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EVERETT v. CITY OF CHESTER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


March 10, 1975

CHARLES EVERETT ANITA EVERETT, KENNETH WATSON
v.
THE CITY OF CHESTER, JOHN H. NACRELLI, individually and in his capacity as Mayor of the City of Chester; JOSEPH M. BAIL, individually and in his capacity as Chief of the City of Chester Police Department; JOHN A. SLOWICK, BADGE #12, individually and in his capacity as an officer in the Chester Police Department; JAMES SCHWARTZ, individually and in his capacity as an officer in the Chester Police Department; JAMES J. CARR, BADGE #67, individually and in his capacity as an officer in the Chester Police Department; JOHN TAYLOR, BADGE #77, individually and in his capacity as an officer in the Chester Police Department; STEPHEN P. FOX, BADGE #11, individually and in his capacity as an officer in the Chester Police Department; OFFICER CURRAN, individually and in his capacity as an officer in the Chester Police Department; OFFICER FINN, individually and in his capacity as an officer in the Chester Police Department; OFFICER MORROW, individually and in his capacity as an officer in the Chester Police Department; OFFICER BENSON, individually and in his capacity as an officer in the Chester Police Department; CAPTAIN WILLIAM HAMILTON, individually and in his capacity as an officer in the Chester Police Department; OFFICER WENDELL BUTLER, individually and in his capacity as an officer in the Chester Police Department (DEFENDANTS)

The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

 BECHTLE, District Judge.

 This civil rights action arises out of the arrest, imprisonment, and subsequent prosecution of the plaintiffs following a disturbance at Chester High School, Chester, Pennsylvania. The complaint, based on 42 U.S.C. §§ 1981, 1983, and 1985(3), alleges that as the plaintiffs were leaving the scene of the above-described disturbance they were subjected to verbal abuse, physically beaten, and then unlawfully arrested by police officers in the City of Chester Police Department. Defendants have filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted.

 Read in the light most favorable to the plaintiffs, the complaint sets forth the following operative facts: *fn1" On November 8, 1973, plaintiffs were called to the grounds of Chester High School to quell a disturbance between the daughter of plaintiffs Charles and Anita Everett and another Chester High School student. After a considerable crowd had gathered outside the school, members of the Chester Police Department were called to the scene. The plaintiffs had extricated the young girl from the disturbance and were attempting to leave the scene when they were halted by police officers of the Chester Police Department. The plaintiffs allege that at this point in time they were verbally abused, beaten, and arrested by the police officers. According to the complaint, the plaintiffs were again beaten by the police officers upon their arrival at the Chester Police Station.

 Subsequent to the arrest and detention of the plaintiffs, members and officials of the Chester Police Department made statements to the representatives of the Delaware County media which defamed plaintiffs in their community.

 Plaintiffs were indicted for riot, simple assault, aggravated assault, and carrying a prohibited offensive weapon. Except for simple assault, all of the charges against Charles Everett were dropped before trial. *fn2" The trial on the charge of simple assault ended in a mistrial and was relisted for December 9, 1974.

 Discussion

 Plaintiffs seek redress in damages for false arrest and detention, the use of unreasonable force in the effectuation of an arrest, malicious prosecution, and defamation. In short, an action for false arrest and detention and the use of unreasonable force in the course of an arrest may properly be brought under 42 U.S.C. § 1983. For reasons hereinafter enumerated, plaintiffs' claims for defamation and malicious prosecution will be dismissed.

 With respect to the statements concerning plaintiffs' arrest and incarceration made by members of the Chester Police Department to the local media, the law is clear that the Civil Rights Act does not give rise to a cause of action for defamation. Azar v. Conley, 456 F.2d 1382, 1389 (6th Cir. 1972); Church v. Hamilton, 444 F.2d 105, 106 (3rd Cir. 1971); Keen v. Philadelphia Daily News, 325 F. Supp. 929, 930 (E.D. Pa. 1971). A claim for defamation "does not implicate any federally-protected rights and is not cognizable under 42 U.S.C. § 1983." Rosenberg v. Martin, 478 F.2d 520, 524 n.4 (2nd Cir. 1973).

 Plaintiffs claim that they were arrested and detained without probable cause in violation of the Fourth and Fourteenth Amendments. An individual's right to be free from unlawful arrest and detention is a constitutionally protected right which, if violated, may be a basis for an action under § 1983. Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974); Green v. Cauthen, 379 F. Supp. 361 (D. S.C. 1974); Luker v. Nelson, 341 F. Supp. 111 (N.D. Ill. 1972). Unless the arresting officers are able to prove that they acted under the good faith and reasonable belief in the validity of the arrest, plaintiffs may recover under § 1983 for an unconstitutional arrest and detention. Street v. Surdyka, supra at 374; Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973).

 The use of excessive or unreasonable force in the effectuation of an arrest gives rise to a cause of action under § 1983, for the application of undue force by law enforcement officers results in the deprivation of liberty without due process of law. Reed v. Philadelphia Housing Authority, 372 F. Supp. 686, 689 (E.D. Pa. 1974). Plaintiffs have the constitutional right to be free from an unreasonable and unwarranted violation of their physical integrity by police officers, even in the course of an otherwise valid arrest. Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972); Lucas v. Kale, 364 F. Supp. 1345, 1348 (W.D. Va. 1973).

 Plaintiffs also claim that they were "subjected to illegal criminal prosecution." *fn3" As previously discussed, the plaintiffs were indicted for riot, simple assault, aggravated assault, and possession of a prohibited offensive weapon. Presumably, the police officers involved in this case initially lodged the above-stated charges against the plaintiffs. However, it is clear that the named defendants cannot be held responsible for the indictment and ultimate prosecution of the plaintiffs. Such responsibility must lie with the District Attorney, and not with the police officers.

 Furthermore, the complaint fails to allege that the criminal proceedings have terminated in favor of the plaintiffs. *fn4" The favorable termination of the criminal proceedings is the sine qua non of a claim for malicious prosecution. Sullivan v. Choquette, 420 F.2d 674, 676 (1st Cir. 1969), cert. denied, 398 U.S. 904, 26 L. Ed. 2d 62, 90 S. Ct. 1691; Gaito v. Strauss, 249 F. Supp. 923 (W.D. Pa. 1966), aff'd, 368 F.2d 787 (3rd Cir. 1966), cert. denied, 386 U.S. 977, 18 L. Ed. 2d 139, 87 S. Ct. 1173.

 Plaintiffs have failed to state a cause of action under 42 U.S.C. § 1985(3). Paragraph 26 of the complaint reads as follows:

 

"In doing the acts and things above complained of, the Defendants were conspirators engaged in a scheme and conspiracy designed and intended to deny and deprive the Plaintiffs' rights guaranteed to Plaintiffs under the Constitution . . ."

 The above paragraph is totally devoid of the requisite factual specificity required to state a claim pursuant to § 1985(3). Conclusory claims of conspiracy unsupported by factual allegations regarding an agreement are insufficient to establish a § 1985(3) claim. Lucas v. Kale, supra at 1374; Droysen v. Hansen, 59 F.R.D. 483, 484 (E.D. Wis. 1973). The essence of a § 1985(3) conspiracy is an agreement to deprive the plaintiffs of the equal protection of the law. Collins v. Bensinger, 374 F. Supp. 273 (N.D. Ill. 1974). In order to state a claim under § 1985(3), the conspiracy allegations must be supported by specific facts. Robinson v. McCorkle, 462 F.2d 111 (3rd Cir. 1972). Other than the bare averment that the "defendants were conspirators," the instant conspiracy count does not set forth any factual allegations concerning the membership, formulation, or purpose of the alleged conspiracy. Consequently, the § 1985(3) claim will be dismissed.

 Finally, the City of Chester has been named as a defendant in this civil rights action. The law is well established that a city or municipality is not a "person" within the meaning of § 1983 and, therefore, not subject to suit under the Civil Rights Act. City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Lehman v. City of Pittsburgh, 474 F.2d 21 (3rd Cir. 1973). The plaintiffs' claim under § 1983 against the City of Chester will, therefore, be dismissed.

 In addition to the § 1983 action, plaintiffs have invoked the jurisdiction of the Court pursuant to 28 U.S.C. § 1331. Because the defendant City of Chester is not subject to suit under § 1983, the question of whether the plaintiffs may properly pursue their claim for damages against the City of Chester depends upon the availability of § 1331 jurisdiction. In that the requisite jurisdictional amount has been alleged and the defendant police officers are employees of the City of Chester, defendants' motion to dismiss as to the City will be denied at this time.

 ORDER

 AND NOW, TO WIT, this 10th day of March, 1975, upon consideration of defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted, and upon consideration of the memoranda in support and opposition thereto, IT IS ORDERED as follows:

 1. The defendants' motion to dismiss as to the plaintiffs' claim under 42 U.S.C. § 1985(3) is granted.

 2. The defendants' motion to dismiss the plaintiffs' claims for defamation and malicious prosecution brought under 42 U.S.C. § 1983 is granted; the motion to dismiss as to the § 1983 claims for false arrest and detention and the use of unreasonable force in the effectuation of the arrests in question is denied.

 3. The defendants' motion to dismiss the plaintiffs' claim against the City of Chester, insofar as such claim is based upon § 1983, is granted; the motion to dismiss insofar as such claim is based upon 28 U.S.C. § 1331 is denied.

 LOUIS C. BECHTLE, J.


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