The opinion of the court was delivered by: WOOD
This is an action for damages arising under the Civil Rights Act, 42 U.S.C.A. § 1983, filed by the plaintiff against the District Attorney of Philadelphia, Assistant District Attorney, Clerk of the Quarter Sessions Court Warden of Moyamensing Prison, a private attorney, a Philadelphia County detective and an individual named William Waller.
On or about October 5, 1962, the plaintiff was presented a card which stated as follows:
'You are hereby subpoeaned (sic) to appear as witness in Courtroom 243 on Monday, October 8, 1962 at 10 A.M., in case of Com. v. William Waller.
'Curtis C. Carson, Jr. 'Attorney for Defendant'
A copy of this card is attached to the plaintiff's Complaint and he alleges that no subpoena was issued as provided by law, nor was any subpoena exhibited to him at this time or any other time.
The plaintiff is a follower of the Orthodox Jewish Religion and October 8, 1962 was Yom Kippur, the Jewish Day of Atonement, the highest of the Holy Days of the plaintiff's religion. On this day, which was the date designated for the plaintiff to appear in Court, his religion required him to spend from sunrise to sunset in continuous prayer and fasting in the Synagogue. He alleges in his Complaint that he informed the defendant, William Waller, of this fact and that this information was relayed to Curtis Carson, Jr., and the Assistant District Attorney. Despite this fact, the plaintiff states in paragraph 16 of his Complaint that:
'16. Carson and Crumlish, acting through Armand Della Porta on this said day of October 8, 1962, the Day of Atonement, demanded that the Court issue a bench warrant for the immediate arrest of the plaintiff, knowing full well that October 8, 1962 was the Day of Atonement, and that the plaintiff was a member of the Orthodox Jewish faith, and was engaged in prayer in a house of worship, as hereinabove set forth in paragraph 15,
all of which was known to the defendant in the criminal case, William Waller, and which information the plaintiff has ascertained had been conveyed to the said Waller, Carson and Della Porta.'
On October 10, 1962, the bench warrant was issued and served on the plaintiff at his residence, whereupon he was arrested and taken to City Hall. Later, after six hours without being brought before the judge who had issued the warrant, he was removed to a cell in Moyamensing Prison and incarcerated for eight days when he was permitted to leave on October 17, 1962, without ever being brought before the judge who had issued the warrant. As a result of this series of events, the plaintiff claims that he was deprived of his rights, privileges and immunities, secured to him by the Constitution and laws of the United States and the Commonwealth of Pennsylvania.
The defendants have moved to dismiss the Complaint because they contend this Court lacks jurisdiction over the subject matter, and further, that public officers, acting within the scope of their official duties, are immune from civil liability under the Civil Rights Act. The individual defendant, Curtis Carson, Jr., contends that a dismissal is warranted because the Civil Rights Act does not afford a cause of action for the acts of a private person.
At the outset, it is important to a disposition of this motion to establish the substance of the plaintiff's claim. An examination of paragraph 26 of his Complaint reveals the following:
'26. At all times material to plaintiff's cause of action, as herein set forth, the plaintiff was deprived of his rights, privileges, and immunities, secured to him by the Constitution and laws of the United States, and the Commonwealth of Pennsylvania in that first, he was imprisoned for a period of six hours at City Hall and second, he was imprisoned and incarcerated for a period of eight full days in the County Prison of Philadelphia, and was denied his right to be brought before the Court as provided by law, as hereinabove set forth.'
He does not contend that because he is an adherent to the Jewish religion that he was a victim of any systematic prejudice against Jews. Also, he does not contend that his rights to freely exercise his religion were transgressed because he was directed to appear as a witness on Yom Kippur. Simply stated his claim is bottomed on his imprisonment via a bench warrant without ever being brought before the judge who issued the bench warrant. He claims that the bench warrant required that he be brought before any Court of the Commonwealth then sitting, or if not, then he should have been brought before one of the judges of these Courts. Failure to do this violated his constitutional rights to a hearing on the charge against him.
In order to state a valid claim under the Civil Rights Act,
Cohen v. Norris, 9 Cir., 300 F.2d 24, 30 (1962), held:
'* * * facts must be alleged which show that the defendant: (1) ) while acting under color of any statute, ordinance, regulation, custom or usage of any State or Territory; (2) subjects, or causes to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, ...