Harrington v. Lauer, Civ. No. 93-3166 (CSF).

• Decision Date: 17 July 1995
• Docket Number: Civ. No. 93-3166 (CSF).
• Citation: 893 F. Supp. 352
• Parties: Robert HARRINGTON, Plaintiff, v. Cheryl LAUER, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

893 F. Supp. 352

Robert HARRINGTON, Plaintiff, v. Cheryl LAUER, et al., Defendants.

Civ. No. 93-3166 (CSF).

United States District Court, D. New Jersey.

July 17, 1995.

Frost, Rhodes, Devito & Smith, P.C. by Jack N. Frost and Adam Kenny, Plainfield, NJ, for plaintiff.

Rand, Algeier, Tosti & Woodruff, P.C. by John F. McDonnell, Morristown, NJ, for defendants Cheryl Lauer, Franklyn Kennedy, Barbara Lentine, Martie Orlando, Gwendolyn Miller and Robert Zektick.

Carson & Astorino by Robert A. McLarty, Jr., Trenton, NJ, for defendant Clinton Tp. Bd. of Educ.

OPINION

CLARKSON S. FISHER, District Judge.

In what the court hopes is the last round of pretrial motions in this case, four separate applications have been presented to the court. The first is plaintiff's motion to adjourn the trial date, currently scheduled for September 6, 1995. The second is a motion for reconsideration of that portion of this court's order dated June 8, 1995, which denied defendants' motion for summary judgment as to count three of plaintiff's third amended complaint.¹ In the third application pending before the court, defendants request the entry of sanctions against plaintiff, Robert Harrington, and his attorney, Jack N. Frost, Esq., due to their vexatious, harassing and bad faith conduct in this litigation. The final matter is plaintiff's appeal from the magistrate judge's June 7, 1995, order denying plaintiff's request for leave to file a fourth amended complaint. In this opinion, the court will address each of the pending applications separately.

A. Motion to Adjourn Trial Date

The trial of this case has been set for September 6, 1995, with jury selection scheduled to occur on that date. By way of formal notice of motion, plaintiff has requested that the court adjourn the trial date until September 19, 1995. The trial has already been adjourned twice, both times at the request of plaintiff's counsel. Buried in each adjournment request, including the present one, the court found indication that the selected trial dates conflicted with the pre-arranged vacation plans of plaintiff's counsel. When the trial was originally scheduled for April 4, 1995, Mr. Frost expressed concern that his trip to Bermuda (which was planned for April 14th) would interrupt the proceedings, as he has estimated that the liability phase of the case will take approximately four weeks. After the trial was rescheduled for July 5, 1995, Mr. Frost informed the court that because he would be returning from a golfing vacation in Scotland and Ireland on the 4th of July, his client was concerned that he would be suffering from jet lag and would not be at his physical best to begin a trial the next day. Now, Mr. Frost has requested an adjournment of the September 6, 1995, trial date. Among other reasons, he advises that he will be returning that day from a family vacation in Myrtle Beach and Ocean City. The court will not allow further delay of this matter. With this being the first trial scheduled after the summer recess, defense counsel have noted the high probability of actually proceeding on that date, since it will be unlikely for other continuing cases to interfere with the start of this trial. That will not be true if the matter is carried until the 19th of September, as plaintiff has requested.

The court is aware that plaintiff is a superintendent of schools and realizes that the trial date coincides with a busy time of year for him. However, the court does not see how delaying the trial for less than two weeks will ease his burden. Consequently, plaintiff's motion to adjourn the trial date is denied; the trial will proceed as scheduled on September 6, 1995. As that day will be reserved for jury selection only, Mr. Frost can arrange for another attorney from his office to appear.

B. Motion for Reconsideration

In their initial motion for summary judgment, defendants argued that the third count of the third amended complaint should be dismissed. Although count three of that complaint was designated as a claim under 42 U.S.C. § 1983, defendants pointed out that the language used in the complaint was almost identical to the wording of 42 U.S.C. § 1986. Defendants then argued that the § 1986 claim could not survive because transgressions of § 1986 necessarily depend on a preexisting violation of § 1985, which they claim was not alleged in this case.

Noting the extreme parallel between the language of count three and the language of § 1986, the court assumed that plaintiff intended to assert a claim under § 1986, despite the subheading which indicated that the claim was brought under § 1983. The court likewise noted the similarity between the language used in count two of the complaint and the language in 42 U.S.C. § 1985. The court chose, therefore, to ignore the subheadings under counts two and three, which indicated that those claims were brought under § 1983, and instead construed them as claims under § 1985 and § 1986. Based on that construction of the complaint, the court denied the motion to dismiss count three because it found that the requisite preexisting violation of § 1985 was asserted in count two. If plaintiff had indeed intended to assert claims under § 1985 and § 1986, as the court presumed, defendants now correctly argue that those claims should have been dismissed under the law-of-the-case doctrine which directs that when a court decides upon a rule of law, that rule should continue to govern the same issues in subsequent stages in the litigation. See Devex Corp. v. General Motors Corp., 857 F.2d 197, 199 (3d Cir.1988), cert. denied, 489 U.S. 1015, 109 S.Ct. 1128, 103 L.Ed.2d 190 (1989) (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988)).²

After reviewing plaintiff's opposition to the motion for reconsideration, however, it is apparent to the court that plaintiff intended counts two and three to be brought under § 1983, as they were designated, not under § 1985 and § 1986, as the court erroneously construed them. Evidently, plaintiff has not attempted to assert in count two of the third amended complaint a conspiracy motivated by a class-based discriminatory animus as required by § 1985, but has simply alleged that defendants conspired to deprive plaintiff of his privileges under the law in violation of § 1983. Many federal courts, including the Third Circuit, have recognized that actionable conspiracies under the civil rights laws are not limited to 42 U.S.C. § 1985, concluding that a cause of action for conspiracy may also be maintained under § 1983. 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); Hazo v. Geltz, 537 F.2d 747, 749 n. 4 (3d Cir.1976); Safeguard Mutual Ins. Co. v. Miller, 477 F.Supp. 299, 303-304 (E.D.Pa.1979). In their initial motion for summary judgment, defendants did not seek dismissal of the § 1983 claim asserted in count two of the third amended complaint. Therefore, the court need not determine whether defendants are entitled to judgment as a matter of law on that count. When count three is construed as a § 1983 claim, however, the court concludes that it is appropriate to enter summary judgment in favor of defendants on that claim.

In count three, plaintiff asserts that "defendants, or each of them, by reasonable diligence and knowing of the wrongs conspired to be done to the plaintiff were about to be committed, and having power to prevent or aid in preventing the commission of same, neglected and/or refused to do so in violation of plaintiff's federal rights." (Pl's Third Am. Compl., Third Count, ¶ 2). Notwithstanding its similarity to § 1986, plaintiff maintains that count three is not a claim under that section of the statute. As defendants argued in support of their original motion for summary judgment, except for the duty established in § 1986, the defendants in this case had no duty to prevent others from violating plaintiff's civil rights. Indeed, "section 1983 creates a cause of action based upon personal liability and predicated on fault. An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation." Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983) (italics in original), see also McAleese v. Owens, 770 F.Supp. 255, 263 (M.D.Pa.1991). Plaintiff argues, unpersuasively, that defendants can be liable under § 1983 despite their lack of direct participation in the alleged constitutional deprivation. Specifically, plaintiff asserts that defendants can be liable under § 1983 because their failure to prevent others from violating his civil rights rises to the level of reckless or callous indifference. Plaintiff cites Rascon v. Hardiman, 803 F.2d 269 (7th Cir.1986) and Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir.1989), in support of his contention, but those cases do not support the proposition for which they have been cited.

When the court looks beyond plaintiff's blatant misrepresentation of the facts and analysis of the Gutierrez-Rodriguez case, it becomes clear just how unpersuasive the case actually is. In discussing that case, plaintiff asserts that "a police officer was held liable for a shooting by another police officer where evidence showed that he was asleep in a police car at the time of the shooting." (Pl's Letter Brief at 18.) This implies that the defendant was found liable because he failed to take action to stop his fellow officers from shooting the plaintiff. The court specifically stated, however, "as we find that the jury may have concluded that defendant was an active participant in the incident, we do not address plaintiff's second theory of liability, namely that defendant was liable for not stopping his fellow officers from firing upon plaintiff."³Gutierrez-Rodriguez, 882 F.2d at 560, n. 4. In fact, personal responsibility of the defendant police officer was...