Bargainer v. Michal, Civ. A. No. C 64-131.

• Court: U.S. District Court — Northern District of Ohio
• Writing for the Court: Philip Barragate, and Eugene Farley, Law Dept., City of Cleveland, Cleveland, Ohio, for defendants
• Citation: 233 F. Supp. 270
• Parties: Arthur BARGAINER, a Minor, age seventeen, by Mattie Dean, his mother and next friend, Plaintiff, v. Raymond MICHAL, James D. Mackall, Edward Kovacic, Raymond J. Ressler and John E. Popovich, Defendants.
• Decision Date: 02 September 1964
• Docket Number: Civ. A. No. C 64-131.

233 F. Supp. 270

Arthur BARGAINER, a Minor, age seventeen, by Mattie Dean, his mother and next friend, Plaintiff,
v.
Raymond MICHAL, James D. Mackall, Edward Kovacic, Raymond J. Ressler and John E. Popovich, Defendants.

Civ. A. No. C 64-131.

United States District Court N. D. Ohio, E. D.

September 2, 1964.

233 F. Supp. 271

Mosley, Willis & McLeod, Cleveland, Ohio, Charles E. Mosley, Jr., Cleveland, Ohio, of counsel, for plaintiff.

Philip Barragate, and Eugene Farley, Law Dept., City of Cleveland, Cleveland, Ohio, for defendants.

GREEN, District Judge.

This action was brought by plaintiff against five defendants, all members of the Cleveland Police Department. Jurisdiction is predicated upon 42 U.S.C.A. § 1983 and 42 U.S.C.A. § 1985(3), commonly referred to as the "civil rights" sections.

In the complaint it is alleged that:

"Defendants, while acting in their official capacities as police officers of the City of Cleveland, Ohio, deprived plaintiff of privileges and immunities guaranteed to every citizen of the United States, including plaintiff, by Amendments IV, V, VIII and Section 1 of Amendment XIV of the Constitution of the United States * * *"

The substance of the complaint, in brief summary, is that the defendants perpetrated an unprovoked and unjustified attack upon the plaintiff, and subsequently caused false and fraudulent charges to be lodged against him with the Juvenile Court of Cuyahoga County, Ohio, in order to "cover up" the attack upon the plaintiff.

Defendants have moved for dismissal of the complaint. In support of the said motion it is contended:

1) that the complaint fails to set forth a claim upon which relief can be granted;

2) the Court lacks jurisdiction over the subject matter of the action.

It is defendants' basic contention that:

If all of the facts in the Plaintiff's Complaint are taken as true, the alleged conduct of the defendants constitutes an assault and battery pursuable in the State Court, under the State Laws and not in Federal Court.

Defendants also assert that the facts pled do not set forth a conspiracy among the defendants.

The Court has given careful consideration to plaintiff's complaint, and has concluded that insofar as setting forth a cause of action under 42 U.S.C.A. § 1983 is concerned, the complaint is sufficient to withstand the motion by defendants.

The United States Supreme Court has had occasion to consider § 1983 in recent years. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) the Court was confronted with the question of whether a pleading which alleged facts showing an unreasonable search, accompanied by excessive force, followed by an unlawful detention by state police officers, stated a cause of action under 42 U.S.C.A. § 1983. In that action it

233 F. Supp. 272

was also alleged that it was the custom of the police officials to hold prisoners on "open" charges for the purpose of inducing incriminating statements and as punishment without judicial trial

In the course of the Monroe opinion the majority adopted the language of United States v. Classic, 313 U.S. 299, 325, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941) wherein it was said:

"Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law is action taken `under color of' state law."

In reversing the order of dismissal of the complaint entered by the District Court, the Supreme Court held that 42 U.S.C.A. § 1983 was "meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position," Monroe v. Pape, supra, 365 U.S. at 172, 81 S.Ct. at 476.

Since the Supreme Court's decision in Monroe, various circuits have had occasion to pass upon complaints under § 1983 alleging violations of constitutional rights by police officials.¹ The view generally taken by the courts is well summarized in the following statement from Stringer v. Dilger, 313 F.2d 536, 541 (CA 10, 1963):

"The Civil Rights Act, of course, was not enacted to discipline local law-enforcement officials * * * Nevertheless, local law-enforcement officials are subject to civil liability under § 1983 in cases involving deprivations, under color of state law, of rights guaranteed by the Constitution and laws of the United States and particularly by the due process clause of the Fourteenth Amendment."

The Court of Appeals for this circuit has passed upon actions under the Civil Rights Sections both before and after Monroe.

Brown v. United States, 204 F.2d 247 (CA 6, 1953) was an action under the criminal sections, 18 U.S.C.A. §§ 242, 371, the said sections being correlative to the civil remedies...