Daly v. Pedersen

Decision Date21 December 1967
Docket NumberNo. 4-67 Civ. 168.,4-67 Civ. 168.
Citation278 F. Supp. 88
PartiesJerome DALY, Plaintiff, v. Paul R. PEDERSEN, Thomas Collins, City of Bloomington, and Donald J. Omodt, Hennepin County Sheriff, Defendants.
CourtU.S. District Court — District of Minnesota

Jerome Daly, pro se.

John G. Pidgeon, Bloomington, Minn., for defendants Paul R. Pedersen and the City of Bloomington.

No appearance at hearing for defendants Thomas Collins and Donald J. Omodt.

DECISION

NEVILLE, District Judge.

The plaintiff, Jerome Daly, brings this action pursuant to the Civil Rights Act, 42 U.S.C. §§ 1981-1986, naming as defendants the City of Bloomington, Minnesota, Paul R. Pedersen, a police officer thereof and Thomas Collins and Donald J. Omodt, members of the Hennepin County, Minnesota, Sheriff's Office. Federal jurisdiction is premised under 28 U.S.C. § 1343.

The defendants Collins and Omodt have answered the plaintiff's complaint. Defendants Paul R. Pedersen and the City of Bloomington have not answered but have moved to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted and alternatively have moved for a more definite statement and further to strike one phrase from the complaint as immaterial, impertinent and scandalous.

As alleged in the complaint, it appears that on May 1, 1967, the plaintiff, a licensed attorney, was present in the City of Bloomington Courthouse representing a client in a matter before the Hennepin County Municipal Court. The plaintiff alleges that he then and there was unlawfully and maliciously arrested without a warrant or without probable cause for his alleged failure to honor traffic tickets, said arrest being in contravention of federal constitutional rights guaranteed by the Fourteenth Amendment. Plaintiff contends the defendants conspired with each other to bring about this unlawful result. Additionally, the plaintiff contends that he was not presented to the nearest magistrate, who was standing but ten feet away from the place of arrest; that he was assaulted during perpetration of the arrest and suffered the aggravation of a prior surgical operation; and that he was held unlawfully in custody for four and one-half hours prior to his release.

Finally, the plaintiff challenges the City of Bloomington parking ticket practice as a scheme of extortion practiced illegally upon innocent citizens. Said extortion allegedly is part of an illegal conspiracy to extort monies, of which conspiracy the plaintiff is a victim. His arrest and detention are said to be overt acts in furtherance of this conspiracy depriving him of rights secured by the Fourteenth Amendment. The foregoing is the essence of plaintiff's contentions.

The rule is well established that under the Civil Rights Act, 42 U.S.C. §§ 1981-1986, a claim does not lie against a municipal corporation. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492 (1961); Spiesel v. City of New York, 239 F.Supp. 106 (S.D.N.Y.1964), aff'd, 342 F.2d 800 (2d Cir. 1965); O'Connor v. City of Minneapolis, 182 F. Supp. 494 (D.Minn.1960); Note, The Civil Rights Act of 1871: Continuing Vitality, 40 Notre Dame Law. 70, 75-76 (1966). Thus the plaintiff is barred to the extent that he seeks recovery from the City of Bloomington and a dismissal of the complaint as to the City of Bloomington should be granted.

The claim against the defendant Pedersen presents different issues. The plaintiff alleges a claim based upon 42 U.S.C. §§ 1981-1986 of the Civil Rights Act. Except for §§ 19831 and 1985(3)2, the provisions invoked by the plaintiff are clearly inapplicable to the instant facts. Therefore only these two relevant sections require consideration here.

Section 1983 provides a cause of action against individuals acting under color of state authority to deprive a citizen of federally protected civil rights secured by the Fourteenth Amendment. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492 (1961); Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959). Section 1983 is broader than § 1985(3) in that a conspiracy is not needed to state a claim under § 1983 and its purview encompasses denials of due process as well as deprivation of equal protection of the law and equal privileges and immunities under the law whereas § 1985(3) contemplates only the latter two. Hoffman v. Halden, 268 F.2d 280, 293-294 (9th Cir. 1959). The difficult problems arising under these sections lie in determining whether the defendants have violated federally protected rights. When the allegedly unconstitutional activity consists of an illegal arrest, battery or confinement, the courts have experienced some difficulty in determining the limits of Fourteenth Amendment protection. See Beauregard v. Wingard, 362 F.2d 901, 903 (9th Cir. 1966).

As a general rule an arrest, lacking an appropriate warrant or without probable cause, constitutes a violation of due process giving rise to a claim under § 1983. See Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965); Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); Anderson v. Haas, 341 F.2d 497 (3d Cir. 1965); Basista v. Weir, 340 F.2d 74 (3d Cir. 1965); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964); United States v. Scranton, 257 F.Supp. 557 (E.D.Pa.1966); Rue v. Snyder, 249 F.Supp. 740 (E.D.Tenn.1966); Yates v. Village of Hoffman Estates, 209 F.Supp. 757 (N.D.Ill.1962); Selico v. Jackson, 201 F.Supp. 475 (S.D.Cal.1962). Some courts emphasize as an additional element, an ulterior motive on behalf of the defendants for depriving the plaintiff of constitutionally protected rights. See Bargainer v. Michal, 233 F.Supp. 270 (N.D.Ohio 1964); Beauregard v. Wingard, 230 F.Supp. 167, 183 (S.D.Cal. 1964). Irrespective, however, the courts consistently reject claims under the Civil Rights Act when, without other aggravating circumstances, the arrest is shown to have been with probable cause or pursuant to the dictates of a properly issued warrant. Beauregard v. Wingard, 362 F.2d 901 (9th Cir. 1966); Mueller v. Powell, 203 F.2d 797 (8th Cir. 1953); Sopp v. Gehrlein, 232 F.Supp. 881 (W.D. Pa.1964).

In the matter at bar, the plaintiff in his complaint alleges that the arrest was conducted without probable cause or warrant of arrest and that a conspiracy existed. If, at the hearing on the defendants' motion to dismiss, no contradictory evidence had been received, the court might well be bound to assume the truth of the plaintiff's contentions. See Jenson v. Olson, 353 F.2d 825 (8th Cir. 1965). But Rule 12(b) of the Federal Rules of Civil Procedure provides in part that:

"* * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

At the hearing on the motion, the defendants introduced, and the court received, a duly certified copy of an order with an attached memorandum dated July 27, 1967, entered and written by a judge of the Municipal Court of Hennepin County, Minnesota. The court therefore is disposed to treat the matter as to this issue as one for summary judgment pursuant to the above quoted language of Rule 12(b).

The referred to Municipal Court order denied a motion by the present plaintiff to dismiss three or four parking complaints and the three warrants which culminated in the arrest incident thereto recited above. This constituted a direct attack on the entire process, including the arrest warrants in question. From the aforesaid memorandum, it appears and is recited at some length that the plaintiff failed to respond to three parking ticket traffic citations. Notice of the issuance of each ticket was duly mailed to the plaintiff's address. Subsequently, when plaintiff still failed to respond, three warrants were issued after complaints were filed. The warrants were then delivered to the Hennepin County Sheriff for service upon the plaintiff. They were then transmitted to a law officer in plaintiff's resident town, Savage, Minnesota, for service on plaintiff. Plaintiff apparently appeared in response thereto, for in any event he posted $75.00 cash bail. A court date for contesting the charges was set. On the set date, however, plaintiff did not appear and he forfeited the bail by ignoring the scheduled arraignment. It was only thereafter that the previously issued arrest warrants were executed by the defendant Pedersen and the arrest made. Plaintiff was finally brought before the court May 1, 1967, and entered a plea of not guilty. Later his motion to dismiss was, on July 27, 1967, denied as per the aforementioned Municipal Court order.

The plaintiff's arrest was pursuant to these three legally issued warrants of arrest. Each warrant had been issued by different police divisions of the state: (1) July 3, 1966City of Bloomington Police; (2) July 20, 1966City of Minneapolis Police; (3) September 24, 1966 —Metropolitan Airport Police. The plaintiff does not and has not contended that the facts recited in the Municipal Judge's memorandum are false or inaccurate except by inference in his initial pleading wherein he asserts that the arrest was without probable cause or lawful warrant. On the basis of this uncontroverted information and the lack of any legally significant denial by the plaintiff, the court finds that there is not a genuine issue of fact and that the plaintiff's arrest was lawfully executed under the extant warrants. Under the case law cited above, it is clear that the arrest was constitutionally made by the defendant law enforcement officers.

The plaintiff apparently attempted to anticipate this defense in his complaint since he alleged that...

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    ...was validly issued, even though mistaken, should not render his conduct unreasonable in a constitutional sense. In Daly v. Pedersen (D.C.Minn.1967) 278 F.Supp. 88 a claim was made that the plaintiff had been arrested in violation of his constitutional rights, because he was arrested on a wa......
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