Richmond Black Police Off. Ass'n v. City of Richmond

• Decision Date: 18 November 1974
• Docket Number: Civ. A. No. 74-0267-R.
• Citation: 386 F. Supp. 151
• Parties: RICHMOND BLACK POLICE OFFICERS ASSOCIATION et al. v. The CITY OF RICHMOND et al.
• Court: U.S. District Court — Eastern District of Virginia

386 F. Supp. 151

RICHMOND BLACK POLICE OFFICERS ASSOCIATION et al. v. The CITY OF RICHMOND et al.

Civ. A. No. 74-0267-R.

United States District Court, E. D. Virginia, Richmond Division.

November 18, 1974.

JeRoyd X. Greene, Robert P. Gearey, Harvey Latney, Jr., Richmond, Va., for plaintiffs.

James R. Saul, Asst. City Atty., Richmond, Va., for defendants.

Edward D. Barnes, Richmond, Va., for intervening defendants.

MEMORANDUM

WARRINER, District Judge.

This matter comes before the Court pursuant to defendants' motion to dismiss plaintiffs' complaint on grounds which present three issues to this Court for resolution. Initially the defendants contend that this Court lacks jurisdiction over the subject matter of this suit; a civil rights action brought under 42 U.S.C. §§ 1981, 1983 and 1988 and the corresponding jurisdictional statute, 28 U.S.C. § 1343(3) and (4). The second contention is that the named plaintiffs, both individually and as representatives of the proposed class, lack proper standing to maintain this action. Thirdly, the defendants maintain that plaintiffs should be denied the right to proceed as a class action or, in the alternative, that the proposed class be constituted in conformity with Rule 23 of the Fed.R.Civ.P. The Court's resolution of the last two issues is necessarily interrelated and will be treated accordingly.

The defendants' first ground for dismissal is based upon the contention that the named defendants are not amenable to suit, either individually or in their official capacity, in actions brought under 42 U.S.C. §§ 1981, 1983 and 1988 for equitable and declaratory relief.¹ In support thereof defendants rely upon Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1970), together, as standing for the proposition that the City of Richmond is not a "person" within the meaning of 42 U.S.C. § 1983 and therefore is not susceptible to suit under that statute or 28 U.S.C. § 1343, the corresponding jurisdictional statute. The defendants argue further that the defendants City Manager, Director of Public Safety, and Chief of Police are likewise immune from suit in their official capacities because, as municipal officials, they necessarily come under the penumbra protection afforded the City of Richmond by Kenosha; and, additionally, they are individually immune from suit because of the long standing common law immunity protecting persons carrying out their discretionary functions in public office. Contrawise, plaintiffs rely upon Monroe, supra as standing for the proposition that, under 42 U.S.C. § 1983, municipal corporations may be susceptible to suit for injunctive and declaratory relief. Similarly, plaintiffs rely upon Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) as dictating that in order to determine if there is, or is not, any validity to the asserted defense of common law immunity protecting the individual defendants there must be further fact finding. For the following reasons this Court must grant the defendants' motion to dismiss with respect to the City of Richmond and deny the same with respect to the City Manager, the Chief of Police, and the Director of Public Safety.

In Monroe v. Pape, supra, the Supreme Court held that a municipal corporation is not a "person" as contemplated under 42 U.S.C. § 1983 in actions where damages are sought. In City of Kenosha v. Bruno, supra the Court, upon examination of Monroe, concluded as follows:

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 42 U.S.C. § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of relief sought against them. Since, as the Court held in Monroe, "Congress did not undertake to bring municipal corporations within the ambit of" § 1983, id, at 187, 81 S.Ct. at 484, they are outside of its ambit for purposes of equitable relief as well as for damages. City of Kenosha, 412 U.S. at 513, 93 S.Ct. at 2226.

In sum, a city is not a "person" under 42 U.S.C. § 1983 where equitable relief is sought, any more than it is where damages are sought.² Accordingly, this action must be dismissed with respect to the defendant City of Richmond.

While it would appear that a suit against the named City officials is essentially a suit against the City, and therefore barred by the doctrine of Monroe and City of Kenosha, such is not the law. The Court in Monroe held that municipal officials are susceptible to suit under 42 U.S.C. § 1983 for damage actions even though the municipality itself is immune. In City of Kenosha the Court neither included nor excluded municipal officials from the immunity granted to the municipality in actions for equitable relief arising under 42 U. S.C. § 1983. Absent an express statement by the Supreme Court of inclusion or exclusion, this Court is bound by the decision of Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) holding that jurisdiction under 42 U.S.C. § 1983 does attach in suits for equitable relief against municipal officials in their official capacity. Accordingly, the defendants' motion on this ground to dismiss the complaint as against the City Manager, the Director of Public Safety, and the Chief of Police in their official capacities is not well founded.³

Finally, defendants argue that the recognized common law immunity protecting persons carrying out their discretionary functions in public offices forbids any suit against the City Manager, the Director of Public Safety, and the Chief of Police. This argument reasons that as long as individuals are carrying out official duties embodying discretionary functions and there is no prima facie showing of bad faith, then they are immune to any court action against them arising out of the conduct of their official duties. In examining the common law immunity doctrine, however, courts have concluded that the rule, whatever its scope, is grounded on the inhibitory effect of suits for money damages only. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

. . . The common law soon recognized the necessity of permitting officials to perform their official functions free from the threat of suits for personal liability. This official immunity apparently rested, in its genesis, on two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good. Emphasis added Scheuer, 416 U.S. at 239-240, 94 S.Ct. at 1688, 40 L.Ed. 2d at 98-99.

Actions for injunctive and declaratory relief, such as the one presently before the Court, do not possess that inhibitive effect and there is no need to guard against such suits. Accordingly, the doctrine of common law immunity does not protect the City Manager, the Director of Public Safety, and the Chief of Police from actions for injunctive relief to prevent what might otherwise be illegal acts on their parts. Sparrow v. Goodman, 502 F.2d 1326 (C.A. 4th Cir., 1974). It follows that defendants' motion to dismiss with respect to these defendants insofar as plaintiffs seek injunctive relief must be denied.

To resolve the second issue raised in the defendants' motion to dismiss this Court must examine the three plaintiffs to decide whether they have proper standing to maintain this action, either individually or as representatives of the proposed class. The three plaintiffs are as follows: (1) the Richmond Black Police Officers Association (hereinafter the "Association"), an unincorporated association, suing on its own behalf; (2) James W. Cheagle, a sergeant in the Richmond Bureau of Police, suing both in his individual capacity and as representative of the proposed class; and, (3) Willie C. Jones, another sergeant in the Richmond Bureau of Police, suing in his individual capacity and as representative of the proposed class. The Court will review the standing of these three plaintiffs accordingly.

With respect to the plaintiff Association, the Court finds that although this unincorporated association has the capacity to sue and be sued, it lacks the proper standing to maintain the instant action. Rule 17(b) of the Fed.R.Civ.P. directs that the capacity of an unincorporated association to sue or be sued shall be determined by the law of the state in which the U.S. District Court sits. Va.Code Ann. § 8-66 (1962) specifically confers upon an unincorporated association the capacity to sue or be sued. The fact that the Association has capacity to sue does not necessarily imply that it also has standing to maintain a particular action. Justice Brennan considered the standing requirement in Barlow v. Collins, 397 U.S. 159, 170, 90 S.Ct. 832, 840, 25 L.Ed.2d 192 (1969):

The "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions." Baker v. Carr, 368 U.S. 186, 204, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962). "In other words," we said in Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1942), "when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue" and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's

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