Hernandez v. Noel

• Decision Date: 21 October 1970
• Docket Number: Civ. No. 13940.
• Citation: 323 F. Supp. 779
• Parties: Aleja Perez HERNANDEZ, as parent and next friend of Victor Soto and Eladio Soto, minors, Angelito Rivera, as brother and next friend of Papo Pagan, a minor, Manuel Ingles, and all others similarly situated v. Alfred NOEL, Mayor of the City of Willimantic, John Connor, Richard Nassiff, Roger Baker, Fred Rodgers, Nathan Mandell, Richard Boyden, Joseph Seretny, Members of the Common Council of the City of Willimantic, Martin Viullermet, Chief of the Willimantic Police, Loren Rambush, Denny Gillespie, Officers of the Willimantic Police Department.
• Court: U.S. District Court — District of Connecticut

323 F. Supp. 779

Aleja Perez HERNANDEZ, as parent and next friend of Victor Soto and Eladio Soto, minors, Angelito Rivera, as brother and next friend of Papo Pagan, a minor, Manuel Ingles, and all others similarly situated v. Alfred NOEL, Mayor of the City of Willimantic, John Connor, Richard Nassiff, Roger Baker, Fred Rodgers, Nathan Mandell, Richard Boyden, Joseph Seretny, Members of the Common Council of the City of Willimantic, Martin Viullermet, Chief of the Willimantic Police, Loren Rambush, Denny Gillespie, Officers of the Willimantic Police Department.

Civ. No. 13940.

United States District Court, D. Connecticut.

October 21, 1970.

Bruce N. Berwald, Norman K. Janes, Tolland-Windham Legal Assistance Program, Inc., Willimantic, Conn., for plaintiffs.

William M. Krug, Willimantic, Conn., Basil T. Tsakonas, Danielson, Conn., for defendants.

RULING ON MOTION TO DISMISS

BLUMENFELD, District Judge.

Plaintiffs are United States citizens of Puerto Rican ancestry residing in Willimantic, Connecticut. Purporting to represent all Willimantic residents of similar ancestry, they allege that defendants have deprived them of certain constitutional rights in violation of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985(2), 1986 and 1988, and seek injunctive relief against future violations. The defendants are the chief of police of Willimantic, two police officers, the mayor, and seven members of the common council. The mayor and the seven council members have moved for dismissal on the grounds of lack of jurisdiction and failure to state a claim against them upon which relief may be granted.

Jurisdiction

Plaintiffs allege deprivations, under color of state law, of rights secured by the first, fifth, sixth, and fourteenth amendments to the federal Constitution. Plaintiffs having invoked the Civil Rights Act as the basis for their causes of action, it is clear that original jurisdiction over their claims for redress of those deprivations exists in the federal court under 28 U.S.C. § 1343(3). Monroe v. Pape, 365 U.S. 167, 169, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Schnell v. City of Chicago, 407 F.2d 1084, 1085-1086 (7th Cir. 1969); Lankford v. Gelston, 364 F.2d 197, 198 (4th Cir. 1966); Birnbaum v. Trussell, 347 F.2d 86, 87 n. 2 (2d Cir. 1965).

Failure to State a Claim

In support of their motion for dismissal, the mayor and council members argue that the complaint does not specify any conduct which would make them liable as individuals; and that, considered as an entity comprising the city government, they cannot be regarded as a "person" for purposes of liability under the Civil Rights Act.

A. The Complaint

To bring the issues into sharper focus, it is necessary to outline the scheme of the complaint and the manner in which these defendants fit into that scheme. The gravamen of the complaint is that all defendants, individually and in concert, under color of state law, have subjected and are subjecting plaintiffs and their class to a systematic pattern of harassment, intimidation, discrimination, and violent conduct solely on account of their ancestry and in violation of their constitutional rights.

Three specific incidents are set out in the complaint. Each involves the arrest of one or more of the individual plaintiffs by defendant police officers Rambush and Gillespie. The arrests are said to have been made with undue violence, without justification, solely for the purpose of harassment, and in denial of specific constitutional rights. Plaintiffs allege that these three incidents are typical of the conduct of the two named officers as well as others in the Willimantic police department (the latter unknown officers being represented as defendants by the police chief, who is also sued in his individual and official capacities).

Plaintiffs next set out eight specific allegations of police conduct¹ claimed to constitute the systematic pattern of harassment — of which the three specific incidents of arrest are claimed to be typical examples. That conduct is alleged to deprive plaintiffs and their class of their rights to free speech and assembly guaranteed by the first amendment, their right to remain silent under the fifth amendment, to counsel under the sixth amendment, and to due process and equal protection under the fourteenth amendment.

The complaint is divided into three "causes of action." Each contains all of the foregoing allegations. The first contains nothing more. The second alleges a conspiracy among the members of the police department, including those named and those unknown, to engage in the conduct alleged in the first.

The third "cause of action" is the only one to name the defendants who have joined in this motion to dismiss. It alleges that the mayor and members of the city council "acting as the government of the City of Willimantic," have failed or refused to act in various ways, detrimental to plaintiffs and their class. Specifically, it is alleged that these defendants ignored or refused to act on complaints about the police department; refused to provide adequate and proper municipal services to plaintiffs and their class in the same manner such services are provided to others; and permitted, by their inaction and indifference, the police department and other city departments to discriminate against plaintiffs and their class solely because of their ancestry. Finally, plaintiffs allege that these defendants, again "acting as the government of the City of Willimantic," had knowledge of the acts and conduct previously alleged but failed to exercise their lawful power to prevent the deprivation of plaintiffs' rights.

Plaintiffs' prayer for relief seeks a preliminary and permanent injunction against "defendants" to restrain them from engaging in a systematic pattern of harassment and discrimination and from engaging in any of the conduct specified in footnote 1. Additionally, plaintiffs request specific injunctive relief against the police officers. Finally, they request a preliminary injunction against the mayor and the seven council members, "as the government of the City of Willimantic, acting together and acting individually," and a permanent injunction against the same defendants "acting together and acting individually" from failing to exercise their lawful power to prevent the deprivation of plaintiffs' rights.

B. Power to Grant Relief

In Monroe v. Pape, supra, 365 U.S. at 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492, the Supreme Court held that municipal corporations (in that case, the City of Chicago) were not "persons" within the meaning of the Civil Rights Act and, therefore, not subject to actions for damages thereunder. See also, Spampinato v. City of New York, 311 F.2d 439 (2d Cir. 1962), cert. denied, 372 U.S. 980, 83 S.Ct. 1115, 10 L.Ed.2d 144 (1963). Some lower federal courts have held Monroe's prohibition applicable only to damage actions, and expressly allowed Civil Rights suits for injunctive relief against cities or other municipal corporations. E. g., Harkless v. Sweeny Ind. School Dist., 427 F.2d 319, 321-323 (5th Cir. 1970); Dailey v. City of Lawton, 425 F.2d 1037, 1038-1039 (10th Cir. 1970); Schnell v. City of Chicago, supra, 407 F.2d at 1086; Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th Cir. 1961).

On the other hand, it was recently held in this circuit that the Appellate Division of the New York State Supreme Court is not subject to suit, because not a "person," in an action for equitable relief brought under the Civil Rights Act. Zuckerman v. Appellate Div., 421 F.2d 625 (2d Cir. 1970). The court in Zuckerman impliedly did not recognize any distinction between damage actions and those for injunctive relief in the application of the Monroe prohibition. Therefore, to the extent, if any, that the complaint in this case can be construed to seek relief against the City of Willimantic, even solely injunctive, it does not state a claim for which relief can be granted in this circuit.

A similar result must be reached insofar as the complaint seeks relief, albeit only injunctive, against the city council, considered as an entity. The common council of the city of Willimantic, as the chief governing body, is the substantial equivalent to the city itself. It has been held that city commissioners, when named as an entity, are not subject to suit under the Civil Rights Act on the theory that suits against municipalities are not authorized under that Act.² Henig v. Odorioso, 256 F.Supp. 276, 280 (E.D.Pa.1966), aff'd, 385 F.2d 491 (3d Cir. 1967), cert. denied, 390 U. S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968).

The complaint in this case, however, names as defendants neither the City of Willimantic nor the entity known as the common council. It names, in addition to the police officers and chief, the mayor and seven members of the council in their individual and official capacities. Abundant authority exists for the allowance of a § 1983 suit for injunctive relief against city officials in those capacities. Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970); Harkless v. Sweeny Ind. School Dist., supra, 427 F.2d at 323; Lankford v. Gelston, supra, 364 F.2d 197; Birnbaum v. Trussell, supra, 347 F.2d at 89. City council members, each acting in his official capacity,³ are not the same as the city council itself.

Having concluded that these defendants are subject to suit under the Civil Rights Act, it remains to consider whether the acts alleged are sufficient to state a claim against them for which relief can be granted. First is the question of specificity, for under appropriate circumstances, a civil rights complaint will be dismissed when wholly conclusory. Powell v. Workmen's Comp. Bd., 327 F.2d 131, 137 (2d Cir. 1964); Valley v. Maule, 297 F.Supp. 958 (D.Conn. 1968). It is clear, however, that plaintiffs have set out their claims with sufficient specificity to survive a motion to dismiss. The three specific...