Thompson v. State of NY
| Decision Date | 13 December 1979 |
| Docket Number | No. 77-CV-278.,77-CV-278. |
| Citation | 487 F. Supp. 212 |
| Parties | Jacob THOMPSON, Geralda Thompson, Delia Waterman, Alex La France, Barbara La France, Donald Jacobs, Winnifred Jacobs, Arlene Hill, Richard Grey, Patrick Rommevaux, Wanda Rommevaux, James W. Hill, Nancy Hill, Vern Jones, Katherine Jones, Frank Square, Judity Square, Lori Grey, Plaintiffs, v. STATE OF NEW YORK; New York State Police; William G. Connelie, Supt.; County of Madison; Madison County Sheriff's Department; Robert P. Cordary, Sheriff; City of Oneida; Herbert Brewer, Mayor; City of Oneida Police Department; Ellsworth Yemen, Chief of Police; City of Oneida Fire Department; John F. Myers, Fire Chief; Oneida Warrior Society; Duane Markwiecz; Raymond Halbritter; David Honyoust; Duane Hill; Lyman John; Barney Halbritter; Elwood Falconburg; Linda Hill; Gloria Halbritter; Mary Shenandoah; Joe Doe; Richard Roe; James Poe; Louis Markwiecz, Defendants. |
| Court | U.S. District Court — Northern District of New York |
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Bruce O. Jacobs, Syracuse, N. Y., for plaintiffs.
William L. Burke, Hamilton, N. Y., for defendants, County of Madison, Madison Co. Sheriff's Dept. and Robert Cordary, Sheriff.
Frederic N. Rann, Oneida, N. Y., for defendant, City of Oneida.
This is a civil rights action brought by plaintiff residents of the Oneida Indian Reservation seeking damages for harm allegedly caused when defendant City, County, and State governments, agencies, and officials, at the behest of defendant Oneida Warrior Society, withdrew police and fire protection from the Oneida Indian Reservation. Presently before the Court are motions by defendants to dismiss plaintiffs' amended complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for its failure to state a claim upon which relief can be granted.1
While the facts alleged in the amended complaint are sketchy,2 it appears that plaintiffs are members of the Oneida Indian Reservation and residents of Onondaga County, New York. Plaintiffs assert that sometime in the month of October, 1975, members of the defendant Oneida Warrior Society met with the City of Oneida, and as a result of that meeting, the Oneida Police and Fire Departments withdrew their services from the Oneida Reservation. Soon thereafter, the New York State Police and Madison County Sheriff's Department also withdrew their police services.3
Plaintiffs' claims have one common thread—that is, whether plaintiffs' civil rights under 25 U.S.C. § 1302, 42 U.S.C. §§ 1983, 1985, and 19864 were violated when defendants withdrew police and fire protection from the Oneida Indian Reservation. Defendants move to dismiss these claims on the grounds that the federal government—not the defendant City, County, and State governments—is responsible for both the operation of the Oneida Indian Reservation and the protection of plaintiffs' civil rights. Alternatively, defendants cite the case of Chase v. McMasters, 405 F.Supp. 1297 (N.Dak., 1975), for the tenant that the various defendants have every right to refuse to provide normal government services, such as police and fire protection, to those who do not pay for them. In denying these services to plaintiffs, defendants say they did so within their discretionary authority, which they claim was exercised in a proper manner. The government and government agency defendants also contend that they are not "persons" within the meaning of Section 1983. Finally, defendants maintain that the Section 1986 claim is time barred because it was brought more than one year after the alleged cause of action arose.
It is well established in the law that "Indian Tribes are `distinct, independent political communities, retaining their original natural rights' in matters of local self-government." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978). Because their status as separate sovereigns predates the Constitution, the Indians have been historically treated as unrestrained by Constitutional provisions designed to limit federal or state authority; id. at 56, 98 S.Ct. at 1676. In Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed.2d 196 (1896), for example, the Supreme Court held that the Fifth Amendment did not operate upon the powers of local self-government enjoyed by the Indian Tribes; id. at 384, 16 S.Ct. at 989. Lower federal courts have extended the Supreme Court's holding in Talton to other provisions in the Bill of Rights, and to the Fourteenth Amendment. See e. g., Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959) ().
Although Talton and its progeny have exempted Indian Tribes from Constitutional provisions aimed at limiting the powers of federal and state governments, it does not in any way limit the rights of individual Indians to sue the government under the United States Constitutional Amendments or federal civil rights statutes such as Section 1983. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 n.7, 98 S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978); F. Cohn, Handbook of Federal Indian Law, 179 (1945). Likewise, the Talton line of authority would not limit the amenability of individual Indians to be sued.5
With this background in mind, it is necessary to again examine the language of Section 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Thus, the Indian defendant members of the Oneida Warrior Society are included by Section 1983's coverage of "every person," and the Indian plaintiffs are protected by Section 1983 because they are each a "person within the jurisdiction" of the United States.
The Court now turns to the question of whether plaintiffs have stated a cognizable claim under Section 1983.
As stated by the Supreme Court in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979), "The first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right `secured by the constitution and laws.'" The Court went on to hold in Baker that Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. "Remedy for this latter type of injury must be sought in state court under traditional tort-law principles." Id. 99 S.Ct. at 2695-96. However, since Section 1983 is a remedy for Constitutional torts, an examination of plaintiffs' claim under New York tort law is a useful point of departure for determining whether it is cognizable under Section 1983.
Traditionally under New York tort law a municipality cannot be held liable for a mere failure to furnish adequate police or fire protection to persons for whom it has not assumed a special duty; Florence v. Goldberg, 44 N.Y.2d 189, 195, 404 N.Y. S.2d 583, 586, 375 N.E.2d 763, 767 (1978). For a municipality to be held accountable for a special duty, it must have a special relationship with the plaintiff that would create a duty which, if negligently performed, would render that municipality liable. This special duty would exist, for example, where the municipality assumes a duty towards a particular person or class of persons, though it was not required to do so. Thus, to quote Chief Judge Cardozo:
If conduct has gone forward to such a stage that in action would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward.
Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896, 898 (1978).
In the present case, plaintiffs assert that defendants, after voluntarily providing police and fire protection and creating a special duty, breached that duty by withdrawing police and fire protection from the Oneida Indian Reservation. Unfortunately, plaintiffs' complaint does not specifically allege how defendants' conduct, tortious though it may be, also implicated plaintiffs' Constitutional rights, and the proscriptions of Section 1983. Nevertheless, pursuant to Rule 8(f) of the F.R.C.P., the Court is obliged to construe pleadings "as to do substantial justice." Upon viewing plaintiffs' complaint in this light, it is apparently plaintiffs' contention that they were denied police and fire protection either as a result of being a member of the Oneida Indian Tribe, relatives of the members, or residents of the Oneida Indian Reservation. As such, the complaint infers a violation of plaintiffs' right to the equal protection of the laws, as guaranteed by the Constitution and Section 1983.6
In sum, plaintiffs have sufficiently stated a claim under Section 1983 to get them over the hurdle of a Rule 12(b)(6) motion to dismiss. The next issue to be examined is whether defendants are properly named parties under Section 1983.
In their Section 1983 claim, plaintiffs have named as defendants: the State of New York; the New York State Police Department; the Superintendent of that Police Department, William G. Connelie, in his official and individual capacities; the County of Madison; the Madison County Sheriff's Department; the Sheriff of Madison County, Robert P. Cordary, in his official and individual capacity; the City of Oneida; the Mayor of Oneida, Herbert Brewer, in his...
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