Dennis v. College of Virgin Islands, Civ. No. 74-716.

• Decision Date: 31 July 1975
• Docket Number: Civ. No. 74-716.
• Parties: Jacqueline DENNIS et al., Plaintiffs, v. COLLEGE OF the VIRGIN ISLANDS et al., Defendants.
• Court: U.S. District Court — Virgin Islands

398 F. Supp. 1317

Jacqueline DENNIS et al., Plaintiffs, v. COLLEGE OF the VIRGIN ISLANDS et al., Defendants.

Civ. No. 74-716.

District Court, Virgin Islands, D. St. Thomas and St. John.

July 31, 1975.

Birch de Jongh & Farrelly, Alexander A. Farrelly, Charlotte Amalie, St. Thomas, V. I., for plaintiffs.

Nichols & Silverlight, Irwin J. Silverlight, Christiansted, St. Croix, V. I., for all defendants.

Feurzeig & Zebedee, Henry L. Feurzeig, Charlotte Amalie, St. Thomas, V. I., of counsel, for College of the Virgin Islands only.

Desmond L. Maynard, Charlotte Amalie, St. Thomas, V. I., for all defendants.

MEMORANDUM OPINION AND ORDER

WARREN H. YOUNG, District Judge.

Defendants College of the Virgin Islands ("CVI"), Lawrence C. Wanlass and Arthur Richards move pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss Cause I of the complaint as it pertains to defendants Wanlass and Richards, individually, and Cause II of the complaint as it pertains to the College of the Virgin Islands.

Cause I of the complaint, based essentially on the tort of false arrest, is directed not only against CVI but also against the President and Dean of that institution in their individual capacities. Defendants argue that because paragraph (3) of the complaint admits that Wanlass and Richards "were officers and agents of CVI, acting within the scope of their authority", these officers are thus immune from personal liability by virtue of Section 2(b) of the Revised Organic Act of 1954. This "virtual blanket immunity" granted to all governmental employees for acts committed within the scope of their employment has been greatly contracted by this Court's recent decision in Mathurin et al. v. Government of the Virgin Islands, Civ. No. 97-1973 (filed June 20, 1975). In that case, I held that in order for immunity to adhere to a given act, that official committing the act must have been performing "discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority". Id., slip op. at 6, quoting, Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

The act complained of in this suit is that Wanlass and Richards "falsely and wrongfully directed that plaintiffs be arrested". Despite the fact that the Second Circuit has held, at least in the context of a police officer, that making an arrest is not a discretionary function see Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1346 (2d Cir. 1972), I find that Messrs. Wanlass and Richards were performing duties which warrant the protection afforded by the immunity defense. Because administrative officials of a college have an understandable interest in maintaining peace and academic tranquility at such an institution, the act of directing the arrest of the plaintiffs-students was unquestionably "the result of a judgment or decision which it is necessary that the . . . official be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability . . ." Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 659 (2d Cir. 1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050 (1963).

Defendant's motion to dismiss on Cause II focuses on their assertion that CVI is not a "person" within the meaning of 42 U.S.C. § 1983 and thus not subject to liability under the Civil Rights Act. It is clear that neither a state see Whitner v. Davis, 410 F.2d 24, 29 (9th Cir. 1969) nor a territory see Ocasio v. Bryan, 374 F.2d 11 (3d Cir. 1967) is a "person" within the meaning of that section. This immunity has been extended to agencies of the state or its governmental departments. See Whitner v. Davis, supra, at 29-30. The question of whether the College of the Virgin Islands is an agency of the territorial government is determined by the so-called "control test", or whether the governmental entity can be fairly said to control the defendant's activities. If that control is found...