Shirey v. Bensalem Tp.

• Citation: 501 F. Supp. 1138
• Decision Date: 21 November 1980
• Docket Number: Civ. A. No. 80-2428.
• Parties: Gerald A. SHIREY, Jr. et al. v. BENSALEM TOWNSHIP et al.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

501 F. Supp. 1138

Gerald A. SHIREY, Jr. et al. v. BENSALEM TOWNSHIP et al.

Civ. A. No. 80-2428.

United States District Court, E. D. Pennsylvania.

November 21, 1980.

Gary Green, Neil A. Morris, Sidkoff, Pincus, Greenberg & Green, P. C., Philadelphia, Pa., John M. McClure, Doylestown, Pa., for plaintiffs.

Frank, Margolis, Edelstein & Scherlis, Richard A. Kraemer, Philadelphia, Pa., for Warminister Tp.

Richard R. Fink, Levittown, Pa., for Tullytown Borough and Police Chief Gaspar Favoroso.

William B. Moyer, Power, Bowen & Valimont, Doylestown, Pa., for Police Chief Raymond Voelker and Police Chief of Bristol Tp.

Richard B. Hardt, Detweiler, Hughes & Kokonos, Philadelphia, Pa., for Falls Tp. Bd. of Sup'rs and Falls Police Chief James Kettler, Individually.

Leonard B. Sokolove, Sokolove, Pechter, Stief & Waite, Bristol, Pa., Daniel J. Allan, Philadelphia, Pa., for Bristol Tp.

Richard M. Snyder, Bristol, Pa., for Bristol Borough and Police Chief Faragay Vincent.

Sondra K. Slade, West Chester, Pa., for Buckingham Tp. and Steven Daniels.

Henry F. Huhn, Bensalem, Pa., and Robert G. Hanna, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for Bensalem Tp. and Police Chief Lawrence Michaels.

Peter J. Hoffman, Duane, Morris & Heckscher, Philadelphia, Pa., for Buckingham Tp.

Alan J. Davis, City Sol., Ralph J. Teti, Deputy City Sol., Philadelphia, Pa., for City of Philadelphia.

White & Williams, Peter T. Parashes, Richard M. Shusterman, T. A. Shovlin, Philadelphia, Pa., for Borough of Bristol.

Moskowitz, Zamparelli & Weiss, P. C., Stephen I. Weiss, Mindy M. Brook, Langhorne, Pa., for Falls Tp. and Police Chief James Kettler.

Guy T. Matthews, White, Matthews & Delaney, Langhorne, Pa., for Middletown Tp. and Police Chief Howard C. Shook.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

The issue before the Court is the sufficiency of the Complaint filed by Gerald A. Shirey, Stephen McCullough, William R. Hamilton, and Donna L. Hamilton, against 9 municipalities, 6 police chiefs, and certain unknown John Doe defendants.

The complaint sets forth the following factual scenario: (1) on the evenings of June 23, 1979, and June 24, 1979, police officers and other agents of various municipalities in lower Bucks County unlawfully stopped and, in certain cases, brutalized citizens who were traveling in or through the area; (2) the alleged illegal activity was the product of a conspiracy of all defendants; (3) the alleged illegal acts took place within a two mile radius of Five Points, Bucks County; (4) numerous individuals were arrested on those evenings and charged under the Pennsylvania Crimes Code for disorderly conduct. Plaintiffs' complaint has been brought as a class action on behalf of all persons who were caused to suffer deprivation of their civil rights as a result of an unlawful conspiracy. Plaintiffs seek a declaratory judgment, injunctive relief and damages.

The action is brought pursuant to 42 U.S.C. § 1983, § 1985(3), and the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Jurisdiction is founded on 28 U.S.C. § 1331. In addition, plaintiffs identify causes of action arising under state law, for which they ask this Court to invoke pendent jurisdiction.

I.

At the outset, we deal with plaintiffs' claims under 42 U.S.C. § 1985(3).¹ The Court has concluded that plaintiffs' § 1985(3) claim must be dismissed because no class-based discriminatory animus has or could be pleaded to satisfy the requirements of Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), or its progeny in this Circuit. In Griffin, the Supreme Court defined the requirements of § 1985(3) as follows:

There must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.

403 U.S. at 102, 91 S.Ct. at 1798.

In Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.) cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979) (denying tenant's organization the right to proceed under § 1985(3)), the Third Circuit held that a conspiracy to deny civil rights to a class under § 1985(3) must be based "upon `immutable characteristics' for which the members of the class have no responsibility." 594 F.2d at 354. The Court, in Carchman, noted that the class at issue was not the victim of "historically pervasive discrimination." 594 F.2d at 356. Judge Luongo, in a recent case, required that the animus in a § 1985(3) case be based on "an immutable characteristic resulting from an accident of birth for which a person bears no responsibility." Marino v. Bowers, 483 F.Supp. 765 (E.D.Pa.1980). Under the facts of the present case, plaintiffs are clearly not members of a group which has historically been the victim of discrimination. Plaintiffs are simply a group of individuals who, under the facts alleged, had the misfortune to be in a certain geographic area on the evenings of June 23, 1979 and June 24, 1979. Plaintiffs have pleaded no "class-based animus" as the term has been defined in this Circuit. Accordingly, plaintiffs' claim under § 1985(3) will be dismissed.

II.

We next consider plaintiffs' claims under 42 U.S.C. § 1983.² Defendants' overall theory of liability is based on allegations of conspiracy. Plaintiffs simply allege that all defendants were acting pursuant to a common scheme when they deprived plaintiffs of their constitutional rights. Plaintiffs further allege, however, that defendant municipalities and police chiefs are liable on the additional ground that they either had knowledge of, or acquiesced in the unconstitutional actions of unknown police officers.

Conspiracy

At the outset we note that complaints in civil rights must be pleaded with factual specificity. Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978); United States v. City of Philadelphia, 482 F.Supp. 1274, 1275-76 (E.D.Pa.1979). Vague and conclusory allegations will not survive a motion to dismiss. Id. The purpose of the specificity requirement is to assure that civil rights actions are not frivolously brought³ and to enable the Court to assess whether the action may be meritorious. Also, the complaint must be sufficiently specific to allow defendants to prepare a defense.

Plaintiffs allege that the municipalities, police chiefs, and unknown police officers conspired to commit a series of unconstitutional actions. Plaintiffs then list a series of factual allegations regarding the unlawful actions of all defendants, against individual plaintiffs. Plaintiffs, however, uniformly fail to identify individual defendants or individual acts of defendants. See Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967) (Allegations of specific actions by "defendants" were insufficient because that court concluded that "all defendants could not have inflicted the beatings at the times and places indicated"). Plaintiffs' contention that the allegations of conspiracy eliminate the need to specifically allege the particular actions of individual defendants must fail. The allegations of conspiracy are, at best, conclusory. The pertinent language is as follows:

Defendants acting pursuant to a common plan, design, instructions, orders, advice, permission, license and/or urging of other Defendants unlawfully, maliciously, intentionally, in a grossly negligent manner and/or negligently violated the rights of the plaintiffs....

Numerous circuit courts have held that a conspiracy can be the basis for a § 1983 action, but conclusory allegations of a conspiracy cannot withstand a motion to dismiss. See, e. g., Slotnick v. Staviskey, 560 F.2d 31 (1st Cir. 1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978); Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977). In Ostrer, the Second Circuit stated:

This Court has repeatedly held that complaints containing only "conclusory", "vague" or "general allegations" of a conspiracy to deprive a person of constitutional rights will be dismissed. citations omitted. Diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.... In this case, appellants' unsupported allegations, which fail to specify in detail the factual basis necessary to enable appellees intelligently to prepare their defense, will not suffice to sustain a claim of governmental conspiracy to deprive appellants of their constitutional rights.

567 F.2d at 553.

In the instant case, plaintiffs' allegations of conspiracy are devoid of any underlying factual basis. The conspiracy allegation amounts to little more than a series of diffuse and expansive allegations of a common plan. The requisite level of specificity, therefore, has not been met by this complaint.

Existence of Governmental Policy or Custom

Although plaintiffs contend otherwise, they appear to allege that the municipalities and the police chiefs are liable for the acts of individual police officers under a theory of respondeat superior. Plaintiffs' alternate theory is that the municipalities and police chiefs are liable because they knew of or acquiesced in illegal actions of individual police officers and failed to take corrective action. The following language is relevant in this regard:

... The Defendants which are municipalities, are responsible for the acts and omissions of their respective agents, servants and/or employees.

The Defendants, which are municipalities, knew, or should have known, or were deliberately indifferent to the fact that the John Doe Defendants, who were their servants, agents and/or employees had histories of violent propensities and/or were unfit for police work of this type and/or had been reported and/or cited and/or sanctioned in the past for violent acts committed upon citizens of the Commonwealth.

The Defendants, which are municipalities, are and were responsible for the overall training and conduct of their servants, agents and employees, including the John Doe Defendants, who as stated previously, committed the said

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