McLaughlin, Van Dusen, and Aldisert, Circuit Judges. Van Dusen, Circuit Judge (dissenting).
Plaintiff has appealed from the direction of a verdict for the defendants in an action brought "under the Civil Rights Statute, the Act of June 25, 1943, 62 Stat. Title 28 U.S. Code Section 1343(3) as amended is [sic] herein after more fully appears, and the 8th Amendment to the United States Constitution."
Plaintiff, a diabetic who demonstrated symptoms of intoxication when he was involved in an automobile accident, contends that in the process of a police investigation of that accident, he was physically assaulted in a Philadelphia police station. He remembers nothing of the incident or occurrences for ten days thereafter, allegedly because of his diabetic condition. He relied upon an eye witness to describe the alleged beating, and introduced no testimony, lay or medical, delineating the nature or the extent of personal injuries he allegedly received.
This appeal admits of no easy resolution. It is a procedural tour de force, and the paucity of testimony introduced at trial before a jury did not simplify the task of the district court.
Initially, we must determine the precise nature of the civil action before the trial court. This was not a pro se proceeding. Plaintiff was represented by private counsel*fn1 who, on several occasions, orally indicated that she intended to proceed under 42 U.S.C. § 1983.*fn2 In an application to amend his complaint, plaintiff made reference to § 1983, and the court order permitting the amendment explicitly referred to this statute, but the written complaint and amendment thereto were limited to 28 U.S.C. § 1343(3), described therein as "the Civil Rights Statute" and the Eighth Amendment. Amended paragraph 1(a) averred: "The jurisdiction of this court is invoked under 28 U.S.C. Section 1343(3) being action authorized by law to redress the deprivation, under color of statute, laws of this State, ordinances, regulations, custom, and usage of any right, privilege or immunity secured to plaintiff by the first and fourteenth Amendments of the Constitution of the United States." The claim for relief asked for "redress under the Civil Rights Act as mentioned."*fn3
There exist many indications, however, that this proceeding was viewed as an action under § 1983. The defendants attacked the amendment by citing § 1983 cases construing statutes of limitations. In discharging the jury, the court reported: "This case is brought under the Civil Rights Act, a recent Act of Congress passed in 1966, with some amendments since, I believe, but it goes back to an Act of 1873 or '74 known as the Civil Rights Act, which says, very briefly, that any person who deprives another of his constitutional rights acting under color of law is in violation of the Act."*fn4
Initially, we observe that 28 U.S.C. § 1343(3) is jurisdictional only. It does not supply a basis or a claim for relief. Where there is a deprivation of constitutional rights by state officers the appropriate source of explicit statutory relief is 42 U.S.C. § 1983.*fn5
To construe these written pleadings, literally founded upon § 1343, as constituting an action under the Civil Rights Act, 42 U.S.C. § 1983, would be comparable to the action of the Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), where the Court held to be sufficient a complaint against federal officers alleging naked Fourth Amendment deprivations and relying on the federal question jurisdiction statute, 28 U.S.C. § 1331. Similarly, it would appear that a complaint resting upon § 1343(3) and averring an Eighth Amendment deprivation would also suffice against federal officers. What is before us here is an action to redress an alleged invasion of federal constitutional rights by state officers, acting under color of state law. Since the cruel and unusual punishment clause has been held applicable to the states through the due process clause of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), we are at least conceptually consistent with the Bivens doctrine, even recognizing the difference that here there are state, rather than federal, officers. Whatever sovereign is served, the law enforcement officer asserting a state or federal authority occupies a formidable role vis-a-vis a private citizen. "The mere invocation of [state or] federal power by a [state or] federal law enforcement official will normally render futile any attempt to resist. . . . 'In such cases there is no safety for the citizen except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime.'" Bivens, supra, 403 U.S. at 394-395, 91 S. Ct. at 2004. Although, in the view we take, we do not meet and decide the question, the complaint filed in these proceedings bears a comfortable relationship with that filed by Mr. Bivens. "It is for the federal courts 'to adjust their remedies so as to grant the necessary relief' where federally secured rights are invaded. 'And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.' Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 777, 90 L. Ed. 939 (1946)." J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964).
We therefore look beyond the pleadings here because the district court and all of the litigants proceeded as if this were a § 1983 proceeding. F.R.Civ.P. 15(b) provides "when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." The instant action appears to represent the paradigm case of an issue not raised in the pleadings, but tried with the implied consent of the parties and the express consent of the court as a § 1983 action for money damages.
So construing these proceedings, it becomes necessary to determine the precise federal statutory violation or unconstitutional deprivation relied upon by plaintiff. We experience difficulty construing this action as one postulated on the First and Fourteenth Amendments.*fn6 We view reference to these amendments in paragraph 1(a) of the amended complaint as descriptive only of the contours of the jurisdictional statute relied upon. Indeed, there was not a scintilla of proof elicited at trial evidencing any denial of free expression protected by the First Amendment. On the contrary, the record indicates that a possible cause of the difficulty experienced by Howell emanated from his refusal or inability to speak at the time of his arrest and during the ensuing investigation. Howell offered no proof of lack of probable cause for arrest, unlawful search and seizure, or improper questioning without counsel. Indeed, his entire case is predicated upon the hypothesis that he was involved in an auto accident at a time he was undergoing diabetic symptomatology, a condition resembling intoxication and productive of amnesia. The thrust of his complaint is that the officers used unnecessary and excessive force under the mistaken impression that he was uncooperative when the reality was that he was in the throes of some phase of a diabetic coma.
In addition, in paragraph XII of both the original and amended complaints, the constitutional deprivation appeared limited to an allegation
that the defendants acted with malice and were wilful and wanton in their acts hereinabove mentioned using excessive force although unnecessary for which punative [sic] damages should be allowed.
This specific averment seems consistent with the opening paragraph of both the original and amended complaints:
This action arises under the Civil Rights Statute, the Act of June 25, 1942, 62 Stat. 932 Title 28 U.S. Code Section 1343(3) as amended is [sic] herein after more fully appears, and the 8th Amendment to the United States Constitution.
Paragraph XI of the original and amended complaints provided:
That as a proximate result of the acts and doings of the defendants and their associates, plaintiff has been injured and also has been depreived [sic] of the equal protection of the laws of the United States. The plaintiff has been compelled to incur the expense of attorneys fees and other legal costs due to the action of defendants herein, all to his damage.
On the basis of these allegations, we find that the specific pleadings are consistent with an allegation of an infliction of cruel and unusual punishment as proscribed by the Eighth Amendment.
Our conclusion is buttressed by the specific manner with which plaintiff's attorney made her opening statement, presented the evidence, and made her final argument to the court in response to the motion for directed verdict.*fn7
Now that we have determined the precise nature of this action and the constitutional deprivation asserted, we must ascertain which of these named defendants are ...