Moor v. Madigan

Citation458 F.2d 1217
Decision Date30 May 1972
Docket NumberNo. 71-3019,71-3020.,71-3019
PartiesDavid MOOR, Plaintiff-Appellant, v. Frank I. MADIGAN et al., Defendants-Appellees. William Donovan RUNDLE, Jr., a minor, by William D. Rundle, his guardian ad litem, et al., Plaintiffs-Appellants, v. Frank I. MADIGAN et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ronald M. Greenberg (argued), of Richards, Watson & Dreyfuss, Los Angeles, Cal., for plaintiffs-appellants.

Peter W. Davis (argued), Richard J. Heafey, of Crosby, Heafey, Roach & May, Oakland, Cal., for defendants-appellees.

Before HAMLIN, MERRILL and DUNIWAY, Circuit Judges.

HAMLIN, Circuit Judge:

These are appeals from an order of the United States District Court for the Northern District of California dismissing appellants' claims against the County of Alameda (hereinafter County).

The claims arose out of the May, 1969, "People's Park" disturbance or riot, in which appellants were allegedly injured by an Alameda County deputy sheriff who was performing duties at that time and place on behalf of the County.

On February 12, 1970, appellants brought actions against several deputies, the sheriff, and the County. The complaints against the County alleged federal causes of action under the Civil Rights Act, 42 U.S.C. sections 1981-1988, and pendent state claims under sections 810 et seq. of the California Government Code (hereinafter Tort Claims Act). Both federal and state causes of action were premised on the theory that the county could be held vicariously liable for the acts of the deputies.

Both appellants alleged jurisdiction in the district court pursuant to 28 U.S.C. section 1343. Appellant Moor also alleged diversity jurisdiction under 28 U.S.C. section 1332.

The County subsequently filed motions to dismiss the claims against it in each case, contending that, as to the Civil Rights Act claims, the County was not a "person" who could be sued under the Act. The County also argued that, as the federal claims were not viable, the pendent state claims must also be dismissed. In addition, in the Moor case, the County separately moved to dismiss for lack of diversity, contending in part that the County was not a "citizen" for federal diversity jurisdiction purposes.

The trial court ultimately granted all of these motions and ordered that all claims against the County be dismissed. These appeals are taken from that order.

Three broad issues are thus presented by appellants. First, they argue that their Civil Rights Act claims against the County are viable, notwithstanding the fact that the County is not a "person" within section 1983 of the Act. Second, they contend that even if they did not present a cognizable federal cause of action against the County, the district court should have retained jurisdiction of the pendent state claims against the County. Finally, appellant Moor argues that the County is a "citizen" for federal diversity jurisdiction purposes.

I. The Civil Rights Act claims.

In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court, faced with a Civil Rights Act action against the City of Chicago stemming from the acts of certain of its police officers, held that municipalities are not "persons" within the meaning of 42 U.S.C. section 1983,1 and were thus excluded from its coverage.

Appellants state that they are not taking issue with that holding.

Instead, they contend that the Monroe holding should be limited to mean only that congressional enactment of section 1983 did not purport to impose vicarious liability on municipalities through federal law when no such liability existed under state law. From this position, they reason that when state law provides for the imposition of such liability, a federal court may properly entertain claims brought thereunder.

Appellants further contend that enforcement of these state-created rights in federal court can be effected pursuant to the mandate of 42 U.S.C. section 1988,2 which permits the adoption of state law in order to make the Civil Rights Act fully effective.

Thus they claim that, as California permits the imposition of vicarious liability against a municipality,3 and as they are seeking enforcement of this liability under section 1988, not section 1983, the holding in Monroe v. Pape is inapposite.

We do not agree.

In Brown v. Town of Caliente, 392 F.2d 546 (9th Cir. 1968), this court considered the argument that abolition of sovereign immunity in Nevada would allow the court to entertain a section 1983 action against a Nevada municipality. In rejecting that argument, the court noted:

The Supreme Court having considered the Civil Rights Act, and having held municipalities were not liable under it, we cannot see how any action by the state of Nevada, either by its courts or by the Legislature, . . . by abolishing sovereign immunity in Nevada, can bring about a different reading or different result to Monroe v. Pape. . . . 392 F.2d at 548.

However, appellants urge that Brown, like Monroe, is not applicable to their appeals, because the Brown court had not considered the relevancy of section 1988.

In support of this view, appellants rely heavily on Carter v. Carlson, 144 U.S.App.D.C. 288, 447 F.2d 358 (1971). Carter, in pertinent part, involved a section 1983 suit against the District of Columbia, resulting from the acts of certain of its police officers. In discussing Monroe v. Pape as a potential bar to the suit, the Carter court concluded that Monroe presented only a limited bar, and was not applicable to the extent that local law now permitted such suits.

The Carter court similarly relied on the language of section 1988 to support this conclusion, and also similarly implied that the Brown court might have reached a different result, had section 1988 been considered.4a

Appellants' reliance on Carter is, however, misplaced. The Carter court specifically rested its conclusion on a second independent ground, that Congress had plenary power to impose liability on the District of Columbia; thus the factors that caused the Monroe court to hold the Civil Rights Act inapplicable to ordinary municipalities had no application to suits against the District. Insofar as the Carter case would impose liability under section 1988 on municipalities other than the District of Columbia, it is inconsistent with our decision in Brown v. Town of Caliente and we do not follow it.4b

Appellants have also contended that this court has previously endorsed the view that state law may be applied under section 1988 in Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971).

While it is true that in Hesselgesser this court did apply state law to hold a sheriff vicariously liable for the civil rights violations of his deputies, that holding has no impact on our finding that Monroe v. Pape and Brown v. Town of Caliente control this appeal. Hesselgesser held only that state law could be applied pursuant to section 1988 "under appropriate circumstances." 440 F.2d at 903. Clearly, the sheriff held liable in Hesselgesser was a "person" within the meaning of the Civil Rights Act, as defined by Monroe. Thus, imposition of liability upon the sheriff was appropriate and in no way conflicts with the Monroe holding.

These appeals, however, present a totally different situation. Were appellants allowed to enforce the state-created municipal liability in the district court under section 1988, they would achieve a result which could not be reached through section 1983, under Monroe and Brown. This alone precludes application of section 1988, for the section, by its own terms, cannot be applied when the result would be inconsistent with the laws of the United States. See Wilcher v. Gain, 311 F.Supp. 754 at 755 (N.D.Cal.1970).

Finally, we note that section 1988 has not been construed as having created a separate basis for prosecuting claims under the Civil Rights Act, but rather as pertaining to the "forms of process and the scope of remedy." Pierre v. Jordan, 333 F.2d 951, 958 (9th Cir. 1964) cert. denied 379 U.S. 974, 85 S.Ct. 664, 13 L.Ed.2d 565 (1965), rehearing denied, 380 U.S. 927, 85 S.Ct. 884, 13 L.Ed.2d 814 (1965). Cf. Johnson v. New York State Ed. Dept., 319 F.Supp. 271, 276 (E.D.N.Y.1970). Thus, it provides for the adoption of state law to cure remedial deficiencies in the federal act, but does not create any right of action in and of itself.5

We therefore hold that the district court properly dismissed the Civil Rights Act complaints against Alameda County.

II. Pendent jurisdiction over state claims

Appellants here contend that, even assuming they have not presented a cognizable federal claim under the Civil Rights Act, the trial court should have nevertheless retained jurisdiction to decide their pendent state claims.

We do not agree.

In dismissing the pendent state claims, the trial court relied primarily on our decision in Hymer v. Chai, 407 F.2d 136 (9th Cir. 1969), in which this court held that pendent jurisdiction is available only to join claims, not parties. As the court below held that there was no viable federal claim against the County, it therefore concluded that the non-federal pendent claims could not be used to join the County in the action.

Appellants concede that Hymer was binding upon the district court. However, they argue that Hymer is questionable as a valid proposition of law, and contend that it is inconsistent with the general liberalization of the doctrine of pendent jurisdiction announced in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

In support of this view, appellants have cited cases in which courts have permitted assertion of federal jursidiction over additional parties who were not involved in the federal claim and whose sole connection with the case stemmed from the pendent state law claim.6

However, there are numerous decisions which have reached the opposite...

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