Rotolo v. Borough of Charleroi

• Decision Date: 10 December 1975
• Docket Number: Nos. 73-1368 and 73-1369,s. 73-1368 and 73-1369
• Parties: Salvadore ROTOLO, Appellant, v. The BOROUGH OF CHARLEROI et al. (two cases). . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 920

532 F.2d 920

Salvadore ROTOLO, Appellant, v. The BOROUGH OF CHARLEROI et al. (two cases).

Nos. 73-1368 and 73-1369.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Dec. 10, 1975.

Decided March 22, 1976.

Albert C. Gaudio, Henry A. Martin, Monessen, Pa., for appellant.

Jack H. France, Murphy & France, Charleroi, Pa., for appellees.

Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

This is an appeal from an order granting defendant's motion under Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's two civil rights complaints for failure to state a claim upon which relief can be granted. We believe the district court erred in dismissing the complaints without allowing plaintiff opportunity to amend. We therefore vacate the judgment and remand with directions to allow amendment to the pleadings within a reasonable period.

The plaintiff, Salvadore Rotolo, was terminated from his employment as a building inspector for the defendant municipal corporation, the Borough of Charleroi, Pennsylvania. He avers that four Borough councilmen voted to terminate his employment "because the Plaintiff had exercised his First Amendment privileges." Thereupon, Rotolo filed in the United States District Court for the Western District of Pennsylvania two civil rights complaints under 42 U.S.C. § 1983 (1971), alleging that defendants had denied him his first amendment rights. ¹ One complaint, seeking in excess of $25,000 money damages, named as defendants the Borough of Charleroi and the four councilmen ² who allegedly voted for termination of Rotolo's employment. The other complaint, seeking on injunction against filling the vacancy caused by his termination, named as defendants the Borough and seven Borough councilmen. ³

Rotolo's substantive allegations were identical in both complaints:

3. Prior to August 23, 1972, the Plaintiff was employed in the capacity of Building Inspector for the Defendant, Borough of Charleroi.

4. On or about August 23, 1972, the Defendants, Peter Celaschi, Theodore Breuer, Fred P. McLuckie and Armand Balsano, voted to terminate the Plaintiff's employment with the Defendant, Borough of Charleroi, because the Plaintiff had exercised his First Amendment privileges under the Constitution of the United States.

5. That the aforesaid action on the part of the Defendants was a denial of the Plaintiff's First Amendment rights to freedom of speech and freedom of expression.

The district court first correctly determined that Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), precluded suit against the Borough of Charleroi under section 1983 as the municipality is not a "person" for purposes of that statute. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970). Although federal jurisdiction may nonetheless exist under 28 U.S.C. § 1331 (1971), City of Kenosha v. Bruno, 412 U.S. 507, 514, 93 S.Ct. 2222, 2227, 37 L.Ed.2d 109, 116 (1973), Rotolo's complaint is inadequate to establish jurisdiction under section 1331. Federal jurisdiction must be pleaded according to the nature of the case, and Rotolo made no mention of section 1331 in his complaint. McNutt v. GMAC,298 U.S. 178, 182, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135, 1140 (1936); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973).

We believe this is an appropriate case for the application of 28 U.S.C. § 1653 (1971), which expressly allows amendment of defective jurisdictional allegations. Therefore, upon remand, Rotolo will be given an opportunity to amend the jurisdictional allegations in those parts of his complaints which refer to the Borough of Charleroi.

As to the action against the individual defendants, the district court found both complaints lacking:

(T)he allegations are purely conclusory and fail to adumbrate any specific facts sufficient to state a cause of action or claim upon which relief can be granted . . . .

In this circuit, plaintiffs in civil rights cases are required to plead facts with specificity. ⁴ Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967).

The rationale of the Negrich requirement that facts be specifically averred was outlined in Valley v. Maule, 297 F.Supp. 958 (D.Conn.1968), and was quoted approvingly in Kauffman v. Moss, supra, at 1276 n. 15:

In recent years there has been an increasingly large volume of cases brought under the Civil Rights Act. A substantial number of these cases are frivolous or should be litigated in the State courts; they all cause defendants public officials, policemen and citizens alike, considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims.

Subsequent to Negrich, the United States Supreme Court in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) adopted a strict standard for motions to dismiss prisoners' pro se civil rights complaints:

We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80, 84 (1957).

Id. at 520, 92 S.Ct. at 596, 30 L.Ed.2d at 654. Haines was harmonized with Negrich by this court in Gray v. Creamer, 465 F.2d 179, 182 n.2 (3d Cir. 1972). It suggested that the Haines standard would be applied to complaints in which "specific allegations of unconstitutional conduct" were made, whereas Negrich would continue to serve as a barrier to complaints which "contain only vague and conclusory allegations."

We find the Negrich standard particularly appropriate here. The allegations in the complaint strike us as vague and conclusory. They fail to indicate, when, where, and how Rotolo had "exercised his First Amendment privileges," ⁵ rendering it impossible to determine if indeed his activity was the sort afforded protection under the first amendment and whether it had any relevance to the termination of his employment. The allegations state no facts upon which to weigh the substantiality of the claim; they do not aver the content of the alleged first amendment exercise.

We believe the district court properly applied Negrich. However, again it did not allow an opportunity for amendment. To accomplish the dual objectives of weeding out frivolous cases and keeping federal courts open to legitimate civil rights claims, courts should allow liberal amendment of civil rights complaints under Fed.R.Civ.P. 15(a). Nothing in Negrich precludes this; in fact, the Negrich court expressly noted that the district court in that case could permit the plaintiff to file an amended complaint. Kauffman, supra, at 1276.

The judgment of the district court will be vacated and the case remanded with directions to allow amendment to the pleadings within a reasonable period.

GIBBONS, Circuit Judge (concurring and dissenting).

This is an appeal from an order granting defendants' motion to dismiss plaintiff's civil rights complaints for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The plaintiff, Salvadore Rotolo, a former building inspector employed by the Borough of Charleroi, Washington County, Pennsylvania, filed two complaints against the Borough and individual councilmen alleging that his public employment had been terminated because he had exercised his first amendment rights. The order appealed from, in its entirety, states:

AND NOW, this 1st day of March, 1973, upon consideration of defendants' motion to dismiss, and of briefs in support thereof and in opposition thereto and the Court being of opinion that it is clear that the action does not lie against the municipality of Charleroi (Monroe v. Pape, 365 U.S. 167 (81 S.Ct. 473, 5 L.Ed.2d 492) (1961)), and that with respect to the individual defendants the allegations are purely conclusory and fail to adumbrate any specific facts sufficient to state a cause of action or claim upon which relief can be granted. (Negrich v. Hohn, 379 F.2nd 213, 215 (C.A. 3, 1967)),

IT IS ORDERED that said motions be and hereby are granted and that the complaints in the above-styled causes be and they hereby are dismissed. (App. at 27a).

There are two separate complaints in this case, apparently because plaintiff's counsel is unfamiliar with federal pleading practice. The complaint in D.C. Civil Action No. 72-776 should have been a second count of the complaint in D.C. Civil Action No. 72-775. Fed.R.Civ.P. 18(a). In the first complaint, Civil Action No. 72-775, the plaintiff seeks money damages in excess of $25,000.00. In the second complaint, Civil Action No. 72-776, he seeks an injunction against filling the vacancy created by the termination of his employment, reinstatement with back pay, and an unspecified amount of damages. In both complaints the Borough of Charleroi is named as a defendant. In No. 72-755 four Borough councilmen, Peter Celaschi, Theodore Breuer, Fred McLuckie and Armand Balsano, are also named as individual defendants. In No. 72-776 three additional councilmen, Edward Fear, Fred Briggs and Frank Pucci, are named. The substantive allegations, however, are the same in both complaints.

3. Prior to August 23, 1972, the Plaintiff was employed in the capacity of Building Inspector for the Defendant, Borough of Charleroi.

4. On or about August 23, 1972, the Defendants, Peter Celaschi, Theodore Breuer, Fred P. McLuckie and Armand Balsano, voted to terminate the Plaintiff's...