The opinion of the court was delivered by: FOGEL
This is an action brought by Glen F. Reed
against the Philadelphia Housing Authority (hereinafter referred to as PHA) and Harvey Matthews, individually and as a security guard employed by PHA. The claim against Matthews is asserted under the federal civil rights statutes, 42 U.S.C. §§ 1983 and 1988, and, apparently, under the common law of Pennsylvania, while the claim against PHA is advanced on the basis of the pendent jurisdiction of this court to hear state claims closely related to a federal cause of action. Presently before the Court is PHA's motion for judgment on the pleadings, or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Procedurally, the history of the case is complex.
Plaintiff's initial complaint was filed on October 1, 1971. Named as defendants in that pleading were PHA and John Doe and Richard Roe, unknown security officers employed by PHA. A first amended complaint was filed on April 12, 1972, which dropped Doe and Roe and added Harvey Matthews and Arthur H. Dix, who had been identified as the security officers involved. The grounds for relief in both the original and the amended complaints were not clearly delineated, but a construction most favorable to plaintiff indicates an assertion of claims against both PHA and the individual defendants under 42 U.S.C. § 1983, against the individual defendants under 42 U.S.C. §§ 1985(3), 1986, and 1988; and against all defendants under the common law of Pennsylvania.
In October, 1973, PHA and the individual defendants filed motions for judgment on the pleadings, or, in the alternative, for summary judgment, based on depositions of Reed, Matthews, Dix and Albert Paris, a Philadelphia police detective who investigated the incident. Oral argument was held on November 14, 1973. As a result of that argument, and ensuing discussions with counsel, we entered an Order with the consent of all parties on November 15, 1973, providing for the following in substance:
1. Plaintiff was directed to file a second amended complaint in which all claims against PHA based upon 42 U.S.C. § 1983 were to be deleted; any remaining claims against PHA were to be limited solely to those causes arising under the substantive law of Pennsylvania.
2. All claims against the individual defendants under 42 U.S.C. §§ 1985 and 1986 were also to be deleted, and federal claims against these defendants were to be limited to those matters which come within the purview of 42 U.S.C. § 1983.
3. Timeframes were established for filing the second amended complaint, and for motions or pleadings in response thereto.
Accordingly, plaintiff's second amended complaint was filed on November 20, 1973. While this document, like its predecessors, is hardly a model of clarity, we have determined that it substantially complies with the consent order of November 15, 1973. Thus, the pleadings now assert the following bases for relief:
FIRST: A claim against Matthews based upon 42 U.S.C. §§ 1983 and 1988, and upon the common law of Pennsylvania. (The claim against Arthur Dix has been dropped.)
SECOND: A claim against PHA grounded upon the common law of Pennsylvania, asserting direct liability and liability under the doctrine of respondeat superior.
PHA has renewed its motion for judgment on the pleadings, or, in the alternative, for summary judgment. Individual defendant Matthews has not renewed his motion; instead he has filed an answer to the second amended complaint.
At this juncture, therefore, the only matter requiring decision is PHA's pending motion for judgment on the pleadings for summary judgment, which is based upon the following legal contentions:
2. Plaintiff's failure to establish that the security guard defendant was acting under color of state law.
3. Plaintiff's failure to demonstrate that this is a proper case for invocation of the doctrine of pendent jurisdiction.
4. Plaintiff's failure to establish that 42 U.S.C. § 1988 confers an independent substantive cause of action.
Resolution of the issues presented is best achieved through discussion seriatim of PHA's legal contentions as propounded to us.
I. Deprivation of federally secured rights.
In essence, PHA contends that plaintiff is attempting to use the federal civil rights statutes as a vehicle to enlarge federal court jurisdiction to include the traditional state action for assault and battery.
Defendants admit, however, that PHA is a housing authority within the meaning of the Housing Authorities Law of May 28, 1937, P.L. 955, § 1 et seq., 35 P.S. § 1541 et seq. PHA is therefore a public body, exercising public powers of the Commonwealth of Pennsylvania as an agency thereof. Housing Authorities Law, supra, § 10, 35 P.S. § 1550.
Defendants further concede that defendant Matthews was employed by PHA as a security guard, charged with the function of maintaining order, and vested with the powers of apprehension and arrest, which include the right to use firearms under appropriate circumstances.
It is beyond question that a private citizen who is assaulted by a police officer can state a claim for relief under 42 U.S.C. § 1983. Fitzgerald v. Appolonia, 323 F. Supp. 1269 (E.D. Pa. 1971). For the purposes of the federal civil rights statutes, an assault by a security guard employed by a state agency can be treated in the same manner as an assault by a police officer, because security guards and police officers alike wear the "[badges] of authority" of a state and represent it in an official capacity. Monroe v. Pape, supra, 365 U.S. at 172, 81 S. Ct. at 476, 5 L. Ed. 2d at 497.
The exact locus within the Constitution of a right to be free from intentional and unprovoked assault by a police officer or other state official has been the subject of extensive discussion in opinions of the Courts of Appeals. This right is thought to arise from the due process clause of the Fourteenth Amendment, a right to be secure in one's person which stands separate and apart from any specific right found in the Bill of Rights. Application of undue force by law enforcement officers thus deprives the individual of liberty without due process of law. Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973). A suggested test for a constitutional deprivation in the area of security of one's person is that of "conduct which shocks the conscience", taken from the Supreme Court decision in Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952).
Some decisions have relied on the cruel and unusual punishment clause of the Eighth Amendment. Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). Other decisions have expressed considerable doubt as to whether this clause is applicable at all until after conviction and sentence. Johnson v. Glick, supra ; Anderson v. Nosser, 456 F.2d 835 (5th Cir. 1972) (en banc), cert. denied 409 U.S. 848, 93 S. Ct. 53, 34 L. Ed. 2d 89 (1972), modifying 438 F.2d 183 (5th Cir. 1971).
For the purposes of the present action, we adhere to the reasoning of Judge Friendly in Johnson v. Glick, supra, and to the latest expression of the Third Circuit, Curtis v. Everette, supra, and hold that once plaintiff proves intentional and unprovoked shooting by a state officer, he has established a valid claim under the due process clause of the Fourteenth Amendment and § 1983 of 42 U.S.C. Such conduct could well, in the words of Justice Frankfurter, "do more than offend some fastidious squeamishness or private sentimentalism." Rochin v. California, supra, 342 U.S. at 172, 72 S. Ct. at 209, 96 L. Ed. at 190.
The complaint in this case is consistent with this theory of recovery and with Curtis v. Everette, supra, in that it alleges a deprivation of plaintiff's "due process right to be free from bodily harm and injury." Second amended complaint, para. 17.
Thus, an intentional assault by a security guard employed by an agency of the state would establish a valid claim for relief under § 1983. Testimony in the deposition of Reed could justify a jury finding that the assault was intentional.
Even if defendant Matthews' account of the incident were believed,
a jury might conclude that the shooting constituted "gross or culpable negligence", a "raw abuse of power" by an officer of a state agency, thus supporting plaintiff's contention that a valid cause of action exists under § 1983. Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970); Mullins v. City of River Rouge, 338 F. Supp. 26 (E.D. Mich. 1972).
The Jenkins case, supra, involved a factual situation similar to the one before us. Plaintiff Jenkins was an eighteen year old boy who was shot by an officer of the police department of Asheville, North Carolina. The record contained conflicting testimony with respect to the deliberate or accidental nature of the shooting.
The appellant maintains that the shooting was deliberate. Indeed he testified that after he was shot, appellee took aim again, but by that time Bumpus, who had now also left the police ...