O'BRIEN v. Galloway

• Decision Date: 15 August 1973
• Docket Number: Civ. A. No. 4637.
• Citation: 362 F. Supp. 901
• Parties: Richard O'BRIEN, Plaintiff, v. Albert H. GALLOWAY, Individually and as Commissioner of the Police Department of the Town of Newport, et al., Defendants.
• Court: U.S. District Court — District of Delaware

362 F. Supp. 901

Richard O'BRIEN, Plaintiff, v. Albert H. GALLOWAY, Individually and as Commissioner of the Police Department of the Town of Newport, et al., Defendants.

Civ. A. No. 4637.

United States District Court, D. Delaware.

August 15, 1973.

COPYRIGHT MATERIAL OMITTED

L. Vincent Ramunno, Wilmington, Del., for plaintiff.

Thomas Herlihy, III, of Herlihy & Herlihy, Wilmington, Del., for defendants.

OPINION

LATCHUM, District Judge.

In this Civil Rights Action, the plaintiff seeks money damages in the amount of $50,000 and reinstatement to his status as a police officer in the Town of Newport, Delaware, from which he was discharged on April 17, 1973. The matters presently before the Court are the defendants' motion to dismiss for lack of jurisdiction over the subject matter and the plaintiff's motion for a preliminary injunction reinstating him as a police officer.

The background facts of this internecine imbroglio are as follows. The plaintiff Richard O'Brien ("O'Brien") had been employed as a policeman in Newport for several years. On January 8, 1973 as a result of town elections, defendant Albert Galloway ("Galloway") became Police Commissioner. Galloway instituted some new and different practices and procedures within the police department with which some of the police officers, including O'Brien, took issue. Complaints and countercharges caused relations between the dissident officers and Galloway to become quite acrimonious. Finally, a grievance was filed by three police officers with the Town Commissioners on April 5 charging Galloway with dereliction of duty, incompetency and discrimination. A closed meeting was held before the Commissioners on April 16 to discuss the complaints.¹ While discussions at the meeting were heated, by the end of the meeting it was resolved that the problems which had arisen were due primarily to a lack of communication and the Commissioners urged the participants to seek reconciliation and establish more accessible lines of communication. Apparently, Galloway and the officers, including O'Brien, promised to cooperate more or less in the future. During one of the stormier moments of the meeting, however, O'Brien and two other officers had removed their badges and walked out of the meeting. When asked what had happened by some people who were waiting outside the meeting place, O'Brien in effect stated that he would not stay on the police force and let an idiot make a monkey out of him. After this remark, the dissident police officers were persuaded to return to the meeting where, as stated above, a spirit of conciliation ultimately prevailed. The next day, however, the Wilmington Morning News carried an article on the meeting, including the intemperate remarks O'Brien had made outside the meeting place. A reporter for the newspaper had been within hearing distance when he had made his remark. O'Brien was confronted by Galloway and asked if he had made the statement reported in the newspaper. When O'Brien admitted that he probably had, Galloway told him he was discharged. Defendant John S. Hanna, Jr. ("Hanna"), the Mayor of Newport, was present at this confrontation.

Thereafter, O'Brien's attorney wrote to the Town Solicitor, demanding reinstatement on the ground that O'Brien was entitled to a hearing prior to any discharge. In reaction to his demand, the Commissioners held a meeting on April 26 at which it was resolved that O'Brien should remain dismissed, subject to consideration by the Commissioners at a hearing at which O'Brien could present his reasons and evidence for continuing as a police officer if he requested such a hearing. On May 2, the Commissioners sent O'Brien a letter to that effect, which also listed the reasons for his discharge including not only the remarks made on April 16 but also 10 other instances of misconduct on his part alleged by Galloway. O'Brien declined a hearing under the conditions offered by the Commissioners and instead filed the instant suit charging the defendants with deprivation of his constitutional rights to free speech, liberty, property and procedural and substantive due process.

The defendants have raised several grounds for dismissal: first, because the Commissioners are immune from suit for actions taken in their official capacity; second, because the Commissioners in their official capacity are not "persons" within the meaning of 42 U. S.C. § 1983; third, because O'Brien has failed to exhaust his administrative remedies; fourth, because O'Brien deliberately by-passed his administrative remedies by failing to request the hearing offered by the Commissioners; and fifth, because there was sufficient cause to discharge O'Brien. In addition, the defendants Stanley Brown ("Brown"), Frederick Benoit ("Benoit") and Ronald Rew ("Rew") seek dismissal as to them on the ground that the complaint fails to allege any deprivation of O'Brien's rights by them.

The plaintiff has moved for a preliminary mandatory injunction to reinstate him pending further court action on the ground that he had an absolute right to a hearing prior to discharge.

The Court will first treat the grounds for dismissal advanced by the defendants.

The first ground raised for dismissal is that the defendants are immune from suit for actions taken in their official capacity. Concededly, a public official exercising discretion while performing his duty possesses a qualified privilege precluding individual liability for the performance of official responsibilities if undertaken in good faith. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Hayes v. Cape Henlopen School District, 341 F.Supp. 823 (D.Del.1972). However, the privilege is not an absolute one and will give way if acts done within the scope of their official duties were performed in bad faith. Bennett v. Gravelle, 323 F.Supp. 203, 213 (D.Md. 1971), aff'd 451 F.2d 1011 (C.A. 4, 1971), cert. den. 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972); Hayes, supra. Thus, O'Brien's suit will not be barred on immunity grounds if he can establish that the Commissioner's actions were not undertaken in good faith. Since this factual determination goes to the merits of the controversy on a disputed record, it cannot serve as a ground for dismissal of the action.

The second ground raised for dismissal is that the defendants acting in their official capacities are not "persons" within the meaning of 42 U.S.C. § 1983. In analyzing this issue, it is necessary to focus on the specific relief sought by the complaint. O'Brien seeks money damages and a mandatory injunction reinstating him against all five Commissioners in their official capacities. In addition, he seeks damages and a mandatory injunction to reinstate against Galloway and Hanna individually as well.

Treating first the claim for $50,000 in damages against Galloway and Hanna in their individual capacities, it would appear that the complaint sufficiently states a cause of action under 42 U.S.C. § 1983. Both 42 U.S.C. § 1983, creating a cause of action, and 28 U.S.C. § 1343(3), its jurisdictional counterpart, refer to deprivations committed by a person acting under color of State law. It has been recognized that Congress in enacting § 1983 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, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1961); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L. Ed. 774 (1951); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L. Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Since O'Brien's complaint alleged a bad faith deprivation of his constitutional rights by Galloway under color of his authority as Police Commissioner and member of the Board of Commissioners, and by Hanna under color of his authority as Mayor and member of the Board of Commissioners, he has sufficiently stated a cause of action against them individually under § 1983 and the Court declines to dismiss the claim for damages as to them in their individual capacities.

Turning next to O'Brien's claim for money damages against all five Commissioners in their official capacities, the Court concludes that it lacks jurisdiction over that claim. Where one seeks damages against city officials in their official capacities, the suit is in actuality one against the city itself, although not formally named as a party, because recovery will be against the public treasury. Governor of Georgia v. Madrazo, 26 U.S. (1 Pet.) 110, 123-124, 7 L.Ed. 73 (1828); Ex parte Young, 209 U.S. 123, 151, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Francis v. Davidson, 340 F.Supp. 351 (D.Md.1972) (Three Judge Court), aff'd 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). Since the city is not a "person" within the meaning of § 1983, Monroe v. Pape, 365 U.S. 167, 187-192, 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); United States ex rel. Gittlemacker v. Philadelphia, 413 F.2d 84, 86 (C.A. 3, 1969), cert. den. 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970), this Court is without jurisdiction to assess damages under § 1983 against the defendants in their official capacities which are intended to be satisfied out of the public treasury and this claim will be dismissed.

A different case results with respect to the injunctive relief sought against all five defendants in their official capacities. Under the doctrine of Ex parte Young, 209 U.S. 123, 159, 28 S.Ct. 441, 52 L.Ed. 714 (1908), when an official acts in an unconstitutional manner, his actions are stripped of their official cloak, and he may be ordered to perform his official duties in a manner consonant with the Constitution. Under this legal fiction, the state is presumed not to accede to unlawful actions taken by one of its officials, so that an order directed to the official to...