Build of Buffalo, Inc. v. Sedita

• Decision Date: 13 April 1971
• Docket Number: No. 484,Docket 34886.,484
• Citation: 441 F.2d 284
• Parties: BUILD OF BUFFALO, INC., et al., Plaintiffs-Appellants, v. Frank A. SEDITA, as Mayor and Chief Executive of the City of Buffalo, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

441 F.2d 284 (1971)

BUILD OF BUFFALO, INC., et al., Plaintiffs-Appellants, v. Frank A. SEDITA, as Mayor and Chief Executive of the City of Buffalo, et al., Defendants-Appellees.

No. 484, Docket 34886.

United States Court of Appeals, Second Circuit.

Argued March 3, 1971.

Decided April 13, 1971.

Herman Schwartz, New York Civil Liberties Union, Buffalo, N. Y. (Richard Lipsitz, Edward I. Koren, Carmen Putrino, David Gerald Jay, Buffalo, N. Y., on the brief), for plaintiffs-appellants.

James J. McLoughlin, Buffalo, N. Y. (Anthony Manguso, Corporation Counsel, Buffalo, N. Y., on the brief), for defendants-appellees.

Before LUMBARD, Chief Judge, KAUFMAN and ANDERSON, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

This interlocutory appeal reaches us in an awkward procedural posture. On March 13, 1970, Judge Henderson dismissed plaintiffs' omnibus civil rights action (brought under 42 U.S.C. §§ 1981-1983, 1986, 1988-1990) as to three of many defendants for failure to state an actionable claim, F.R.Civ.P. 12(b) (6). The initial question is whether the order is appealable because it is undoubtedly not a final order, 28 U.S.C. § 1291, or whether it is maintainable nonetheless pursuant to 28 U.S.C. § 1292(a) (1) as an interlocutory order "refusing" an injunction. Since we are of the view that the latter statute applies we reach the merits of the appeal and hold that the partial dismissal was improper.

I.

That the order of dismissal was not a final one is conclusively determined by reference to F.R.Civ.P. 54(b). Plaintiffs include numerous individuals who claim that defendants have violated rights guaranteed to them by the Constitution, as well as nine civic and other private organizations.¹ Suing individually and as representatives of a rather amorphous class of "others similarly situated,"² they seek monetary damages and a variety of equitable relief, including some quite drastic remedies, as will appear. The three defendants as to whom the complaint has been dismissed are Frank A. Sedita, the Mayor and Chief Executive of the City of Buffalo, New York; the Commissioner of the Buffalo Police Department, Frank Felicetta; and the Department of Human Relations of Buffalo. Plaintiffs here appeal from the dismissal as to Mayor Sedita and Commissioner Felicetta. In addition, the complaint joins as defendants various members of the Buffalo Police Department, some named and others anonymous, who have allegedly engaged in "a systematic pattern of conduct resulting in numerous, separate and distinct violations of the rights, privileges, and immunities" of plaintiffs and the class they seek to represent. Appellees Sedita and Felicetta are said by plaintiffs to "have condoned or encouraged," or to have "directed" or "permitted" such conduct. Also (and alternatively) the Mayor and Police Commissioner are charged with having so "lost control" over some of the Buffalo police "as to make effective law enforcement impossible" and also with having failed to respond in any manner to "numerous specific complaints" by plaintiffs and others of police conduct in violation of the federal Constitution, New York law, and Police Department Regulations.

The dismissal as to appellees of course did not affect the continuing vitality of the action against the other defendants, the individual police officers. Because the district court did not direct the entry of a final judgment against appellees or determine that there was "no just reason for delay" prior to entering a final order, his order granting defendants' Rule 12(b) (6) motion is not appealable under 28 U.S.C. § 1291 or Rule 54(b). Nor did the district court accompany its order with a statement as to the desirability of an interlocutory appeal required if plaintiffs were to attempt to proceed under 28 U.S.C. § 1292 (b).

Plaintiffs' complaint, however, included several prayers for permanent injunctive relief against all defendants. Moreover, on March 3, 1970, plaintiffs added a motion for a preliminary injunction to restrain defendants pendente lite from committing a formidable list of specific kinds of abusive police practices. By granting the motion of the Mayor, the Police Commissioner and the Department of Human Relations, to dismiss,³ the district court effectively denied at the same time plaintiffs' motion for a preliminary injunction as against those defendants.⁴ The resultant denial of an injunction is appealable under 28 U.S.C. § 1292(a) (1). The reasoning and decision in General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932)⁵ is persuasive and, in this context, is also authority that would be difficult to ignore:

But by their motion to dismiss, plaintiffs themselves brought on for hearing the very question that, among others, would have been presented to the court upon formal application for an interlocutory injunction. That is, whether the allegations of the answer are sufficient to constitute a cause of action for an injunction. And the court necessarily decided that upon the facts alleged in the counterclaim defendants were not entitled to an injunction. It cannot be said * * * that the dismissal did not deny to defendants the protection of the injunction prayed in their answer. Id. at 433, 53 S.Ct. at 203.

Judge Henderson's dismissal for failure to state a claim was not a mere practice order "controlling the sequence in which portions of the case would be tried," Spangler v. United States, 415 F.2d 1242, 1248 (9th Cir. 1969),⁶ or simply consigning plaintiffs' claim against appellees to a separate action as an exercise of the court's control over the scope of the litigation. See Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829 (2d Cir. 1963) (Friendly, J., dissenting), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). Rather, the district court's determination that plaintiffs were entitled to no relief under federal law, including preliminary relief, was as decisive to plaintiffs as would have been a refusal to grant a preliminary injunction on the grounds that plaintiffs failed to demonstrate either likelihood of ultimate success or irreparable injury.

Judge Anderson dissents from this portion of our holding on the premise that the dismissal of the action against the Mayor, the Chief of Police, and the Department of Human Relations did not "affect * * * the quality of the relief prayed for by the plaintiffs." Our response to this is that we need not decide that most dismissals as against some defendants in suits seeking injunctive relief are appealable. It is sufficient to say that our jurisdiction here is clearly established under the second of Judge Anderson's own proposed tests. The dismissal did not merely limit the number of defendants against which any injunctive relief might ultimately run. In Judge Anderson's words, it resulted in "contracting the scope of the injunctive relief originally sought." It is apparent that the gist of plaintiffs' claim was the systematic and knowledgeable failure of responsible authorities to take any measures to correct a pattern of abusive police practices. In order to establish that there was in fact a pattern of police misbehavior, plaintiffs seek to prove a number of separate instances of misconduct. So far as the relief sought against the appellees before us, the claims against the individual officers are only exemplary. Thus, even if injunctive relief were eventually awarded against each of the named individual police defendants, it would not at all satisfy plaintiffs' claim for relief from systematic misbehavior at levels of authority higher than that of the patrolman on the beat. Indeed, for an injunction only against individual policemen to substitute adequately for the relief plaintiffs seek against the present appellees, it would have to run against every officer in the Buffalo Police Department. Thus, the dismissal against the Mayor, Chief of Police, and Department of Human Relations, operated as a refusal of a distinct and separate claim for an injunction, for which any other relief that might emerge from the case could never adequately substitute.

Finally, Judge Anderson is concerned that disposition of the present appeal may affect the rights of the other defendants in the case, without affording them an opportunity to be heard. But the disposition of this appeal will have no greater impact on the rights of the individual police defendants than if plaintiffs had adopted a different strategy of litigation and chosen not to join their claims against the individual policemen with their separate claim against the present appellees. Courts inevitably announce legal principles that affect people unrepresented in the adjudications from which the principles emerge. And specifically, the other defendants in this action will not be affected in the least by our disposition of the question whether plaintiffs' complaint stated a cause of action against the present appellees.

II.

Hence we reach the merits of the dismissal, and we find ourselves in partial disagreement with Judge Henderson. The venerable standard for judging the propriety of a dismissal on the pleadings under the Federal Rules is not contested here. Accepting the allegations in the complaint as true, as we must on a Rule 12(b) (6) motion, Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970), the complaint may not be dismissed "unless it appears `to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.'" Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968). Such elementary formulas show their worth in the unusual case and this particular standard is especially useful here, where plaintiffs have combined traditional pleas for injunctive relief with a more exotic plea that may tend to distort one's perception of the complaint.

As indicated above, the...