Molina v. Richardson

• Citation: 578 F.2d 846
• Decision Date: 21 July 1978
• Docket Number: No. 76-2810,76-2810
• Parties: Domingo Roque MOLINA, Plaintiff-Appellant, v. Paul T. RICHARDSON and the City of Los Angeles, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 846

578 F.2d 846

Domingo Roque MOLINA, Plaintiff-Appellant, v. Paul T. RICHARDSON and the City of Los Angeles, Defendant-Appellee.

No. 76-2810.

United States Court of Appeals Ninth Circuit.

July 21, 1978.

Michael R. Mitchell (argued), Los Angeles, Cal., for plaintiff-appellant.

Michael K. Fox, Deputy City Atty. (argued), Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT and WALLACE, Circuit Judges, and GRANT, ^* District Judge.

WALLACE, Circuit Judge:

Molina appeals from the judgment of the district court dismissing his civil-rights claim against the City of Los Angeles for failure to state a claim upon which relief can be granted and denying him attorney's fees for his successful action against two policemen employed by the city. We affirm the dismissal of the claim against the city and vacate and remand the judgment with respect to the denial of attorney's fees.

I. The Facts

On July 1, 1973, Molina was stopped by two policemen while driving his automobile in Los Angeles. The officers had noticed that the rear of Molina's car was damaged and that a current registration tab was not attached to the rear license plate. Molina complied with their request to produce the registration tab which he had inside the car, explaining that he intended to attach it to the license plate after the damage to his vehicle was repaired. The officers then asked to see his driver's license. Molina held up his wallet, displaying his license through a clear plastic container, but he refused to hand it over as directed. The parties disagree as to whether the officers then told Molina to get out of his car, but it is agreed that they eventually removed him by force and, after a struggle, handcuffed him and took him to the police station where he was booked for resisting arrest. The prosecutor later refused to file any charges against Molina.

Molina, claiming physical injuries resulted from the incident, commenced this action in the district court seeking compensatory and punitive damages for the alleged violation by the officers of his Fourth Amendment right to be free from arrest unless based upon probable cause, his guarantee under the Fifth and Fourteenth Amendments against deprivation of liberty without due process of law, and his right to be free from cruel and unusual punishment under the Eighth Amendment. He also asked for damages against the City of Los Angeles (the city), the officers' employer, under the principle of respondeat superior. The city successfully moved to dismiss the claim against it for failure to state a cause of action. The case against the officers proceeded to trial, and a jury awarded Molina $65.75 compensatory damages against each of them. The district judge entered judgment on the verdict, but denied Molina's petition for attorney's fees. Molina appeals from the dismissal of the city from the action and from the refusal to award him attorney's fees.

II. The Dismissal of the City

The primary issue on appeal is whether the district judge properly dismissed the city from this action. Although his cause of action against the individual officers was based, in part, on 42 U.S.C. § 1983, ¹ Molina conceded on appeal that this statute gives him no right of action against the city because of the holding in Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that a municipality is not a "person" within the meaning of section 1983. In spite of the intervening decision in Monell v. Department of Social Services, --- U.S. ----, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which overruled Monroe in part, this concession by Molina is still appropriate.

Monell disapproved of the broad holding in Monroe that "local governments are wholly immune from suit under § 1983," id. --- U.S. at ----, 98 S.Ct. at 2022 (footnote omitted), as inconsistent with the intent of Congress when it enacted that statute. But Monell reaffirmed Monroe to the extent it decided

that a municipality cannot be held liable solely because it employs a tortfeasor or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

. . . Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

Id. at ----, ----, 98 S.Ct. at 2036, 2038 (emphasis in original).

Molina's complaint sought recovery against the city solely "by virtue of (the employment) relationship" between the city and the police officers. Although it is conceded that the officers were acting in their official capacities when they stopped Molina and questioned him, Molina did not argue before the district court that the allegedly illegal conduct of the officers "may fairly be said to represent (the city's) official policy." Thus, Monell does not give Molina a section 1983 cause of action against the city.

Molina asserts, however, that jurisdiction over the city exists under 28 U.S.C. § 1331, ² the general "federal question" jurisdiction statute, and that a cause of action for vicarious liability against the city may be inferred directly from the text of the Fourteenth Amendment. We are thus called upon to decide a question on which the federal courts are divided: whether the decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), should be extended to provide a cause of action for damages against a municipality for the violation of a citizen's constitutional rights by police officers. ³

In Bivens, the plaintiff had been the victim of police misconduct not dissimilar to that alleged by Molina in this case. After having been manacled, arrested, and taken into custody in violation of the Fourth Amendment, Bivens was released and no charges were brought against him. Neither section 1983 nor any other federal statute provided a remedy to Bivens, and rather than leave him to rely upon state tort remedies whose protection might not be co-extensive with that of the Fourth Amendment, the Court exercised its judicial power to infer a remedy directly from the text of the amendment itself.

Because the city is not vicariously liable under section 1983 for the alleged violation of Molina's Fourth, Fifth, Eighth, and Fourteenth Amendment rights, he would have us supply a substitute remedy by extending the Bivens doctrine to create such liability against the city directly under the Fourteenth Amendment. ⁴ We conclude that it would be inappropriate for us to do so.

A. Jurisdiction

We are not in doubt about federal jurisdiction in this case. As early as 1946 the Supreme Court decided that federal question jurisdiction exists for claims urging a cause of action based directly on the Constitution. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). As did the plaintiff in Bell, Molina seeks recovery "squarely on the ground" that specific constitutional guarantees have been violated. Id. at 681, 66 S.Ct. 773. The recent decision in City of Kenosha v. Bruno, 412 U.S. 507 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), suggests that the Supreme Court sees no obstacle to federal jurisdiction in Bivens actions against municipalities. ⁵

The city contends that jurisdiction is lacking because the requisite $10,000 jurisdictional amount of section 1331 is not in controversy. We disagree. The test for determining whether the jurisdictional amount is in controversy is liberally tilted in favor of plaintiffs:

(T)he sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction.

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) (footnotes omitted); accord, Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 276, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

The city argues that the small recovery against the officers demonstrates to a "legal certainty" that Molina could not have recovered $10,000 against their employer, since the city could not be liable for more than were its agents. But the city has not demonstrated or even alleged that when the trial began such a small recovery was inevitable, and it is "at the time of suit," id. at 277, 97 S.Ct. 568, that the determination of the amount in controversy is made. See 1 Moore's Fed.Practice P 0.91(3), at 850-51. ⁶

B. The Cause of Action

While the federal court has jurisdiction, it is another matter whether Molina's complaint states a claim upon which relief can be granted. As Bell made clear, the existence of a cause of action is conceptually distinct from the presence of jurisdiction, ⁷ 327 U.S. at 682, 66 S.Ct. 773, and it is to the question whether Molina has a cause of action against the city that we now turn.

1. The extension of Bivens to municipalities is not constitutionally mandated.

The first step in deciding whether Molina has a Bivens action against the city is to determine whether that result is constitutionally required. We conclude that it is not.

The majority in Bivens strongly implied that specific congressional action might have precluded the judicial creation of a damages remedy in that case. 403 U.S. at 397, 91 S.Ct. 1999. Such preclusion would not be permissible, of course, were the Bivens result a constitutional necessity. If the Constitution did not compel the result in Bivens, neither does it compel the extension of the doctrine of that case to municipalities. Even those who advocate that extension concede that this is so. E. g., Note, Damage Remedies Against...