Marrapese v. State of RI, Civ. A. No. 80-0167.

• Citation: 500 F. Supp. 1207
• Decision Date: 10 October 1980
• Docket Number: Civ. A. No. 80-0167.
• Parties: Frank MARRAPESE v. STATE OF RHODE ISLAND et al.
• Court: U.S. District Court — District of Rhode Island

500 F. Supp. 1207

Frank MARRAPESE v. STATE OF RHODE ISLAND et al.

Civ. A. No. 80-0167.

United States District Court, D. Rhode Island.

October 10, 1980.

John F. Cicilline, Providence, R. I., for plaintiff.

Eileen G. Cooney, Asst. Atty. Gen., Providence, R. I., for defendants.

OPINION AND ORDER

PETTINE, Chief Judge.

This case is one of several now before the Court in which the State of Rhode Island is a named defendant in an action under Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. It presents the difficult and important question whether Rhode Island can be required to appear in court and defend plaintiff's § 1983 claim on the theory that § 9-31-1 of the Rhode Island General Laws¹ manifests a waiver of the State's Eleventh Amendment immunity. After careful study of the issues involved, this Court concludes that R.I.G.L. § 9-31-1 does evidence a waiver of Eleventh Amendment immunity in cases in which the alleged constitutional violation arises from activities that are in the nature of tort at common law. Therefore, the State's motion to dismiss is denied.

According to the plaintiff's complaint, on or about March 19, 1975, officers of the Rhode Island State Police during the course of a criminal investigation applied to the plaintiff's skin a chemical solution containing benzidine. The plaintiff alleges that it is the official custom and policy of the Rhode Island State Police to use benzidine solution to test for the presence of blood even though, according to the plaintiff, benzidine is a known carcinogen that is rapidly absorbed through the skin. Claiming that this incident violated his Fourth, Sixth, Eighth, Ninth and Fourteenth Amendment rights and caused him physical and mental harm, the plaintiff requests $100,000 in compensatory and punitive damages from various members of the State Police force and from the State of Rhode Island.

The plaintiff seeks damages from the State itself, damages "measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials." Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974). As such, his claim falls squarely within the ban of the Eleventh Amendment,² unless Congress has validly abrogated Rhode Island's immunity, see, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), or unless Rhode Island has consented to suit, see, e. g., Parden v. Terminal Railway, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). In light of Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the plaintiff does not suggest that any congressional abrogation of immunity operates here.³ Rather, he argues that Rhode Island has waived its constitutional immunity to suit in federal court by enacting R.I.G.L. § 9-31-1:

Tort liability of the state-The State of Rhode Island and any political subdivision thereof, including all cities and towns, shall, subject to the period of limitations set forth in § 9-1-25, hereby be liable in all actions of tort in the same manner as a private individual or corporation, provided however, that any recovery in any such action shall not exceed the monetary limitations thereof set forth in the chapter.⁴

Before examining the import of § 9-31-1, the Court must first determine whether Quern v. Jordan forecloses all possibility of maintaining a § 1983 claim against the State, regardless of whether it has consented. Justice Brennan has read the majority opinion in Quern as effectively establishing that states are not "persons" within the meaning of § 1983, see 440 U.S. at 350-351, 99 S.Ct. at 1150-1151 (Brennan, J., concurring in the judgment). At least two federal courts have agreed with his interpretation. See Brown v. Supreme Court of Nevada, 476 F.Supp. 86, 89 (D.Nev.1979); Thompson v. New York, 487 F.Supp. 212, 226 (N.D.N. Y.1979). If this is the true significance of Quern, then any inquiry into Rhode Island's consent is, of course, senseless. The mere fact of a state's consent cannot expand the class of natural and artificial entities subject to § 1983. Cf. Johnson v. Texas Dept. of Corrections, 373 F.Supp. 1108, 1110 (S.D. Tex.1974); S. J. Groves v. New Jersey Turnpike Authority, 268 F.Supp. 568, 571 (D.N.J.1967) (state's consent cannot create diversity jurisdiction). A close reading of Quern reveals, however, that another interpretation of the majority opinion is possible.

In Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court undertook a thorough exegesis of § 1983, considering the language of § 1 of the Civil Rights Act of 1871 against the backdrop of contemporary legal thought and the recently enacted Dictionary Act.⁵ As a result of this examination, the Court concluded that, "since there is nothing in the `context' of § 1 of the Civil Rights Act calling for a restricted interpretation of the word `person,' the language of that section should prima facie be construed to include `bodies politic' among the entities that could be sued." 436 U.S. at 689-90 n.53, 98 S.Ct. at 2035 n.53. The Court then overruled that portion of Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 484-86, 5 L.Ed.2d 492 (1961) which held that municipalities were not "persons" for the purposes of § 1983.

After Monell, there was considerable speculation about whether the Court's re-evaluation of § 1983 would extend to states as well as municipalities.⁶ Any suggested inclusion of states within the class of potential § 1983 defendants raised Eleventh Amendment questions not presented by the case of local governmental units.⁷ The Supreme Court had already affirmed, however, that Congress possessed the power under § 5 of the Fourteenth Amendment to override the states' constitutional immunity.⁸See Fitzpatrick v. Bitzer, 427 U.S. at 456, 96 S.Ct. at 2671. Thus, the crucial question was whether, in light of Monell's reexamination of the language and legislative history of § 1983, the Court would reevaluate its conclusion in Edelman v. Jordan that Congress had not intended to exercise that power.

Against this background, Quern was decided. Justice Rehnquist's opinion, while emphatic in reasserting the Court's belief that Congress had not intended to abrogate the states' immunity through § 1983, see 440 U.S. at 345, conspicuously avoided any statement that the term "person" did not include "state."⁹ Stated precisely, Quern concluded only that the Congress which enacted § 1983 did not intend to force the states to answer in federal court for their constitutional violations. Of itself, this holding does not mandate the further conclusion that the 42d Congress did not intend to allow the states to answer in federal court for their constitutional violations if they consented to do so. The alternate interpretation of Quern, then, would recognize that the word "person," when considered in light of the Dictionary Act and the legislative history of § 1983, is broad enough to encompass the state as a "body politic and corporate."¹⁰ Limiting the practical effect of this construction would be the caveat that the statute leaves untouched Eleventh Amendment immunity, so that a state is not compellable to respond to § 1983 claims in federal court.

Suggesting that Congress included the states within the scope of § 1983 only to leave them free to decline to answer for any constitutional wrongdoing appears strained, if not actually illogical. However, it seems to this Court that the consequences of adopting Justice Brennan's interpretation of Quern are equally unreasonable. The legislative history reveals that proponents of § 1983 had the highest ambitions for the scope and effectiveness of its remedial powers. Representative Bingham, author of § 1 of the Fourteenth Amendment, argued in favor of the passage of § 1983:

The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws .... And the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen has no remedy .... They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy .... Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in the States and by States, or combinations of persons?

Cong. Globe, 42d Cong., 1st Sess.App. 85 (1871), quoted in Monell v. New York Dept. of Social Services, 436 U.S. at 685 n. 45, 98 S.Ct. at 2033 n. 45.

Senator Edmunds, manager of the bill in the Senate, characterized § 1983 as "really reenacting the Constitution." Cong. Globe, 42d Cong., 1st Sess. 569 (1871), quoted in Monell v. New York Dept. of Social Services, 436 U.S. at 685, 98 S.Ct. at 2033. In interpreting a statute which "was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights," Monell v. New York Dept. of Social Services, 436 U.S. at 700-01, 98 S.Ct. at 2041, it would seem strained, if not actually illogical, to conclude that Congress meant to exclude the governmental entities which, being most powerful, could pose the greatest threat to the constitutional rights of citizens, even when those entities consented to suit.

Faced, then, with two possible interpretations-neither of which is particularly satisfactory-this Court accepts the one that gives greatest latitude to § 1983's broad remedial purpose. It concludes that the states are "persons" potentially liable for constitutional deprivations inflicted through official custom and policy, but that,...