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BOND v. COUNTY OF DELAWARE

December 20, 1973

Earl West BOND, Sr., Plaintiff,
v.
COUNTY OF DELAWARE et al., Defendants


Huyett, District Judge.


The opinion of the court was delivered by: HUYETT

HUYETT, District Judge.

Before us are defendants' motions, (1) to dismiss pursuant to Fed. R. Civ. P. 12(b) (1) for lack of subject matter jurisdiction and pursuant to 12(b) (6) for failure to state a claim upon which relief may be granted, (2) for judgment on the pleadings, and (3) for a more definite statement.

 Plaintiff was employed by Delaware County from January 7, 1970 until August 8, 1970 as a prison guard at the Delaware County Prison. On August 8, 1970 he was suspended from employment as a prison guard, and on August 10, 1970 the suspension was made permanent. Plaintiff alleges that his employment was terminated because he refused to contribute to the Republican Party of Delaware County. It is alleged that the defendants' action violated plaintiff's rights to freedom of association and due process of law as secured to him by the First and Fourteenth Amendments to the United States Constitution. Suit is brought pursuant to §§ 1 and 2 of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(3) (1970). Jurisdiction is conferred by 28 U.S.C. § 1343(3), (4). No jurisdictional amount is required, Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972). In his prayer for relief plaintiff seeks both injunctive and monetary relief.

 Two classes of persons have been joined as defendants. The first class of defendants ("statutory defendants") consists of the County of Delaware, the County Commissioners, District Attorney, Controller and Sheriff of the County of Delaware. The second class of defendants ("non-statutory defendants") consists of those persons constituting the Delaware County Republican Board of Supervisors which body plaintiff alleges "directs and controls decisions of County employees and officers with respect to whether or not a County employee is to be retained as a County employee or discharged." The warden of Delaware County Prison, who notified plaintiff of his termination of employment, was not named as a defendant. Even though the complaint states that the defendants are being sued in both their official capacity and as individuals, it is clear from the complaint that the statutory defendants were made parties to this action for the sole reason that plaintiff considers them to be vested with powers to govern and manage the Delaware County Prison pursuant to certain state statutes. Indeed, much of the memoranda of law in this case was directed to the question whether the statutory defendants are vested with any power over the prison. It is the statutory defendants' position that their only function in regard to the prison is to approve a budget submitted by the Board of Prison Inspectors (BPI). It is the BPI, the statutory defendants contend, which governs and manages the prison. Thus, except insofar as the statutory defendants are also members of the non-statutory class, we will treat the statutory defendants in deciding their motions to dismiss as having taken no action with regard to the plaintiff either directly or as part of a conspiracy other than that with which they may be vested by state statute.

 This treatment is to be contrasted with the position occupied by the non-statutory defendants. In relation to these defendants it is alleged that their power to act in a manner affecting plaintiff's employment is without regard to the parameters of any statutory authority. Thus, in analyzing plaintiff's allegations concerning actions taken by the non-statutory defendants we will not be limited to the grant of any statutory authority.

 With this distinction between the defendants in mind we proceed to consider defendants' motions.

 Initially, we will deny the motions for a more definite statement made by all the statutory defendants other than the County of Delaware and the Commissioners of the County. The complaint is not "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading . . . ." Fed. R. Civ. P. 12(e). See United States ex rel. Brzozowski v. Randall, 281 F. Supp. 306 (E.D. Pa. 1968); 2A Moore, Federal Practice para. 12.18 (2d Ed. 1972). We will also deny the motions to dismiss for lack of subject matter jurisdiction made by the same statutory defendants. See Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946). Plaintiff's claim under the Constitution and federal statutes does not clearly appear "to be immaterial and made solely for the purpose of obtaining jurisdiction [nor is the claim] wholly insubstantial and frivolous." Bell v. Hood, 327 U.S., supra, at 682, 66 S. Ct., at 776.

 There are two elements to a cause of action under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. There must (1) be action under color of any statute, ordinance, regulation, custom or usage of any State, and (2) the action must subject the plaintiff to a deprivation of a right, privilege or immunity secured by the Constitution and laws. District of Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L. Ed. 2d 613 (1973); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Lavoie v. Bigwood, 457 F.2d 7 (1 Cir. 1972); Palacios v. Foltz, 441 F.2d 1196 (10 Cir. 1971); Haldane v. Chagnon, 345 F.2d 601 (9 Cir. 1965). In analyzing the actions against the statutory and non-statutory defendants respectively we will first treat the question whether there is action under color of a state statute.

 A. Action Under Color of State Statute

 1. Action by the Statutory Defendants. In deciding the motions to dismiss made by the defendants, we must accept as true the allegations of the complaint. Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969). The complaint alleges that on April 15, 1970 the plaintiff received his normal bi-weekly paycheck to which was attached a stub itemizing certain normal deductions from his salary. Stapled to the stub was a slip of paper bearing the typewritten notation: "Bond, Earl Sr. Guard $230.00." From inquiry with another guard at the Delaware County Prison, who also happened to be a Republican Committeeman in the City of Chester, Delaware County, the plaintiff learned that the paycheck stub was an assessment against him for $230.00 to be paid to the Republican Party of Delaware County as a condition of continued employment. On or about April 30, 1970, plaintiff paid $15.00 on account toward the total assessment of $230.00 to a clerk at the Delaware County Prison who accepted payment, plaintiff alleges, on behalf of the Republican Party of Delaware County. Plaintiff subsequently received a receipt evidencing his payment of $15.00.

 After April 30, 1970 the plaintiff complained to John T. Ziegler, Warden of Delaware County Prison, about the assessment. In response to plaintiff's complaint Mr. Ronald Walker, Deputy Warden of Delaware County Prison, advised plaintiff to register as a Republican if plaintiff wanted to keep his job. In June 1970 plaintiff registered as a Republican. After making the first payment of $15.00, plaintiff refused to make any further payments on the assessment.

 The complaint continues that on or about August 8, 1970, Warden Ziegler suspended plaintiff from employment without giving reasons. At the time Warden Ziegler suspended the plaintiff from employment, the Warden was acting pursuant to instructions received from the defendants. At the time of suspension plaintiff was advised by the Warden that plaintiff would be granted a hearing before the Prison Board on August 12, 1970. On August 10, 1970 the plaintiff received a letter signed by Warden Ziegler notifying plaintiff that his employment by the County as a prison guard had been permanently terminated. No hearing on the reasons for suspension and termination of plaintiff's employment was ever held; no reasons have been given by the Warden for plaintiff's termination. Plaintiff alleges that the decision to terminate his employment was made by the defendants.

 It is alleged that the defendants' action injured his reputation in the community. He further alleges that the termination of employment was made without reason or cause, that it is unsupported by competent evidence and in violation of his constitutional rights of due process and of freedom of association and expression. Plaintiff claims he is entitled to a due process hearing with a right to be heard, notice of reasons for dismissal, an opportunity to confront and cross-examine, to rebut adverse evidence, right to the assistance of counsel, right to an impartial hearing officer and other rights normally attendant to a fair adjudication.

 Plaintiff contends that the statutory defendants directed that plaintiff's employment be terminated pursuant to their authority to govern the Delaware County Prison as established by the Act of May 16, 1921, P.L. 579, § 1, as amended, 61 P.S. § 408 and the Act of December 14, 1967, P.L. 846, § 2, 16 P.S. § 11482. The Act of May 16, 1921, 61 P.S. § 408, provides that the governance and management of prisons in the third, fourth, and fifth class counties is vested in a board consisting of the judges of the court of quarter sessions, *fn1" the district attorney, sheriff, controller and the commissioners of the county. At the time of enactment of the Act of May 16, 1921, 61 P.S. § 408, Delaware County was a third class county. Section 6 of that Act, 61 P.S. § 408 (historical note), provides that the Act will "not be construed to repeal any special laws relating to the management of jails or county prisons in the counties affected" by the Act.

 Delaware County, a third-class county at the time of enactment of the Act of May 16, 1921, 61 P.S. § 408, had in effect at that time a special law placing the responsibility for governance and management of the Delaware County Prison in a Board of Prison Inspectors (BPI). The BPI consists of five persons residing in the county, three of whom are appointed by the judges of the court of quarter sessions and the remaining two appointed by the county commissioners. This special law is the Act of April 11, 1866, P.L. 588 which incorporates the provisions of a special law applicable to a Prison of the County of Chester, Act of February 1, 1839, P.L. 10. It is under the provisions of the Act of April 11, 1866, P.L. 588 that the statutory defendants contend that the authority to govern and manage the prison is in the hands of the BPI. None of the statutory defendants is apparently a member of the BPI.

 By the Act of October 20, 1967, P.L. 472, § 1, 16 P.S. § 3102 (1972 Supp.) Delaware County was classified as a 2-A county. Plaintiff contends that Delaware County Prison is governed by the Act of May 16, 1921, 61 P.S. § 408, even though it is no longer a third-class county and even though the Act of May 16, 1921, 61 P.S. § 408 contained a provision saving from repeal the Special Act of April 11, 1866. Plaintiff argues initially that the Act of May 16, 1921, 61 P.S. § 408, did repeal the Act of April 11, 1866. Repeal is said to result from the manner in which the Act of May 16, 1921, 61 P.S. § 408, has been amended and re-enacted since 1921. There have been three amendments to the Act of May 16, 1921 since its original enactment. The amendments were made by the following Acts: Act of May 2, 1949, P.L. 809, § 1; Act of July 29, 1953, P.L. 1013, § 2; Act of January 25, 1966, P.L. 1577. Both the original Act and the first amendment in 1949 contained specific provisions saving from repeal any special or local laws previously enacted. The 1953 and 1966 amendments, however, contain no similar provisions. Based on a rule of statutory construction contained in the Statutory Construction Act of May 28, 1937, P.L. 1019, Art. VI, § 81, 46 P.S. § 581, plaintiff argues that by omitting the saving clause from the 1953 and 1966 amendments the legislature in effect repealed the saving clause contained in the original 1921 Act and the first amendment to the Act in 1949. The rule of construction plaintiff relies on states:

 
Whenever a law re-enacts a former law, the provisions common to both laws shall date from their first adoption. Such provisions only of the former law as are omitted from the re-enactment shall be deemed abrogated, and only the new or changed provisions shall be deemed to be the law from the effective date of the re-enactment.

 Act of May 28, 1937, P.L. 1019, Art. VI, § 81, 46 P.S. § 581. It is therefore concluded by plaintiff that since January 1, 1954, the effective date of the Act of July 29, 1953, P.L. 1013, § 2, which amendment to the 1921 Act first omitted a savings clause, the savings clause of the 1921 Act and its 1949 Amendment have been repealed. The effect of this conclusion is that it can then be argued by plaintiff that the more general and exclusive terms of the Act of May 16, 1921, 61 P.S. § 408, govern over ...


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