Mahone v. Waddle

• Citation: 564 F.2d 1018
• Decision Date: 24 August 1977
• Docket Number: No. 76-1377,76-1377
• Parties: Glenn R. MAHONE and Harvey L. Mahone, Appellants, v. David S. WADDLE, Albert B. Ellway, Jr. and the City of Pittsburgh. /8.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1018

564 F.2d 1018

Glenn R. MAHONE and Harvey L. Mahone, Appellants, v. David S. WADDLE, Albert B. Ellway, Jr. and the City of Pittsburgh.

No. 76-1377/8.

United States Court of Appeals Third Circuit.

Argued Nov. 30, 1976.

Reargued May 11, 1977.

Decided Aug. 24, 1977.

Wendell G. Freeland, Freeland & Kronz, Gilbert J. Helwig, Reed, Smith, Shaw & McClay, Garland H. McAdoo, Jr., Tucker, Arensberg & Ferguson, Pittsburgh, Pa., for appellants.

Eugene B. Strassburger, III, Asst. City Sol., Daniel M. Curtin, First Asst. City Sol., Mead J. Mulvihill, Jr., City Sol., Law Dept., City of Pittsburgh, Pittsburgh, Pa., for appellees.

Argued November 30, 1976

Before ROSENN, KALODNER, and GARTH, Circuit Judges.

Reargued May 11, 1977

Before GIBBONS, ROSENN and GARTH, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

These appeals from an order of the United States District Court for the Western District of Pennsylvania present the recurring question whether municipalities can be held accountable in the federal courts for deprivation of citizens' constitutional rights through misuse of governmental authority by municipal police. Facets of this issue have received the attention of the federal courts in recent years. These appeals, however, not only focus attention on the underlying language of the fourteenth amendment to the United States Constitution, but also command particular scrutiny of the thirteenth amendment and its implementation in the Civil Rights Act of 1866.

The plaintiffs instituted this action against two police officers individually and against the City of Pittsburgh. The district court granted the City's motion to dismiss all claims against it and the plaintiffs appeal. We affirm in part, reverse in part, and remand to the district court.

I.

Plaintiffs, two black citizens of the Pittsburgh area, claim that while driving motor vehicles on the public highways in the early morning of May 29, 1975, they were stopped without probable cause for a supposed traffic violation by the two individual defendants, Waddle and Ellway, police officers of the City of Pittsburgh. Plaintiffs allege that thereafter, because they were black, the police officers subjected them to racial epithets, verbal harassment, and physical abuse by hands, fists, and nightsticks. The police officers handcuffed the plaintiffs, threw them into a police van, and had them transported to a police station. Plaintiffs claim they were there charged with driving too fast for conditions and following too closely, although the police officers knew that these charges were false and unfounded in fact and in law. Plaintiffs were required to post a cash bond to obtain their release. Later in the day they were convicted in the city magistrate's court of the traffic violations, allegedly because the two policemen gave false testimony. They were sentenced to pay fines and costs.

Plaintiffs allege that the conduct of the two police officers was performed under color of state law, that the officers were Plaintiffs brought their action in the district court against the individual defendants and against the City on the grounds that plaintiffs' rights under 42 U.S.C. §§ 1981, 1983, and 1985 and the United States Constitution were violated.

"motivated by racial prejudice," and acted "with purpose of depriving Plaintiffs of equal protection and benefits of the law, equal privileges and immunities under the law, and due process . . . ." They claim that they sustained bodily injuries, mental anguish, and damage to their reputations as law abiding citizens by the actions of the two officers, and that the amount in controversy exceeds $10,000.

Three distinct grounds for relief were asserted against the City of Pittsburgh: (1) under the fourteenth amendment the City is liable on a respondeat superior basis for the misconduct of its officers; (2) under 42 U.S.C. § 1981 the City is liable on a respondeat superior basis for the misconduct of its officers; and (3) the City is liable directly for its alleged negligence or wanton recklessness in failing to train and supervise the two individual defendants and in permitting them to act as police officers notwithstanding the City's prior knowledge of their propensity to harass and mistreat black citizens. The first two grounds being federal, jurisdiction was asserted under 28 U.S.C. §§ 1331 and 1343. The third is based on state law and the federal court is asked to exercise derivative, pendent jurisdiction.

In dismissing the claims against the City, the learned district judge held that Congress' grant of immunity to municipalities in section 1983, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), precluded any action against a municipality directly under the fourteenth amendment. He also held that on the facts alleged by plaintiffs, no relief could be granted under 42 U.S.C. § 1981, and, in addition, that the City was immune from liability under that section. The district court also dismissed the claims stated under Pennsylvania law, holding it could not exercise derivative, pendent jurisdiction since there was no basis for the exercise of federal question jurisdiction. The district court thereupon entered final judgment in favor of the City of Pittsburgh, finding "that there is no just reason for delay with respect to the entry of final judgment as to the City of Pittsburgh."

II.

On reviewing the dismissal under Rule 12[b](6) of plaintiffs' claims against the City of Pittsburgh for failure to state a claim upon which relief can be granted, we are constrained to accept all the uncontroverted allegations of the complaint as true. Curtis v. Everette, 489 F.2d 516, 518 (3d Cir. 1973). Our task at this point is to determine whether the plaintiffs could prevail if the facts alleged in their complaint were borne out at a trial on the merits. Central-Penn Nat'l Bank v. Portner, 201 F.2d 607 (3d Cir.), cert. denied, 346 U.S. 815, 74 S.Ct. 26, 98 L.Ed. 342 (1953).

For the purpose of this appeal, we assume, without deciding, that the conduct alleged does violate the guarantees of the Constitution and is actionable under 42 U.S.C. § 1983 ¹ against the two police officers. In other than section 1983 actions, their employer would ordinarily also be held liable under the doctrine of respondeat superior for their misconduct if it occurred during the performance of their duties and within the scope of their employment. The City of Pittsburgh, however, occupies a position different from that of an ordinary employer; as a municipality, it is not a "person" within the meaning of § 1983 and thus is absolutely immune from the reach of that section. Monroe v. Pape, supra. Plaintiffs concede that the City is immune

from liability under section 1983 and they therefore seek relief (1) under the fourteenth amendment directly, and (2) under 42 U.S.C. § 1981 (1970). ² We are thus faced with three major questions: First, can this action be maintained against the City directly under the provisions of the fourteenth amendment? Second, on the facts alleged, can relief be granted under section 1981? Third, if a claim for section 1981 relief has been stated, can the City be held liable for damages under that section? Our resolution of the pendent jurisdiction issue will turn on the answers to these questions.

III.

The first question presented is whether the fourteenth amendment by itself gives rise to a cause of action. As the City correctly informs us, this question is definitely distinct from the independent issue whether plaintiffs have properly invoked the general federal question jurisdiction of the district court under 28 U.S.C. § 1331 (1970). ³ In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court held that a federal district court has subject matter jurisdiction over a case whenever the pleadings allege matters in controversy arising under the Constitution or laws of the United States. Bell also teaches, however, that the question whether a court has jurisdiction under § 1331 is analytically distinct from the question whether the plaintiff has stated a cause of action upon which relief can be granted. ⁴ In the instant case, therefore, the district court's jurisdiction over the subject matter of the claim against the City is clear under section 1331. ⁵ The availability of section 1331 jurisdiction to entertain claims of constitutional violations by municipalities is a settled principle of law. See, e.g., City of Kenosha v. Bruno, 412 U.S. 507, 513-14, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (remand for consideration of jurisdictional amount to satisfy section 1331 requirements). Furthermore, the City in this case concedes that a federal court has section 1331 jurisdiction to try a claim against a municipality based directly on a fourteenth amendment violation. The significant question is whether plaintiffs have stated a claim upon which relief can be granted. As plaintiffs claim the source of such relief to be the fourteenth amendment, the precise issue which we are called upon to decide is whether the fourteenth amendment can serve as an independent source of an affirmative right of action against the City for damages flowing from constitutional misconduct by the City's police.

The City argues forcefully that the fourteenth amendment cannot serve as an independent source of an affirmative right of action. The City believes that section 1983, as interpreted by the Supreme Court in Monroe v. Pape, supra, completely bars any action against it for damages resulting from a deprivation of fourteenth amendment rights. Section 1983 manifests a congressional policy against municipal liability To infer that the Fourteenth Amendment itself gives rise to a cause of action in damages for violations of its provisions is to ignore the plain language of Section 5 of the Amendment itself. Such a holding would make Section 5 mere surplusage. Further, such an inference by the courts would be...