Tyree v. Smith, Civ. A. No. 6205.
Citation | 289 F. Supp. 174 |
Decision Date | 01 May 1968 |
Docket Number | Civ. A. No. 6205. |
Parties | Mitchell TYREE, a minor, b/n/f W. B. Tyree, and W. B. Tyree, Individually v. Russell SMITH et al. |
Court | United States District Courts. 6th Circuit. Eastern District of Tennessee |
James W. Chambers, Chambers, Fain, Gill & Webb, Knoxville, Tenn., for plaintiffs.
George W. Morton, Jr., Earl S. Ailor, Robert Ray, Poore, Cox, Baker & McAuley, Knoxville, Tenn., for defendants.
There are several motions before the Court. The motions raise four questions: (1) Is W. B. Tyree, the father of Mitchell Tyree, entitled to damages for the alleged deprivation of constitutional rights of his son; (2) is an action for malicious prosecution within the scope of Title 42 U.S.C. § 1983;1 (3) may plaintiff, W. B. Tyree, recover for attorneys fees and other expenses incident to the investigation and defense of the criminal action brought by defendants and expenses in bringing the present action; and (4) does the complaint show a conspiracy among the defendants.
A father has no standing to sue for the deprivation of civil rights of his children. Denman v. Wertz, 372 F.2d 135 (3 Cir. 1967). Armstrong v. Board of Education of City of Birmingham, Ala., 220 F.Supp. 217 (D.C.1963).
In the case of Krum v. Sheppard, 255 F.Supp. 994 (D.C.1966), the Court said:
"* * * When one is deprived of his civil rights, it is clear that the injury is to his person and that he is the only one who has standing to sue." p. 997.
The motion as to W. B. Tyree, suing individually for the deprivation of his son's constitutional rights, must be sustained.
Monroe also moves to strike certain allegations in the complaint which purport to base the cause of action on malicious prosecution. This motion is overruled. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495.
The foregoing cases do not specifically mention the action of malicious prosecution as included in 42 U.S.C. § 1983. However, under the broad averments in plaintiff's complaint of intentional misuse of power by the officers, it would seem that 42 U.S.C. § 1983 is broad enough to provide a remedy. Rue v. Snyder, 249 F.Supp. 740 (D.C.1966).
In the case of Beauregard v. Wingard, 230 F.Supp. 167 (D.C.1964), the Court said:
p. 185.
In the case of Nesmith v. Alford, 318 F.2d 110 (5 Cir. 1963), the petitioner was arrested while meeting with a group of Negroes in Montgomery, Alabama. The Court pointed out that since Monroe v. Pape, supra, "* * * violation of some of the Civil Rights of these Plaintiffs was established as a matter of law." (p. 124) One of the rights was the freedom from unlawful arrest. The Court pointed out further:
"* * * There are some actions which, although not so as a matter of law, might yet be found by the jury to be a violation of Civil Rights * * *" (Emphasis added.) p. 125.
Further:
"* * * Thus, for example, the commencement and prosecution of unfounded criminal prosecution might under certain circumstances constitute, not only malicious prosecution under the state law (see Part IV), but a violation of Civil Rights as well." p. 126.
Motive plays an important part in cases brought under 42 U.S.C. § 1983. In the case of Bargainer v. Michal, 233 F.Supp. 270 (D.C.1964), the Court said:
See: Selico v. Jackson, 201 F.Supp. 475 (D.C.1962).
It appears from the complaint that the first attempt to obtain a warrant was unsuccessful and that the second proceeding has not terminated. This makes the action for malicious prosecution premature. But for the reasons hereafter, stated, this does not require a dismissal.
In 54 C.J.S. Malicious Prosecution § 2, at page 953, the annotator makes the following statement:
"* * * Although there is authority to the contrary, it has been held that the original proceeding must have been terminated before either action will lie malicious prosecution and malicious arrest, and that if, after a criminal process is sued out without probable cause, the warrant is dismissed or not followed up, the remedy is for malicious arrest; but, if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy * * *"
But the label of the action as stated in the complaint is not controlling under the Federal Rules of Civil Procedure. See Rules 2, 3, and 8(a), F.R.C.P.
In Aktiebolaget Bofors v. United States, 90 U.S.App.D.C. 92, 194 F.2d 145 (1951), the Court said:
"Even though a tort claim was not stated in the complaint, we should determine whether its allegations set up any other cause of action, for the label which a plaintiff applies to a pleading does not determine the nature of the cause of action which he states * * *" p. 148.
This case was cited with approval in United States v. Louisville and Nashville Railroad Co., 221 F.2d 698 (6 Cir. 1955).
In United States v. White County Bridge Commission, 275 F.2d 529 (7 Cir. 1960), the Court said:
In Curacao Trading Co., Inc. v. William Stake & Co., Inc., 2 F.R.D. 308 (D. C.1941), the Court said:
pp. 308, 309.
It would, therefore, appear that even if malicious prosecution is not the correct label for plaintiff's action, the grounds set forth in the complaint, if established by proof, are sufficient for relief.
The action is also brought under 42 U.S.C. § 1985(3).2 The requirements for an action under this section are:
The mere allegation of the five requirements are insufficient to state a cause of action based on a conspiracy. In Bargainer v. Michal, supra, the Court said:
"* * * this vague and general reference to a conspiracy is inadequate, and coupled with the absence of any allegations of...
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