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August 9, 1971

Walter T. GOEKE and Joseph P. Beesy

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON


MASTERSON, District Judge.

 This is a civil rights case in which the plaintiff asserts that the defendants, both of whom are members of the Lancaster City Police Department, directed and/or conducted an unlawful search of his premises and unlawfully seized $329.00 belonging to him.

 Plaintiff premises jurisdiction upon 28 U.S.C. §§ 1331 *fn1" and 1343(3), *fn2" and his cause of action essentially upon 42 U.S.C. § 1983. *fn3" He requests injunctive relief and damages in excess of $15,000.

 Defendants move to dismiss because (1) this court lacks jurisdiction and (2) plaintiff has failed to state a claim upon which relief can be granted. Alternatively, defendants ask for summary judgment. For the reasons stated below, both of defendants' motions must be denied except that plaintiff's request for injunctive relief will be dismissed as moot. Since he now resides in Atlanta, Georgia, *fn4" the possibility of further searches of plaintiff's premises by these defendants seems extremely unlikely. Nevertheless, potential liability for an unlawful search and any subsequent incarceration proximately caused by this alleged violation remains.

  The assertions in plaintiff's Complaint and Amended Complaint were taken almost verbatim from United States ex rel. Henderson v. Brierley, 300 F. Supp. 638 (E.D. Pa. 1969), an opinion in which Judge Joseph S. Lord, III granted plaintiff's petition for a writ of habeas corpus. In that case Judge Lord concluded that the search of petitioner's premises "obviously" was conducted without probable cause in violation of the Fourth Amendment *fn5" and that counsel rendered ineffective assistance in failing to raise this issue before the trial court. *fn6" To simplify matters, we will set forth as plaintiff's version, the events as found by Judge Lord.


"[In] the course of a police investigation of a series of burglaries of several supermarkets and a gas station (all with similar methods of operation), an informant told detectives that Charles and Robert Milburn were overheard discussing these crimes. The two brothers were brought in for questioning. Subsequently, at about 9 p.m. on January 16, 1967, the police obtained two search warrants, one for the Milburns' residence, and another for the residence of one Lester Winger. Both searches proved fruitless. At about 11:15 p.m. on the same night, police obtained a search warrant for relator's [plaintiff Henderson's] apartment at 538 South Line Street, Lancaster, Pennsylvania, for both the first floor which he rented and the basement, which he did not. The search warrant was issued on the basis of the following affidavit:


'Robert Milburn, under arrest for suspicion of recent burglaries, to wit: above mentioned burglaries, is known to frequent the apt. of HENDERSON. Robert Milburn's brother Charles Milburn says that he suspects Robert Milburn & Henderson committed these burglaries and suspects that they have the proceeds of these burglaries hidden in Henderson's apt. Officer believes this information to be true and correct.'"

 Although the nature of any contraband found in the petitioner's apartment is not revealed in the opinion, the fruits of that search apparently played a role in plaintiff's subsequent conviction, otherwise counsel's failure to raise the probable cause issue would have been harmless error.

 In order to establish a cause of action under 42 U.S.C. § 1983, it must be shown that the defendants acted "under color of state law" and that they deprived the plaintiff of "any rights, privileges, or immunities secured by the Constitution and laws [of the United States]." Unquestionably, it is alleged that the officers acted in their official capacity in conducting the search, and unquestionably the plaintiff has a Fourth Amendment right to be free from unreasonable searches and seizures. In enacting § 1983, Congress intended to provide a remedy, including the recovery of damages, for such unlawful actions. *fn7" Moreover, plaintiff's allegation of a Fourth Amendment deprivation under color of state law suffices to give this court jurisdiction under § 1343(3). *fn8" Consequently, the action for damages cannot be dismissed on either theory raised by the defendants.

 Finally, defendants' motion for summary judgment must be denied because in our opinion the Complaints and Answer raise genuine issues as to material facts concerning the issue of probable cause. *fn9"

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