Beauregard v. Wingard

Decision Date01 June 1964
Docket NumberCiv. No. 2785.
Citation230 F. Supp. 167
CourtU.S. District Court — Southern District of California
PartiesMaurice Emile BEAUREGARD, Plaintiff, v. William H. WINGARD, Ernest C. Michaels and Gene Cowley, Defendants.


James Schwartz, Beverly Hills, Cal., for plaintiff.

John S. Rhoades, San Diego, Cal., for defendant Gene Cowley.

James L. Focht, Jr., San Diego, Cal., for defendant Ernest C. Michaels.

WEINBERGER, District Judge.

Plaintiff's original complaint herein was attacked by defendants on several grounds. The Court first considered and granted a motion to make more definite and certain. A similar motion was directed to the first amended complaint. In granting the second motion we said, in our memorandum to counsel dated September 17, 1963:

"We are here confronted with grave constitutional questions. * * In justice to the parties and to the Court, the complaint should be one which clearly states the allegations which plaintiff means it should state, and these allegations should be understood by the parties and by the Court before a decision on the motion to dismiss is made. The necessity for a clean-cut type of pleading in this case is referred to in the opinion of Hoffman v. Halden, 9 Cir., 268 F.2d 280, p. 2941 and in the cases cited in Note 15 at such page, and in Cohen v. Norris, 300 F.2d 24, 33, the Court of the Ninth Circuit suggested amendment to amplify the factual setting of the incidents and to eliminate surplusage and other inconsistencies."

The second amended complaint was filed September 23, 1963, and the previous motion to dismiss was, by permission of the Court deemed directed to such complaint. Briefs were ordered, and after each of the parties had been granted additional time to submit their respective briefs, the matter was submitted on March 16, 1964.


Plaintiff alleges that his action is one to redress the deprivation, under color of law of the State of California, of the rights, privileges or immunities secured by the Constitution within the meaning of Section 1983 of Title 42 U.S.C.A.

Plaintiff further alleges that defendant Wingard was at all times mentioned in the complaint the duly elected, appointed, qualified and acting Chief of Police of the City of Oceanside; defendant Michaels was at all times mentioned a police officer of said City; defendant Cowley was at all times mentioned a deputy sheriff, rendering services as a fully authorized police officer of the City of Oceanside; all defendants were at all times mentioned acting within the scope of their employment as Chief of Police and police officers, and at all times mentioned acted under color of authority as such police officers.

There is also an allegation as to each officer that he was acting "individually and as a duly authorized agent and employee of the City of Oceanside". We do not understand the use of the word "individually", since defendants could not act as "individuals" and as police officers. If they acted as individuals, no cause of action would be stated under Section 1983 of 42 U.S.C.A., because as individuals, they could not act under "color of law of the State of California". Since it is clear that plaintiff refers to all the acts of defendants being performed in their official capacity, we shall treat the word "individually" as surplusage.

It is alleged that plaintiff was a candidate for the office of City Councilman in the City of Oceanside, and during the political campaign plaintiff severely criticized the Chief of Police, defendant Wingard, and demanded his removal from office and further, verbally attacked the Oceanside Police Department; that defendant Wingard warned plaintiff to "lay off or else. * * *" but plaintiff continued his criticism; that plaintiff's attacks upon the defendant Wingard and upon the Police Department created resentment and a desire for revenge and that the defendants thereafter deliberately, intentionally and maliciously conceived a plan to force plaintiff into a compromising act or position in order to give it the false appearance of a crime, cause plaintiff to be arrested, give him a police record, bring him into disgrace in his community, as a punishment for his criticism aforesaid.

It is then alleged that pursuant to such plan plaintiff was arrested by defendants without a warrant having been issued for such arrest; that plaintiff was taken into custody by defendants and by them conveyed to jail, thus being deprived of his liberty; that plaintiff was by defendants booked into jail on a criminal charge, imprisoned for several hours and thus deprived of his liberty; that after a trial in the Superior Court of San Diego County, plaintiff was acquitted; that all of the acts of the defendants were without cause, were malicious and intentional and done for the purpose of punishing plaintiff for having criticized a defendant or defendants, and were in violation of plaintiff's rights under the Fourteenth Amendment.


The motion to dismiss urges the following grounds:

1. The Court lacks jurisdiction of the subject matter.

2. The complaint discloses on its face that the cause of action is barred by the Statute of Limitations.

3. The complaint fails to state a claim against defendants upon which relief can be granted.


Jurisdiction of the subject matter is found by virtue of Section 42 U.S.C.A § 1983 (R.S. § 1979), 28 U.S.C.A. § 1343 and 28 U.S.C.A. § 1331.2


Counsel for defendants view the complaint as containing allegations of false arrest or malicious prosecution or both, and seek to apply the California statutes of limitation for such causes of action. There are allegations which resemble those found in California actions for false arrest, and there are allegations which resemble those found in California actions for malicious prosecution.3 However, a new cause of action in the Federal Courts was created by the Civil Rights Acts. (See concurring opinion, Mr. Justice Harlan, Monroe v. Pape, 365 U.S. 167, at 196, 81 S.Ct. 473, at 489, 5 L.Ed. 2d 492). Since no statute of limitations is provided by Federal law, we are not precluded from using the most applicable state statute. (Hoffman v. Halden, 9 Cir. 1959, 268 F.2d 280, 305). California Code of Civil Procedure, Section 338, subd. 1, providing that actions on liability created by statute must be brought within three years is applicable to an action in a California Federal Court under 42 U.S.C.A. § 1983. (Smith v. Cremins, 9 Cir. 1962, 308 F.2d at 187, 189, 190). The acts of which plaintiff complains are alleged to have occurred on or about August 30, 1961; the original complaint was filed October 8, 1962. There would appear to be no bar of the statute of limitations.


In passing upon a motion to dismiss, we are required to consider the allegations of the complaint, as distinguished from conclusions, as admitted facts. We shall therefore refer to the alleged acts of the defendants, as facts, without, of course, so finding.4

Color of law. In suits under Section 1983 of Title 42 U.S.C.A. we first consider whether the acts complained of were done under "color of any statute, ordinance, regulation, custom, or usage, of any State". For purposes of brevity, we shall refer to this element as "color of law". Perhaps the case most often cited for a definition of "color of law" is United States v. Classic, 1941, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368. We quote:

"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."

The defendants were officers of the City of Oceanside at the time the acts complained of were committed; defendants were charged by law with enforcing the Penal Code of California, and they arrested plaintiff, charged him with a violation of such Code, Section 337a, Subdivisions 1 and 3 (bookmaking) and imprisoned him under authority of and pursuant to such arrest. This they were authorized to do under the state law, and though they misused their authority, abused their position, acted not under or pursuant to law but "under pretense of law" for their own personal revenge and satisfaction they were still acting "under color of" state law.5

Immunity. Defendants maintain that plaintiff cannot state a cause of action against defendants because of "the traditional immunity of law officers from liability for malicious prosecution", since it is alleged and the allegations of the complaint show that defendants were acting within the scope of their official duties.

The California Supreme Court opinion in White v. Towers, 1951, 37 Cal.2d 727, 235 P.2d 209, 28 A.L.R.2d 636, is cited as the leading authority. (The opinion was accompanied by a strong dissent from Justice Carter in which Justice Schauer concurred). The reasons given in the majority opinion are similar to those given for immunity of Federal law enforcement officers in Judge Learned Hand's opinion in Gregoire v. Biddle, 2 Cir., 177 F.2d 579; the latter opinion has been cited as authority in some of the later California cases along with White v. Towers.6

We quote from Gregoire v. Biddle, beginning at p. 581 of 177 F.2d:

"* * * It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most

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