Cox v. Shepherd

• Decision Date: 15 November 1961
• Docket Number: Civ. No. 1150-61.
• Citation: 199 F. Supp. 140
• Parties: Vernon COX, Plaintiff, v. Donald E. SHEPHERD, Pete Hernandez, and Elliott Berke, Defendants.
• Court: U.S. District Court — Southern District of California

199 F. Supp. 140

Vernon COX, Plaintiff, v. Donald E. SHEPHERD, Pete Hernandez, and Elliott Berke, Defendants.

Civ. No. 1150-61.

United States District Court S. D. California, Central Division.

November 15, 1961.

Tony Geram, Fontana, Cal., for plaintiff.

Kirtland & Packard, by Wallace C. Reed, Los Angeles, Cal., for defendants.

THURMOND CLARKE, District Judge.

This matter is before the court for consideration of motions of defendants to dismiss, for separate statement and for more definite statement. The court concludes that, as presently phrased, the complaint herein fails to state a claim upon which relief may be granted, but will grant plaintiff leave to amend since amendment may possibly cure the defective pleading. Defendants' motion for separate statement will be denied and defendants' motion for more definite statement, being moot, will similarly be denied.

The complaint is for damages for purported violations of plaintiff's civil rights, in contravention of 42 U.S.C.A. § 1983, and jurisdiction is claimed on the basis of that statute and 28 U.S.C. § 1343(3) and (4).

The complaint alleges the following circumstances: That defendants, Deputy Sheriffs in the Sheriff's Department of San Bernardino County, acting under color of their authority as such, entered plaintiff's residence and observed four photographs owned by plaintiff. That defendants removed the photographs from the wall, tearing them in the process, and apparently removed them from the premises. That defendants stated that their reason for such action was that the photographs in question were obscene and their possession illegal. That the photographs were not obscene, that this was later admitted by defendants and that the photographs were later returned to plaintiff in their damaged condition. That the aforesaid acts were in excess of defendants' authority as police officers. That defendants' acts violated plaintiff's right to privacy, constituted an unreasonable search and seizure prohibited by the United States Constitution and the Federal Civil Rights Act, and was a deprivation of plaintiff's property without due process of law. Finally, the complaint alleges that defendants' acts were intentional and malicious, with knowledge that they exceeded their authority and deprived plaintiff of his constitutional rights.

Defendants' motion to dismiss is based on two grounds: (1) that the court does not have jurisdiction over the subject matter of this action; and (2) that the complaint fails to state a claim upon which relief can be granted.

I. The Court Has Jurisdiction Over the Subject Matter of This Action.

42 U.S.C.A. § 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

28 U.S.C. § 1343(3) and (4) grants original jurisdiction to federal district courts over civil suits, authorized by statute, to redress deprivations of civil rights, recover damages or secure other relief therefor.

The complaint herein states that the defendants acted under color of their authority as state police officers. It further alleges that plaintiff, a citizen, was deprived of his constitutional rights by means of defendants' actions which constituted an unreasonable search and seizure and a deprivation of property without due process of law.

Under the rule enunciated by the United States Supreme Court in the very recent case of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the court clearly has jurisdiction over the subject matter of this type of action, and contrary suggestions in Mackey v. Chandler, 152 F.Supp. 579 (D.C.W.D.S.C.1957), are superseded. In Monroe v. Pape, supra, the court was unanimous in its conclusions (a) that 42 U.S.C.A. § 1983 provides a remedy for deprivations, under color of state law, of rights guaranteed by the due process clause of the Fourteenth Amendment, and (b) that the guarantee against unreasonable searches and seizures contained in the Fourth Amendment has been made applicable to the states by reason of the due process clause of the Fourteenth Amendment. (365 U.S., at 170-171, 205-211, 81 S.Ct. 473, 5 L.Ed. 2d 492.) Further, despite a vigorous dissent by Mr. Justice Frankfurter (365 U.S. 202 et seq., 81 S.Ct. 473), the majority of the court in Monroe v. Pape, supra, reaffirmed the position taken in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, and Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, that the "under color of" clause found in several of the Civil Rights statutes does not require action taken pursuant to state law or expressly authorized by state law; rather, "misuse of power, possessed by virtue of state...