Act applies to discrimination because of an individual's race, color, religion, sex or national origin, none of which are alleged here.
Defendants also move to dismiss as to the various categories of defendants named i.e.:
(a) The County of Butler, a municipal corporation;
(b) Sunnyview Home of Butler County, an institution owned, operated, maintained and controlled by Butler County;
(c) Leon Gant, Jr., Charles T. Chew, and James A. Green, Commissioners of Butler County, Pennsylvania, acting in their official capacity;
(d) W. H. McCune, Superintendent of Sunnyview Home acting in his official capacity.
As to Sunnyview Home we have no evidence as to its legal capacity as an independent entity subject to suit sufficient to determine whether or not it is a separate legal entity from the County of Butler, and we will, therefore, treat the Sunnyview Home as an alter ego of the County of Butler until evidence to the contrary appears.
As to the County of Butler, Defendants allege it is not a "person" within the meaning of the statute and is therefore not amenable to suit under § 1983, relying on Monroe v. Pape, supra. However, municipal corporations are proper parties to such a suit when the relief sought is injunctive or a declaration of rights, and not monetary damages. Adams v. City of Park Ridge, 293 F.2d 585 [7th Cir., 1961]; Atkins v. City of Charlotte, 296 F. Supp. 1068 [W.D.N.C.1969]. Although the requests in the complaint for reinstatement of the individual plaintiffs and the enjoining of Defendants' interference with Plaintiff Union's organization of the Sunnyview employees are clearly equitable, the question is whether the prayer for back pay is a request for "monetary damages". Plaintiff argues that back pay is not a tort remedy, is authorized in labor relations cases by the Taft-Hartley Act, 29 U.S.C.A. § 160(c) and is routinely awarded by the National Labor Relations Board and enforced by the Courts. It had been held in a suit brought under § 1983 that a request for back pay is an integral part of the equitable remedy of reinstatement and the amount thereof should, therefore, be decided by a court and not a jury. Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 [4th Cir., 1966]. This principle, however, has been criticized as inaccurate in view of the Supreme Court decision in Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 , saying that any request for a money judgment is an inherently legal remedy, Harkless v. Sweeny Independent School District, 278 F. Supp. 632, 637 [S.D.Tex.1968], a § 1983 suit. Although these cases deal with the issue of the right to a jury trial on back pay as an element of damages and are, therefore, not strictly applicable to our case, they do shed light on the construction to be given to the "monetary damage" limitation giving immunity to municipal corporations under § 1983 as set forth in Monroe v. Pape, supra. However, their impact here is solely to demonstrate that this Court may not be able to give the Plaintiffs all the relief they ask for as against the County and Sunnyview. In any event they could be allowed equitable relief against these Defendants. The motion to dismiss as to the County of Butler and Sunnyview Home must be denied.
As to the County Commissioners and the Superintendent of the Sunnyview Home, Defendants urge that they, too, are not amenable to suit under this statute as they are not "persons" within the meaning of the statute. However, these individuals are sued in their official capacity as public officials and are alleged to have deprived the Plaintiffs of rights, privileges and immunities guaranteed to them by the Constitution and Statutes of the United States. Allegations such as these state a cause of action against these defendants under § 1983. Board of Trustees of Ark. A & M College v. Davis, 396 F.2d 730 [8th Cir., 1968]. Whether or not the qualified immunity of acts done in good faith can be asserted by these defendants as a defense is a factual matter that can only be resolved by a trial. See McLaughlin v. Tilendis, supra. The motion to dismiss as to the individual defendants will be denied.
In all, the Complaint states a cause of action under the Civil Rights Act of 1871, the parties plaintiff and defendant are all properly joined and the allegations of the Complaint are sufficient to require Defendants to answer.
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