a proper party to this sort of section 1983 action, the Court must consider whether the City is immune to suit due to the complaint's failure to allege a lack of "good faith" or a sufficient degree of culpability. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the Supreme Court detailed the "good faith" defense available to state officials sued under section 1983. There is no reason to assume that the "official" or "good faith" immunity should not be extended to municipalities. Although Wood was specifically concerned with the good faith discretion of state officials, the same basic concerns that promoted the limited official immunity under section 1983 also recommend an equally limited municipal immunity or "good faith" defense under section 1983 for cities. As with official immunity, this good faith defense protects a municipality's exercise of discretion and promotes "the decisiveness and judgment required by the public good". Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1973). As the Supreme Court stated in Scheuer, both official and municipal immunity spring "from the same root considerations". Id. at 239, 94 S.Ct. 1683. See also Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1 (1963).

The good faith defense is composed of both objective and subjective standards. An officer is only entitled to this defense if his conduct is motivated by "permissible intentions"; however, an officer's subjective intentions do not invoke the good faith defense if he "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate" a person's "clearly established constitutional rights". Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. 992. The good faith defense was developed in those situations where the officials entered into an intentional course of action with "permissible intentions". See, e. g., Wood v. Strickland, supra, (intentional expulsion of students); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (intentional arrest made in good faith with probable cause). For the sake of analytical clarity, the good faith doctrine of Wood v. Strickland is best applied in those situations where the official acts with a purposeful intention; that is, in those situations where the official had an intention which the Court can inspect and determine its "permissibility". See Developments, Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1205 (1977).

This case, however, involves a municipality which, in its supervisory capacity, was allegedly negligent. Traditional "good faith defense" analysis is not particularly helpful in these circumstances;² instead, the Court must determine whether or not the municipality's alleged conduct rises to a level of culpability sufficient to state a claim under section 1983.

The question of whether negligence gives rise to a section 1983 action is hardly novel. Various federal courts have considered the question and reached varying results.³ The United States Supreme Court has yet to decide the issue of whether section 1983 affords "a remedy for negligent deprivation of constitutional rights". Procunier v. Navarette, 434 U.S. 555, 566 n.14, 98 S.Ct. 855, 862, 55 L.Ed.2d 24 (1978).

The statutory language and history of section 1983 provides no clue as to whether officials with supervisory or training responsibilities should be liable on a theory of negligence. The broad language of section 1983—which provides for liability for any person "causing" a constitutional deprivation — is certainly broad enough to include negligent deprivations, particularly in light of Monroe v. Pape's declaration that 1983 liability should be determined by reference to "the background of tort liability that makes a man responsible for the natural consequences of his actions". 365 U.S. at 187, 81 S.Ct. at 484. Despite the statute's potential sweep, numerous courts have limited section 1983 so as not to reach instances of isolated negligent misconduct. See, e. g., Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976) (en banc); Parker v. McKeithen, 488 F.2d 553 (5th Cir.) cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). In the past, this Court has followed the majority view and stated that "mere negligence" is not sufficient to invoke section 1983 liability. Naughton v. Bevilacqua, 458 F.Supp. 610 (D.R.I. 1978).

In light of Monell, this Court now examines the degree of culpability a municipality must exhibit in order to be liable under section 1983. It is elementary that a municipality can only act through its high level, supervisory officials. Thus, although a municipality cannot be held liable under section 1983 on the theory of respondeat superior, it may be held liable if it acts "directly" through those officials who set and supervise municipal policy. In this case, City officials did set the policies involved in...