The opinion of the court was delivered by: DUSEN
This case was brought under 42 U.S.C.A. § 1983, the Complaint alleging that the minor plaintiff was deprived of 'privileges and immunities' guaranteed him under the Fourth, Fifth, Seventh and Fourteenth Amendments to the Constitution. In support of these allegations, the Complaint alleges that the minor plaintiff and his companions saw a police car stop near them, left the area because they were afraid they would be picked up on suspicion, and were proceeding to the minor plaintiff's home when they suspected that they were being followed. They thereupon stopped in a back yard to see who their pursuer was, at which time the individual defendant,
acting under color of law and without just cause and provocation, shot the minor plaintiff in the leg, kicked him while he was still felled from the shot, told him to 'shut up' when he asked why he had been shot, assisted in placing him in a police car, and took him to Bryn Mawr Hospital. It is also alleged that the defendant, still acting under color of law, refused him permission to telephone his parents and refused to allow one of the friends of the Minor plaintiff to accompany him to the hospital. Damages are claimed in the amount of $ 250,000. for the minor plaintiff and $ 25,000. for his father, who is also suing in his own right.
Defendant Trapnell answered the Complaint and denied jurisdiction. In the Answer (Document No. 7) and the Motion to Dismiss (Document No. 8), which is presently before the court, the defendant's position is that this court has no jurisdiction over the subject matter and that the Complaint fails to state a claim for which relief can be granted.
The Civil Rights Act provides that any person who, 'under color of any statute, * * * custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured * * *.' See 42 U.S.C.A. § 1983.
The acts complained of are sufficiently alleged to have been done 'under color of law.'
There is now no requirement that the Complaint allege that discrimination between classes of persons is present,
and defendant's position that he cannot be prosecuted under this law because his actions are protected by a governmental immunity is also untenable.
The allegations of fact in this Complaint, although not necessarily as complete or clear as they might be, could be viewed as allegations of deprivation of constitutional rights. It could be held that, if proved,
the facts in the Complaint show such actions as an illegal arrest, unnecessary force used in making an arrest, unnecessary force and brutality by police officials after an arrest has been made, failure to inform the minor plaintiff of the reason for the shooting, failure to inform him of the charges against him, and failure to allow him to inform someone of his arrest, wounded condition and confinement in the hospital. In view of the ruling in Monroe v. Pape, supra, this court is unable to state that it does not appear beyond doubt that the minor plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Hughes v. Noble, 295 F.2d 495, 496 (5th Cir. 1961). He should, therefore, on the present state of the record, be given an opportunity to prove his allegations.
The record in this case shows that disputed issues of fact have been raised (compare, for example, the language used in the Complaint, the deposition of defendant Trapnell (Document No. 12), and the affidavit of Lillian Laird (Document No. 13), and see footnote 7). Under the decisions of the United States Court of Appeals for this Circuit, defendant's Motion may not be granted on this record. See Bragen v. Hudson County News Company, 278 F.2d 615, 618 (3rd Cir. 1960); Krieger v. Ownership Corporation, 270 F.2d 265, 270 (3rd Cir. 1959); Frederick Hart & Co. v. Recordgraph Corporation, 169 F.2d 580, 583 (3rd Cir. 1948).
AND NOW, December 21, 1962, after consideration of the foregoing Motion, the attached briefs of counsel, and the record, IT IS ORDERED that defendant Trapnell's ...