Paulos v. Breier, Civ. A. No. 72-C-322.

• Decision Date: 08 March 1974
• Docket Number: Civ. A. No. 72-C-322.
• Parties: Douglas PAULOS, Plaintiff, v. Harold A. BREIER et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

371 F. Supp. 523

Douglas PAULOS, Plaintiff, v. Harold A. BREIER et al., Defendants.

Civ. A. No. 72-C-322.

United States District Court, E. D. Wisconsin.

March 8, 1974.

Gerald P. Boyle, Milwaukee, Wis., for plaintiff.

Thomas E. Hayes, Asst. City Atty., Milwaukee, Wis., for defendants.

MEMORANDUM OPINION AND ORDER

REYNOLDS, Chief Judge.

This is an action brought under the Civil Rights Act in which the plaintiff, a detective in the Milwaukee Police Department, complains of a five-day suspension which he received upon order of the defendant Harold A. Breier, Police Chief of the City of Milwaukee.

Jurisdiction is claimed under 28 U.S. C. § 1343, 42 U.S.C. § 1983, and 28 U.S. C. §§ 2201 and 2202. This matter is before me on defendants' motion to dismiss the action on the grounds that the complaint fails to state a claim upon which relief can be granted.

The plaintiff's complaint indicates the following: On March 3, 1972, plaintiff sent a letter to fifty-four fellow policemen urging them to support a certain candidate for political office. Plaintiff signed the letter and added his title: "Detective, Milwaukee Police Department." On March 31, 1972, plaintiff was served with "Milwaukee Police Department Charges" in which he was charged with "Using the influence of his office for political reasons" in violation of Rule 29, § 31,^* of the Rules and Regulations of the Milwaukee Police Department. Plaintiff was ordered to stand trial to answer the charges. He was afforded a departmental trial, and on April 6, 1972, he was found guilty of the charges against him and received an order that he be suspended for five alternate regular off days.

Plaintiff seeks monetary damages for the period of time he was suspended and additionally asks for a declaration that Rule 29, § 31, is unconstitutional and that the defendants be enjoined from enforcing said rule. The City of Milwaukee is included as a party defendant in this action.

Before considering the substance of defendants' Rule 12(b)(6) motion, several procedural questions must be dealt with. Firstly, plaintiff argues that under Rule 12(b) of the Federal Rules of Civil Procedure, the motion to dismiss should be treated as a motion for summary judgment with the parties being given further opportunity to present material. Neither party has submitted any affidavits or depositions from which the court could make a summary judgment. Therefore, the present matter shall be treated as a motion to dismiss and not as a motion for summary judgment.

Secondly, based on the recent decision of the United States Supreme Court in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), it has become clear that municipalities are not "persons" for purposes of jurisdiction under 28 U.S.C. § 1343 and 42 U.S. C. § 1983. I must, therefore, grant the motion of the defendant City of Milwaukee to dismiss this action as to it. I must also grant the motion of defendant Harold A. Breier to dismiss this action as to him but on different grounds.

I.

At the outset, I must determine if the City of Milwaukee is a proper defendant in a § 1983 action.

In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the United States Supreme Court held that a municipality is not a "person" within the meaning of 42 U.S.C. § 1983. The Court, after examining the legislative history of § 1983, concluded:

"The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word `person' was used in this particular Act to include them. * * *" 365 U.S. at 191, 81 S.Ct. at 486.

Subsequent to this, several courts held that the ruling of Monroe was limited to actions for damages, and that when equitable relief was sought municipalities were proper defendants under § 1983. See, for example, Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961); Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1968); Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970).

Recently the issue of this dual approach to the scope of § 1983 was laid to rest by the United States Supreme Court. In City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 2226, 37 L.Ed.2d 109 (1973), the Court stated:

"We find nothing in the legislative history discussed in Monroe, or in the language actually used by Congress, to suggest that the generic word `person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, `Congress did not undertake to bring municipal corporations within the ambit of' § 1983, 365 U.S. at 187 81 S. Ct. at 484, they are outside of its ambit for purposes of equitable relief as well as for damages. * * *"

Therefore, the City of Milwaukee is not a proper party and must be dismissed.

II.

Plaintiff's cause of action against defendant Harold A. Breier must also be dismissed but for different reasons. In his complaint as against said defendant, plaintiff first alleges that Rule 29, § 31, is unconstitutional for vagueness and overbreadth, and that defendant is charged with enforcing this unconstitutional rule. Plaintiff then asks that defendant be ordered to strike Rule 29, § 31, from the Rules and Regulations of the Milwaukee Police Department and that he be enjoined from enforcing such rule. I shall first consider plaintiff's vagueness claim.

Rule 29, § 31, restricts police officers from "interfering or using the influence of their office for political reasons." In United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), the United States Supreme Court upheld the constitutionality of the Hatch Act of 1939, 5 U.S.C.A. § 7324(a)(2), which prohibits all federal employees, with the exception of a few top-level officials, from taking "any active part in political management or in political campaigns." Plaintiff cites the case of Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971), in which that court forcefully argued that the rationale of United Public Workers v. Mitchell, supra, has been clearly eroded by the development of the constitutional doctrines of overbreadth and vagueness. Recently, however, the United States Supreme Court strongly reaffirmed the Mitchell holding, and in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 556, 93 S.Ct. 2880, 2886, 37 L.Ed.2d 796 (1973), held that Congress can constitutionally forbid federal employees from:

"* * * organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention. * * *"

In addition, the Court expressly held that the Hatch Act was not impermissibly vague. Letter Carriers, supra, at 579, 93 S.Ct. 2880. This holding is controlling here. It leaves little doubt that Rule 29, § 31, is not so vague that "men of common intelligence must necessarily guess at its meaning." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Rule 29, § 31, forbids the interference by members of the department, or use of their influence by way of their office, "for political reasons." The language of the Supreme Court in Letter Carriers, supra, is applicable here:

"* * * there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. * * *" 413 U.S. at 578-579, 93 S.Ct. at 2897.

Therefore, plaintiff's claim that the wording of Rule 29, § 31, renders it unconstitutionally vague in its entirety must fail.

Plaintiff's second allegation is that the portion of Rule 29, § 31, involved here is unconstitutional for overbreadth. The general rule is that overbreadth applies when "* * * a statute lends itself to a substantial number of impermissible applications, such that it is capable of deterring protected conduct, when the area affected by the challenged law substantially involves first amendment interests, and when there is not a valid construction which avoids abridgement of first amendment interests." United States v. Dellinger, 472 F.2d 340, 357 (7th Cir. 1972), cert. denied 410 U.S. 970, 93 S.Ct. 1443, 35 L. Ed.2d 706 (1973); Jacobs v. Board of School Commissioners, 490 F.2d 601 (7th Cir., 1973). Such a situation is not present here. The portion of Rule 29, § 31, challenged states that "Members of the Department shall not * * * interfere or use the influence of their office for political reasons." This does not lend itself to a substantial number of impermissible applications. It clearly prohibits certain conduct by members of the Milwaukee Police Department. It prohibits interference with political organizations by policemen and the use of influence of the policeman's office for political reasons.

If plaintiff alleges violation of a first amendment right, he is allowed to challenge the statute not on the basis that his rights have been abridged but because of a judicial assumption that the statute's applicability to others not before the court may cause their constitutionally protected rights of speech or expression to be compromised. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L.Ed.2d 22 (1965). The exception for the ...