Blake v. Town of Delaware City

• Decision Date: 14 November 1977
• Docket Number: Civ. A. No. 76-108.
• Citation: 441 F. Supp. 1189
• Parties: Franklin R. BLAKE, Plaintiff, v. The TOWN OF DELAWARE CITY, Delaware, a Municipal Corporation, Philip Cruchley, Individually and in his capacity as former Mayor of the Town of Delaware City, Delaware, Richard T. Gannon, Robert Janiszewski, and Robert Harrison, Individually and in their capacity as former Council Members of the City Council of the Town of Delaware City, Delaware, Emilie Tugend, Individually and in her capacity as former Mayor of the Town of Delaware City, Delaware, William Press, Lawrence Gicker, Richard T. Gannon, Robert Harrison, and Maurice McCarthy, Individually and in their capacity as Council Members of the City Council of the Town of Delaware City, Delaware, G. W. Griffin, Individually and in his capacity as Chief of Police of the Town of Delaware City, Delaware, David Denick, Individually and in his capacity as Patrolman, Police Department, Town of Delaware City, Delaware, Warner T. Foraker, Kennard Harding, and John F. Boyer, Jr., Individually and in their capacity as members of the Police Advisory Board of the Town of Delaware City, Delaware, James Baker and Nicholas DeLeo, Individually and in their capacity as owners of Baker and DeLeo Auto Parts, Defendants.
• Court: U.S. District Court — District of Delaware

441 F. Supp. 1189

Franklin R. BLAKE, Plaintiff, v. The TOWN OF DELAWARE CITY, Delaware, a Municipal Corporation, Philip Cruchley, Individually and in his capacity as former Mayor of the Town of Delaware City, Delaware, Richard T. Gannon, Robert Janiszewski, and Robert Harrison, Individually and in their capacity as former Council Members of the City Council of the Town of Delaware City, Delaware, Emilie Tugend, Individually and in her capacity as former Mayor of the Town of Delaware City, Delaware, William Press, Lawrence Gicker, Richard T. Gannon, Robert Harrison, and Maurice McCarthy, Individually and in their capacity as Council Members of the City Council of the Town of Delaware City, Delaware, G. W. Griffin, Individually and in his capacity as Chief of Police of the Town of Delaware City, Delaware, David Denick, Individually and in his capacity as Patrolman, Police Department, Town of Delaware City, Delaware, Warner T. Foraker, Kennard Harding, and John F. Boyer, Jr., Individually and in their capacity as members of the Police Advisory Board of the Town of Delaware City, Delaware, James Baker and Nicholas DeLeo, Individually and in their capacity as owners of Baker and DeLeo Auto Parts, Defendants.

Civ. A. No. 76-108.

United States District Court, D. Delaware.

November 14, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John B. Kennedy of Kennedy & Kennedy, Wilmington, Del., for plaintiff.

Sheldon N. Sandler of Bader, Dorsey & Kreshtool, Wilmington, Del., for all defendants except James Baker and Nicholas DeLeo.

Morton R. Kimmel of Kimmel & Spiller, P.A., Wilmington, Del., for defendants, James Baker and Nicholas DeLeo.

LATCHUM, Chief Judge.

In this case, the plaintiff, Franklin R. Blake ("Blake"), seeks compensatory and punitive damages in the amount of $2 million dollars for alleged violations of his constitutional rights.¹ The defendants are the Town of Delaware City, eleven individuals who hold or have held positions in the government or on the police force of Delaware City (together with Delaware City, hereinafter collectively referred to as "municipal defendants") and James Baker ("Baker") and Nicholas DeLeo ("DeLeo"), the owners of an automobile parts business. Blake claims that the defendants passed an ordinance prohibiting Delaware City residents from keeping inoperable motor vehicles on their property and three years later enforced that ordinance against Blake, all as part of a conspiracy to "get" him and drive him out of business. The case is now before the court on the defendants' motions for summary judgment.²

I. Background

On February 8, 1971, the Mayor and Council of Delaware City adopted Ordinance 2007, which made it a crime to keep an inoperable motor vehicle outside a garage on private property for more than thirty days, "except in commercial automobile storage yards properly licensed by the State of Delaware."³ Defendant Philip Cruchley ("Cruchley") was mayor at the time and defendants Richard T. Gannon ("Gannon"), Robert Janiszewski ("Janiszewski") and Robert Harrison ("Harrison") were members of the city council. The plaintiff alleges that three other defendants, as members of the Police Advisory Board ("PAB"), advised the city council to enact the ordinance.⁴

After it became effective, the Delaware City Police enforced Ordinance 2007 periodically, but Blake was the first person they arrested under it.⁵ The arrest, which occurred on June 29, 1974, culminated a series of events which began in May 1974, when Police Chief G. W. Griffin ("Griffin"), Sergeant David Denick ("Denick") and former Mayor Emilie Tugend ("Tugend"), all of whom have been named as defendants herein, allegedly agreed to start enforcing the ordinance again. Thereafter, Denick and two PAB members, Foraker and Harding, conducted a tour of the Town and compiled a list of violators. These three defendants identified a total of forty-nine vehicles as being in violation of the ordinance; thirteen of these belonged to the plaintiff. Denick then proceeded to notify each of the violators. He testified at his deposition that on June 19, 1974, he gave Blake a written notice of violation and explained Ordinance 2007 to him.⁶ Blake denies ever receiving notice of the violation,⁷ and for present purposes, the Court will accept his testimony as true. On June 29, 1974, Denick arrested Blake.⁸

Section 5 of Ordinance 2007⁹ authorizes the City to cause any vehicles in violation of the ordinance to be removed, provided the owner of the property on which they are situated receives at least ten days notice of the violation. A few days before Sergeant Denick arrested Blake, he made arrangements with Baker and DeLeo to have any cars which remained in violation towed away. Baker accompanied Denick on the date of the arrest and, after Blake had been taken into custody, began towing the thirteen vehicles to his storage yard. Denick instructed Baker to segregate the cars from the others in Baker and DeLeo's yard and to hold them.¹⁰

On January 15, 1975, a Delaware Common Pleas Court judge held Ordinance 2007 to be unconstitutional, dismissed the charges against Blake, and ordered the return of all personal property which had been taken from Blake.¹¹ The City appealed to Superior Court, but the decision was affirmed.¹² More importantly, the defendants never returned the cars to the plaintiff. It now appears that all of the cars were shredded and sold for salvage.¹³

On March 10, 1976, Blake instituted this action for damages against Baker and DeLeo, the town of Delaware City and the other municipal defendants, in both their official and individual capacities. In a confused and poorly drafted Complaint, Blake claims that the defendants, individually and in concert: (1) violated his right to procedural due process by depriving him of his cars and other personal property on June 29, 1974, without notice and an opportunity to be heard;¹⁴ (2) caused Blake's arrest and the seizure of his property and conducted the same "without a warrant, without probable cause, and in an unreasonable manner, thereby violating the Fourth Amendment . . . .";¹⁵ (3) directed Sergeant Denick to arrest Blake pursuant to a warrant which was void because it was based on an unconstitutional ordinance;¹⁶ and (4) "falsely, maliciously, and without probable cause effected a criminal complaint against the Plaintiff" on June 29, 1974, and instituted prosecution pursuant to that complaint.¹⁷

Originally, the plaintiff based these claims on 42 U.S.C. §§ 1983 and 1985(3) and their jurisdictional counterpart, 28 U.S.C. § 1343(3). Blake later amended his complaint to allege that the matter in controversy exceeded $10,000 and to invoke the Court's general federal question jurisdiction under 28 U.S.C. § 1331.¹⁸

In addition to the above mentioned federal claims, the Complaint asserts a state law claim for conversion of Blake's personal property against all the defendants. The plaintiff requests that the Court exercise pendent jurisdiction over the conversion claim.¹⁹

In their answers²⁰ and memoranda in support of their motions for summary judgment,²¹ the defendants have raised numerous defenses including the lack of subject matter jurisdiction, the statute of limitations, and various immunities. These defenses are considered first in relation to the plaintiff's federal law claims and then in relation to his pendent state law claims.

II. Defenses to Federal Law Claims

A. Jurisdiction

It is well settled that a municipality is not a "person" within the meaning of either 42 U.S.C. § 1983 or § 1985. Monroe v. Pape, 365 U.S. 167, 187-91, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (C.A. 3, 1969); Folk v. Wilson, 313 F.Supp. 727, 728 (D.Del.1970). Moreover, because an action for damages against municipal officers in their official capacity would be satisfied out of the municipal treasury, Sections 1983 and 1985 and their jurisdictional counterpart, 28 U.S.C. § 1343(3), provide no basis for exercising jurisdiction over any of the individual defendants in their official capacity.²²See Monell v. Department of Social Services, 532 F.2d 259, 264-66 (C.A. 2, 1976), cert. granted, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977); Patton v. Conrad Area School District, 388 F.Supp. 410, 416-17 (D.Del.1975). Accordingly, the federal statutory claims against Delaware City and the other municipal defendants in their official capacities will be dismissed.

The plaintiff, however, also relies on this Court's general federal question jurisdiction under 28 U.S.C. § 1331(a)²³ as a basis for his claims that the defendants have deprived him of his constitutional rights. Liberally construed, the Complaint asserts a claim for damages against the municipal defendants directly under the Fourteenth Amendment.²⁴ It is well settled that this Court presently has jurisdiction under 28 U.S.C. § 1331 to hear Fourteenth Amendment claims for money damages against a municipality. City of Kenosha v. Bruno, 412 U.S. 507, 513-14, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Mahone v. Waddle, 564 F.2d 1018, at 1022 (C.A. 3, 1977); Gagliardi v. Flint, 564 F.2d 112, at 115 (C.A. 3, 1977). As the Third Circuit emphasized in the Mahone case, however, the jurisdictional issue is separate and distinct from the question: whether the Fourteenth Amendment gives rise to a cause of action for damages against a municipality. 564 F.2d at 1022-1023. The Supreme Court has never decided the latter issue.²⁵ And although several district court judges in this circuit have interpreted certain Third Circuit opinions²⁶ as recognizing an implied cause of action for damages under the Fourteenth Amendment,²⁷ two recent opinions written by Judge Rosenn indicate that the Third Circuit also has not yet decided the issue.²⁸ In Gagliardi v. Flint, supra, the majority held that the cases referred to in note 26, supra, dealt only...