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January 15, 1970

UNITED STATES of America ex rel. Leroy SMITH
James HEIL (PBP.), Sidney Hilliard and Charles Stufflet

Joseph S. Lord, III, District Judge.

The opinion of the court was delivered by: LORD, III

In this pro se civil rights action, plaintiff seeks damages for wrongs which allegedly occurred while he was apparently on parole.

 As to defendant Charles Stufflet, police officer of the Reading, Pennsylvania, Police Department, he alleges an assault by Stufflet and another, unknown officer during an attempt by them to arrest him. This alleged arrest took place on July 7, 1964, at approximately 7:30 p.m. As a result of this arrest, plaintiff was hospitalized with a bullet wound in the lower back. With respect to any probable cause for this "arrest," plaintiff claims that the officers possessed no arrest warrant and that they personally observed nothing more than "plaintiff's strolling along a public thoroughfare." Complaint para. 3.

 No criminal charges were brought against plaintiff during his hospitalization. After his release from the hospital, he sought to recover from Stufflet for his $375 hospital bill and his loss of work. Plaintiff's parole officer, defendant James Heil, thereupon allegedly threatened to revoke his parole immediately if plaintiff proceeded with his plans. Both Stufflet and Heil have moved to dismiss the complaint under F.R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted.

 It is of course axiomatic that in deciding these motions we must consider as true and correct all of the plaintiff's allegations, 2A Moore, Federal Practice para. 12.08, at 2265-67 (2d ed. 1968), and must resolve all doubts concerning those allegations in favor of the plaintiff. Supchak v. United States, 365 F.2d 844 (C.A. 3, 1966). Further,

 And finally, because plaintiff is proceeding without the benefit of counsel, we should view his allegations "without regard to technicalities." United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 n. 3 (C.A. 3, 1969).

 As to defendant Stufflet's motion to dismiss, it is well established that an arrest made without probable cause subjects the arresting officer to liability under the Civil Rights Act, 42 U.S.C.A. § 1983 (Supp. 1969), for damages flowing from the illegal arrest. Pierson v. Ray, 386 U.S. 547, 557, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Basista v. Weir, 340 F.2d 74 (C.A. 3, 1965); United States ex rel. Houghton v. Scranton, 257 F. Supp. 557 (E.D. Pa. 1966). This is true even though the arresting officer acts in good faith but lacks probable cause, Anderson v. Haas, 341 F.2d 497, 501 (C.A. 3, 1965), and even though the complaint may also state a claim under state law, Joseph v. Rowlen, 402 F.2d 367, 369-370 (C.A. 7, 1968); Dodd v. Spokane County, 393 F.2d 330, 334 (C.A. 9, 1968). The only difficulty with the complaint before us is that the plaintiff has also alleged that "both officers were in plainclothes, riding in an unmarked car." Complaint para. 3. These allegations raise the question whether officer Stufflet was acting "under color" of state law within the meaning of section 1983.

 If Stufflet were acting wholly as a private citizen in this alleged assault, and did not use the "pretense" of his office's legal authority, Monroe v. Pape, 365 U.S. 167, 171-172, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); see Screws v. United States, 325 U.S. 91, 111, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945), or act under the authority of a "policeman's badge," Basista v. Weir, 340 F.2d 74, 81 (C.A. 3, 1965), the Civil Rights Act would not provide plaintiff with a vehicle for recovery. E.g., Perkins v. Rich, 204 F. Supp. 98 (D. Del. 1962), aff'd, 316 F.2d 236 (C.A. 3, 1963) (police official's sworn complaint against obscene phone caller a "private" act); Watkins v. Oaklawn Jockey Club, 183 F.2d 440 (C.A. 8, 1950) (off-duty police working as private guards not acting under color of state law). However, we think that here, plaintiff's allegations that the defendant "police officers" did in fact purport to "arrest" him do state a sufficient factual nexus with the requirement of action "under color" of state law, namely, that the defendants asserted a lawful authority to use force to take plaintiff into custody. Selico v. Jackson, 201 F. Supp. 475, 478 (S.D. Calif. 1962), and cases cited therein; accord, Hughes v. Smith, 264 F. Supp. 767 (D.N.J., 1967), aff'd, 389 F.2d 42 (C.A. 3, 1968). That the officers may not have actually possessed the authority claimed is irrelevant. See United States ex rel. Brzozowski v. Randall, 281 F. Supp. 306, 311 (E.D. Pa. 1968). We therefore deny defendant Stufflet's motion to dismiss.

 Turning to defendant Heil's motion to dismiss, we are confronted at the outset with his assertion that the common law doctrine of judicial immunity, which was not abolished by the Civil Rights Act, Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Bauers v. Heisel, 361 F.2d 581 (C.A. 3, 1966), applies to parole officers. It is true that individual members of a parole board are clothed with judicial immunity.

"* * * [The] hearing of the revocation of plaintiff's parole in the present case was a subject matter committed by law to the executive control of the defendants as public officers, and in such case error on their part does not expose them to an action for damages * * *." Lang v. Wood, 67 App. D.C. 287, 92 F.2d 211, 212, cert. denied, 302 U.S. 686, 58 S. Ct. 48, 82 L. Ed. 530 (1937).

 Accord, Harmon v. Superior Court, 329 F.2d 154, 155 (C.A. 9, 1964); Lawhorn v. Pennsylvania, Civ. No. 69-652 (E.D. Pa., filed Sept. 15, 1969), and cases cited therein.

 Defendant Heil, however, is not a member of the Parole Board, see 61 Pa. Stat. Ann. § 331.2 (Supp. 1969); rather he was allegedly plaintiff's parole officer, a person empowered to arrest parolees without a warrant for failure to report, or for any violations of the terms of parole. 61 Pa. Stat. Ann. § 331.27 (Supp. 1969). A parole officer does not adjudicate a parole violator's case, nor is he required by law to pass on the merits of a petition for parole. Heil is thus not connected with the process of deciding when to grant parole to applicants and he falls without the facts usually justifying the application of the doctrine of judicial immunity. Compare Bennett v. California, 406 F.2d 36 (C.A. 9, 1969). Under Pennsylvania law a parole officer functions not very differently from a police officer; he is in fact "declared to be a peace officer" by the terms of the statute granting him his powers. 61 Pa. Stat. Ann. § 331.27 (Supp. 1969). His position should be treated accordingly.

 There is, it is true, a derivative immunity afforded a public official acting under orders of a body, like the parole board, which does enjoy immunity from suit. Defelice v. Philadelphia Bd. of Educ., 306 F. Supp. 1345 (E.D. Pa. 1969). This immunity has been extended to those persons preparing probation reports. Friedman v. Younger, 282 F. Supp. 710, 715-716 (C.D. Calif. 1968). However, there is no factual basis for considering any such contention on this motion under Rule 12(b)(6). We therefore conclude that the office of "parole officer" does not per se possess the immunity from suit ...

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