Maybanks v. Ingraham
Decision Date | 19 June 1974 |
Docket Number | Civ. A. No. 71-3058. |
Citation | 378 F. Supp. 913 |
Parties | Harold MAYBANKS v. Norman R. INGRAHAM, M. D., Commissioner, Department of Public Health, et al. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Scudder G. Stevens, Peck, Young & Van Sant, Edwin D. Wolf, Lawyers' Committee for Civil Rights under Law, Philadelphia, Pa., for plaintiff.
Martin Weinberg, City Sol., Stephen T. Saltz, Asst. City Sol., for defendants.
This is an action against the City of Philadelphia and certain individual defendants based on plaintiff's dismissal from his employment in the Department of Public Health for allegedly racially discriminatory reasons. Plaintiff brings the action under the Thirteenth and Fourteenth Amendments to the Constitution and the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1983. Jurisdiction is alleged under 28 U.S.C. § 1343(3) and (4) and 28 U.S.C. § 1331.
On October 4, 1973 we entered an order dismissing the action as to the City of Philadelphia, under §§ 1981 and 1983, based on the conclusion that the City is not a "person" within the meaning of § 1983. We have before us now a motion to reconsider that order as well as a motion to file an amended complaint. The purpose of the amended complaint appears to be to clarify that a cause of action is alleged directly upon the Thirteenth and Fourteenth Amendments to the Constitution.
There remains no doubt that no cause of action exists against the City under § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L. Ed.2d 109 (1973). However, the posture of the City as defendant under § 1981 and as sued directly for a violation of plaintiff's constitutional rights is different.
The Supreme Court has made clear that an action to redress the deprivation of a constitutional right may be viable regardless of the existence of an applicable civil rights statute. Thus, in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court held that an action for damages lay against federal officers alleged to have violated plaintiff's Fourth Amendment rights against unreasonable searches and seizures, and that federal jurisdiction existed under 28 U.S.C. § 1331, where there was more than $10,000 in controversy.
This Circuit has recognized these principles in its recent opinion of Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (C.A. 3, 1974). That case, like the instant one, involved dismissal from employment, although the unconstitutional action alleged in that case concerned interference with First Amendment freedoms, as well as failure to comply with the requirements of due process. In discussing jurisdiction, (at 44), the court found a jurisdictional basis under § 1331:
Under the Third Circuit's reading of Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A. 2d 877 (1973), Pennsylvania has abolished governmental immunity in general (Skehan, at 41).2 Therefore, since the City of Philadelphia is not immune from suit, and since there is an allegation that the amount in controversy is more than $10,000, we must reverse our determination that the City of Philadelphia be dismissed from this suit at this time. If in the future the amount in controversy is put into question, we may then reconsider whether jurisdiction exists under § 1331.
The applicability of § 1981 to municipalities has been sparsely dealt with by the courts. One which has considered the issue suggested that given the exclusion of municipal liability from the ambit of § 1983, explicit in its legislative history as interpreted by the Supreme Court, "an interpretation of section 1981 which authorizes damage actions against states and municipalities deprives section 1983 of its essential significance." Bennett v. Gravelle, 323 F.Supp. 203, 215 (D.Md.1971). See also Arunga v. Weldon, 469 F.2d 675 (C.A. 9, 1972). We considered this question in United States ex rel. Washington v. Chester County Police Department, 294 F.Supp. 1157 and 300 F.Supp. 1279 (E.D.Pa. 1969), but we held only that plaintiffs should be allowed to proceed in forma pauperis in an action under § 1981 because "the law under that section is not as clear, crystalized and well-settled as is the judicial gloss on § 1983." 294 F.Supp. at 1159. However, we never definitively decided whether the City or the police department could be sued under § 1981.3
Now the issue is again before us. We have received no assistance from the defendant City by way of a memorandum in opposition to plaintiff's motion for reconsideration, which in any way deals with the issue of the City's liability under § 1981. However, having read plaintiff's memorandum and after considering all of the relevant case law, we conclude that the City of Philadelphia is subject to § 1981 liability.
The defendant City relies on its immunity to suit under § 1983 to answer plaintiff's allegation of § 1981 liability. This is no answer. In the first place, the word "person" which in § 1983 has been held conclusively not to apply to municipalities, appears in § 1981 only to describe those who are protected by the statute, not those who are proscribed from its violation. In the second place, the scope and application of § 1981 is vastly different from that of § 1983.
One essential difference is that § 1981, like § 1982, is based on and intended to enforce the Thirteenth Amendment, and applies, therefore, to actions against private persons as well as those acting under color of law.4 Section 1983, on the other hand, enacted to implement the Fourteenth Amendment and applying, therefore, only to cases where state action is involved, is of more limited application. This was emphasized by the Supreme Court in District of Columbia v. Carter, 409 U.S. 418, 424-425, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), which held that the District of Columbia was not a "State or Territory" for purposes of § 1983. The Court took care to distinguish the application of § 1982 to the District, which had been recognized in Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). Emphasizing the absolute nature of the Thirteenth Amendment as compared to the Fourteenth, the Court said, 409 U.S. at 422, 93 S.Ct. at 605:
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Shifrin v. Wilson
...L.Ed.2d 474 (1975); Tatum v. Morton, 402 F.Supp. 719 (D.D.C.1974); Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975); Maybanks v. Ingraham, 378 F.Supp. 913 (D.C.Pa.1974); Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.Cal.1974). There is some question, however, as to whether municipalities......
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Dawes v. Philadelphia Gas Commission, Civ. A. No. 73-2592.
...in a parallel action under § 1983. Gray v. Union County Intermediate Educ. Dist., 520 F.2d 803, 805 (9th Cir. 1975); Maybanks v. Ingraham, 378 F.Supp. 913 (E.D.Pa.1974). (But see Aldinger v. Howard, ___ U.S. ___, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), which arguably casts doubt on the future......
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