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HILL v. TOLL

November 13, 1970

Richard HILL
v.
Lowell TOLL and Southern General Surety Co. and Edward J. Hendricks, Superintendent of Phila. Prisons


Joseph S. Lord, III, District Judge.


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

On January 4, 1969, plaintiff assertedly was free on bail while awaiting a trial on criminal charges. This bail had been posted for plaintiff by defendant Southern General Surety Co. (hereinafter "Southern"). Lowell Toll, also a defendant, is an agent of Southern.

 It is alleged that on July 4, 1969, two agents of defendant Toll, acting in violation of the terms of a bail bond contract entered into between plaintiff and Southern, entered plaintiff's home, seized him and transported him to the Philadelphia Detention Center, where they beat and robbed him. Southern never investigated this conduct at any time thereafter. Further, it is alleged that Detention Center officials, including defendant Hendricks, witnessed the beating and robbery but did not come to plaintiff's aid.

 On May 9, 1969, plaintiff brought the present action for damages under 42 U.S.C. § 1983, jurisdiction being grounded upon 28 U.S.C. § 1343(3). All defendants moved for dismissal of the complaint. Thereafter, the plaintiff moved to amend the complaint by naming, as additional defendants, two John Doe "bounty hunters" and two John Doe Detention Center guards. This motion, which is unopposed, is hereby granted. See A/S Krediit Pank v. Chase Manhattan Bank, 155 F. Supp. 30 (S.D.N.Y. 1957) (interpleader of John Doe permitted).

 The motions to dismiss advance, as their only argument of colorable worth, the contention that the complaint fails to state a claim on which relief can be granted. The Civil Rights Act, 42 U.S.C. § 1983, provides:

 
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

 Thus, the Act prescribes, as elements prerequisite to recovery, (1) that the conduct complained of must have been performed or caused by some person acting under color of law, and (2) that such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. See Basista v. Weir, 340 F.2d 74, 79 (C.A. 3, 1965). Taking the allegations of the complaint and the inferences to be drawn therefrom most favorably to the plaintiff, as we must on a motion to dismiss, Valle v. Stengel, 176 F.2d 697, 701 (C.A. 3, 1949), we conclude that plaintiff has stated a claim under § 1983 as to all defendants.

 A. Southern's Motion to Dismiss

 Southern, acting through its agents, arrested the complainant. This arrest was carried out pursuant to 19 Pa. Stat. Ann. § 53. Valle v. Stengel, 176 F.2d 697, 701 (C.A. 3, 1949). That statute reads, in pertinent part:

 
"All sureties, mainpernors, and bail in criminal cases, whether bound in recognizance for a particular matter or for all charges whatsoever, shall be entitled to have a bail piece, duly certified by the proper officer or person before whom or in whose office the recognizance of such surety, mainpernors or bail shall be or remain, and upon such bail piece, by themselves, or their agents, to arrest and detain, and surrender their principals * * *; and such bail piece shall be a sufficient warrant or authority for the proper sheriff or jailer to receive the said principal * * *."

 In light of this statutory authority, can it be said that the arrest by Southern's agents was made under color of law?

  The majority of cases in which the "color of law" requirement has been satisfied have involved public officials. E.g., Monroe v. Pape, 365 U.S. 167, 171-187, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Screws v. United States, 325 U.S. 91, 107-113, 65 S. Ct. 1031, 89 L. Ed. 1495 (1944); Basista v. Weir, 340 F.2d 74, 80 (C.A. 3, 1965). However, the inquiry in all cases is not whether the actor is a public official, but whether there is sufficient state involvement in the allegedly unconstitutional conduct to satisfy the color of law requirement. *fn1" This requirement has been held to be satisfied in those cases where a private individual is a "willful participant in joint activity with the state * * *," United States v. Price, 383 U.S. 787, 794, 86 S. Ct. 1152, 1157, 16 L. Ed. 2d 267 (1966) (private individual conspired with state officials). And when a private individual knowingly acts pursuant to a statute which encourages him to so act, see Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967) (state action found where amendment to California Constitution encouraged private discrimination), he acts as a "willful participant in joint activity with the state * * *." See Adickes v. S.H. Kress, 398 U.S. 144, 174 n. 44, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) (dictum); Klim v. Jones, 315 F. Supp. 109 (N.D. Cal. 1970).

 Here, when Southern or its agents arrest and surrender its principals, we assume that they knowingly act pursuant to 19 Pa. Stat. Ann. § 53. This statute accords to a limited class of persons (bail bondsmen) the right to order a portion of their business affairs by the use of physical coercion. When we consider that the state generally disfavors and has disfavored self-help and that, moreover, the privilege to arrest involved herein is not a privilege which the general citizenry possesses, it is clear that 19 Pa. Stat. Ann. § 53 has placed the imprimatur of the state on the conduct permitted by that section and has thereby encouraged such conduct. Cf. Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967); Klim v. Jones, 315 F. Supp. 109 (N.D. Cal. 1970). Therefore, Southern's abuse of authority is as much action under color of law as the conduct of the police officers was in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). DeCarlo v. Joseph Horne and Company, 251 F. Supp. 935 (W.D. Pa. 1966) (arrest made by private detective, which was authorized by the Professional Thieves Act, is act under color of law); But see Weyandt v. Mason's Stores, Inc., 279 F. Supp. 283 (W.D. Pa. 1968); Warren v. Cummings, 303 F. Supp. 803 (D. Colo. 1969).

 Thus, Southern, acting (through its agents) "under color of law", arrested the complainant. However, the arrest itself is not allegedly unconstitutional; it is merely attacked as a breach of state contract law, and as such it cannot form a basis for relief under § 1983. Similarly, Southern's failure to investigate the malfeasance of its agents does not state a constitutional deprivation. But the beating and robbery do state a claim cognizable under § 1983 -- the claim of an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments. E.g., Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Basista v. Weir, 340 F.2d 74 (C.A. 3, 1965). We recognize that the Fourteenth Amendment is only violated if there is state action. E.g., Adickes v. S.H. Kress, 398 U.S. 144, 169, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Since there is action "under color of law" in this case, a ...


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